Meaning Of Arrest And Important Rights Relating To It
What is Arrest?
Types of Arrest
Who may arrest?
A police officer can arrest without a warrant under the following conditions
Supreme Court guidelines for arrest and detention
Rights of the arrested person in India
What is Arrest?
Definition and meaning
Usually, the lawbreaker is arrested. So, what is Arrest? In general terms, 'arrest' would mean that they lose some of their freedom and independence when a person is arrested. They have been brought under control. However, the Criminal Procedure Code of 1973, which deals
with aspects of arrest, has not defined 'arrest.' When a person is arrested,
the arrested person is taken into the custody of an authority empowered by law to detain that person. The person is then asked to answer the charges against him and is taken into custody so that no further offense is committed. In criminal law, an arrest is an essential means of bringing an accused before a court and preventing him from absconding.
According to the Legal Dictionary by Farlex, "arrest" means "a seizure or forcible restraint. The exercise of power to deprive a person of his liberty. The detention or detention of a person by a legal authority, especially, in response to a criminal charge." The object of arrest is to bring the arrested person before the court or otherwise to secure the administration of law. An arrest also informs the community that a person has been charged with a crime and may deter the arrested person from committing another offense. Arrests can be made in criminal and as well as in civil cases; however, in civil cases, an arrest is a coercive measure, which is not seen in favor of the courts. In Indian law, the Code of Criminal Procedure 1973, Chapter V (Sections 41 to 60) talks about the arrest of a person, but it nowhere defines arrest.
Types of Arrest: Two types of Arrest
1. Arrest made given a warrant issued by a Magistrate.
2. Arrest without such warrant, but specific legal provisions permit such arrest.
Who may arrest?
- An arrest can be made by police, Magistrate, and even a private person: Section 41(1) of CrPC states: Any police officer can arrest without the order of a magistrate and also without a warrant if a cognizable offense is committed by a person who has stolen property or is an offender of the State who obstructs a police officer in the discharge of his duty who attempts to escape from legal custody, who is declared to have deserted from any armed force of the Union, who is a released offender and has breached his contract of release, etc.
- Section 43 empowers that any private person can arrest a person without a warrant only if that person is a declared offender under section 82 of CrPC and that person commits a non-bailable offense and a cognizable offense in his presence; With a warrant under sections 72 and 73, under section 37 under a police officer, and section 37 and 44 CrPC and 60(1) CrPC under the order of a magistrate.
- Section 44 of Arrest by Magistrate under Section 44(1) of the CrPC empowers the Magistrate to arrest anyone who has committed an offense in his presence and may also take him into custody. After that, subject to the provisions contained herein as to bail, may take the offender into custody.
- Section 45 of the CrPC exempts armed forces members from being arrested for anything they do in the discharge of their official duties except with the government's consent.
- Section 46 of CrPC specifies when to arrest an offender with or without a warrant. Special rights for women are given in section 46(4), which prohibits the arrest of women after sunset and before sunrise except in exceptional circumstances; if the arrest of the woman is necessary, a written the report may be made by a woman police officer after obtaining prior permission from a Judicial Magistrate of the first class.
A police officer can arrest without a warrant under the following conditions (Sections 41, 42, 151 of CrPC):
- Who has been involved in any cognizable offense or who is in possession, without a valid excuse, of any weapon that breaks the house, or
- Who has been declared an offender under the CrPC or by order of the State Government, or
- Who obstructs or interrupts a police officer in the
- Performance of his duty or one who has escaped, or
- Attempts to escape from legal custody, or who is reasonably suspected of being a fugitive from any of the armed forces of the Union, or
- Who has been involved in any law relating to extradition or
- Who has any stolen property or
- Who, being a released offender, contravenes any rule made under sub-section (5) of section 356 of the CrPC, or
- For whose arrest a demand has been received from any other police officer specifying the person to be arrested and the offense and other reasons for which the arrest is to be made.
Supreme Court guidelines for arrest and detention:
Case: DK Basu v State of West Bengal, 1996
Here are the guidelines of the Supreme Court related to arrest and detention:
- The police officer who will arrest a person should carry a name tag with accurate, visible, and precise identification and designation. The details of all police officers/constables interrogating the detained person should be entered in the register.
- The police officer making the arrest shall prepare an (arrest memo) memorandum of arrest and mention the time and date of arrest. Such memorandum must be attested by at least one witness who can be either a family member of the arrested person or an acquaintance. The memo shall be signed by the arrested person and shall contain the time and date of the arrest.
- A person arrested is entitled to inform (within 12 hours) that his friend, relative, or other person is known to him.
- The police should inform the time, place, and place of detention of the arrest of a friend or relative, or acquaintance.
- He must be informed of his rights regarding the person's arrest; an entry should be made in the case diary at the place of detention and the next friend of the arrested person to whom the notice of arrest has been given.
- The arrested person, whom he requests, should also be examined at the time of his arrest, and the major and minor injuries present on his body at that time should be recorded.
