ARREST BY PRIVATE PERSON
Arresting is a serious matter. It means suspension of personal liberty which is one of the most precious and valuable right of human beings. Almost all the civilized nations of the world have declared it to be a fundamental right. Indian Constitution also declares under Article 21, the right to freedom including personal liberty to be a fundamental right. It is provided that no person shall be deprived of his life and personal liberty except according to procedure established by law. As such, protection of this personal liberty is always considered to be paramount, its suspension or curtailment is exception. Where the rule of law prevails, people are enjoying more freedoms, exercising more personal liberty. However, this enjoyment of personal liberty is not an absolute right. So long it goes on in accordance with law, it is okay. But at the event of its conflict with law, liberty may be curtailed by the State for lawful as well as peaceful governance of the society. Only here the question of arrest comes. Since the matter of arresting anybody is a very serious matter, the Government absolutely reserves the right to arrest anybody who violates law. For that purpose government delegates such power to arrest offenders to police or other law implementing agency of the government and procedure for such arrest is prescribed under Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C.)
Now the questing arises, whether any private person can arrest anybody? The answer is yes, but subject to some conditions which are very unambiguously/ clearly prescribed in the said Code of Criminal Procedure, 1973. Section 43 of Cr.P.C. provides the provisions for arrest by private person and procedure on such arrest. It is provided in section 43 (1) that any private person, he himself or through any other person, may arrest two categories of persons- (i) any person who in his presence commits a non-bailable and cognizable offence and (ii) a proclaimed offender. Before going to arrest anybody, one must know what the cognizable and non-bailable offence is. The concept of Cognizable and Non-Bailable offence may be a subject matter of discussion in a separate article.
It is already mentioned above that the matter of arresting by private person is made subject to condition. After arresting any person falling under the aforesaid two categories, the said private person without unnecessary delay, shall made over or cause to be made over the arrested person to a police officer or in absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
To this extend only, any private person has the power and duty relating to arrest of any suspected offender. After handing over the so arrested person, the concerned police officer or police station shall follow the procedure accordingly prescribed under subsection 2 and 3 of section 43 of Cr.P.C. which are not the concerns of this article. Therefore those provisions are not taken up here for discussion. Now it is evident from the above provisions of law that any private person has also power to arrest any criminal but he is duty-bound to hand over such arrested person without unnecessary delay to a police officer or to a nearest police station. Such private person can neither take any action against such arrested person nor detain him in custody for long time. It is the statutory and bounden duty of the arresting person to hand over such arrested person to the police immediately without any unnecessary delay.
However, it is most unfortunate to observe the incidents of mob lynching or assaulting any alleged person on the street on suspicion of commission of any offence. Those acts are clear violation of statutory directions of law. In a civilized society extra-judicial action or rule of man cannot prevail. In a largest democratic country like India it is the need of time to prevent the rule of man with a view to ensure the rule of law.