What to do when you are arrested?

What to do when you are arrested?

When a person does anything, which is against the law, he/she may get arrested. In the general sense of the term, “ arrest” means fear or restraint or deprivation of one's personal liberty. Chapter V, Section 41-60 of Criminal Procedure Code, 1973 (CrPC) deals with the Arrest of a person. The purpose of arresting an alleged offender is to ensure that he does not tamper the evidence and is present at the trial for which he has been charged. Now, before we discuss what you need to do after you get arrested, let's discuss the procedure of arrest.

Who can make an arrest as per the law?

In India, an arrest can be made by all law enforcement officers- such as police officers, police constables, magistrates, etc. whether they are on or off duty in most cases as per the legal provisions permitting such an arrest. Related Post: How to get Bail in India

Can anyone besides police make an arrest?

Any private individual can arrest a proclaimed offender and any person who commits a non-bailable and cognizable offense. Any person who sees a person committing a criminal offense and they have a good reason to believe that the person committed an offense can make an arrest. As soon as the arrest is made, they are required to take him/her to a police officer or a judge who is required to take him/her into custody.

What is the procedure of arrest?

An arrest can be made with or without a warrant. Once an arrest warrant is issued, an arrest can be made anytime. There is no time limit to making an arrest. If the person to be arrested does not submit to the custody through words or action then the person making the arrest can touch or confine the body of the person to be arrested. If the person is trying to evade the arrest or resisting it then the person making the arrest can use all possible means to arrest the person. Resisting an arrest is also a crime and you can be charged with a misdemeanor along with the crime for which you are charged. As per Section 75 of the CrPC , an arrest warrant should be in writing, signed by the presiding officer, and should have the seal of the court. The warrant should categorically state the name and address of the accused and the offense under which the arrest is to be made. The warrant is considered illegal if any of this information is missing. In case if your name is not known then a “ John Doe” warrant will be issued along with your description on it. When the police are carrying an arrest warrant, you must be allowed to see it. If the police are not carrying the warrant, you should be allowed to see it as soon as possible. If someone's name is mentioned in the FIR (First Information Report) , the police must conduct a preliminary investigation before arresting such a person. In case, where the police are executing an arrest warrant issued by the magistrate, there is no need to handcuff the person to be arrested. He may be handcuffed if the order from the magistrate explicitly states so. Further, the person who is so arrested should not be subjected to physical violence or inconvenience unless it is required to prevent his escape. While arresting, the police officer must be wearing a clear, visible identification of his name. At the time of the arrest, a memo of arrest should be prepared and should be attested by at least one witness, and should be countersigned by the person so arrested.

Can an arrest be made without an arrest warrant?

Police can also arrest without a warrant if the situation so demands as per Section 41 of CrPC . If the police believe that fast action is needed to prevent a person from destroying or tampering with evidence, escaping or endangering someone's life, or seriously damaging property then they can make an arrest without a warrant. Related Post: What is Cognizable and Non-cognizable o ffense

Rights of the arrested person

Whether you are an Indian citizen or a non-citizen, you have certain rights when you are arrested as mentioned under the Constitution of India.

1. The person so arrested has the right to inform his/ her family member, friend, or relative as provided under Section 50 of the CrPC .

2. The person so arrested cannot be detained for more than 24 hours without being presented before a magistrate. This is done to prevent unlawful and illegal arrests.

3. The arrested person has the right to be medically examined.

4. The right to remain silent & ndash upon arrest, you are not required to speak or confess anything in front of the police. Anything you say can be taken against you and hence you have the right to not say anything in front of the police.

5. You have a right to have a lawyer when you are questioned. In case you are not able to afford a lawyer, a lawyer will be appointed to you by the government.

6. Right to be informed about the charges- As per Section- 50 of the CrPC as also Article 22 (2) of the Constitution of India , the person being arrested needs to be informed about the grounds of such person's arrest. Section 50 (2) of the CrPC also states that such a person needs to be informed whether the arrest has been made under a bailable or non-bailable offense. Bailable offenses are those in which getting bail is the right of the accused, whereas in the case of non-bailable offenses bail is granted as per the discretion of the court.

7. If you are arrested for a serious crime, you must contact a lawyer as soon as possible because a lawyer has a better understanding of what should be said before the police. The lawyer will also be able to assist you in getting bail.

Special rules while arresting a female- suspect

A female should only be arrested in presence of a lady constable and further no female can be arrested before sunrise and after sunset. There can be exceptions only when it is extremely urgent to arrest the person.

Detention

Detention is different from arrest. A person is arrested when he/she is accused of committing a crime. However, a person is detained by the police as a method to prevent such a person from doing something that could deteriorate the peace and law and order situation in the country. The rights of a detained person are given as follows:

1. Right to know the reason behind your detention: You have a right to be informed of the reasons for your detention and should seek answers from the Station House officer under what law/sections you are being detained.

2. Right to call your lawyer: You have a right to ask for the presence of your lawyer and you should especially do so, so as to be guided by him/her in the correct direction.

3. Right to remain silent: You are under no obligation to speak or justify your act at the police station. You are also not obligated to sign any paper/bonds if asked by the police to do so.

4. Right to medical assistance: In case you require medical assistance for any injury, you have a right to seek such assistance and also demand to be medically examined.

5. Right to keep your belongings: The police do not have the right to take away your belongings while you are detained.

6. Rules for the detention of women: A female can be detained only by a female police officer. The detention of a female can only take place after sunrise and before sunset.

Why you need a Lawyer?

If you or someone you know is faced with an arrest, the first step, despite the charges or nature of the offense should be to engage the services of a criminal lawyer . With the numerous kinds & nature of offenses and the rights that flow along with such offenses, a lawyer's expertise will help ensure that the rights of the arrested person are protected at every step of the process of arrest and beyond. A criminal lawyer can help ensure that the protocol and law discussed above regarding arrest are followed by the police authorities properly and that no harm is caused to the arrested person. Only a lawyer can best advise on the course of action to be adopted upon arrest and ensure that the appropriate relief such as bail can be obtained at the earliest in the special circumstances of each case. Given the vast knowledge that the layman may not possess regarding the criminal justice system, a lawyer's guidance becomes extremely important during such sensitive situations. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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