The word “Arrest” when used in its ordinary sense means the restraint or the deprivation of one's personal liberty to go where he pleases. When used in the legal sense, an arrest consists of taking a person into custody under the authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of criminal offence. Section 46 of Criminal Procedure Code provides as to how arrest is to be made.
Section 46 provides that in making an arrest the police officer or other person making the same shall actually touch and confine the body of the person to be arrested unless there be a submission to the custody by words or action.
In Rahimal v. State of U.P.1) it was observed that Section 46 does not contemplate any formality before a person can be said to be taken in custody. Submission to custody by words or action is sufficient. But investigating officer should give full details as to in what manner the accused was arrested. Single sentence of I.O. regarding arrest without mentioning even the time and place is not sufficient to prove arrest.
Section 43 of Cr.P.C. provide that any private person may arrest or cause to be arrested any person:
(a) Who in his presence commits a non-bailable and cognizable offence.
(b) Who is a proclaimed offender.
Such private person after the arrest, without unnecessary delay shall make over or cause to be made over the person arrested to police officer or take him to nearest police station.
Sub-section (2) to Section 43 then provides that if the person so arrested appears to come under the provisions of Section 41 of Code, such police officer shall rearrest him. Section 43(3) says if the police officer has reason to believe that the person arrested has committed a non-cognizable offence provisions of Section 42 would apply if such arrested person refuses to give his name and address or gives a false name and address.
In Abdul Habib v. State2) it was held that a private person can not arrest any one on mere suspicion or information. The offence must be committed in his view or in his presence. Where therefore an individual seeing a person fleeing with the knife in his hand pursued by others, tries to arrest him his exercise of power of arrest cannot be brought under Section 43.
In Directorate of Enforcement v. Deepak Mahajan3) it was observed “The code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons.
Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender.
In every arrest, there is custody but not vice-versa and that both the words custody' and arrest' are not synonymous terms.”