Introduction
The concepts of arrest, search, and seizure form the backbone of criminal procedure under the Criminal Procedure Code, 1973 (CrPC). These powers are essential for maintaining public order, ensuring effective investigation, and securing justice. However, since these procedures directly affect individual liberty and privacy, the CrPC, the Constitution of India, and various judicial precedents have imposed checks and balances to prevent abuse of power by law enforcement agencies.
The right to life and personal liberty under Article 21 of the Constitution ensures that any restriction on liberty through arrest, search, or seizure must follow “procedure established by law.” The procedure must be fair, reasonable, and non-arbitrary as held in Maneka Gandhi v. Union of India (1978).
Arrest under CrPC
Meaning and Definition
The term “arrest” has not been expressly defined in the CrPC. However, it generally means the lawful deprivation of a person’s liberty by legal authority to ensure their presence before the court or to prevent the commission of an offence.
In State of Punjab v. Ajaib Singh (1953 AIR 10), the Supreme Court observed that “arrest” is the act of taking a person into custody under legal authority, thereby restraining their liberty.
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Legal Provisions
The procedure and circumstances of arrest are mainly governed by Sections 41 to 60A of the CrPC.
Types of Arrest
- Arrest without Warrant (Section 41 CrPC):
- A police officer may arrest without a warrant if a person is concerned in a cognizable offence.
- Includes situations like obstruction of police duty, possession of stolen property, or habitual offenders.
- Arrest with Warrant (Sections 70–81 CrPC):
- Issued by a Magistrate and executed by the police officer when the offence is non-cognizable or when arrest without warrant is not permissible.
- Arrest by Private Person (Section 43 CrPC):
- Permits a private individual to arrest a person committing a non-bailable and cognizable offence in their presence.
- Arrest by Magistrate (Section 44 CrPC):
- A Magistrate may arrest or order arrest if an offence is committed in his presence within his jurisdiction.
Rights of the Arrested Person
To protect individuals from arbitrary arrest, several safeguards have been recognized both under CrPC and the Constitution:
- Right to know the reason for arrest (Section 50 CrPC)
- Right to be produced before a Magistrate within 24 hours (Article 22(2) & Section 57 CrPC)
- Right to consult a legal practitioner (Article 22(1))
- Right to free legal aid (Khatri v. State of Bihar, 1981)
- Right to medical examination (Section 54 CrPC)
Landmark Case:
D.K. Basu v. State of West Bengal (1997) 1 SCC 416 – The Supreme Court issued guidelines to prevent custodial violence and arbitrary arrest, including maintaining an arrest memo, informing relatives, and medical examination of the accused.
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Also Read: Negotiable Instruments Act, 1881
Search under CrPC
Meaning
A search is the process of looking for evidence, property, or contraband relevant to an offence. The CrPC provides detailed provisions to regulate searches to ensure legality and fairness.
Relevant Provisions
- Section 93–100 CrPC – Search warrants and procedures.
- Section 102 CrPC – Power of police to seize certain property.
- Section 165 CrPC – Search by police officer during investigation without warrant.
- Section 166 CrPC – Search in another police station’s jurisdiction.
Types of Searches
- Search with Warrant:
- Issued by a Magistrate when there is reasonable belief that evidence or property is concealed in a place.
- Search without Warrant:
- Permitted under Section 165 if delay may lead to loss or destruction of evidence.
Procedure for Search
- Two independent witnesses (panchas) must be present.
- Preparation of search memo (panchnama).
- Women should be searched only by female officers with due regard to decency (Section 100(3) CrPC).
Case Law:
State of Maharashtra v. Natwarlal Damodardas Soni (1980) – The Court held that illegal search does not make the evidence inadmissible, though it may affect its weight.
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Seizure under CrPC
Meaning
Seizure means the taking possession of property by legal authority, usually when such property is believed to be involved in an offence.
Relevant Provisions
- Section 102 CrPC: Empowers a police officer to seize any property suspected to be stolen or linked to an offence.
- Section 451 and 457 CrPC: Deal with the custody and disposal of property during and after trial.
Case Law:
State of Bihar v. Kameshwar Singh (1997) – Defined seizure as “taking possession of property forcibly against the wishes of the person in whose possession it is.”
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Constitutional Safeguards
- Article 20(3): Protection against self-incrimination during search or seizure.
- Article 21: Protection of life and personal liberty; any arrest or search must follow due process.
- Article 22: Provides safeguards for arrested persons, including the right to legal counsel and to be informed of grounds of arrest.
Judicial Oversight and Human Rights Perspective
The judiciary plays a crucial role in balancing state power and individual liberty. Courts have repeatedly emphasized that while the police have the right to arrest and investigate, such powers must not be abused.
In Joginder Kumar v. State of U.P. (1994), the Supreme Court held that an arrest should not be routine; it must be justified based on necessity and reasonable grounds.
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Recent Developments
- The Supreme Court in Arnesh Kumar v. State of Bihar (2014) directed that arrests in offences punishable up to 7 years should not be automatic. Police must justify the necessity of arrest under Section 41(1)(b).
- Increasing use of digital and electronic searches under IT laws has prompted the need for new procedural safeguards to protect data privacy.
Conclusion
The powers of arrest, search, and seizure are necessary tools for the effective administration of criminal justice. However, these powers must always be exercised within the framework of law and constitutional safeguards to prevent the violation of individual rights. Judicial vigilance and procedural fairness ensure that the balance between state authority and personal liberty remains intact.
Also Read; Call for Submissions Abhilekh Journal by GNLU Legal Services Committee