Arrest is a crucial concept in criminal law where a person is taken into custody by legal authority to ensure their presence in a criminal investigation or trial. It plays a vital role in maintaining law and order and ensuring the accused faces the justice system.
Meaning and Legal Definition of Arrest
- The term “arrest” has not been explicitly defined in the Criminal Procedure Code (CrPC), 1973.
- However, it generally means a restraint on a person’s liberty by legal authority.
- It involves taking a person into custody to prevent them from committing further offences, tampering with evidence, or evading legal proceedings.
Legal Provisions Governing Arrest in India
1. Criminal Procedure Code (CrPC), 1973
- Section 41: When police may arrest without a warrant.
- Section 46: Manner of arrest.
- Section 50–60: Rights of arrested persons and procedures to be followed.
2. Indian Penal Code (IPC), 1860
- Provides for punishment of offences for which a person may be arrested.
3. Constitution of India
- Article 22(1): Provides rights to arrested persons, including the right to be informed of the reason and the right to legal counsel.
Types of Arrest
- Arrest with Warrant: Ordered by a magistrate under CrPC when police need permission to arrest.
- Arrest without Warrant: Allowed under Section 41 CrPC if a person is caught committing a cognizable offence or if there’s a valid reason to suspect involvement.
- Arrest by Private Person: Permitted under Section 43 CrPC in limited situations (e.g., when someone commits a non-bailable and cognizable offence in the presence of the arresting individual).
- Preventive Arrest: Made to prevent a person from committing a crime (e.g., under preventive detention laws like NSA).
Procedure of Arrest
- Arresting officer must identify themselves and show credentials (especially when not in uniform).
- Must inform the arrestee of the reason for arrest (Section 50 CrPC).
- Warrant, if any, must be shown.
- Use of reasonable force allowed if the person resists.
- Women can only be arrested by female officers and not after sunset unless directed by a magistrate.
- Medical examination is to be conducted post-arrest.
- Arrested person must be produced before a magistrate within 24 hours (Article 22(2), CrPC Section 57).
Rights of an Arrested Person
- Right to be informed of the grounds of arrest.
- Right to legal representation (Article 22(1), Constitution of India).
- Right to remain silent under Article 20(3).
- Right to be produced before a magistrate within 24 hours.
- Right to free legal aid.
- Right to have a friend or relative informed of the arrest.
Important Case Laws
D.K. Basu v. State of West Bengal (1997)
- Supreme Court laid down guidelines for arrest and detention to prevent custodial violence.
- Made it mandatory to maintain an arrest memo, inform relatives, and conduct medical exams.
Joginder Kumar v. State of U.P. (1994)
- Emphasized that arrest should not be routine and must be justified.
- Police must inform the arrestee’s family or friends immediately.
Safeguards Against Illegal Arrest
- Magistrate can order release if arrest is found unlawful.
- Bail applications can be moved to prevent unjust detention.
- Habeas corpus petitions can be filed in High Court or Supreme Court.
- NHRC and State Human Rights Commissions monitor custodial rights.