Know your Right if you Arrested

A person is arrested when a police officer or a citizen takes him into custody or otherwise substantially deprives him of his freedom of action so that he may be held to answer for a crime or an offence. The police in India do not have any power to detain anybody for questioning unless he is arrested with or without warrant.

Warrant of Arrest

It is a written order issued by a Court to a police officer to arrest and produce an offender or to search his premises for a particular thing. A police officer who executes the warrant shall notify the substance thereof to the person to be arrested and if he demands, shall show him the warrant. He is expected to bring the required person before the Court without unnecessary delay.

Valid Warrant

A warrant of arrest should be (i) in writing (ii) signed by the presiding officer of the Court and (iii) should bear the seal of the Court. It should also contain the name of the accused, his address and indicate the offence with which he is charged. If any of these factors is absent, the warrant is not in order and an arrest made in execution of such a warrant is illegal. Warrants are of two kinds:

i) Bailable

ii) Non-Bailable

A bailable warrant is a Court's order which contains a direction that if the person arrested executes a bail with sufficient sureties for his attendance before the Court, he may be released from custody. In that case it shall further state the number of sureties, the amount of the bond, and the time for attending the Court. (Section 71 Cr.P.C.) In case of a non-bailable warrant the direction for bail will not be endorsed on the warrant.

Arrest without Warrant

A police officer has power to arrest a person without warrant if he is suspected of having committed a cognizable offence. Normally in non-cognizable offences a police officer cannot arrest a person without a warrant from a Magistrate.In the first Schedule of the Criminal Procedure Code (Cr.P.C.) offences have been classified and enumerated as cognizable and non-cognizable. The more serious offences such as murder, rape, robbery, theft, waging war against the State etc. are cognizable

When can a person be arrested without a warrant?

A person can be arrested without a warrant:

1. If he is concerned in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence;

2. If he possesses implements of house breaking;

3. If he possess stolen property;

4. If he is proclaimed an offender;

5. It he obstructs a police officer on duty'

6. If he escapes from a legal custody;

7. It he is a deserter from the army, navy or air force;

8. Where he is out of India, if he commits an offence punishable under any extradition law or under the Fugitive Offenders Act;

9. If he is released convict who breaks the restrictions imposed by the Court on his movements;

10. If he is suspected of preparing to commit a cognizable offence;

11. If he is habitual criminal;

12. If he, after committing a non-cognizable offence in the presence of a police officer, refuses to give the police his name and address or has given him a false name and address;

13. If he is required by a police officer of another police station who suspects that he has committed a cognizable offence;

How is Arrest made?

Arrest is complete when there is submission to custody by word or action, and in such a case touching or confining of the body of the person arrested is not necessary, but mere surrounding of a person by the police does not amount to arrest. (Section 46).

What happens if you resist arrest?

If you forcibly resist arrest, the police officer can use all means necessary to effect the arrest. (Sec 46). He can even cause your death provided you are charged with an offence punishable with death or me imprisonment. However, he is not justified in using force more than necessary to obtain the arrest (Sec.46). Therefore, unnecessary restraints or causing physical inconveniences tying of hands and feet are not permissible if there is no necessity for doing so.

What are your rights when you are arrested?

If you are arrested:

1. You must be informed of the reasons for your arrest (Fundamental Rights : Article 22 and Sec.50 Cr.P.C.)

2. You have a right to see the warrant if you are arrested under warrant (Sec.75 Cr.P.C.)

3. You have a right to consult a lawyer of your choice. (Fundamental Rights: Article 22 of the Constitution);

4. You must be produced before the nearest Magistrate within 24 hours (Fundamental Rights Article 22 of the Constitution);

5. You must be told whether you are entitled to be released on bail. (Sec.50 Cr.P.C.)

Can you be handcuffed?

According to the latest ruling of the Supreme Court, normally an arrested person should not be handcuffed unless he is violent or he is desperate character or he is likely to attempt to escape or to commit suicide. Arrest is not a punishment. Hence unnecessary restraints are not permissible, if there is no necessity for doing so. Search of a place entered by a person sought to be arrested Sec.47 of Cr.P.C. compels all persons to afford to the police facilities for search in a place for a person sought to be arrested. Police officers have power to break open any door or window to carry out a search and to liberate himself or any person who is detained inside a premises.

Search of an arrested person

A Police officer has the right to search a person only after he is arrested. After the search the police officer must keep in safe custody all the articles taken from the person and give him a receipt for the same. A search of an arrested female should be done with strict regard to decency. A woman can be searched only by another women. (Sec.51)

Examination of arrested person by medical practitioner

A police officer not below the rank of a sub-Inspector may require an arrested person to be medically examined if he feels that this may provide evidence to prove the offence. (Sec.53)

1. He may use reasonably necessary force to have the medical examination performed.

2. The accused person can make a request to the Magistrate that he had not committed the offence.(Sec.54)

3. A woman has a right to demand that she be examined by a woman doctor. (Sec.53 A(2)54)

4. In case of torture in police custody, this provision of law must be taken advantage of and the victim should demand in the Court that he be medically examined to prove torture by the police.