Section 46– Arrest how made
- Can either be by police officer by touch or confining your body
- One can also be arrest by wilful submission. There must be an intention to submit to custody
- Citizens can also make an arrest.
- Arrest can also be made by a police like agency or officer designated by law.
- Reasonable force may be used.
- Woman cannot be arrested before sunrise and after sunset.
D.K. Basu v. State of West Bengal
- Arrest with warrant – This is when a magistrate issues and signs an order addressed to a police officer to specifically arrest a particular individual. This might be a preventive arrest as well to ensure public safety. This may also be in the cases when the person to be arrested is of such a high status that a police officer may hesitate to arrest them without a warrant.
- Arrest without warrant (Section 41) – This may be done by a police officer or private citizens for certain crimes which are serious and grave in nature. However, such a person must be produced before a magistrate within 24 hours of arrest. Otherwise, there would be a violation of 22(2) of the Constitution of India.
The arrest warrant must have the following:
- Section 70 requires the warrant to be written and signed by the presiding officer of a Court and bear the seal of the court. The warrant shall be in force until it is cancelled by the SAME court.
- Section 71states that a court at its discretion may state in the warrant that if the person who is to be arrested can pay a certain sum of money as security assure his/her presence in the Court of law at the given date then they may pay such amount and avoid arrest.
- Section 72 states that a warrant is addressed to one or more police officer of which one or all of them may execute it. However, the warrant may also be addressed to any other person as well.
- Section 73 states that a warrant may be directed towards a person within the jurisdiction of a Chief Judicial Magistrate. The person may execute the warrant if the, person for whose arrest the warrant is, enters the territory or property.
According to Section 74, a warrant directed any police officer may also be executed by any other police officer whose in name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
Section 77 states that a warrant may be executed in any part of India.
Section 78 states that a warrant may be forwarded for execution outside jurisdiction to the relevant Executive Magistrate of District Superintendent of Police or Commissioner.
Section 79 states that the warrant may be directed a police officer outside the jurisdiction of the Judicial Magistrate; however this must be endorsed by the Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station.
Section 80 states that the procedure of arrest against whom warrant issued is that the person shall be arrested and taken to the court who issued the warrant if the court is within 30kms. Otherwise, the person shall be taken to the Executive Magistrate, District Superintendent of Police or Commissioner of Police.
Section 81 states that once the arrested person is produced before the Magistrate, the magistrate shall grant a bail to a person who is arrested for a bailable offense provided that the person is ready to provide the security. If the person is arrested for a non-bailable offense then the Magistrate may grant bail based on the documents of the case.
RIGHTS OF PERSON WHO IS ARRESTED
- To know the ground of arrest
- Section 50(1) without warrant
- Section 55 with warrant
- Section 75 when arrest is warrant
- Constitution of India – Article 22(1)
- Section 50A says that a friend or relative needs to be informed and an entry needs to be made in the register
- Magistrate needs to satisfy himself that all this has been done
- Inform of right to be released on bail – Section 50(2)
- Right to be taken before a judicial magistrate – This includes the right that the person must only be in a police station before being taken to a judicial officer – Section 56 and Section 76
- Right to not be detained for more than 24 hours – Section 54 and Article 22(2)
- Right to consult a legal Practitioner – Article 22(1) + Case law
- Right to be examined by a medical practitioner – Section 54 and Section 53