Arrest by private person: Power and Procedure

Arrest by private person: Power and Procedure

Submitted by
Kunwar Ashish Singh
B.comLL.B(Hons*)
Roll No. 32
of
Faculty of Law

Dr. Shakuntala Misra National Rehabilitation University

,Lucknow
In

March, 2018
Under the guidance of
Shipra dubey ma’am
 Arrest by private person: Power and Procedure
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ACKNOWLEDGEMENT
The completion of this Assignment could not have been possible without the participation and
assistance of so many people whose names may not all the be enumerated. Their contribution is
sincerely appreciated and gratefully acknowledged. However, I would like to express my deep
appreciation and indebtedness particularly to the following.
Shipra dubey ma’am for her endless support, kind and understanding spirit during making of this
assignment. To all relatives, friends and others who in one way or another shared their support,
either morally, financially and physically, thank you.
Above all, to the Great Almighty, the author of knowledge and wisdom, for her countless love.
I thank you all.
Kunwar ashish singh
3rd year Student

B.Com. LL.B(Hons.)
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Certificate

The project entitled “Arrest by private person; power and procedure” submitted to the
Faculty of Law, Dr. Shakuntala Misra National Rehabilitation University, Lucknow for ‘Code
Of Criminal Procedure’ as part of internal assessment, is based on my original work carried out
under the guidance of shipra dubey ma’am. The research work has not been submitted
elsewhere for award of any degree. The material borrowed from other sources and incorporated
in the thesis has been duly acknowledged. I understand that I myself could be held responsible
and accountable for plagiarism, if any, detected later.
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Table of contents

1. Introduction…………………………………………………………………… ............. 5
2. ‘Arrest’ Meaning…………………………………………………………… ................. 5
3. Arrest by Private person……………………………………………………… .............. 6

Exception…………………………………………………………………….6,7
4. How arrest is made by private person……………………………………………7,8
5. Power of private person to arrest the person……………………………………...8y
 Arrest by private person: Power and Procedure
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Introduction

The word ‘Arrest’ has neither been defined in the code nor in the IPC nor in any other
enactment dealing with criminal offences. Simply language, Arrest means apprehension of a
person by legal authority (by Magistrate, police, Private Person) resulting in deprivation of
his liberty. Every confinement is not arrest, for arrest legal authority is essential. Every person
can arrest or cause to be arrested a person but that can made only in accordance with some
legal provision permitting such arrest. After arrest, the arrested person has to be hand over to
the police officer or a police station1 within 8 days For instance, When a person arrest thief,
then to hold the police within 8 days for further process. Every compulsion or physical restraint
is not arrest but when the restraint is total and deprivation of liberty is complete, that would
amount to arrest. Arrest of a person is made with a view to ensure his presence at trial in
connection with any offences in which he is directly or indirectly involved. In case of serious
offences, arrests are often made. But in ordinary cases, which are not of serious nature the
accused person is normally called to the police station through, summon to answer certain
questions and thereafter their presence is ensured at the trial of the case2.

‘Arrest’ Meaning

To detain a person and keep him or her in custody by lawful authority. Arrest may be made
with an arrest warrant or without one in case of an arrestable offense, or where it is authorized
by a statute3. A seizure or forcible restraint; an exercise of the power to deprive a person of his or her
liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a
criminal charge4.The arrest is made by the Magistrate or Police or by a private person. The
purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the
law. An arrest serves the function of notifying the community that an individual has been accused of a
crime and also may admonish and deter the arrested individual from committing other crimes. The
federal Constitution imposes limits on criminal arrests5.

1
http://www.allresearchjournal.com/archives/2015/vol1issue7/PartJ/16-42.pdf
2
http://study.com/academy/lesson/arrest-history-procedure-information.html
3
http://www.businessdictionary.com/definition/arrest.html
4
http://legal-dictionary.thefreedictionary.com/arrest
5
http://legal-dictionary.thefreedictionary.com/arrest
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Arrest by Private person

A private person can arrest without warrant-

1. Any person who commits a non-bailable and cognizable offence in his presence.
2. Any person who is a proclaimed offender6.

