Law in Motion: Arrest
The police has power to arrest as do the magistrates, but arrest should be used as a preventive and temporary measure, only to enable the courts to decide the culpability, post trials by courts.
Arrest means restrained liberty - which may be by putting handcuffs/ ropes/holding his hands physically or even by encirclement by armed/unarmed policemen or escorts or even when he is confined to a space or enclosure (a room or a building or area).
Restraint may be by a civilian or a persons employed in connection with affairs of a village or by a policeman or magistrate. However, when the restraint is by public or village authorities or even armed forces where they have powers, it is imperative that the police or magistrate be informed at the earliest.
What does the police do?
Once police is informed and the arrestee has been conveyed to police, the police has to take the following steps:
- Restrain the person again (depending on his propensity to be violent or chances to escape etc) by handcuffs or escorts etc;
- Take him to the PS/outpost;
- Make a GD Entry regarding the INCIDENT leading to arrest (brief narrative of the incident the suspect was involved in and the manner of his arrest or names of the persons who arrested/restrained the suspect before handing over to police);
- Copy of this GDE, may be given to the person making the arrest if he so demands (free of cost);
- If the arrestee is put in the lock up, the time of doing so has to be indicated in the GD including the name of the police officer or policeman who was asked to put him in the PS lock-up. These GDEs help ensure the safety of the person arrested and to establish chain of handing-taking over, just in case there is some untoward incident so that responsibility can be fixed;
Even if a person is not put inside a police station lock-up, he can be under arrest. Arrest is a form of restraint from free movement, not confinement per se. Putting a person in the lock-up is not a sine qua non of arrest – restraint is.
Sometimes, even when the person/subject is not formally arrested on paper/documentation and is not even in the PS lock-up but is restrained within the premises, unable to move out, it could be construed as an arrest or perhaps illegal confinement. Therefore, a saner advice for police officers, is that when anyone is called to the PS, whether for questioning or attendance etc., it is wiser to reflect the time and purpose in the GD for their own safety.
The police officer shall prepare a memorandum of arrest which shall be (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested;
- inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest;
- If the arrestee cannot be granted bail, the police officer searches the person arrested - to ensure that he does not carry/possess any harmful objects or any ‘proceeds or instruments of crime’ or even ‘materials which could be of potential evidentiary value during investigations;
It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused;
Medical examination at the request of police - When a person is arrested and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, an officer of the rank of sub-inspector may request for a medical examination and it is legal for the examiner to use such force as is reasonably for that purpose;
A person arrested without warrant has to be taken before Magistrate/ OC of PS without any reasonable delay by the person making the arrest (whether the public or police officer);
The police officers are duty bound to inform the arrestee about his right to have a counsel of his choice. It is mandatory for police to make GD Entries about the same.
Rights of the arrested Person:
- An arrestee has the following rights- He shall be informed about the particulars of the offence for which he/she is arrested (Section 50(1) of the CrPC);
- He shall be arrested about any other grounds of the arrest (Section 50(1) of the CrPC);
- If arrested in a ‘bailable offence’ he shall be informed that he is entitled to be released on bail and that he may arrange for sureties on his behalf (if the police desires that sureties should be arranged) - (Section 50(2) of CrPC);
- If the arrestee cannot be granted bail (eg., due to lack of sureties or in non-bailable offence), the police officer can search the person. When such search is carried out, usually the following are ensured:
A female suspect is only searched by a female person (either a police officer or in the absence of a police officer another female);
- A search is usually carried out in the presence of witnesses (may or may not be civilians or police officers);
- A list of all articles other than necessary wearing-apparel, found upon him is prepared by the police officer conducting the search;
- Once the list is prepared, all articles seized from him are incorporated in ‘memorandum of arrest’ and also in the GD as well as the ‘maalkhana’ or PS store. A receipt is also handed over to the arrested person;
Arrestee has a right to ensure that all the articles taken from his possession/custody are reflected in the seizure list as well as the receipt given to him (shall be given). If the list does not reflect any articles, he has a right to object to the same either to the OC/senior officers/magistrates, either in person or through his counsel/advocates.
An accurate and reconciled list is important because the PS/magistrate is only bound to ensure the return of such non-perishable articles to the person, as may have been reflected in the seizure list. An arrestee cannot claim any article which was not reflected in the list which he has a receipt of. Non-inclusion could be a mistake but can also be considered as theft or misappropriation by police and police officers should be careful.
The arrestee has a right not be subjected to more restraint than is necessary to prevent his escape;
- Examination of a female shall be made only by, or under the supervision of, a female registered medical practitioner;
Medical Examination of arrestee at the request of the arrested person - The arrested person can request for medical examination if he feels that:
- examination of his body will afford evidence which will disprove the commission by him of any offence; or
examination will establish the commission by any other person of any offence against his body.
Magistrate, usually shall order medical examination, unless he feels that the request is made for vexation or delay or for defeating the ends of justice.
The words used -‘by any other person’ - are wide enough to cover even police officers and can be used by citizens as a method of averting/highlighting custodial torture.
- Arrestee not to be detained more than 24 hours. No police officer shall detain in custody a person arrested without warrant for a duration longer than is reasonable. Such period shall not, unless authorised by a Magistrate exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
- The arrestee has a right consult a counsel of his choice – the counsel, however, may only remain present and cannot answer questions which are asked to the arrestee;
- The arrestee is entitled to ask the police officer questioning him about his identity – either ID card or that the name-plate and ranks be properly displayed on his body;
- A right to communicate the fact of his arrest to a relative or friend of his choice and a record maintained in GD.
Mandatory limitation of 24-hours also necessitates that the time of arrest, place of arrest and travel time etc should be accurately reflected in the police records i.e., GD and Case Diaries. Detention beyond the 24-hour duration, unless sufficiently explained can be “illegal detention” or ‘wrongful confinement’ and the police officials or the persons effecting the arrest are liable to be prosecuted.
- When an arrest is not required Section41(1), the police officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him.
- Where such a notice is issued, it shall be the duty of that person to comply with the terms of the notice.
- Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.