Arrest

What is Arrest?

Arrest, within the legal framework of India, is a pivotal aspect of law enforcement and criminal justice. Despite not being explicitly defined in procedural or substantive Acts, the process of arrest is governed by Section 46 of the CrPC (Section 43 BNSS), which outlines the method of effecting an arrest. According to Blacklaw, arrest is an ‘act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer’. In addition to the Code, arrest can also be made under special statutes such as Section 43B of the Unlawful Activities and Prevention Act, Section 19 of the Prevention of Money Laundering Act, etc in which case the arrest is governed by the process so provided within the special statutes.

Even in such circumstances, Section 167(1) of the Code, which provides for production of the arrestee before the Magistrate is applicable. Thus, in Directorate of Enforcement v. Deepak Mahajan, the Court held that “…mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest on a reasonable belief that the arrestee "has been guilty of an offence punishable" under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and (3) that the provisions of the special Act in regard to the arrest are applicable.”

Arrest as defined in case laws.

In Joginder Kumar v. State of UP, the court held that ‘no arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest is one thing; the justification for its existence is another. The police officer must be able to justify the arrest apart from his power to do so.’

Legal Provisions relating to Arrest.

As provided under Section 41(b)(ii) of CrPC, the purpose of arrest is to prevent the individual from further committing the alleged offense, facilitating investigation, and preventing the tampering of evidence. While the terms 'arrest' and 'custody' are often used interchangeably, a crucial legal distinction exists. An arrested person holds the right to seek bail, unlike someone under custody, who may not necessarily have such right. This distinction applies to specific contexts, for instance Sections 107 and 108 of the Customs Act. Therein, summons in respect of an enquiry may amount to custody but not to arrest, and such custody could subsequently materialize into arrest.

A significant milestone in shaping the arrest procedures in India is the landmark judgement in Arnesh Kumar vs State of Bihar, as adjudicated by the Indian Supreme Court. This ruling emphasized that arrests should be an exception, particularly in cases where the potential punishment is less than seven years of imprisonment. The guidelines provided in this judgement urged the police to assess the necessity of arrest under Section 41 of the Criminal Procedure Code. Ensuring adherence to Supreme Court principles is incumbent upon investigating officers.

The position is different as far as proceedings in the court are concerned in relation to enquiry into offenses under the Indian Penal Code and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. Generally, custody is a larger set of which arrest is a small subset, and there can be custody without arrest but not arrest without custody. Thus, for example, in Niranjan Singh, Justice Krishna Iyer observed that ‘an accused can be in custody not merely when the police arrests him’. This is because a person can be in custody by submitting to the Court as well.

Private Arrest

Section 43 of CrPC provides for ‘private arrest’, in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offense in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Immediate Handover to Police

Upon making a private arrest, Section 43(1) mandates that the private person should promptly hand over the arrested individual to a police officer. If the arrest falls under the ambit of Section 41, which deals with arrests without a warrant, the police officer must re-arrest the individual according to Section 43(2).

Limitations on Detention

Section 43(3) provides a crucial safeguard, stating that if there is sufficient reason to believe that the arrested person has committed a non-cognizable offense and refuses to provide accurate information, the individual shall be dealt with in accordance with Section 42. Importantly, the arrested person must be released if there is no sufficient reason to believe that they have committed an offense.

House Arrest

Section 167(2) of CrPC allows the Magistrate to ‘authorise the detention of the accused in such custody as such Magistrate thinks fit’. This includes House Arrest, which, while not defined in the CrPC, has been understood as a form of Custody which curtails the liberty of an individual, as held in Gautam Navlakha. A court may order for house arrest based on the facts of each case. Relevant considerations to be taken are include ‘age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest’.

Arrest of a Woman

The arrest of women in the Indian legal system is subject to specific provisions that recognize the need for sensitivity and protection of their rights. These provisions, embedded in the Criminal Procedure Code and other legal frameworks, aim to ensure that the arrest process is conducted with due consideration for the dignity and safety of women.

Female Officer Requirement

According to Section 46(1) of the Code, a crucial stipulation mandates that a female officer should be involved in the arrest of a female individual. This provision acknowledges the unique vulnerabilities and privacy concerns associated with the arrest of women, emphasizing the importance of having a female law enforcement officer present during the arrest process.

Time Restrictions

Section 6 of the Criminal Amendment Act of 2005 led to the addition of ‘Section 46(4)’ to the Code, which prescribes specific time constraints, prohibiting the arrest of women after sunset and before sunrise, except in exceptional cases. Even in exceptional circumstances, female officers are required to make the arrest, and their actions must be authorized by a judicial magistrate.

