1 Arrest by private person: Power and Procedure

Arrest by private person: Power and Procedure

Submitted by
Gaurav Shukla
B.comLL.B(Hons*)
Roll No. 14
of
Faculty of Law

Dr. Shakuntala Misra National Rehabilitation University

,Lucknow
In

April, 2017
Under the guidance of

Prof. Dr. Girjesh Shukla

 2 Arrest by private person: Power and Procedure

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.
Prof.Dr. Girjesh Shukla for his 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 his countless love.
I thank you all.
Gaurav Shukla
3rd year Student
B.Com. LL.B(Hons.)
 3 Arrest by private person: Power and Procedure

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 Dr.Girjesh Shukla. 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.
4 Arrest by private person: Power and Procedure

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
 5 Arrest by private person: Power and Procedure

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.

Arrest by Private person

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
 6 Arrest by private person: Power and Procedure

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

No person can arrest to any of the member of armed force of the union until he obtaining the
consent from the central government.

6
Section 43
7
State v. Indra, AIR 1960
8
C.K Thakkar,M.C Thakkar, Takwani criminal procedure 52(LexisNexis,Gurgaon,4th/2015)
 7 Arrest by private person: Power and Procedure

 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 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.

9
Section 45.
10
http://racolblegal.com/arrest-procedure-and-rights-of-arrested-person-in-india/
11
http://devgan.in/criminal_procedure_code/chapter_05.php#s43
 8 Arrest by private person: Power and Procedure

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.
 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
 9 Arrest by private person: Power and Procedure

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 “non-
bailable 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
14
fleeing person, the arrest is without any right contemplated by section 43 . The right of
arrest under this section must be exercise simultaneously with the commission of the
offence15.

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.
15
Kolavennu venkayya, In re, AIR 1956 AP,156