The term “Arrest” means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person’s liberty is in control of the arrester. In criminal law, arrest is an important tool for bringing an accused before the Court and to prevent him from absconding.
A police officer may arrest without a warrant u/s 41(1) to 151 of Criminal Procedural Code 1973 (hereinafter referred to as Code); under a warrant under Sections 72 to 74 of the Code; under the written order of an officer in charge under Sections 55 and 157; under the orders of Magistrate under Section 44 and in non cognizable offence under Section 42 of the Code. A superior officer may arrest under Section 36 of the Code. An Officer-in-Charge of a Police Station may arrest under Section 42 (2) and 157 of the Code.
PROCEDURE OF ARREST
Section 46 of the Code describes the way in which an arrest is actually made. As per Section 46(1), unless the person being arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will not amount to arrest. The submission to custody may be by express words or by action.
Section 46(2) provides that if any person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to affect the arrest. Thus, if the person tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can be done by a woman police officer after making a written report and obtaining a prior permission from the concerned Judicial Magistrate of First class.
The Division Bench of the Bombay High Court in a recent case of Kavita Manikikar v. Central Bureau of Investigation, Mumbai [reported in 2018 SCC OnLine Bom 1095], took strong note of conduct of CBI Officers in arresting woman after sunset i.e. in violation of Section 46 (4) of the Code of Criminal Procedure (”Code”) which mandates that except in exceptional circumstances a woman shall not be arrested after sunset and before sunrise.
In the case, the petitioner was called for investigation by the respondent-CBI for which she duly cooperated with the investigation agency. Petitioner was arrested at about 8 p.m. after which she was produced before of the Special Judge. Petitioner had invited the attention of the Special Judge towards her case of illegal arrest wherein she pointed out that her arrest violated the ambit of Section 46 (4) of the Code, though the Special Judge ignored the fact of illegal arrest and proceeded by remanding the petitioner to the custody of the respondent-CBI for a period of 14 days.
Petitioner approached the Court seeking a declaration that her arrest was contrary to Section 46 (4) of the Code. The petitioner also prayed for a direction to initiate inquiry against the Officers who arrested her in violation of the statutory provision.
The observations made by the Bombay High Court are as under:
- That the provision under Section 46 (4) of the Code undoubtedly creates an embargo on arrest of a woman who is an accused in an offence to be arrested after sunset and before sunrise. However, in the backdrop of the exceptional circumstances, it is permissible for a woman police officer by making written report to obtain prior written permission of the JMFC and then effect arrest.
- That Section 60A of the Code makes it imperative that no arrest shall be made except in accordance with the provisions of the Code. Thus, any arrest which is made in violation of provisions contained in this Code shall be liable to be termed as not in accordance with the Code and thus illegal.
- That ‘Life and Liberty’ as enshrined in Article 21 of the Constitution available to a citizen cannot be denied to a convict, an accused in custody and surely not a suspect who is sought to be converted to an accused on investigation and then from an accused to a convict in trial.
- That it is an obligation upon State to ensure that there is no infringement of indefeasible right of citizen to life and liberty, which he cannot be deprived of without following the procedure established by law. The Code which outlines the manner and to the extent to which a person can be denuded of his liberty, hence needs a strict compliance. Any deviation from the prescribed procedure in the matter of arrest can therefore, be not countenanced and is liable to be declared as illegal.
In view of the aforesaid observations, the High Court held that the action of the respondent in arresting the petitioner is in violation and utter disregard to Section 46(4) of Code and hence declared as illegal. The High Court in view of the aforesaid held the concerned CBI officials liable to pay costs of Rs.50,000/- to the petitioner.