Types of Arrest

Arrests in the Indian legal system can be broadly categorized as either with or without a warrant. This classification is based on the nature of the offense, categorized as either 'cognizable' or 'non-cognizable.'

Arrest with Warrant

Arrests with a warrant, a more prevalent scenario, empower the police to detain individuals who are unwilling to appear before the court upon receiving a summons. A warrant for arrest is required by the police to arrest in non-cognizable cases, as defined under Section 2(l) of the CrPC. These are offences which are not very grave in nature. Examples include defamation, cheating etc. A warrant may be bailable or non bailable. A bailable warrant permits the person arrested to provide surety to secure release from custody, as under Section 71 of CrPC. These contain directions from the Court over the amount of sureties. On the other hand, a non-bailable warrant does not contain directions for grant of bail, which becomes a matter of trial.

FORM No. 2 WARRRANT OF ARREST

Arrest without Warrant

Arrests without a warrant, a narrower domain, have the potential to infringe on an individual's constitutional rights and require careful consideration. This can be done for cognizable offences, which are defined under Section 2(c) of the CrPC as an offence where ‘a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant’. Offences such as murder, robbery etc fall under the category of cognizable offence.

Appearance of Arrest in Official Databases

Crime in India 2022 by National Crime Records Bureau

Per the report of 2022, A total of 32,28,322 persons were arrested under 35,61,379 cases of IPC crimes. A total of 43,67,588 persons were charge-sheeted, 10,55,181 persons were convicted, 9,81,194 persons were acquitted and 1,52,787 persons were discharged. On the other hand, A total of 21,61,911 persons were arrested under 22,63,567 cases of Special and Local Laws crimes. A total of 27,04,985 persons were charge-sheeted, 14,16,858 persons were convicted, 3,69,789 persons were acquitted and 57,187 persons were discharged. The State/UT reporting highest Charge-sheeting Rate under IPC Crimes are Kerala (96.0%), Puducherry (91.3%) and West Bengal (90.6%). Amongst the 19 metropolitan cities covered, cities reporting highest Charge-sheeting Rate under IPC Crimes are Kochi (95.9%), Patna (89.9%) and Kozhikode (89.4%).

National Crime Records Bureau Data

Crime and Criminal Tracking Network and Systems Portal

Crime and Criminal Tracking Network and Systems (CCTNS) was a project started in 2009 to provide for greater transparency in the policing system. Every state has a CCTNS portal wherein information relating to FIR status, missing persons, etc can be found. The data on arrested persons can be accessed online for certain States, as provided below. To conduct a search for an arrested person, the required information includes name of person, district where arrest was made, date range of arrest, police station etc. The CCTNS Portal of West Bengal mandatorily requires the name of the arrested person along with the name of their spouse. On the other hand, Gujrat merely requires the date range of arrest. Once such search is made, the data relating to the arrested person may be accessed.

To take the case of Kerala, this data includes -

1. Name of accused;
2. Name of accused’s father;
3. Chargesheeted offenses;
4. Address of accused;
5. Age and gender;
6. Name of police officer making the arrest;
7. Name of court before which the arrestee is produced;
8. Place of arrest;
9. Date and time of arrest;

On the other hand, the Chattisgarh portal does not provide the address of the arrested person and the father’s name. The sex and age is also not provided. Likewise, the Maharashtra portal does not provide the name of father, but provides for the gender, sex as well as the nationality of the arrested person. Thus, there is state based variation over the data provided relating to the arrested person.

Chattisgarh CCTNS

The portal for Chattisgarh can be accessed at https://search.cgpolice.gov.in/CCTNS_Arrested_Person_List/

Chattisgarh CCTNS

Chattisgarh CCTNS

Gujarat CCTNS

The portal for Gujarat can be accessed at https://gujhome.gujarat.gov.in/portal/. Illustratively, the database can be accessed in the following manner. A comprehensive guide has been provided at https://gujhome.gujarat.gov.in/portal/images/eGujCop/UserGuideline_En.pdf.

Step 1 - Open the Link

Step 2 - Register

Step 3 - Search for the Arrested Person

Kerala CCTNS

The portal is accessible at https://keralapolice.gov.in/page/crime-and-criminal-tracking-network-systems-cctns.

