Arrest by Private Person
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Section 43 of the Criminal Procedure Code mentions about the arrest of someone by a private person.
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 make over 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.
Any person in the definition literally refers to ‘any person’ here, and not just a citizen but also a foreigner, if it is to be believed that someone is committing a non-bailable, cognizable offence.
After the arrest by a private person, the police officer has to re-arrest the person after having taken him to the nearest police station according to Section 41 of CrPC. But for the arrest to happen, the arresting person must believe that the offence taking place is a cognizable one.
A cognizable offence is an offence in which the police officer as per the first schedule or under any other law for the time being in force, can arrest the convict without a warrant and can start an investigation without the permission of the court.
There is also another reason to such immediate arrest – If a person believes that the accused will have to be arrested immediately because he is most likely to flee.
A person can also call a police station and give details about the offender and the offence, etc. But there may be a case where making unnecessary delay will only make the offender go away. In such cases, the person has the right to arrest him/her. There can be many instances where it is impossible for the police to arrive urgently, in such cases, time is of essence and this provision proves to be helpful.Section 43 of the Criminal Procedure Code mentions the arrest of someone by a private person., any individual and not simply a resident can capture or make an individual be captured who submits a non-bailable and cognizable offense in his quality. This likewise incorporates a proclaimed offender or a foreigner. The private person will take over such an individual captured by him to a police officer. If there should be an occurrence of nonattendance of a police officer, he will take him to the closest police station. The police officer will re-capture such individual under Section 41 in case there is motivation to accept that such individual has submitted a cognizable offense. Furthermore, it is said that that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence. Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence. Now the question we have in front of us is “What is a non – bailable and cognizable offence”? . As per Section 2(a) of CrPC, non-bailable offence includes all those offences which are not included in bailable offence in the First Schedule. Further, the First Schedule in its Second part at its end has defined non-bailable offence as the offences which are punishable with death, imprisonment of life or imprisonment for more than seven years. Furthermore, a Cognizable offence means an offence in which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. Cognizable offences are generally heinous or serious in nature such as murder, rape, kidnapping, theft, dowry death etc. The first information report (FIR) is registered only in cognizable crimes. Code of Criminal Procedure further provides and obligation to the common citizen to assist the police and the magistrates and it states that “every person is bound to assist a Magistrate or police officer reasonably demanding his aid in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorized to arrest, the prevention or suppression of a breach of peace or the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property”
Section 43 of Criminal Procedure Code,1973 talks about “ Arrest by private person and procedure on such arrest”. Nowhere, in the section or in the code the term “ Private Person” is defined. By interpreting the above said section, Private Person would mean to include all persons other than the police officer or the magistrate who by specified sections in the code are authorised to arrest any person. Meaning that any person and not just the citizen can make such an arrest.Therefore, even a foreigner can arrest a person as per Section 43. By a reading of this section it is clear that the ambit of this section is quite vast. The legislative intent behind drafting of such a section must be to avoid delay in arresting an offender.
The necessary conditions for such an arrest by Private Person is that the person who is arrested has committed a non-bailable and cognizable offence in the presence of the private person arresting him. A private person can also arrest a person who is a proclaimed offender. A non-bailable offence(sec 2(a))is an offence where bail is not a matter of right but depends on the discretion of the magistrate. A cognizable offence(sec 2(c)) is an offence in which a police officer as per the first schedule or under any other law can arrest a person without a warrant.
A proclaimed offender(sec 82(4)) is a person against whom a warrant is issued and fails to appear before a court, the court in such case pronouncing him a proclaimed offender. As soon as the private person arrests such an offender he should without delay take such person to the police officer or in the absence of such police officer to the nearest police station.This Section gives a right to any private person to arrest the offender without first obtaining a warrant from the Magistrate or informing the police and wait for them to arrest the culprit. As the Section 43, “any private person” and not just private citizens can make the arrest, therefore, it is imperative to include foreigners in the definition.
The pre-requisites for such an arrest are:-
1. The offence must be both non-bailable and cognizable. Broadly speaking, they are characterised as serious offences, thus such provision is given in the CrPC.
2. The offence must be committed in the presence of the private person. Therefore, the right of arrest under Section 43 must be exercised simultaneously with the commission of the offence.
3. After arrest procedures must be followed by the private person as prescribed in the Section 43(1) that is “…without unnecessary delay, shall make over 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.” If he fails to do so, he can be prosecuted for the offence of wrongful confinement under Section 342 IPC.If the offence in not “cognizable and non- bailable” but arrest made by the person was a bona fide mistake, he would be protected by Section 79 IPC ( Mistake as defence).
Section 43 of the code of criminal procedure provides for arrest by a private person and the procedure for arrest.This section empowers any person and not just a citizen can arrest or cause a person to be arrested, who commits a non-bailable offence and cognizable offence in his presence.This also includes a proclaimed offender. This private person shall take over such a person arrested by him to a police officer. In case of absence of a police officer he shall take that offender to the nearest police station. The police officer shall re-arrest the person if there is reason to believe that he has committed a non-bailable and cognizable offence under section 41 of the code of criminal procedure.
According to Amrendra Nath v. State (1955), the court observed that the offence must be cognizable and non-bailable for a private person to make an arrest.
Precautions while making an arrest by a private person~The private person must have reasonable cause to arrest a person.
~By attempting to arrest the offender, the private person is likely to compromise his safety.
~Call and inform the police about the arrest.
~He should directly tell the offender that why he is arresting him before the police arrives.In Abdul v. State 1974 CrLJ 248, the court held that the right under section 43 must be simultaneously exercised with the commission of An Offence.
S. 43 of CrPC speaks of a situation where an arrest can be made by a private person and the procedure to be followed on such arrest.
(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 make over 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.
But there are circumstances only under which it is possible to do so. This is given under clause 3 of the same section – 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 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
A private individual that includes a foreigner may conduct an arrest or cause to be arrested by any individual who in his presence commits a cognizable or a non-bailable offence or who is a proclaimed offender. This right of arrest arises under the Common Law which applies to India Ramaswamy Aiyar (1921) 44 Mad. 913.
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