This is blog is to understand to the the procedure of arrest underthe code of criminal procedure Act,1973. An arrest is an act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of committing a crime. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system. Police and various other officers have powers of arrest.
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| Arrest Warrant must be ensured |
Constitution of India Provides Remedy to the Person Arrested and The Human Rights and Protection of the Value of Human.
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| The Constitution Of India 1949 |
22. Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four(24) hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause ( 4 ) Right against Exploitation
Kalyan Kumar Das vs The State Of West Bengal on 13 July, 1998
Equivalent citations: (1998) 2 CALLT 163 HC, 1998 (2) CHN 136
Bench: P S Mishra, G R Bhattacharjee, V K Gupta, N A Chowdhury, B Panigrahi
JUDGMENT V.K. Gupta, J.
1, This reference shall endeavour to examine the true Import and scope of the State amendment carried out in respect of section 167(5) of the Code of Criminal Procedure. 1973 (hereinafter Code, for short). Section 167(5) of the parent Code read as under:--
"If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further Investigation into the offence unless the officer making the Investigation satisfies the Magistrate that or special reasons and in the Interests of justice the continuation of the investigation beyond the period of six months is necessary."
2. By the Code of Criminal Procedure (West Bengal Amendment) Act 1986, which came into force with effect from 2nd May, 1989, sub-section (5) of section 167 of the Code was substituted by way of the aforesaid State amendment for the State of West Bengal. The substituted sub-section(S) In the State amendment reads as under:--
(5) If in respect of-
(i) any case triable by a Magistrate as a summons case, the Investigation is not concluded within a period of six months, or
(ii) any case exclusively triable by a court of Session or a case under Chapter XVIII of the Indian Penal Code (45 of 1860) the investigation is not concluded within a period of three years, or
(iii) any case other than those mentioned in clauses (i) and (ii) the investigation is not concluded within a period of two years from the date on which the accused arrested or made his appearance.
The Magistrate shall make an order stopping a further investigation into the offence and shall discharge the accused unless the officer making the Investigation satisfied the Magistrate that for special reasons and in the interests of Justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary."
3. Accused Kalyan Kumar Das was arrested on 25th January 1988 and on the same date a case was registered at Keshpur Police Station against him, being case No. 5 of 25th January 1988 under section 7(1)(a)(ii) of the Essential Commodities Act, 1955. On completion of the investigation, charge-sheet being CS No. 32 of 12th October 1988 was submitted against the accused, This charge sheet was received by the learned Judge, Special Court, Midnapore, under the Essential Commodities Act on 16th November 1988 and the cognizance thereupon was taken by the learned Special Judge on 8th December 1988. 27th January 1989 was fixed as the date for the examination of the accused in terms of section 251 of the Code. On this date an application was moved by the accused before the learned Special Judge for quashing the proceedings and for an order of acquittal of the accused on the ground that investigation of the case continued beyond the period of six months and such continuance being totally without Jurisdiction, the cognizance taken thereupon by the learned Judge was bad and hence the accused was entitled to an order of acquittal. The learned Special Judge however vide order 28th February. 1989 rejected the aforesaid application of the accused. The accused filed a Criminal Revision Petition in this court which came up for consideration before a learned single Judge. The dates indicated below will give a preview of the relevant periods relating to the completion of the investigation beyond time and the filing of the case in the court etc.:--
The Supreme Court of India
The Supreme Court of India under Article32 of Indian constitution and the High Courts in states under Article 226 of Constitution of India have the powers to issue writs in the nature if Habeus Corpus for enforcement of any of the Fundamental Rights
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| Officers must produce the Warrant if the Crime is Non-cognizable |
If the Person Commits a Crime/Offence. Under Section 167 of The Code Of Criminal Procedure, 1973 Mention that:
If the Offence is Cognizable then Officers will arrest the person at the moment For Example offences like Rape, Murder. If A Commits a Rape the Arresting is Very Important without the Arrest Warrant.So, It Depends upon the Seriousness of the Crime. Police have no Right to Arrest if the Crime is not Heinous.
1.)At the time Arrest Ask the Police Officer to fill the Arrest Memo.
2.)At the time Arrest Ask the Police Officer to take Medical Test
3.)Woman Can't be Arrested or called to Police Station after Sunset or Before Sunrise. The Arresting can only be done by the Female
Officer.
4.)If a Child commits any Crime then the officers on Duty had to Put off the Uniform and wear odd simple clothes and had brought in custody in a very polite and in a gentle way. No child had to bring in handcuffs.
Offences are of 2 types
- Bailable Offence/Non-Cognizable Offences
- Non-Bailable Offence/ Cognizable Offences
Cognizable Offence:
A cognizable offence is an offence in which the police officer as per the first schedule or under any other law for the time being in force, can arrest the convict without a warrant and can start an investigation without the permission of the court. Cognizable offences are generally heinous or serious in nature such as murder, rape, kidnapping, theft, dowry death, etc. The first information report (FIR) is registered only in cognizable crimes. Under section 154 Criminal Procedure Code (CrPC), a police officer is bound to register an FIR in case of a cognizable crime. He can also conduct some kind of preliminary inquiry before registering the FIR. In these offences, a convict is arrested and produced before the magistrate in the stipulated time. Owing to the serious nature of the crime, court?s approval is implicit in cognizable offences.
Non-Cognizable Offence:
A non-cognizable offence is the offence listed under the first schedule of the Indian Penal Code and is bailable in nature. In case of a non-cognizable offence, the police cannot arrest the accused without a warrant as well as cannot start an investigation without the permission of the court. The crimes of forgery, cheating, defamation, public nuisance, etc., fall in the category of non-cognizable crimes.In this type of crimes, a criminal complaint is lodged with the metropolitan magistrate who is supposed to order the concerned police station to initiate an investigation. The police officer is supposed to file the charge sheet with the court which is followed by a trial. After the trial, if the accused is found guilty, the court passes the order to issue the warrant to arrest the accused.
Section 167 in The Code Of Criminal Procedure, 1973
167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) 1 the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 1 Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.]
(2A) 1 Notwithstanding anything contained in sub- section (1) or sub- section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub- section,