- He must be examined by a trained medical practitioner (Section 54).
- Share the copies of all documents, including the arrest memo, which should be sent to the Magistrate for his record.
- A person arrested during interrogation may be allowed to meet his lawyer and not during interrogation.
- A Police Control Room should be made available at all Districts and State Headquarters, where the arresting officer shall give information about the place of arrest and detention within 12 hours of the arrest, and this should be displayed on a notice board.
1. Rights of the arrested person in India:
In India, the accused enjoy certain rights, the most basic of which are found in the Indian Constitution. Article 21 of the Indian Constitution provides some ray of hope in the lives of those arrested, under trial, and convicted. Such people should be treated humanely and in the manner
prescribed by law. Therefore, certain rights have been conferred on the accused under the law.
2. Rights at trial:
Our Constitution upholds a fair trial system in keeping with the international legal system, as seen in our procedural law. A fair trial is necessary to protect the fundamental rights of the accused person from illegal and arbitrary deprivation, and it is also based on the principle of natural justice.
3. Safety for women:
The general rule is that women are not arrested without the presence of a female constable, and no women are arrested after sunset. Nevertheless, there are exceptions in some cases where the offense is severe, and arrest is necessary; then, the arrest can be made with a special order, and it depends on the facts and circumstances of each case.
4. Rights to free legal aid:
Section 304 CrPC, Article 21, 39(A) of the Constitution of India: In India, this facility is provided to all poor accused, irrespective of whether they have committed an offence. It is in totality at every level for a three-tier justice system. This service is provided for both trial and appeal as neither the Constitution of India nor the Legal Services Authority Act makes any distinction between them.
5. Right to be informed:
According to Section 50 of the Code of Criminal Procedure and Article 22 of the Indian Constitution, which confers certain rights on persons in custody, the right to be informed about the grounds of arrest is a fundamental right. It is the responsibility of the police officer to inform the arrested person and inform whether the offense is bailable or not.
6. Arrest memo:
The police officer must wear a distinctive and legible identification for simple identification. At the time of arrest, a memorandum of arrest must be written, which must be attested by at least one witness, who may be a member of the family or a member of the local area where the arrest is made and countersigned, the person detained goes.
7. Right to choose a lawyer:
Under sections 41D and 303 of CrPC, the arrested person has been given the right to meet a lawyer of his choice during interrogation.
8. Right to Inform Relative:
According to Section 50 of CrPC, the arrested person has the right to inform any family member, relative, or friend of his arrest.
9. Right to be released on bail:
Indian Constitution Article 21: Every person shall have the right to liberty under the procedures established by law. However, all these freedoms cannot be given to an accused until he is proved innocent. But he needs to be informed that he has a right to apply for bail in bailable offenses and even non-bailable offences; the court grants bail after considering the factors like nature or gravity of the offence, nature of evidence, etc.
10. Right against detention:
Persons arrested to avoid illegal arrest have the right not to be kept for more than 24 hours without being produced before a magistrate. It is a fundamental right conferred by Article 22 of the Indian Constitution and supported by Sections 57 and 76 of the CrPC.
11. Right to be Medically Examined:
Under sections 55A and 54 of the CrPC, it is necessary to keep any mark or injury or to ascertain and keep the health of the accused when taken into custody. After that, it also serves as an inquiry to ascertain whether the powers committed any torture during the interrogation or the custody.
12. Right to be silent:
Indian Constitution Article 20(3): An arrested person has the right to remain silent. The arresting officer cannot take a self-incriminating statement from him against his will or without his consent. Just because the accused/arrested person chose to remain silent during interrogation does not mean that he is guilty. Whether or not this right is to be exercised in modern times, as noted in the report of the Justice Malimath Committee, has led to much speculation.
13. Requirements of a Warrant:
In non-cognizable offenses, the arrest is made with a warrant, and the arrested person has the right to read the warrant under section 75 of CrPC. The warrant of arrest must meet specific conditions, including in writing, signed by the presiding officer, and sealed by the court, as well as the name and address of the accused and the offense for which the arrest is made. If any of these are absent, the warrant is invalid and invalid.
Various provisions have been laid down under the CrPC and the Constitution of India to ensure smooth functioning and prevent any panic during the arrest of any person. But the power of arrest given to the police is being misused. Today it is believed that the police exercise authority to threaten and extort money from those arrested. Responsibly, various powers have been provided to the arrested persons to ensure that the arresting officer does not exploit them. Thus, the law has emphasized both the detained and the detained person. Many reports have shown that the police have failed to inform the detained persons about the charges against them and are not providing them with adequate means of representation. Thus it is essential to bring changes in the administration of criminal justice so that the State realizes that its primary duty is to catch and correct the criminal and not punish him. All proceedings are carried on according to the rule of law that governs the functioning of all organs of the state machinery. It is the first duty of the police to protect all the individuals and their rights in society, including those arrested. The police should ensure that the detained person is informed of his rights, such as the grounds of arrest if he is entitled to bail and produced before a magistrate within twenty-four hours.
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