The principle underlying this section is that “for the sake of preservation of the peace, any
individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long
as his conduct shows that the public peace is likely to be end angered by his acts”. The provision
is extraordinary in nature inasmuch as it enables a private person to arrest a person in certain
circumstances and, therefore, it must be construed strictly in the manner so as not to enlarge
the power private individual to arrest a person. The offence must be non-bailable and
cognizable not bailable or non-cognizable7. The words ‘in his presence’ clearly indicate that
the crime must have been committed before his eyes. These words cannot be read as ‘in his
opinion’ or on ‘suspicion ‘or on ‘information’. Such knowledge therefore, must be personal
knowledge. The right of arrest by a private person under section 43 must be exercised
simultaneously with the commission of the offence. The provision is merely enabling and
doesn’t make it obligatory on the part of a private person to make an arrest without warrant.
Moreover, a private person must make over such person to a police officer or thake him to the
nearest police station8. Any private individual may arrest a person only when the person a
proclaimed offender and the person commits a non bailable offence and cognizable offences in
his presence (sec. 43). Any magistrate (whether Executive or judicial) may arrest a person
without a warrant (sec. 44). Under section 41, Arrest by police officer can be made without
warrant only in cognizable offences (sec.2(c)) and with warrant in non- cognizable offence (sec
2 (l)). Cognizable offences are of more serious nature as compare to non cognizable offences
i.e. Murder, kidnapping, theft, etc.

Exception

There is certain exception about arrest by private person or by another authority

6
Section 43
7
State v. Indra, AIR 1960
8
C.K Thakkar,M.C Thakkar, Takwani criminal procedure 52(LexisNexis,Gurgaon,4th/2015)
 Arrest by private person: Power and Procedure
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No person can arrest to any of the member of armed force of the union until he obtaining the
consent from the central government.

• Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member

of the Armed Forces of the Union shall be arrested for anything done or purported to be
done by him in the discharge of his official duties except after obtaining the consent of
the Central Government.

• The State Government may, by notification, direct that the provisions of sub- section
(1) shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub- section shall apply as if for the expression"
Central Government" occurring therein, the expression" State Government" were
substituted9.

How arrest is made by private person

In making an arrest the police officer /other person making the same actually touches or
confines the body of the person to be arrested unless there be a submission to custody by words
or action. The person making an arrest may use ‘all means’ necessary to make arrest if person
to be arrested resists or attempts to evade the arrest10.

1. 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.

2. If there is reason to believe that such person comes under the provisions of section 41,
a police officer shall re-arrest him.

3. 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

9
Section 45.
10
http://racolblegal.com/arrest-procedure-and-rights-of-arrested-person-in-india/
 Arrest by private person: Power and Procedure
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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 released11.

Power of private person to arrest the person

Simply Section 45 of the code provide the power to the private person to break the inner
door, window of any house and enter in the house for the purpose of arresting the person.
But there is one exception which is provided in the proviso of this section that if a female
is inside the house needs to be evacuated safely and then require proceeding such as
breaking window and door of the house in order to arrest the person may be made out
but the female which is taken out from the house is not the person who is assume to be
arrested.

• If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is within,
any place, any person residing in, or being in charge of, such place shall, on demand of
such person acting as aforesaid or such police officer, allow him free ingress thereto,
and afford all reasonable facilities for a search therein.
• If ingress to such place cannot be obtained under sub-section (1), it shall be 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 affording the person to be arrested an opportunity
of escape, for a police officer to enter such place and search therein, and in order to
effect an entrance into such place, 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, if
after notification of his authority and purpose, and demand of admittance duly made,
he cannot otherwise obtain admittance; Provided that, 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.

11
http://devgan.in/criminal_procedure_code/chapter_05.php#s43
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• Any police officer or other person authorised to make an arrest may break open any
outer or inner door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose of making an arrest, is
detained therein12.

The power of arrest without warrant given by this section can be exercised only in respect of
an offence which is both non- bailable and cognizable.what is a cognizable offence has been
already discussed earlier. The expressions “ Bailable offence” and “Non- bailable offence”
have been defined in clause (a) of section 2 whch is as follows:

a) Bailable offence means an offence which is shown as bailable in the first schedule, or
which is made bailable by any other law for the time being in force;and “nonbailable
offence” means any other offence;

From this definition and from the provisions of first schedule it would be clear that broadly
speaking non-bailable offences or serious offences while section 42 allows a police officer to
arrest without warrant a person committing or accused of committing a non-cognizable offence
in his presence, this section allows a private citizen to arrest without warrant only and only if
a non-bailable and cognizable offence has been committed in his presence the right of arrest
under section 43 accrues to a private citizen on the basis of his own personal knowledge derived
from the use of his own eyss in seeing a non-bailable an cognizable offence being committed13.
Where a private citizen seeing a person fleeing with a knife in hand being persued by many
persons shouting for his apprehension, attempts to arrest the fleeing person, the arrest is without
any right contemplated by section 43 14. The right of arrest under this section must be exercise
simultaneously with the commission of the offence14.

12
http://west.tripurapolice.gov.in/sites/default/files/uploadedfile/Criminal%20Procedure%20Code%201973.p
df
13
Abdul habib v. state,1974 Cri LJ. 248 14
Abdul Aziz v. Emeror, AIR 1933 Pat 508.
14
Kolavennu venkayya, In re, AIR 1956 AP,156