The origin of term ‘Arrest’ is from the French word ‘Arret’ which means ‘to stop or stay’ away from someone or something.
Arrest is the apprehension of a person by legal authority for the deprivation of personal liberty .Every deprivation of personal liberty and physical restrain does not amount to arrest, only a deprivation by public authority amounts to arrest.
In the case of R.R.Chari Vs State of Uttar Pradesh the SC define the term arrest as ‘the act of being taken into custody to be formally charged with crime.’ Where the difference between arrest and custody has been drawn as every custody can be the arrest but not vice versa. Mere, have been taking into custody not amounts to arrest but it will empower to arrest the suspect.
According to the constitution of India Article 21 & 22 give importance towards the personal liberty and arrested persons right which has become the soul of CrPC section 41-61.
Arrest is the first stage of any criminal proceeding against a suspected person in any case. In the Criminal Procedure Code 1973, states about the procedure of arrest but it don’t even define the term arrest. Moreover, under this code from section 41-61 the procedure of arrest and arrested persons rights were given.
Arrest can be of two types:-
1. Arrest without warrant.
2. Arrest with warrant .
In case of arrest by police officer can be done only in the cognizable offences (arrest without warrant).which means there was no requirement of arrest warrant as the serious of offence have more gravity. Section 45 of code provides exception of arrest in case of military person who is discharging his duty and arrest can be take place only by the permission of the government. Magistrate can also arrest an accused without warrant if offence take place at the local limits and in the presence of magistrate as well he has jurisdiction to grant warrant over that offence later.
Arrest with warrant can be done in the non-cognizable offences where the police officer has an appropriate time to reach the magistrate and get warrant of arrest against the accused. Also accused can’t be handcuffed without the permission of the magistrate.
In section 44 of CrPC 1973, provides right to arrest by an individual person also where the offence is of non-bailable and cognizable in nature only.
Further, in section 46 of CrPC arrest can be held by the police officer or any other person can be done by actually touching the body or confinement of person movement where it has been expressly told to submission before custody. In a situation where person resist himself to submit or try to escape from the place the authority can use reasonable force against the body.
This section does not provide right to any officer to cause death of any accused who is not in the offence which amounts the punishment for the death or life imprisonment.
In the case of State of Maharashtra Vs Christian community council of India laid down a landmark judgment for the arrest of women as:-
Arrest of women have an special status no women can be arrest without a female constable and arrest of female can be done by female constable only. Further, there can be no arrest of female before or after sunrise and sunset respectively but there was an exception where arrest can be made only by prior order taken by magistrate who have jurisdiction over that offence. Moreover they have as separate cell for their custody and medical examination can only be held by female medical practioner.
In the case of D.K.Basu Vs State of West Bengal it laid down the rights to the arrested person as follows:
• Under section 50 of CrPC its a responsibility of arrester to tell the ground of arrest in the offence as well as to be informed about the ground of bail in the particular offences
• Under section 75 of CrPC In the case of arrest done with an arrest warrant its responsibility of the officer to show the arrest warrant to the accused where a proper name ,residence ,offence have been written and signed by the magistrate if any of the condition not mention in the warrant that warrant called to be illegal.
• In amendments take place at section 41 states about the arrest is not compulsory in every case but by simply providing notice of appearance to the accused and he obey that notice so its not necessary to arrest accused.
• Police officer should have a clear appearance, visible and clear identity card for easily identifying the officer and have an arrest memo with him before arresting an accused which provides information to its family, neighbour, or one of his friend and that can be self attached by the arrestee.
• He has a right to appoint his legal advisor under Article 22 of Indian constitution.
• Accused should be produce before the magistrate within the 24 hours after his arrest. Under section 56 of Crpc.
• He have right to remain silent according to section 20(3) of Indian constitution not to make pressure over the accused for self- incrimination.
Although there are protections given to the arrest person but due to lack of information the power to arrest have been exploited many arrestee. In many cases the misuse of power to arrest has been shown.
Joginder Singh vs state of U.P
In this case it was held that petitioner was goes to the Supreme Court under article 32 of constitution where he stated that he was detained by the Uttar Pradesh police for five days without informing his family. It was held that the arrested person information should be given to his close ones.
Ratilala raghavjibhai Vs State of Gujarat
In this case police come to the house of accused who was charged for theft as he wasn’t present there the police take away his son with them this shows the meaningless arrest of a son and misuse of power.
[a] AIR 1951 SC 207.
[b](2003) 8 SCC 546
[c](1997) 1 SCC 416
[d](1994) 4 SCC 260