Pre-trial procedures involving arrest and investigation assume much
importance under both Indian and French systems. In fact it is at this stage
that the systems, reflect their differences, more prominently.
Under the French system the police could prohibit any person from leaving the
scene of crime till the termination of their initial inquiries. The police could
request any person to attend a police station, the procureur could authorise the
police to use force to compel his attendance. Apart from this, the police might,
without the procureur's authority, take into custody any person whose identity
they wanted to verify, or against whom substantial incriminating evidence
This type of custody was called 'garde a' vue'. A person detained under
'garde a“vue' was not entitled to legal advice or legal representation during
his detention and he could be questioned by the police freely.
An 'officer' of police judioiaire alone could order for the detention of 'garde
a vue'. A person arrested could be detained for twenty four hours only. However,
the procureur could authorise further detention of twenty four hours, if there
was substantial incriminating evidence against the said person. Without such
written authorisation by the procureur, the period of detention was strictly
limited to twenty four hours only. If several offences were being investigated
simultaneously all involving the same person, he might still be detained for one
period of garde a vue
A record of each garde a vue
giving its time of its commencement, total
duration, the duration of any examinations and details of what took place,
threat and the reasons why the person was detained etc., should be kept by the
police. Apart from that individual records, the police must have maintained a
composite register giving details of garde a vue
Detentions beyond twenty four hours would be dealt with seriously. The officer
responsible for the same was liable to be disciplined. As the illegal detention
was a criminal offence, the 'officer' concerned was liable for criminal
If a juge d' instruction was in-charge of the inquiry, the police did not have
the power to question the suspect in the absence of lawyer. In such cases the
police could arrest the suspect only on the instructions of the juge d'
instruction. The effect of the question and the answers thereto might well be
more restricted if the accused's lawyer was present, as was accused's right when
appearing before a juge d' lnstruction.
L' Enquete preliminaire type of enquiry was aged where the offence was not
'flagrant' (thus not permitting the use of 'I' enquete flagrante) and as an
alternative to investigation by a juge d'instruction (although such an
investigation may follow on an (enquete preliminaire). It was used in all
'contraventions' and in all cases where the offence was not reported as soon as
it came to light, obvious example, of which were fraud. The police could only
request a witness or suspect to attend the police station and that person had
the right to refuse.
If the police wish the accused to be detained, they will have to make a request
to the procureur to ask a juge d'instruction to take over the inquiry in the
hope that the juge d' Instruction will order that the accused be detained. All
the steps had to be taken before the end of the period of garde a vue
'enquete preliminaire' would come to an end when the procureur ordered no
further proceedings, cited the accused to court, or request a judge d'
instruction to take over the inquiry.
Warrants of Arrest:
The judge d' Instruction had the powers to issue a warrant of arrest for the
arrest of the Accused who had not already been arrested by the provisions of the
police powers of garde a vue
There were three types of warrants:
Mandat De Comparution: The 'mandat de comparution' was not so much a
warrant as a request by the judge to the accused to appear before him. Normally,
it would not be used in serious cases, or if the judge thought the accused was
liable to ignore it. If the Accused failed to appear, the judge would then issue
a 'mandat d'amener', having first invited the procureur to give his views on the
issue of such a warrant.
Mandat D'emener A 'mandat d'emener' might only be issued if the offence
was at least a 'delit' punishable by imprisonment. The warrant authorised the
police to arrest the accused, using force if necessary, but such an arrest might
not be effected in a private house between the hours of 8 p.m, and 6 a.m. As
soon as the accused was arrested, he was brought before the juge d' instruction,
or if that was impossible, was detained in a police station in the interim. If
the juge d' instruction did not examine the accused within twenty four hours of
his arrest, the procureur might request the president of the court or judge
nominated by him to conduct such an examination. lf no examination was made or
if no such request was made, the accused must be freed from custody.
