In India, the Constitution is the Supreme law of land. No other law is superior over the constitution. If any provision is mentioned in the Indian constitution, then all other laws must be in accordance with that provision. In our constitution, provisions regarding arrest have not been mentioned exactly or directly. But an inference regarding arrest can be made from article 21 of the constitution which says "No person shall be deprived of his life or personal liberty except according to the procedure established by law". This article thus, mentions that no one can deprive a person of his life or personal liberty except when such deprivation is done as per any such law.This exception leads also to the concept of arrest. Under Arrest, a person is deprived of his personal liberty but as this deprivation is done in accordance with the laws enforced, thus it is not in violation of any article. There are different provisions for arrest according to the person, law, offence, situation, etc., but some general similar things are considered while arresting a person.
WHAT IS ARREST ?
The term 'Arrest' has not been defined in any law or code of criminal offences. But there are significant case-laws that lead to define
'Arrest' as “deprivation or apprehension or restraint of one’s personal liberty by the way of confinement”.
In state of Haryana V. Dinesh Kumar (2008), Supreme Court of India observed that the only indication as to what constitutes arrest can be found in section 46 of Crpc that describes the mode in which arrest is made. The SC held that arrest consists of taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing commission of a criminal offence.
The four requirements were mentioned by the court in Roman Beevi V. Joint Secretary to the Govt. of Tamil Nadu for helding a restraint as 'Arrest' which are as follows -
1. Intent to arrest under legal authority
2. Seizure of detention of person
3. Person must be in lawful custody of arresting person
4. Must be actual confining of person and not mere oral declaration of arrest
ARREST IN CrPC
Sections 41 to 60A of the Criminal Procedural Code, 1973 mentioned all the provisions regarding 'Arrest of persons'. It provides for the ways of arresting a person along with the reasons to arrest that can be easily understood from these sections. Crpc has also established the procedure to arrest a person. The rights not only of the arrested person but also of the Police Officers are mentioned in Crpc.
WAYS OF ARREST
There are generally two ways of arresting a person that are mentioned in CrPC -
1. Arrest with Warrant
2. Arrest Without Warrant
WHY TO ARREST ?
Presence of a sufficient reason to arrest a person is mandatory in all situations. In absence of a sufficient reason, the arresting authority can be made guilty of wrongful detention and such offences. Hence, arrest is made by a person with a belief that the suspect has committed, is commiting or is about to commit a crime.
Following reasons can be inferred from Crpc for arresting a person -
1. For presenting the accused or securing his attendance at trial
2. For preventing an apprehended offence or as precautionary measure
3. For removing the obstructions which are created by the police
4. For acquiring the correct name and address of the person arrested
5. For retaking a person who has escaped from custody
WHO CAN ARREST ?
Sections 41 to 45 of Crpc mentions about the Arresting Authorities, thus informing about the persons who can arrest an offender and about the circumstances in which such arrest can be made.
• Section 41 – ‘Arrest by police without warrant' - The police can arrest a person without warrant i.e order of magistrate if he has committed a cognizable offence or is doing house-breaking or is caught red-handed or is trying to destruct the police area or if any such thing is ordered by the state.
• Section 42 - 'Arrest for non-cognizable offences' - A person can be arrested by the police for non - cognizable offences also, provided that he is refusing to provide his correct details of name and address or if the police suspects of false details being provided by the offender.
• Section 43 - 'Arrest by private person' - A common citizen of India can also arrest a person if he suspects that the person has committed, is commiting or is going to commit a cognizable and non-bailable offence. But in such cases, it is essential to handover the arrested person to police as quickly as possible. The Police will take the further actions.
• Section 44 - 'Arrest by magistrate' - When any offence is committed in the presence of magistrate, whether executive or judicial, within his local jurisdiction, he can himself arrest or can order any person to arrest the offender.
• Section 45 - 'Protection of members of armed forces from arrest' - The police cannot arrest armed forces personnel while the personnel is performing his duty. But if an order is passed by the Central govt in this regard, then the arrest of the personnel is possible.
HOW TO ARREST ?
Section 46 of Crpc provides for the procedure to be followed for arrest of a person under Crpc. To arrest a person, it is necessary on the part of arresting authority to touch that person and do actual confinement of his body. But in case of self-submission by the person, this is not required condition as held by the court in Bhorosa Ramdayal V. Emperor. If the person forcibly resists the endevor to arrest him or attempts to evade the arrest, then the police officer or other person can use all means necessary to effect the arrest. Hence, force can be used by the arresting authority, but it should not be excessive and not be so much that can lead to death of the person. Crpc also mentions some provisions for arresting a women helding that a women can be arrested only between sunrise to sunset. Besides that, it is also mentioned that while arresting a woman, a woman police officer should be present there.
In Birendar Kumar Rain V. U.O.I. (1992), the Court held that handcuffing is not mandatory for arresting a person.