Chapter V of Code of Criminal Procedure, 1973 deals with the arrest of persons under (Sections 41 to Section 60). The Criminal Procedure Code of 1973, however, has not defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an authority empowered by the law for detaining the person. The person is then asked to answer the charges against him and he is detained so that no further crime is committed.
The elements necessary to constitute arrest were summarized by the Madras High Court in Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu. The elements are:
- There must be an intention to arrest under legal authority.
- There must be seizure or detention of the person.
- The person must be in the lawful custody of the arresting person.
- The act of arrest must include the actual confining of the person and not mere oral declaration of arrest.
Arrest can be made by a police officer, magistrate or any private person, like you and me can also arrest any person but the arrest should be made according to the process mentioned under CrPC.
A police officer can cause an arrest of a person if there exists any of the objective grounds:
- For preventing the person arrested from committing any further offence; or
- For the purposes of proper investigation of the offence; or
- For preventing the person arrested from causing either disappearance of evidence or tampering with the evidence; or
- For preventing the person arrested from giving any inducement, threat or promise to a witness for the purposes of either alluring such witness or dissuading the witness from giving his statement to the police officer or deposing before court;
- For ensuring the purposes of court proceedings.
Now, under CrPC section 46, arrest can be made by issuing a warrant by the magistrate or made without any warrant but within the established legal provisions.
A non-cognizable offence is an offence where a police officer may not arrest without a warrant, but the following are cases where in a non-cognizable case, a police officer may arrest without a warrant, viz.,
(i) where a person appears to have committed a non-cognizable offence in the presence of a police officer and refuses to give his name and residence or gives a false name and residence.
(ii) where a proclaimed offender is involved in a non-cognizable case.
(iii) where a person obstructs a police officer on duty and commits a non-cognizable offence under section 186 IPC.
(iv) where a previously convicted offender fails to notify his residence or
charge of or absence from residence as provided in section 356 Cr PC and thus commits a cognizable offence under section 176 IPC.
Restriction on Arrest of Women
Proviso to section 46(1) provides 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.
Section 70 of the Code provides for the ‘form of warrant of arrest and duration in the following manner:
(i) The warrant must be in writing.
(ii) It must be signed by the presiding officer of the court issuing the warrant.
(iii) It must bear the court’s seal.
(iv) It must give full name and description of the person to be arrested.
(v) It must clearly specify the offence for which person is charged.
(vi) It must bear the name and designation of the person to whom authority to execute such warrant is given.
References:
Arrest of Persons Under CrPC, 1973
- https://www.latestlaws.com/articles/all-about-procedure-of-arrest-under-code-of-criminal-procedure-by-komal-srivastava/
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