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Arrest and questioning of the Accused in India, UK And USA

Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International human rights law recognises the power of the State to arrest any person as a part of its primary role of maintaining law and order.

Though not defined in any law in India; however, the term arrest is 'an apprehension of a person by legal authority resulting in deprivation of his liberty'. In English law, arrest consists of the actual 'seizure' or 'touching of a person's body' with a view to his detention. Supreme Court has defined the term arrest, in State of Punjab v. Ajaib Singh (1953), as it appears in Article 22 of the Constitution of India- 'indicating physical restraint of a person under the authority of the law in respect of an alleged accusation or default or violation of the law.'

Arrest And Questioning Of Accused In India:

Arrest may be affected with warrant or without warrant. Arrest with warrant is dealt with in chapter –VI under sections 70 to 81 of Cr.P.C. A warrant of arrest issued by any Court may be directed to any Police officer to execute the warrant and the police officer or any other person executing a warrant of arrest shall, without unnecessary delay, bring the person arrested before the Court before which he is required by law to produce such person. Provided that, such delay shall not in any case, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.

Arrest without warrant is dealt with in Chapter V under sections 41 to 60A of Cr.P.C. The following officers/personnel are empowered to arrest without warrant:

  1. Any Police officer:
    Any Police Officer, of whatever rank, may without an Order from a Magistrate and without a warrant, arrest a person on fulfilment of the conditions laid down in section, 41, 41A, 41B and 42 of Cr. P. C.

    Section 41 of Cr.P.C. provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person who commits, in the presence of a police officer, a cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine if the conditions as provided in the section are satisfied.

    Section 41A provides that where a person is not required to be arrested under section 41 then the police officer may issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice and when such person fails to comply with the terms of the notice then the police officer may arrest him for the offence mentioned in the notice.
    Section 41B provides the procedure of arrest and duties of officer making arrest

    It provides that every police officer while making an arrest shall:
    1. bear an accurate, visible and clear identification of his name which will facilitate easy identification;
    2. prepare a memorandum of arrest which shall be:
      1. attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
      2. countersigned by the person arrested; and
         
    3. inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

      Section 42 provides for arrest on refusal to give name and residence. When any person who, in the presence of a police officer, has committed or has been accused of committing a non- cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
       
  2. Private person
    The provision for arrest by private person is provided in section 43 of Cr.P.C. Any private person may arrest or cause to be arrested any person who in his presence commits a non- bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

    If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re- arrest him. If there is reason to believe that he has committed a non- cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
     
  3. Magistrate
    The provision for arrest by Magistrate is provided in section 44 of Cr.P.C. When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Arrest how made: (Section 46)

Section 46 provides that in 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, unless there be a submission to the custody by word or action. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. Except in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is made.

Moreover, section 49 provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Inform the arrested person: (Section 50)

Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Where a police officer arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Person arrested to be taken before Magistrate:

Section 56 provides that a police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station.

Section 57 provides that No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court.

Case:
In the case of Central Bureau of Investigation vs. Kishore Singh (2010) the Apex Court held that when a person is brought to the police station and locked up there, obviously he is under arrest.

Arrest And Questioning In UK:

There are three ways in which a person may be brought before a criminal court. The three ways are:
  • by summons
  • by arrest on warrant
  • by arrest without a warrant

The common law of this country, which is the oldest form of law, gave the power of arrest 'to any person' for many offences. Later, with the creation of statute law, which includes powers of arrest for certain offences, the common law powers were largely replaced.

A power of arrest, which is given in an Act of Parliament, is called a statutory power of arrest. The Police and Criminal Evidence Act 1984 provides both the police and any other person the power to arrest. These powers fall into two groups:
  • Indictable offences:
    under the Police and Criminal Evidence Act (PACE) 1984 (offences triable at Crown Court).
  • Powers contained in other Acts:
    The powers of arrest which were contained in numerous Acts have mostly been abolished, although they will still specify that it is an offence under that Act. These are preserved powers of arrest and they are mostly contained within Schedule 2 of PACE 1984.

Arrest by Police without warrant:

The lawful arrest of a person under Section 24 PACE requires two elements:
  • A person's involvement or suspected involvement or attempted involvement in the commission of a criminal offence and
  • Reasonable grounds for believing that the person's arrest is necessary.

The Act states:
  1. A constable may arrest without warrant:
    • Anyone who is about to commit an offence
    • Anyone who is in the act of committing an offence
    • Anyone whom he has reasonable grounds for suspecting to be about to commit an offence
    • Anyone whom he has reasonable grounds for suspecting to be committing an offence.
       
  2. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without warrant, anyone whom he has reasonable grounds to suspect of being guilty of it.
  3. If an offence has been committed, a constable may arrest without a warrant:
    • Anyone who is guilty of the offence
    • Anyone whom he has reasonable grounds for suspecting to be guilty of it.

However, the power of arrest at 1, 2 or 3 above, is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person because one or more of the reasons supporting the need for arrest is satisfied.

Similar to section 42 of Cr.P.C. in India, section 24(5)(a) and 24(5)(b) of PACE 1984 provides that the constable may arrest a person for ascertaining name and address of any person.

Information to be given on arrest:

When a person is arrested they must be told:
  • that they are under arrest
  • the grounds for the arrest, i.e. the offence for which they have been arrested, and
  • the reason (s) for the arrest being necessary

Arrest by persons other than Constables:

Section 24A of PACE provides that a person other than a constable may arrest without warrant:
  • Anyone who is in the act of committing an indictable offence
  • Anyone whom he or she has reasonable grounds for suspecting to be committing an indictable offence.

Where an indictable offence has been committed, a person other than a constable may arrest without warrant:

  • Anyone who is guilty of the offence
  • Anyone whom he or she has reasonable grounds for suspecting to be guilty of it.
A constable can arrest for any offence, but a person other than a constable is restricted to arresting for offences that are indictable. These are offences that are triable at the Crown Court and include those that are triable either way, i.e. at Magistrate's Court or at Crown Court.

Reasonable force:

When carrying out a lawful arrest, the constable is permitted to use force if required by virtue of Section 117 of PACE.

Arrest on warrant:

The warrant to arrest is issued by the Court. If the warrant is to arrest a person for either an offence (such as assault) or for failing to appear at court or on a commitment warrant the constable does not need to have the warrant with him when he makes the arrest. If the arresting officer has the warrant then he is to ensure that the accused person fully understands both the fact that they are being arrested and the grounds for the arrest.

Arrest In USA:

In the United States, there exists a distinction between an investigatory stop or detention, and an arrest. The distinction tends to be whether or not the stop is "brief and cursory" in nature, and whether or not a reasonable individual would feel free to leave.

When a person is arrested for a serious crime, the defendant will have their picture taken and be held in pre-trial prison. United States law recognizes the common law arrest under various jurisdictions. If a police officer has probable cause to believe that a crime has been committed, the officer may make an arrest without an arrest warrant. When making a lawful arrest, an officer may use force that is reasonable and necessary to overcome resistance. An officer may not use excessive force if it is not warranted under the circumstances.

Based on the U.S. Supreme Court ruling in Miranda v. Arizona, after making an arrest, the police must inform the detainee of their Fifth Amendment and Sixth Amendment rights in order for statements made during questioning to be admissible as evidence against the detainee in court. A Miranda warning is required only when a person has been taken into custody (i.e. is not free to leave) and is being interrogated, and the results of this interrogation are to be used in court.

Thus, the provisions as to arrest in India, UK and USA are almost similar so far as the procedure of arrest is concerned.

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