Do you know what to do when a police officer arrives to arrest you? Get aware of your rights, now!
Sometimes police officials take people into custody to interrogate, to arrest or many a time even don’t bother themselves to inform them the reason behind such detainment. When a police officer arrests you, they basically take away your fundamental right to freedom. Hence, there is a detailed procedure for legally arresting a person to protect his rights. It is very important to know so that we don’t get arrested anytime, anywhere and for every reason, and thus, in the present blog post, we shall discuss as to when one can be arrested and all the rights he/she possesses in the pre-arrest and the arrest stage.above-mentioned
Let us start with understanding arrest as a concept. In an ordinary sense, it means deprivation of one’s personal liberty. An arrest consists of taking into custody another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the further commission of any criminal offence (like the power a police officer has been given by law). However, the terms ‘Arrest’ and ‘Custody’ are not synonymous. Every arrest consists of custody, whereas every custody is not an arrest. You may be called to the police station under the custody of a police officer for mere interrogation, which would not mean you are arrested (however, it will be called that ‘you are in custody’). What specifically amounts to an arrest are laid down under Section 46 of the Code of Criminal Procedure, 1873.
(A warrant is a document issued by a legal or government official authorizing the police or another body to make an arrest, search premises, or carry out some other action relating to the administration of justice.) An arrest can be made with or without a warrant depending on the nature of the offence for which it is being done. For your reference, the police can arrest without any instruction or warrant, if:
1. A cognizable offence is committed by you in the presence of a police officer (to know what a cognizable offence is please visit https://www.iamaware.live/post/can-a-police-officer-refuse-to-file-your-f-i-r-what-to-do-if-he-does).
2. A reasonable complaint, credible information or a reasonable suspicion exists against you,
3. You are proclaimed as an offender under the State Government,
4. You are in possession of the stolen property and are suspected to have committed such offence,
5. You obstruct a police officer while executing his duty, or escape or attempt to escape from custody,
6. You are deserter of the Armed force of the Union,
7. In the case of extradition,
8. You commit a breach of any rule made under Section 356(5) as a released convict,
9. A written or oral requisition for your arrest has been made by another police officer,
10. You commit a non-cognizable in the presence of a police officer and then refuse to give your name and address,
11. You are arrested by a private person,
12. You are arrested by a Magistrate (executive/judicial).
Apart from the above-mentioned circumstances, the police officer always has to have an arrest warrant in order to arrest you (always remember).
Who can legally arrest you?
I. Any police officer may with or without a warrant arrest you in non-cognizable or cognizable case respectively. [under Section 41 of CrPC,1873]
II. Any private person (any individual) can arrest you, if you commit a non-bailable and cognizable offence in his presence, and then hand you over to a police officer, or in his absence take you to the nearest police station. (If there is no sufficient reasons to believe that you have committed any such offence, you shall be released at once). Here, you can also be that individual arresting another under such above mentioned circumstances. [under Section 43 of CrPC,1873]
III. Any executive or judicial magistrate, may himself arrest you or order for your arrest. [under Section 44 of CrPC,1873]
What are all your rights when a police officer comes to arrest you?
1) If it is a non-cognizable offence, you have a right to ask for the arrest warrant.
2) During the arrest, the police officer must bear accurate, visible and clear identification of his name(nameplate). If the concerned officer is not in uniform, you have a right to ask for his identification card, which will facilitate easy identification.
3) You have a right to have a memo of arrest. Memo of arrest is a document pre-
pared by the police during the arrest, which contains details like name, age and address of the arrested person, details of the officer arresting, date and time of arrest, reasons for such arrest, venue of the station where the arrested person is being taken etc. Every police officer carrying out arrest must be clear that the preparation of an arrest memo is mandatory in all cases. Such Memo of Arrest shall be signed by at least one witness who may be any relative, friend or a respectable neighbour of the locality of the person arrest and also, has been to countersigned by the arrested person. The requirement to obtain the signature of an independent witness indicates that an arrest memo must be prepared at the place of arrest, not afterwards, for example, when the arrested person is brought back to the police station.
4) You have a right to know the reasons or the charges on which you are being arrested. No police officer, Magistrate or private person can arrest you without informing you the grounds for it.
5) If a subordinate officer has come to arrest, you have a right to ask for the orders (in writing) from his superior officer with respect to such arrest.
6) If you are a female, you cannot be arrested after sunset and before sunrise. But, if it is necessary to do so, the police officer shall obtain prior permission in writing from the Judicial Magistrate 1st Class within whose local jurisdiction the offence is committed or arrested is made. You have a right to ask for such written orders from such magistrate before getting arrested (always ask for one, and if not provided deny to follow them to anywhere at all).
7) If you are a female, you can be arrested (or even touched) only by a lady police officer/constables.
Once you are satisfied on the above-mentioned points, the next set of rights (during the arrest) comes into play.
Under Section 46(1) of the Code of Criminal Procedure, 1873, there are three modes by which a police officer or any other person can arrest, namely:
1. By touching your body physically(for example, by grabbing you by your neck).
2. By confining your body(for example, asking you to raise your hands and stop moving by pointing a gun).
3. By submission to the custody by words (agreeing to follow them, without any force) or by action (for example, following them to the police van and getting into it).
If a person, forcibly attempts to resist their arrest the concerned officer may use all necessary force to effect the arrest. However, after Section 46(3) of the code, limits this power to use all necessary force. A point to remember here is that an officer may use all necessary force to effect the arrest, yet he cannot cause the death of such person if he is not accused of an offence which is punishable with death or imprisonment for life (that would mean, if ‘X’ has committed the offence of rape, the police officer may even cause his death while giving effect to his arrest; because rape is an offence punishable with death or imprisonment for life, but if ‘X’ has committed theft, then the above doesn’t apply).
If any such police officer causes one’s death who is not accused of such above mentioned offence, he shall be booked under Section 300 (Exception 3)/ Culpable homicide, not amounting to murder).
Are police officers required to put handcuffs on every person they place under arrest?
There is no general rule or requirement that a police officer must handcuff a person who is being arrested. Furthermore, there is also no requirement for an officer to handcuff a person who is being transported from gaol to the courthouse. When deciding on whether a person should be handcuffed, case law has stated that the choice to handcuff a person is dependent on the surrounding circumstances, and that officers should always take the proper precautions to ensure the safety of themselves, and the public. Although, circumstances in which handcuffing may be deemed to be necessary is to stop the person from committing a further offence, or preventing the person from escaping police custody.
Even if you don't think you'll ever be arrested, it's always better to know your rights and the rules that police must follow while dealing with you. After all, many cases have shown that even when someone is arrested for a minor crime, the arrest process can escalate into a dangerous situation. I hope you recall all your rights learnt here in this blog post, in the time of necessity.
DISCLAIMER: This blog is an academic endeavour to increase awareness on legal procedure and the rights associated with the. The opinions expressed by the contributors are for informational purposes only and is made in their personal capacity. Nothing herein shall be deemed constitute legal advice. The reader is cautioned to seek legal advice from trained professionals for their queries.
In the next blog, we shall see what rights we hold after one is arrested (post-arrest stage).