This post was originally based on old criminal laws, which have now been revised under the new criminal laws, the 2023 Bhartiya Nyaya Sanhita (BNS), 2023 Bhartiya Nagrik Suraksha adhiniyam (BNSS), and 2023 Bhartiya Sakshya Adhiniyam (BSA). The new amendments in criminal laws mark a transformative shift in the Indian legal landscape, addressing emerging challenges and ensuring greater protection of rights. These changes include the introduction of more stringent provisions for cybercrimes, sexual offences, and crimes against vulnerable groups. In response, the law notes have been thoroughly revised to incorporate these updates, providing readers with detailed analyses and practical implications of the new laws. The updated notes aim to equip students and professionals with the knowledge to explore the evolving legal framework effectively.
Introduction
There are certain terms in the criminal justice system that are ambiguous in nature. However, they are explained step by step in law and practice. Police have the power to seize someone under the following grounds:-
Detention
When the police or any authority holds someone under suspicion of any illegal act but has not charged them with a crime, it is known as Detention. The person is detained against their will, and their liberties are revoked for a time being. The police have the right to detain someone if they suspect them of unlawful activity or any wrongdoing. However, the police cannot detain somebody without reasonable suspicion and can only detain them for a certain period of time, which varies from region to region. After the prescribed time, the police must either release or arrest the person according to the case.
Arrest
As per Legal Dictionary by Farlex, “Arrest” means “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 charge[1].”
In criminal law, an arrest is an important tool for bringing an accused before the court and to prevent him from absconding. When the police charge someone with a crime and then takes them into custody is called arrest. However, in order to arrest someone, the police must have sufficient evidence, credible information, or a reasonable cause about the illegal act committed by him.
Who Can Arrest?
The arrest can be made by a police officer, Magistrate, or any private person, but that can be made only in accordance with the legal provisions mentioned in the Bhartiya Suraksha Sanhita (BNSS). BNSS exempts the members of the Armed forces from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the government (section 42 BNSS).[2]
Arrest by Police Officer
A police officer may arrest without a warrant under Sections 35 to 170 BNSS; under a warrant under Sections 74 to 76 BNSS; under the written order of an officer in charge under Sections 55 and 176; under the orders of a magistrate under Section 41 and in the non-cognizable offence under Section 39 BNSS. A superior officer may arrest under Section 30 BNSS. An Officer-in-Charge of a Police Station may arrest under Section 39 and 176 BNSS.
A new subsection 7 is added: “No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.”
By Private Person (Section 40 BNSS)[3] :
(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 makeover 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 a person comes under the provisions of section 35, 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 39; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Arrest by Magistrate (Section 41 BNSS)[4]:
(1) When an offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
Custody
Merely surveillance or restriction on the movement of the person concerned is called custody. In criminal law, custody is the second stage of the arrest. Numerous times it happens that when a man is arrested for any illegal act or suspicion of wrongdoing, the police will most likely be unable to finish the examination within 24 hours and present the individual before the officer. As of right now, it is critical to prevent the individual from the general public, for the security of the general public and the security of the individual himself. It is likewise essential that he is available for further investigation and inquiry and does not evade the law. In such a case, the individual might be kept in the following custody:-
Police Custody means that police have the physical custody of the accused while Judicial Custody means an accused is in the custody of the concerned magistrate. In former, the accused is lodged in police station lockup while in latter, it is the jail.
Holding a person in custody for further inquiry and investigation is governed by Section 187 of the BNSS. Section 187 provides that a person may be kept in police custody to the extent of 15 days at the order of the Magistrate. In the case of an Executive Magistrate, the Executive Magistrate may grant custody of police to the extent of seven days. A Judicial Magistrate has the power to grant police the custody of a person for 15 days. Police custody can only extend up to a period of 15 days. Beyond this, even if the custody of the person is required, it has to be judicial custody[5].
A new insertion into Subsection (2) of Section 187 of BNSS provides that the Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration the status of the accused person as to whether he is not released on bail or his bail has not been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3).
Judicial custody may extend up to a period of 90 days if the person is arrested in connection to a crime that is punishable by an imprisonment of 10 years or more, life imprisonment, and capital sentence. In any other case, the judicial custody of such person may extend up to a period of 60 days. After the period of 60 or 90 days, the person is entitled to bail, till the time police have not filed the charge sheet. Once the police file the charge sheet, the person cannot claim bail as a matter of right.
Remand:
When a person is remanded in custody, it means that they will be detained in prison until a later date when a trial or sentencing hearing takes place. The majority of prisoners on remand are not convicted of a criminal offence and are awaiting trial following a not-guilty plea. A person who is on remand in prison is not treated as a convicted prisoner, as they have not yet been found guilty of any offence. They should also have further rights in prison, such as wearing their own clothes and having more visits. The time also spent on remand could be taken off by the judge at sentencing should the individual be found guilty at trial. This time will be considered by the judge once they pass the sentence.
Difference between Police Custody and Judicial Custody
References:
1.https://lawschoolnotes.wordpress.com/2017/08/18/provisions-relating-to-arrest-under-crpc/
2. Criminal Procedure Code, 1973. 3. Ibid.
5. Ibid.
5. Bhartiya Nagrik Suraksha Sanhita