Kerala CCTNS

Kerala CCTNS Data

Maharashtra CCTNS

Portal can be accessed at https://citizen.mahapolice.gov.in/Citizen/MH/index.aspx

Maharashtra CCTNS

Maharashtra CCTNS Data

Madhya Pradesh CCTNS

Portal can be accessed at https://citizen.mppolice.gov.in/Custom_Arrested_Person.aspx

Madhya Pradesh CCTNS

Odisha CCTNS

Can be accessed at https://citizenportal-op.gov.in/citizen/ViewArrestedPersons.aspx?REPORT_NAME=SnHSdUdXR0M%3d

Odisha CCTNS

Tamil Nadu CCTNS

Portal is available at https://eservices.tnpolice.gov.in/CCTNSNICSDC/CitizenArrestedPersonHome?2.

Tamil Nadu CCTNS

West Bengal

Portal can be accessed at https://policesohaiyota.wbpolice.gov.in/login.aspx

West Bengal CCTNS

Research that engages with Arrest

Arrest Discretion Behaviour of the Police in India: A Socio-Legal Study

The 2009 criminal law amendment sought to reduce the number of arrests made, however, the data shows negligible reduction in the 5 years post 2009. This study highlights various factors influencing arrests, and categorizes them as organizational, situational, subcultural, environmental and individual. An interplay of legal and extra legal factors such as, for instance, the personal character of the officer, a belief that the criminal system is ineffectual and arrest is the only punishment, etc ‘create a complex maze in which the arrest decision behavior is processed and ultimately taken’.

Status of Policing in India Report 2023: Surveillance & the Question of Privacy

The question of surveillance and privacy has been dealt with by highlighting surveillance practices adopted by the State such as CCTV monitoring, internet tracking etc. The findings with respect to CCTV shows that there is arguably no significant reduction in commission of cognizable offenses resulting from installation of cameras, although the cameras prove useful for detection of offenders post the offense has been committed. It further highlights that of all the cybercrime cases reported, most of them are under Section 65D of the IT Act, relating to impersonation. The data over arrest shows high variation between chargesheeting and conviction rate of different states. For instance, per the NCBR data of 2021, of the 6887 persons arrested in UP, 45.5% were chargesheeted and 83.2% were convicted. In contrast, 1395 people were arrested in Gujrat, of which 58.4 % were chargesheeted, however no one was convicted.

Status of Policing in India Report 2021: Policing in Conflict Affected Region

The study highlights police violence in states affected by conflict such as naxalism. A survey conducted in these states indicate that personnel and common people showed considerable support for the violent behavior of the police when against ‘protagonists of political violence’, ie, the naxalites and insurgents. On the other hand, there was a divide over personnel and common people over preventive detentions and other precautionary measures, with the personnel showing greater inclination towards the same. However, concerning the arrest of naxalite sympathizers and use of drone cameras for surveillance, there was again a shared agreement. Moreover, common people hold the perception that certain groups such as the poor and STs are more likely to be targeted by the police for naxalism charges. People in regions of Left Wing Extremism repose ‘higher trust in police than in insurgent regions’.

Counter Mapping Pandemic Policing: A Study of Sanctioned Violence in Madhya Pradesh

This report attempts to profile the arrests made during the pandemic and establish the existence of a ‘structural attitudes’ of policing which leads to marginalization. While no ‘direct evidence of discrimination’ is provided, the report raises the concern that criminalisation has deep effects over the economic status and well being of the families. This requires stringent constitutional safeguards and legislative reforms to curb the excessive power available to the state machinery. The report concludes by presenting recommendations such as decentering focus on prisons, moving towards decarceration and decriminalization, disaggregating data for arrested persons, and changing the culture of policing for low level offenses.

Challenges and Way Ahead

Several constitutional provisions and legal requirements safeguard the rights of the arrested individuals. Article 22 of the Indian Constitution emphasizes the right to be informed about the reason for arrest, consult a legal practitioner, and not be detained without being informed of the grounds for arrest. The following aspects illuminate the significance and nuances of the right to legal representation:

Right to Legal Representation

The Supreme Court has affirmed the right of an accused to consult a legal practitioner under Article 21 of the Constitution. This includes the right to effective legal representation, ensuring compliance with mandatory procedural requirements.

Procedural Mandates

Article 22(1) and constitutional principles were reinforced in the seminal case of DK Basu v. Union of India. The Supreme Court emphasized not only the right of the arrested person to be informed of the grounds of arrest but also their right to consult a legal practitioner. This procedural requirement ensures that individuals are not only aware of the charges against them but are also equipped with the means to navigate the legal complexities of their situation.

Magisterial Inquiry and Legal Aid

In the case of Gautam Navlakha v. State (NCT of Delhi), the Delhi High Court emphasized the necessity of a magisterial inquiry into whether the arrested person was informed about the grounds of arrest and whether they desired legal representation. The court rejected the mere cosmetic presence of a legal aid lawyer and stressed the importance of effective representation.