15 April 2015

Laws regarding Arrest

 Authored by Dwayne Darryl Fernandez

This piece aims at contrasting the laws relating to arrest in the United States of America and India.

In the United States, if a substantial claim gains its foundation with the help of complaints and affidavit(s) that an accused has committed a crime, the judge must issue an arrest warrant to an authorized officer for the arrest to be carried out. The judge, in his power, can issue more than one warrant or summon. In case of failure to appear once a summon is served, the judge may issue a warrant. The judge must issue a warrant on request from an attorney working for the government if the accused fails to appear after a summon is produced  (Federal rule of Criminal Procedure, title II (Criminal Proceedings) Rule 4.)   

A warrant and summon must mention: (i) the name of the defendant (name or identification which can help identify the defendant with reasonable certainty); (ii) the offence for which the accused is called forth.  
However, in case of a warrant, the accused must be brought in front of a magistrate without any delay. If the magistrate is absent, the accused can be brought before a local or state judicial officer. Only a police marshal or authorized officer has the right to execute a warrant. On the other hand  
In the case of summon, the individual(s) must appear in front of the magistrate at the time and place mentioned in the summon. (Rule 4 (c)(1)) (Federal rule of Criminal Procedure, title II (Criminal Proceedings). A summon can be served by any person authorized to do so in a federal civil action. 

On arresting, the police officer must inform the defendant about the existence of a warrant and must produce the original (or a copy), if asked. A summon on the other hand is served by handing it over to the person in question. In his absence, it may be given to any other person of reasonable age and mind along with mailing a copy to his residence.
In case of a company, summon can be served to an officer/managing agent along with a mailed copy to the company's last known address.         

After arresting the accused with the help of the warrant, the officer must return to the magistrate with the accused, and would be held under Rule 5 (Federal rule of Criminal Procedure, title II (Criminal Proceedings) (appearance on arrest, and procedure under the respective grounds). The above can be done with the help of reliable electronic means. At the request of a government attorney, the warrant must be cancelled by a magistrate judge or in his absence, by a state or local judicial officer if it hasn’t been performed. After summon has been issued for service, and delivered successfully, the individual must return it before or on the specified return date. With respect to Rule 4.1 (complaint or warrant by telephone), a magistrate may issue a warrant or summon based on reliable information communicated by telephone or by any other reliable electronic source. If the defendant is arrested without a warrant, a complaint (meeting the requirement under section 4(a) (Federal rule of Criminal Procedure, title II (Criminal Proceedings), i.e. requirement of probable cause) must be promptly filed at the district where the offence was committed.         

We now look at the procedure of filing a warrant and summon in India:  

A police officer has the right to arrest an individual or a group of individuals without a warrant and without an order from the magistrate if the individual has committed any cognizable offence and reasonable doubt or suspicion exists; or information from a credible source has been received. Any person who possesses, without lawful excuse, house-breaking substances, has the burden of proof lying on him (This basically talks about tools which could be used to commit crime while breaking-in). An individual who has been proclaimed an offender under the criminal procedure code, or who obstructs a police officer while executing his duty, is permitted to arrest without warrant.

As you can see that in India and the United States of America, the police may touch and confine you if you were to be arrested except when you submit willingly, without resistance. If you will use force to resist or escape at that moment, the police (marshal or officer in the US) may use all necessary means to complete the arrest.       Further, in India, section 46 of the CrPC, which provides the rights to arrest, clearly states that the police have no right to cause death of such person unless he is accused of an offence punishable with death or life imprisonment

The major difference between USA and India is that a woman can be arrested by a male police officer in the US, whereas in India a woman can be arrested only by a female officer, or in the absence of such, by a male officer in between sunrise and sunset with a female relative or acquaintance. 
Like in the United States, the individual who has been arrested has to be informed about the grounds for arrest and his rights (right to bail in India and right to an attorney and the 5th amendment in the US)     

Getting back to some facts about the Criminal Procedure code in India,. 

Under section 204 of the criminal procedure code, the magistrate, taking cognizance of an offence, must issue summons for the accused to present himself in front of him. If the case appears to be a warrant case, he has the power to issue warrants or summons. In section 2(w) of the CrPC, we see that a summons case is defined as a case relating to an offence, not being a warrant case. However, section 2(x) of the code, defines a warrant case as an offence punishable by death, imprisonment for life, or imprisonment exceeding 2 years. 
A private individual can arrest a person if the person, in the individual’s presence commits a cognizable and non-bailable offence. He shall be taken to a police officer, and reasonable cause will be given for the arrest.     

Hope I've provided you with the necessary information needed for procedures of arrest in both the countries and also managed to arm you with the knowledge so that you could use them and make sure of a just implementation.

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