Arrest & Formal Arrest : Section 46 of the Code of Criminal Procedure prescribes the mode of arrest. According to the said provision, the arrest can be effected only by keeping the arrestee in the custody of the police.
In every arrest, there is custody but not vice-versa.
The Term “arrest” denotes confinement of the body of the person either by a physical act or by words or action. Section 46 of the Code of Criminal Procedure, 1973 does not indicate any other mode of arrest.
Therefore, as per Section 46(1), the arrest necessarily involves the taking of the accused into physical custody by the person who effects the arrest.
Section 46 dealing with arrest makes a specific reference to the amount of force that can be used in effecting such an arrest.
The amount of force necessary to be used varies from the resistance the person to be arrested exhibits and therefore it is the degree of force in making the resistance that forms basis nudging the excessiveness or otherwise of the force used in arresting the person.
Even if person is not taken in custody in the police station when formally his body is confined by the police by touching, it would amount arrest of the person.
For arrest, under Section 46, the hands need not be caught hold of. If the Police wanted to arrest the accused, it is enough if they simply inform the arrest or symbolically touch the body of the accused.
The Police Officers acted beyond the powers conferred upon them under Section 46 Cr. P.C. and as such, the State is not duty bound to indemnify the erring police officers.
But, if an accused already is in judicial custody in connection with some other case, when the Investigating Officer wants to arrest him in connection with a different case, some confusion may surface regarding the mode of arrest.
As has been held by the Hon’ble Supreme Court in CBI, vs. Anupam J.Kulkarani, reported in 1992 (3) SCC 141], he can effect formal arrest of the accused in prison.
As provided in Section 46(1) of the Code of Criminal Procedure by effecting arrest in prison, the Police Officer cannot take him into custody at all, because the detention of such accused in judicial custody has already been authorized by the Magistrate in connection with some other case.
Therefore, without the authority of the Magistrate, it is not possible in law for the police officer to remove the accused after effecting arrest in prison either to the Jurisdictional Magistrate or to the nearest Magistrate for the purpose of remand.
It is only to meet such exigency, the Hon’ble Supreme Court developed a concept known as formal arrest in C.B.I. vs. Anupam J.Kulkarni cited supra.
But in a case where the accused is not actually arrested, as provided in Section 46 of Cr.P.C., and only a formal arrest is effected, the accused is not taken into the physical custody of the police.
In other words, when formal arrest is effected, as stated in CBI vs. Anupam Kulkarni’s case, there is no custody, whereas, when there is actual arrest effected, there is custody.
Thus, the law laid down in Directorate of Enforcement vs. Deepak Mahajan and Another, reported in (1994) 3 SCC 440 stating that in every arrest there is custody and not vice-versa, cannot be imported to a formal arrest.
That law laid down by the Supreme Court is only with reference to the actual arrest and not with reference to the formal arrest.
Section 46 of the Criminal Procedure Code lays down how an arrest is to be made. Section 46 reads :
Arrest how made
In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. [S. 46 (1)]
If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. [S. 46 (2)]
Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. [S. 46 (3)]
Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. [S. 46 (4)]