How an Arrest Is Actually Made

Read clause (c) with clause (b). If the attesting witness is a family member, the family already knows. If the witness is a stranger from the locality, nobody who cares about him knows, and that is precisely when the officer must tell him about the right to have somebody informed.

Section 43: how the arrest is made

Sub-section (1), the physical act. The officer or other person making the arrest 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.

The proviso, and it is new. Where a woman is to be arrested, then unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed; and unless the circumstances otherwise require or the police officer is a female, the officer shall not touch the person of the woman for making her arrest.

So for a woman the ordinary rule is inverted. Touching is the default for everybody else and the exception for her.

Sub-section (2), resistance. If the person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the officer or other person may use all means necessary to effect the arrest.

Sub-section (3), handcuffs, and this is new law. The police officer may, keeping in view the nature and gravity of the offence, use handcuffs while making the arrest or while producing the person before the court, where the person:

• is a habitual or repeat offender;
• escaped from custody;
• has committed an offence of organised crime;
• terrorist act;
• drug related crime;
• illegal possession of arms and ammunition;
• murder;
• rape;
• acid attack;
• counterfeiting of coins and currency-notes;
• human trafficking;
• sexual offence against children; or
• offence against the State.

The old Code said nothing about handcuffs. Courts had held that routine handcuffing violated article 21. Parliament has now put the permitted cases in the statute, and the opening words, "keeping in view the nature and gravity of the offence", make it a judgment and not an automatic entitlement even in a listed case.

Sub-section (4), the limit on force. Nothing in the 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.

That is the answer to a standing exam question. "All means necessary" in sub-section (2) does not include killing, unless the offence is one carrying death or life.

Sub-section (5), the sunset rule. Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise; and where such circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Three requirements, all of them precise: exceptional circumstances, a written report, and prior permission from a first class Magistrate. And it is a woman police officer who must seek it.

Section 44: searching a place the person has entered

Sub-section (1). Where a person acting under a warrant of arrest, or a police officer having authority to arrest, has reason to believe that the person to be arrested has entered or is within any place, the person residing in or in charge of that place shall, on demand, allow him free ingress and afford all reasonable facilities for a search.

Sub-section (2). If ingress cannot be obtained, it is lawful, in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without giving the person an opportunity of escape, for a police officer to enter and search, and to break open any outer or inner door or window of any house or place, whether the person's own or another's, if after notification of his authority and purpose, and a demand of admittance duly made, he cannot otherwise obtain admittance.

Note the three conditions before anything is broken: notification of authority, notification of purpose, and a demand of admittance. Only then, and only if admittance is still refused.

The proviso. Where the 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, the officer shall before entering give her notice that she is at liberty to withdraw and afford her every reasonable facility for withdrawing, and may then break open the apartment and enter.

Sub-section (3). Any police officer or other person authorised to arrest may break open a door or window to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained inside.

Sections 45 and 46: pursuit, and restraint

Section 45, pursuit. A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India. There is no territorial limit on the pursuit, which is the point of the section.

Section 46, no unnecessary restraint. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. One sentence, and it is the principle the handcuff provision has to be read against.

Section 55: arresting through a subordinate

Where an officer in charge of a police station, or a police officer making an investigation under Chapter XIII, requires a subordinate to arrest without a warrant, otherwise than in his presence, a person who may lawfully be so arrested, he shall deliver to that subordinate an order in writing, specifying the person to be arrested and the offence or other cause for the arrest. The subordinate shall, before making the arrest, notify the person of the substance of the order, and if so required, show him the order.

Sub-section (2) preserves the subordinate's own power to arrest under section 35. So section 55 governs arrest on somebody else's instructions, not arrest on the officer's own judgment.

Sections 61 and 62: escape, and the closing rule

Section 61, pursuit after escape. If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. Section 44, on entering and searching a place, applies to such an arrest even though the person making it is not acting under a warrant and is not a police officer with authority to arrest.

Section 62, and it deserves the last word. No arrest shall be made except in accordance with the provisions of this Sanhita or any other law for the time being in force providing for arrest.

It looks like a truism. It is not. It is the provision that makes every requirement in this chapter a condition of lawfulness rather than a suggestion, and it is why a defect in the manner of arrest is an argument and not a grumble.

The case

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.

Facts. The Executive Chairman of Legal Aid Services, West Bengal wrote to the Chief Justice enclosing newspaper reports of deaths in police lock-ups and custody. The letter was treated as a writ petition. A second letter, from Ashok K. Johri about a death in custody at Aligarh, was heard with it. The Court was not deciding the legality of one arrest; it was asked what safeguards the Constitution requires of every arrest.

Held. The Court laid down eleven requirements to be followed in all cases of arrest or detention until legislation was made. Among them: the arresting and interrogating officers must bear accurate, visible and clear identification and name tags, and their particulars must be recorded in a register; a memo of arrest must be prepared at the time of arrest, attested by at least one witness who is a family member or a respectable person of the locality, countersigned by the arrestee, and carrying the time and date; the arrestee is entitled to have a friend or relative informed as soon as practicable; he must be told of that right; an entry must be made in the diary at the place of detention naming who was informed; on request he must be examined for injuries and given a copy of the inspection memo; he must be medically examined every 48 hours by a doctor from an approved panel; copies of the documents must go to the local Magistrate; and he may meet his lawyer during interrogation, though not throughout.

Why it matters here. Read the eleven directions against sections 36, 38, 47, 48 and 53 of the Sanhita and the resemblance is not a coincidence. What a court had to invent in 1996 because the statute was silent is now the statute. That is the single best thing to say about D.K. Basu in an answer on the Sanhita: it has been legislated.

