Violence has been a part of Indian society from ages. Now, all the boundaries set for a civilized society have been crossed. A lot of instances have come up where citizen(s) may beat a wrongdoer ruthlessly for a petty crime. For example, a tribal man in Kerala was beaten by a mob to death for stealing food and some people were seen clicking selfies at the site while this was happening. This is not the first time when a person was being unceremoniously prosecuted by other citizens and a brute force. According to a statistical report by the National Crimes Records Bureau, the total number of IPC crimes reported have shot up from 4,78,466 in 2015 to 5,13,635 in 2016 which accounts 7.3% increase in 2016. Despite the fact that this increase impacts the civil society more than anyone else, there are times when these very citizens can get involved in committing offences which are more heinous than the ones they are subjected to.
A History of Right to Arrest
The Indian legal system under Section 43 of The Code of Criminal Procedure 1973 gives the personnel of a force a right to arrest and also lays down the procedure with which such arrest must be performed. This right has evolved as an outgrowth of English common law and was first laid down by C.J Issacs in England in 1914 in the case of Walters v W.H Smith and Sons and was later laid down in the Criminal Law Act, 1967. In India, this was first recognized by the court in the case of Ramaswami Ayyar v Unknown (1921) where the court held that certain common law principles may apply to India as mentioned through the recommendations of Venkata Reddy(1913). Hence, for private arrest, as stated in the ratio of the common law case Timothy v Simpson (1835), the court maintained that an individual is allowed to make an arrest of a person(s) for the sake of public peace and safety applies to India as well.
Right to Arrest: The Standard Operating Procedure
Unfortunately in recent years, private arrests have generally resulted in deaths. It now seems timely to produce a basic guide for this right. As per Indian laws, a non-bailable offence is where the accused awaiting trial is not rightfully entitled to be released temporarily in exchange of a certain amount of money paid as a guarantee to appear in the court. Whereas, a cognizable offence means an offence for which a police officer has the authority to make an arrest without a legal document from a government official giving permission to arrest and to start an investigation with or without the permission of a court.
The person performing the arrest, however without unnecessary delay, should hand handover the offender to the police or should take him to the nearest police station. After this, the police officer may re-arrest him if he comes under the provisions of section 41, which talks about powers of police to arrest. It is essential, as per the section, that the citizen must be present at the site and must witness the crime.
Only suspecting the happening of an offence or assuming that an offence has taken place is no reason for exercising the above mentioned right to make an arrest. Conclusively, the arrester has to be present at the site in order to exercise his right to make an arrest. For instance, if a person witnesses someone snorting or injecting drugs, the person can arrest him. Conversely, if someone comes across anyone who is running and a group of people are chasing him; he or she cannot arrest that man. It cannot be simply assumed that the person has committed a theft as the onlooker was not present at the time when the crime was committed. Therefore, he did not witness the crime taking place as in the case of Abdul Habib v Emperor (1973).
It is also necessary for the citizens to know what all offences are non-bailable and cognizable according to the laws. Then only they can exercise their right appropriately. For example stalking becomes a cognizable and non- bailable offence if the same person is convicted twice. Therefore, the convicted person can be arrested whenever seen.
Few Significant Facts to Know
But, the question that arises is whether citizens have the right to indulge in any of violence? The answer to this is absolutely no. The arrester is allowed to use force only when it is necessary in order to make an arrest. Use of excessive force will make the arrester liable for injuries caused to the arrested person. One may use deadly force in exceptional situations, such as when the perpetrator is capable of or is committing an act with deadly force or threatens to reiterate dangerous conduct which is likely to cause death or grievous hurt to people involved in that particular situation.
This law however continues to be misinterpreted and misused. In most of the situations when people catch a wrongdoer, they assault or beat that individual. This sometimes even leads to the death of the person. The mob often takes the law in their own hands without seeking legal remedy through the police. Despite this right being present in the Indian legal system since 1898, there are a lot of people who are unaware of it. However, ignorance of the law is not an excuse for disobeying the law.
Both the laws protect citizens and the laws that empower them should be given equal importance. Hence, while exercising this right you must comply with all the provisions and limitations in terms of force allowed to be used, presence of the arrester, and immediate handing over to the police. This right being an outgrowth of the arrest law which is primarily a police power, cannot overstep its boundaries in any situation.