Mandat D' Arrest: The warrant of 'mandat d' arrest' was basically the same
as a 'mandat d' amener', but was used where the accused had fled or gone abroad.
The main difference was that the accused must be brought before the juge within
forty eight hours of his arrest and not within twenty four hours as in the case
of 'mandat d' amener'.
To sum up, under the French Law a warrant of arrest was issued only against an
absconding person and carried with it an order of remand. Such a warrant was
issued by an investigating judge. Warrant was issued only when summonses to
appear were found not effective in the circumstances of the case.
ln cases of offences committed in their presence, the prosecutor or the
investigating police officers were entitled to remand the accused persons. In
such cases the accused persons should be produced directly before the trial
court expeditiously. Otherwise, only the investigating judge could pass an order
of remand. Such an order of remand was passed upon the demand of the prosecutor
and the latter could appeal against an order refusing remand. The accused person
had no right of appeal against an order of remand; he could only apply for being
released on bail.
The maximum period of remand is four months, the period after the order of
committal is not included in that period of four months. This period of four
months may be extended by an order with reasons.
Medical Examination of Accused person:
The procureur might order that any person detained garde a vue
examined, and in any case where the garde a vue
had been extended beyond the
twenty four hours, the person detained might make a request for medical
examination. The purpose of the medical examination was to ensure that the
person was medically fit to be detained. lt was also for the safeguard against
the Third - Degree methods by the police. The procureur was also having the
power to order for expert medical examination at any time, without the consent
of the accused.
Power of the Procureur to question the accused:
When the accused appeared before the procureur, he had the right to question the
accused if the procureur so desired. During such questioning the accused might
not be legally represented. The purpose of this questioning was to ensure that
there was evidence of prima facie case and that if it was not there proceedings
should not be taken against an innocent person.
The accused had an opportunity
to put forward any explanation, which, if accepted by the procureur, might lead
the procureur to drop the proceedings and release the accused immediately.
Under the French Criminal Procedure all facts concerning both the offence and
the person alleged to have committed should be placed before the court. This aim
is achieved by making detailed pre-trial inquiries. No accused person could
plead guilty when the case was called in court, so it followed that all court
proceedings were trials. A French court would only reach its decision after an
examination of all facts regardless of the attitude of the accused.
It appeared to be a novel procedure under the French Criminal Justice system
that the investigation was done by the investigating magistrate who recorded the
statements of the accused and the witnesses. The statement recorded were placed
before the court for perusal of the presiding officer for arriving at a just and
fair conclusion. It was also pertinent to note that any statement made to the
procureur de la Republic could be placed before the court for assessment and it
was also taken into consideration by the court.
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
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
Section 41B provides the procedure of arrest and duties of officer making
It provides that every police officer while making an arrest shall:
- bear an accurate, visible and clear identification of his name which
will facilitate easy identification;
- prepare a memorandum of arrest which shall be:
- 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
- countersigned by the person arrested; and
- 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.
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
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.
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
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.
Investigation means collection of evidence and starts when the police officer
initiate steps after having come to know about the commission of a cognizable
offence. It involves ascertainment of facts, shifting of materials and search
for relevant data.
Once the police officer forms an opinion that there are grounds for
investigation it stands. The other subsequent acts are deemed to have been taken
during investigation.” The writing of F.l.R. may be done subsequently.
included in investigation are:
- Proceeding to the spot;
- Ascertainment of the facts and the circumstances of the case;
- Discovery and arrest of the suspected person.
- Collection of evidence relating to the commission of the offence which
- An examination of various persons (including) the accused and recording
their statements, if the I.O thinks it necessary.
- The search of places, seizure of things considered necessary for the
investigation and to be produced at the time of the trial: and
- Formation of opinion as to whether it is a fit case for the accused to
be sent up for the trial and, if so, taking steps to file charge sheet.
Thus investigation includes discovery and arrest of the suspected offender and
the search of places and seizure of things considered necessary for the
preparation of the case, inquiry or trial.