A worked example

Sub-Inspector Kale is sent to arrest Vikas, wanted for an offence of organised crime, at a chawl in Kurla. The station house officer is not going with him.

What must Kale carry? An order in writing from the officer in charge, under section 55(1), specifying Vikas by name and the offence, because he is being required to make the arrest otherwise than in the presence of the officer requiring it. Before arresting he must notify Vikas of the substance of the order, and show it if asked.

Vikas has gone into a room and the occupant will not open the door. Kale demands free ingress under section 44(1). It is refused. He notifies his authority and his purpose and demands admittance. Still refused. He may then break open the door under section 44(2).

A woman who does not appear in public is inside, and she is not the person to be arrested. Before entering that apartment Kale must give her notice that she is at liberty to withdraw and afford her every reasonable facility to do so, under the proviso to section 44(2).

How is the arrest itself made? By actually touching or confining Vikas, unless he submits by word or action, under section 43(1).

May Kale handcuff him? The offence is organised crime, which is on the section 43(3) list, so he may, keeping in view the nature and gravity of the offence. He may not use more restraint than is necessary to prevent escape, section 46.

Vikas resists violently. Kale may use all means necessary, section 43(2), but he may not cause his death unless the offence is punishable with death or life imprisonment, section 43(4).

What must Kale wear and write? Accurate, visible and clear identification of his name, and a memorandum of arrest attested by one witness who is a family member or a respectable member of the locality and countersigned by Vikas, under section 36.

Vikas escapes from the jeep on the way to the station. Kale may immediately pursue and arrest him anywhere in India, under section 61, and section 44 applies to that arrest as well.

Now suppose it was Vikas's sister who was to be arrested, at nine at night. Section 43(5) forbids it save in exceptional circumstances, and then only if a woman police officer obtains the prior permission of a Magistrate of the first class by a written report. And under the proviso to section 43(1) her submission on an oral intimation of arrest is presumed, and she is not to be touched unless the circumstances require it or the officer is a woman.

Distinctions

What this does NOT mean

An arrest does not require the word "arrest" to be spoken. It requires touching or confinement, or a submission to custody.

"All means necessary" is not unlimited. Section 43(4) stops at death for anyone not accused of an offence punishable with death or life.

Section 43(3) does not make handcuffing automatic in a listed case. The opening words require the officer to keep in view the nature and gravity of the offence, and section 46 forbids more restraint than is necessary.

And section 44 does not permit breaking in first and explaining afterwards. Notification of authority and purpose and a demand of admittance come first.

Quick revision

• Section 36: name identification; memorandum of arrest, attested by a family member or a respectable person of the locality and countersigned by the arrested person; and, unless a family member attested it, tell him of his right to have someone informed.
• Section 43(1): actually touch or confine, unless submission by word or action. For a woman, submission on oral intimation is presumed and she is not to be touched unless circumstances require it or the officer is a female.
• Section 43(2) and (4): all means necessary on resistance, but no right to cause death unless the offence is punishable with death or life.
• Section 43(3), new: handcuffs permitted for a habitual or repeat offender, an escapee, and for organised crime, terrorist act, drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, and offence against the State.
• Section 43(5): no arrest of a woman between sunset and sunrise save in exceptional circumstances, with the prior permission of a first class Magistrate, obtained by a woman police officer on a written report.
• Section 44: free ingress on demand; break open only after notifying authority and purpose and demanding admittance; notice to a female occupant who does not appear in public before entering her apartment.
• Section 45: pursuit into any place in India. Section 46: no more restraint than necessary.
• Section 55: a written order specifying the person and the offence where a subordinate is required to arrest otherwise than in the presence of the officer requiring it.
• Section 61: immediate pursuit and rearrest anywhere in India after an escape or rescue.
• Section 62: no arrest except in accordance with the Sanhita or another law providing for arrest.

Test yourself

1. What is required to make an arrest, physically? Actually touching or confining the body of the person, unless there is a submission to custody by word or action, section 43(1).

2. When may handcuffs be used? Under section 43(3), keeping in view the nature and gravity of the offence, where the person is a habitual or repeat offender or has escaped from custody, or where the offence is organised crime, a terrorist act, a drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, a sexual offence against children, or an offence against the State.

3. A woman is to be arrested at 9 p.m. What is required? Exceptional circumstances; and then a woman police officer must obtain the prior permission of the Magistrate of the first class of the local jurisdiction, by making a written report, section 43(5).

4. Who must attest a memorandum of arrest? At least one witness who is either a member of the family of the person arrested or a respectable member of the locality where the arrest is made, and the arrested person must countersign it, section 36(b).

5. May an officer break open a door to arrest? Yes, under section 44(2), but only after notifying his authority and his purpose and duly demanding admittance, and only where a warrant is being executed or where a warrant could issue but cannot be obtained without giving the person an opportunity to escape.

6. State the eleven-point significance of D.K. Basu for a paper on the Sanhita. The eleven safeguards the Court prescribed in 1996 because the Code was silent, including the name tags, the attested and countersigned memo of arrest, informing a relative, telling the arrestee of that right, the diary entry, examination for injuries, medical examination every 48 hours and access to a lawyer during interrogation, have now largely been enacted as sections 36, 38, 47, 48 and 53 of the Sanhita.

7. What does section 62 add? That no arrest may be made except in accordance with the Sanhita or another law providing for arrest, which makes the requirements of this chapter conditions of a lawful arrest.