PROCEDURE OF ARREST AND RIGHTS OF THE ARRESTED PERSON

1. INTRODUCTION:

In general arrest means taking someones liberty and they are under some restraints on the other hand Equality is considered to be an important factor in every aspect of law. therefore No matter whether a person is a criminal or not, they must always be regarded as fellow human beings. Nevertheless, unless the accused is found guilty in a court of law, they are presumed innocent. Our democratic culture is characterised by the idea that an accused person's rights are untouchable, even in cases when they are accused of a crime. So The procedure of arrest is mentioned under chapter 5 of the code of Civil procedure 1973, and the Rights which are available to the arrested person will be discussed in this article.

2. ARREST UNDER CRPC

The definition of arrest is not mentioned under the act but some of the philosophers and cases has given the definition for the term Arrest. For instance according to the Legal Dictionary by Farlex, Arrest is defined as: the taking or detaining of a person in custody by legal authority, particularly in response to a criminal charge; a seizure or forced constraint; the exercise of the power to deprive a person of his or her liberty. And also in the case of R.R. Chari vs The State Of Uttar Pradesh[1] the supreme court defined the term Arrest as is the process of being taken into custody in order to face legal charges. According to the court, it refers to the seizure of a person's body in a constitutional sense. The chapter 5 section 41- 60 of the criminal procedure code, 1973 explains about the concept of arrest

2.1 Types of Arrest

Basically there are two types of arrest they are

i. The arrest made with the warrant issued by the magistrate

ii. The arrest made without the warrant according to some procedures

2.2 Who can Arrest

According to Section 41(1) of the Criminal Procedure Code, any police officer may arrest anyone for a variety of crimes without a judge's approval or a warrant. These include people who have committed a crime, are in possession of stolen property, are state offenders, obstruct police officers in the course of their duties, attempt to flee from custody, are declared deserters from any of the Union's armed forces, have been released from prison but have broken their terms of release, etc.

And also according to section 42 If the individual being arrested declines to provide his identity and place of abode, a police officer may arrest him for a non-cognizable offence

A private individual, such as yourself and me, is authorised by Section 43 to make an arrest of a person who, while in his presence, commits a cognizable or non-bailable offence or who has been declared an offender. According to section 44(1) of the CrPC, a magistrate has the authority to make an arrest and place someone under custody for committing an infraction while they are in their presence.

The CrPC's Section 46 describes how an arrest can be affected with or without a warrant. Except in extraordinary circumstances, where a woman police officer may make an arrest after filing a written report and obtaining prior permission from the concerned judicial magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made, Section 46(4) Special Protection as Females prohibits the arrest of women after sunset and before sunrise. [1]

3. PROCEDURE FOR ARREST:

The procedure for arrest and duties of the officer who makes arrest are explained in the section 41 B of the code, it states that

Every police officer while making an arrest shall,-

a) Bear an accurate, visible and clear identification of his name which will facilitate easy identification;

b) prepare a memorandum of arrest which shall be,-

a. 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;

b. countersigned by the person arrested; and

c) 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.[2]

4. RIGHTS OF THE ARRESTED PERSON:

This rights also further divided into two, i.e the rights at the time of arrest and rights at time of trial

I. RIGHT OF ARRESTED PERSON TO MEET AN ADVOCATE OF HIS CHOICE DURING INTERROGATION.

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

II. RIGHT TO REMAIN SILENT

If the arrested person remain to be silent it does not mean that he is guilty. And also the accussed should not be forced to give all the statements if he wish to remain silent he can as per the Article 20 (2) of the Indian constitution.

III. RIGHT TO RELEASE ON BAIL AND RIGHT TO BE INFORMED

According to Article 21 of the Indian Constitution, each person has the right to liberty according to the rules set forth by the government. All of these rights, nevertheless, cannot be granted to an accused person until his innocence is established. However, he must be aware that he is entitled to seek for bail in cases where bail is required, and that even in cases where bail is not required, the court will still grant bail after considering a number of considerations, including the kind and gravity of the offence, the quality of the evidence, etc.

Also According to section 50 of the code ,

Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

IV. RIGHT TO BE TAKEN BEFORE MAGISTRATE WITHOUT DELAY

Whether a warrant was obtained or not for the arrest It is the obligation of the person making the arrest to bring the accused before the judge within twenty-four hours, not including the time it takes to go from the location of arrest to the Magistrates' court.

V RIGHT TO BE EXAMINED BY THE MEDICAL PRACTITIONER

It is imperative that any marks or injuries be documented, and that the accused's health be checked upon being taken into prison. Consequently, this serves as a check to see if any torture was carried out by the authorities either during questioning or while they were in jail.[3]

VI RIGHT OF THE ACCUSSED TO PROVIDE EVIDENCE

The accused should be given a right to produce his evidence in the trail

5. CONCLUSION :

In conclusion, a fair and just legal system must include both the arrest process and the rights granted to the detained individual. Following the rules set forth by the law, the arrest procedure is an essential tool for upholding accountability and public order. At the same time, the rights that have been accorded to the person who has been arrested serve as essential defences against possible power abuse and protect the values of justice and fairness. These rights include the freedom from arbitrary searches and seizures, the right to counsel, and the right to stay quiet. Establishing a fine equilibrium between the requirements of law enforcement and personal freedoms is crucial for a community that cherishes the rule of law. As societies evolve, ongoing scrutiny and refinement of arrest procedures and the rights of the arrested are essential to adapt to changing norms while upholding the core principles of justice and human rights.

REFERENCES:

[1] MUSKHAN (no date) Arrest and rights of arrested person, Legal Service India - Law, Lawyers and Legal Resources. Available at:https://legalserviceindia.com/legal/article-1747-arrest-and-rights-of-arrested-person.html#:~:text=Under%20Article%2022(2)%20of,legal%20practitioner%20of%20his%20choice. (Last visited on 30 February 2024).

[2] CRPC : Arrest of persons (no date) A Lawyers Reference. Available at: https://devgan.in/crpc/chapter_05.php#s50A (last visited on 30 February 2024).

[3] Parveen, G. (2022) Arrest and the rights of the arrested in India, iPleaders. Available at: https://blog.ipleaders.in/rights-person-arrest-india/ (last visited on 30 February 2024).