“Arrests” Law in Motion – 9 by Rupin Sharma

Law in Motion - 9: "Arrests" by Rupin Sharma

Dimapur, September 05 (NEx): The series of articles on ‘Law’, written by Shri Rupin Sharma, IPS, to educate people of Nagaland about the process of Law in matters of crime to create awareness and bridge the gap between law and people;

Law in Motion – 9: “Arrests”

Missed earlier article on ‘Arrests’ – read now..

The police officers have powers to effect arrest (in cognizable offences – without warrants) and so do village authorities in some cases but the magistrates have the over-riding power to arrest or get someone arrested in both cognizable as well as non-cognizable offences (with warrants). Police officers and magistrates also have powers to release the arrested persons on bail pending trials.

Let us now proceed to understand more about arrest;

1 – How arrest is made (Section 46 of CrPC):

The essential prerequisite is restraint of the person to be arrested. Thus while making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested. However, a physical touch or confinement or restraint may not be required when the person sought to be arrest submits himself to custody by word or action.

If the person sought to be taken into custody either attempts to evade arrest or forcibly resists the arrest, the police officer or other person effecting the arrest may use all measures necessary to effect the arrest and take the person into custody. How much force can be used would depend upon the circumstances of each case or situation. All measures necessary may mean erecting barricades or cordon and search operations or searches or even the deployment of means of surveillance (cameras / legal call interception etc), or even use of tear-gas or any other means of resistance – whether lethal or non-lethal. What would be appropriate is a subjective issue in all cases.

However, as per law, there is no right (on a police officer or other person or even security forces or village authorities etc.,) to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

Therefore, causing of a death of a ‘suspect’ who is to be arrested is only an exception, not the rule. It also is sane to advise that unless under a ferocious attack which may result in death of the police officer (or other person trying to arrest), he should try to exhaust all other lesser means of use of force before using a means which may result in death. Self- defence is a defence but only available during and after investigation, not straightaway.

2- Search of place entered by person sought to be arrested:

(a) Duty to allow Search

The police officer trying to effect an arrest or any other person acting to arrest under a warrant has the right to enter any premises to arrest the ‘subject’ and once he has entered the premises, he has the right to be allowed to work without any hindrance.

Thus if a police officer has reason to believe that a subject/suspect is either residing in a premises or has entered a premises or has entered an area, the resident or owner or in-charge is duty bound to assist.

The occupant of the premises also has a duty to allow free ingress (entry) into the suspected premises and also provide all reasonable facilities to the police officer to conduct the search of the person sought to be arrested. Trying to obstruct such performance of legal duties by any person is a punishable offence and the person causing the obstruction is liable to be arrested and punished for the same.

(b) If search is obstructed or delayed:

During the process of beginning or conduct of a search, if the ingress cannot be obtained without affording the person to be arrested an opportunity of escape, it shall be lawful for a police officer to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person.

Before using force to open a door or lock, the police officer has to notify/inform that he be allowed free and unobstructed entry.

However, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

Two interesting observations here:

(i) This protection to a female is not available if she is the one sought to be arrested; and

(ii) The female should “according to custom…… not appear in public”. Thus where a lady is a resident of an apartment, and usually appears in public, this protection may not be available.

In practice, in India, this requirement is usually circumvented by inducting either a lady police officer or a local lady from the neighbourhood as a measure of abundant caution and respect.

It may be noted that in some of the European countries, such measures have been done away with and even the arrest of female suspects or accused persons can be effected by the male members of the police force. Presumably, it will take us some time to reach that stage.

The possibility of the police party facing hostilities and even detention by the public or relatives etc is not ruled out. The law therefore says that once a police officer has entered a premises to search and arrest a suspect or accused, he is empowered to break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, may have lawfully entered a premises for the purpose of making an arrest.

3 – Use of Handcuffs etc. :

The law merely says “The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”

Human rights and civil rights activists had agitate the courts in India and the courts have laid certain guidelines which essentially reiterate the law ‘not be subjected to more restraint than is necessary’.

The problem is that the issue of handcuffing is a matter of subjective opinion of the person arresting the accused/subject or escorting him. If the police officer/escort is of the opinion that handcuffing – whether by way of handcuffs or ‘ropes’, is necessary, he may use the same. However, in practice, sometimes, the police obtains permission/orders from the magistrates to use handcuffs.

The issue of handcuffing is an accepted police power the world over. However, besides the issue of escape of the person in custody, the most important factors which have propelled this debate on handcuffs is the public humiliation to which the person may be subjected by the police or escorts. It may be recollected that earlier (and even nowadays), it is not uncommon for either the police or public or village authorities to parade the arrested persons with handcuffs, either as trophies or as tools for sending a message or signal to the society or public at large.

These actions have the effect of demeaning and pronouncing the guilt of the arrested persons, even before a judgment has been passed by a court of law. These are inappropriate behaviours, clearly.

In my opinion, the tendency to consider arrests by police, before investigation or during investigation (for interrogation) and perhaps even post investigation, before a trial is completed is not a healthy practice.

Yes, the police has power to arrest as do the magistrates, but arrest should be used as a preventive and temporary measure, only to enable the courts to decide the culpability, post trials by courts.

There should be a concerted effort to move from arrests for prevention and investigation or pre-trial arrests because this is a major reason for police to get a bad name and image. The stigma which is attached to arrests in India (and perhaps in the entire developing world especially Commonwealth countries) is unfair and is, often, in the eyes of a common man equated with punishment. It IS NOT, repeat, IT IS NOT. Arrest by police is meant to serve a limited purpose – to prevent crime (temporary intervention), to prevent aggravation of crime, to prevent hardened criminals from escape and causing greater harm after escape, for investigation (custodial interrogation of accused or witnesses) or to pre-empt flight risk (flight from the jurisdiction or country etc).

Otherwise, BAIL IS THE RULE.

Unfortunately, arrest by police is seen as a punitive measure which leads to the immense pressure on police to arrest. In fact, the mind-set has been so tuned over a period of time that ‘demands for arrest’ by police have become a norm for society and non-arrest a sign of police inefficiency.

Hopefully, things will change. Slowly, albeit.