Arrest

    Arrests are carried out by the police when they have information about somebody (i.e. accused) committing a crime. Arrests have to be allowed by the concerned Magistrate. In certain situations, the Magistrate can also ask anyone else apart from the police to arrest a person suspected of committing a crime.

    Arrested by Police

    No person can be detained by the police without being informed of the reasons and the basis in law for their arrest. This doesn’t mean they always need a warrant to arrest you. Normally a Magistrate issues a warrant to arrest you, but if the Police suspect that you committed a cognizable crime, you can be arrested even without an arrest warrant.

    You have the right to consult with and be defended by a lawyer of your choice. When being arrested,

    • you can ask the police to show the warrant for arrest, police report and other documents for your arrest and the police are required to show you this.
    • the police arresting you and handling the interrogation should bear accurate, visible and clear identification and name tags with their designations.
    • the police officer carrying out the arrest should prepare a memo of arrest which contains the date and time of arrest that should be signed by the person being arrested and attested by at least one witness (either a member of the family of the person being arrested or a respectable person of the locality from where the arrest is made).
    • The police officer should tell you if you can or cannot apply for bail

    Before taking you away, the police has a duty to inform your friends, relatives, or any other person who you choose, about your arrest. With 12 hours of the arrest, the police officer has to inform the police control room of

    • the person being so arrested
    • the place where they are being detained

    Questions and Answers
    Click on a question to view the answer

    No, they do not need a warrant if they suspect that you committed a serious crime. Such crimes for which you can be arrested even without an arrest warrant are known as 'cognizable' crimes. Examples include murder, sexual offences, acid attack, rioting, starting a fire etc. Normally, it is the Magistrate which will issue a warrant to arrest you. Since these type of crimes need urgent action from the police, the police can take charge even without permission from the Magistrate.

    Non-cognizable crimes are less serious crimes such as adultery, defamation etc. When a non-cognizable crime has been committed, the police needs the permission of the Magistrate to make an arrest. Generally, since these crimes are more private in nature and do not need the police to act urgently, the normal process of getting permission from the Magistrate must be followed. There is an exception to this general rule if the police see you committing or someone accuses you of committing a non-cognizable crime when the police are around. In such situations, the police can arrest you if you refuse to tell them your name and address or give them the wrong name and address.

    The police can arrest you without a warrant in two broad cases:

    1. You are suspected of having committed a cognizable crime
    2. The police suspect you are planning to commit a cognizable crime

    In the first category, the law lays down the specific situations in which the police can arrest you without an arrest warrant:

    • when you commit a crime in front of a police officer (for example at a public event or in a police station);
    • when the police have received reliable information or a complaint that you have committed a cognizable crime;
    • if the court has declared you as a proclaimed offender;
    • if the police found you with stolen property and they suspect you;
    • if you cause trouble to a police officer who is performing her duty;
    • if you escape from custody;
    • if you are suspected of deserting the army;
    • if you are a suspect in a crime outside India and you are liable to be brought back to India; or
    • if you were convicted of a crime in the past and have violated rules relating to released convicts.

    Resisting an arrest does not help - it only allows the police to use force to arrest you. If you do not submit to being arrested, the police can use all means necessary to arrest you. Though they have a duty not to cause your death, they can use deadly force if you are being accused of a crime which is punishable by death or prison for the rest of your life.

    Yes, the police can search you when they are arresting you and place anything they find in safe custody. If you are a woman, you can be searched only by another woman. The police have to give you a personal search memo which is a list of all the things that they have taken – this search memo is sometimes known as jamatalashi. They can also take your fingerprints with the permission of the Magistrate.

    Yes, there are two purposes for which you can be examined.

    • The first is to determine if you as the accused have been hurt or subject to violence by the police. You can ask for a copy of the report prepared by the doctor. If you are a woman, then a female doctor has to conduct the investigation.
    • If the police think that a medical examination can prove that you committed a crime, they can ask a doctor to conduct an examination on you. If you do not cooperate with the doctor, they can use reasonable force on you.

    The police need to present you before the Magistrate as soon as possible after you have been arrested. They cannot keep you under arrest for more than 24 hours – this excludes travel time to the court. The police officer will also need to provide a copy of the entries in the case diary to the Magistrate. The case diary is a daily diary kept by an officer detailing all that happens in an investigation. The Supreme Court has directed the police officers to provide the Magistrate with a checklist of the reasons for your arrest along with all documents related to your arrest including the arrest memo.

    After you've been presented before the Magistrate, the Magistrate can discharge you or grant you bail. Your lawyer should ask for your release if the police only needed to issue a 'notice of appearance' and not actually arrest you. The police can detain you beyond 24 hours only with permission of the Magistrate. They may seek 'police custody' or 'judicial custody'. Police custody can only last 15 days from the date of arrest. This means you will be kept inside the lock-up at the police station for a maximum of fourteen more days.

    If the police have not been able to file the charge-sheet and depending on the crime you have been suspected of, you can be in judicial custody for up to 90 days for crimes that you could possibly go to prison for more than 10 years, and up to 60 days for all other kinds of offences.

    You cannot be sent to jail for more than fourteen days at a time even in judicial custody. You will be brought before the Magistrate after each fourteen day period. After the 60 or 90 day period, you have a right to be released on bail.

    Glossary
    Accused Person
    Someone against whom the charges of crime lie