Arrest under Criminal Procedure Code (CrPC), 1973

07 March, 2024

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Introduction

The arrest is an important part of the Criminal Justice System as it serves as a crucial tool for law enforcement agencies to restrict individuals suspected of committing criminal offences. It is an act of taking an individual into custody or control or legal protection because he/she is suspected of an offence. The dictionary meaning of the word ‘arrest’ is ‘to make inactive’, ‘to bring to a stop’, ‘to catch suddenly and engagingly’, or ‘the taking or detaining in custody by authority of law’. Overall, it can be said that arrest means to bring to stop any activity of a person. There are 4 main elements of arrest, Arrest Authority, Intent to arrest, Detention or seizure of the person, and understanding by the person arrested. In this article, we will discuss certain provisions of arrest under the Code of Criminal Procedure, 1973.

Arrest under CrPC: Provisions

Chapter V of the Code of Criminal Procedure, 1973, deals with ‘Arrest of Persons’. Let us illustrate different categories of arrest and how an arrest is made.

Arrest in pursuance of a warrant

A police officer cannot arrest a person without a warrant in case the person commits a crime or offence which is non-arrestable. An arrest warrant empowers an individual's arrest or capture or seizure of a person’s property. Every arrest warrant is issued by a Judge or a Magistrate on behalf of the state. According to Section 70 of the CrPC, 1973, “Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.” Moreover, such a warrant should remain in force until canceled by the Court which issued it or until it is executed.

Arrest without warrant

As the name suggests ‘Arrest without warrant’, a police officer can arrest a person without a warrant for an arrestable offence. Section 41 of the CrPC illustrates certain conditions where a police officer has the authority to arrest an individual without an order from a Magistrate and without a warrant. According to this Section, a police officer can arrest a person when he/she:

commits a cognizable offence,
has been proclaimed as an offender either by order of the State Government or under CrPC,
is in possession of the stolen property,
obstructs a police officer from performing duty or escapes or attempts to escape from lawful custody,
is reasonably suspected of being a deserter from any of the Armed Forces of India,
being a released convict commits a breach of a rule,
is involved in any offence committed outside India, and
is the one whose arrest requisition has been received from another police officer specifying the person to be arrested and the offence or other cause for which the arrest is to be made.

Arrest on refusal to give name and residence

Section 42 of CrPC deals with another situation where a police officer can arrest a person, ‘Arrest on refusal to give name and residence’. As per this Section, if an individual commits or has been accused of committing a non-cognizable offence, refuses to give his name or address or provides a name or address that the officer believes to be false then the police officer can arrest the person. It also illustrates that “When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required.” In case, a person’s actual name and address cannot be ascertained within 24 hours or fails to execute a bond or furnish sufficient sureties then he/she should be forwarded to the nearest Magistrate.

Arrest by a private person

It means that a private person can arrest any person who commits a non-bailable and cognizable offence in his presence. Section 43 of CrPC, 1973, deals with ‘Arrest by private person and procedure on such arrest’. A private person can arrest another person if:

he/she commits a non-bailable and cognizable offence, or
the person is a proclaimed offender.

In case, there is a reason to believe that such a person comes under Section 41 of CrPC then a police officer should re-arrest him. Section 43(3) states that “If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.”

Arrest by Magistrate

Section 44 of the Code of Criminal Procedure, 1973, deals with ‘Arrest by Magistrate’ whereas the term Magistrate here addresses both Judicial and Executive Magistrate. Its Sub-section (1) illustrates that “When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.” Sub-section (2) states that any Magistrate can arrest or direct any person in his presence within his local jurisdiction to arrest a person.

The Armed Forces of the Union are protected from arrest under Section 45 of CrPC, stating that [Notwithstanding anything contained in sections 41 to 44 (both inclusive)] no member of the Armed Forces of the Union should be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

How an arrest is made?

There is no appropriate code that highlights the procedure of arrest whereas Section 46 of the CrPC, 1973 illustrates how an arrest is made. As per Section 46(1) CrPC, the police officer or other person making the arrest should actually touch or confine the body of the person to be arrested. It also states that “where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.” In case a person being arrested attempts to evade arrest or forcibly resists the endeavor to arrest then the police officer has the authority to use all necessary amounts of force to effect the arrest. According to Section 46(3), “Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.” Moreover, no woman should be arrested after sunset and sunrise as mentioned in Section 46(4) of the CrPC, 1973.