PART-IV THE ARREST SERIES (WITH FOCUS ON THE CODE OF CRIMINAL PROCEDURE, 1973)

This multi-part blogpost series is aimed at illuminating the most essential aspects of the police’s power to arrest any person. After discussing the circumstances where the police is empowered to arrest a person without warrant in the first and second posts, and who can arrest in the third post, this is the fourth post of this series. In this post, I intend to discuss the pre-arrest procedure and the procedure meant to be followed by the Police at the time of the arrest (The procedure to be followed post-arrest shall be the subject matter of the sixth post of this series).

Fourth Part

How To Arrest?

And

Rights Of A Person Sought To Be Arrested

This is an extremely important area of our criminal justice system. It must be known by all what are our rights prior to and at the time of arrest because the ignorance of this aspect may prove to be very costly. It is not a safe option to bank upon the police to abide by all the rules of the game, though the law requires them to do so.

A lot of us think that we are reputed people and such knowledge is either important for the lawyers, judges and police themselves who need it for the discharge of their duties, or for the criminals, and the anti-social and fringe elements of the society. In my opinion, such a view though held by the masses, is wrong because the might of the state does not always operate with a clear conscience, and hence one should be vigilant and prepared to face any eventuality. A state’s actions may not always be inspired by malafide and sometimes may also be inspired by genuine believes occasioned by a contorted factual matrix. Sometimes, one may be on the right side of the truth but on the wrong side of the law and facts and that is when such knowledge comes to our limited rescue!

Having emphasized the importance of the issue at hand, lets now come to the topic directly. The manner which shall be followed for effecting an arrest is laid down in Chapter V of the Code.

1. The Police Officer shall wear his name badge for the purpose of his identification (S.41 B)

He must bear an accurate, visible and clear identification of his name for facilitating his easy identification.

2. Grounds of arrest must be communicated to the Accused (S.50)

The police officer who comes to arrest the accused must communicate the offence(s) for which he is being arrested and the grounds of arrest to the accused. The relevant section of the law uses the word ‘forthwith’ and ‘full particulars’ thereby indicating that the police officer should not wait for the accused to ask about the particulars, and it is his responsibility to disclose the particulars even if the accused doesn’t ask about it. The expression 'full particulars' connotes the expanse of the disclosure and clearly implies that the disclosure should not be incomplete or partial. 

When an arrest is sought to be made for a bailable offence, then in addition to the grounds of arrest, the accused is also liable to be told about his right to apply for bail and the sureties required for the grant thereof, in any.

3. Preparation of a Memorandum of arrest (Arrest Memo) by the Police Officer making arrest (S.41B)

The arrest memo has to contain the details of arrest like date, time, place of arrest, name and designation of the police officer making arrest, details of the person informed about the arrest as per the wish of the Accused. It is to be signed by the Police Officer making arrest, counter-signed by the accused and attested by atleast one witness who may be a family member of the accused, or a respectable member of the locality where the arrest is made.

4. Right to have a relative or friend or any other person informed about his arrest (S.41B and S.50A)

When no relative or friend is present at the time of arrest, then the accused has a right to have a relative or friend informed about the arrest and the place where the arrested person is being held. There is an overlap between S.41B and S.50A so far as this right is concerned. But if both the sections are harmoniously construed in favour of the accused as these provisions are beneficial provisions, then it is clear that the accused has to be informed about such right at the time of his arrest, and in any case if not informed at that time, then as soon as he is brought to the police station, he must be informed about this right of his. At the same time, the particulars of the person which is nominated by the accused must be informed about the arrest and his name be entered into the registered specified for this purpose (Daily Diary A, Rule 22.48 Punjab Police Rules, Volume III). It is a duty of the magistrate to satisfy himself about the compliance of this right.

The section is based on the judgment of the Hon’ble Supreme Court of India in the case of DK Basu v State of West Bengal, (1997) 1 SCC 416 (‘DK Basu’). The section falls short on the actual scope of the safeguards chalked out by the Apex Court. Besides what is stated in the section, the police is also required to record the name of the officers making the arrest, the date, time and place of arrest, and the officers in whose custody the arrestee is kept.

The judgment also specified that in cases where the next friend or relative of the accused stays outside the district or town in which the arrest is made, then the Police has to inform through Legal Aid Organisation and Police Station of the area concerned, telegraphically within 8 to 12 hours of the arrest. It is my opinion that the provision may have been useful in 1997 but the huge stride in communication technology since then has rendered it obsolete and even in such cases the police should inform as soon as possible by deployment of watsapp, mobile etc.

5. Police officer cannot touch your person if you submit yourself to them (S. 46, 49 CrPC)

It is always better to indicate your intention that you are not protesting the arrest by word or caution, because that will disable the police officer from touching or confining your person. This submission does not mean that you accept or admit your guilt but it is only to avoid ugly scenes at the place of arrest. All your legal rights shall continue to remain open to you and cooperating with the police simply means obeying the direction of a public servant and has no bearing on the substance of your case. On the contrary, if your try to stall the process of arrest, then the police may accuse you of other offences and your defence may suffer as a result of that. If you run away, it further worsens your case, reduces the chances of bail and also increases the chance of the magistrate agreeing to the police’s request of a remand.

In case of a female, her submission to custody on an oral intimation of arrest is presumed, which means that if the female doesn’t protest, then the police cannot touch or confine her person. Further, if circumstances require that she be touched for the purpose of arrest, then it may only be done by a woman police officer. Another women specific safeguard regulating the process of arrest is that she cannot be arrested after sunset and before sunrise. Nonetheless, there is an exception to this. Such an arrest can be effected if the female police officer obtains prior permission from Metropolitan Magistrate by making a written report.

Even after the arrest, the arrestee shall not be subject to more restraint than is necessary to prevent his escape.

6. Search of arrested person (S.51)

The Police Officer making the arrest, and in case of arrest by private person, the police officer whom the arrestee is handed over to, may search such person. If any article is seized, a list of such articles has to be made and, a receipt evidencing the same is to be issued to the arrestee. The other articles, which are not seized must be kept in safe custody, in any case, necessary wearing apparel cannot be seized.

If offensive weapons are found on the person of the arrestee, then it may be seized, and delivered to the Court or the officer before whom the arrested person is produced by the police officer, as the case may be. (S.52)

A search in case of a female, if required to be carried out, must be carried out only by a female.

The section is silent on the nature of the safe custody of articles found on the person of the accused but not seized. A receipt is given for seized articles but there is no express provision for a receipt to be given for the other articles. The section is also silent on the issue as to what is to be done when the necessary wearing apparel is required to be seized in the light of its evidentiary value. To illustrate, there may be bloodstains on the vest of a person in case of murder or grievous hurt.In such a situation, the procedure has to be governed by the rationality and reason which balances the exigencies of investigation with the dignity and rights of the accused.

With this, I conclude this post with the caveat that you must read the sixth post of this series as the present post is incomplete without it, and the only purpose of breaking down the subject of rights of the arrested person/arrest procedure in two parts is for the convenience of the readers. Kindly share your views below.