Arrest

Generally, Ch-V CrPC. SS.41-60A

 Arrest: Meaning and Object
• Meaning:
• The term 'arrest’ has not been defined in the Code.
• In general sense it means the apprehension or restraint or deprivation of one's
personal liberty.
• In legal terms it means a process by which a person is taken into custody by a
legal authority. It is a restraint on the liberty of a person to compel him to obey
the orders of the court or other legal authority.
• Every compulsion or physical restraint is not arrest.
• When the restraint is total and deprivation of liberty is complete, then it would
amount to arrest.
• Object: Object of arrest is to bring the accused before the court of law to face
the proceedings of
the court.
 State of Haryana v. Dinesh Kumar, (2008) 3 SCC
222 | Arrest vs. Custody
• Supreme Court in State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222,
held that in legal sense arrest consists of taking into custody of another
person under authority empowered by law.
• Supreme Court clarified that ‘custody' and 'arrest' are not synonymous
terms.
• In every arrest there is custody but not vice versa. Custody may amount
to arrest in certain cases but not in all cases.
• Custody is physical control or presence of accused in court coupled with
submission to the jurisdiction of the court.
• A person can be in custody when police arrests him or he surrenders
before the court.
Who can arrest?
Arrest can be made by
• A police officer [Sections 41 and 42]
• A private person[Section 43]
• A Magistrate[Section 44]
Types of Arrests
• Arrest without warrant (ss.41,42151,432(3) CRPC)
• Arrest with warrant (As and when directed by court)
 Cases in which a police
officer can arrest without a
warrant
 Cases in which a police officer can arrest without a warrant
• Section 2(c) of the Code provides that a police officer may arrest a person without
warrant in cognizable cases.
• The power to arrest without warrant is given to police officer under Section 41 of the
Code.
• Sections 41 and 42 provide provisions for arrest by police officer without warrant in
certain cases.
• Section 41 provides that a police officer without an order from the Magistrate and
without a warrant can arrest any person under any of the circumstances mentioned
under clause (a) to (i).
• This Section was amended by Act 5 of 2009 (w.e.f. 1-11-2010) and the power to
arrest has been greatly restricted. It lays down various circumstances in which a
person can be arrested by a police officer without warrant.
• The Code under various other provisions as well empowers a police officer to arrest
without Magistrate’s order or warrant.
 1. (Ss.41(1)(a)). cognizable offence in presence of
police

• A police officer may arrest without warrant any person who commits a
cognizable offence in his presence.
 2. Sec. 41(b) – Offences punishable with upto 7yrs
imprisonment.
• Parameters given under this sub-section were added by way of amendment in the Code in 2009 pursuant
to the guidelines laid down in Joginder Kumar v State of U.P, AIR 1994 SC 1349, to prevent arbitrary
arrests by the police-officers.

• If a reasonable complaint is made or credible information is received or reasonable suspicion exist that a
person has committed a cognizable offence punishable with imprisonment for to 7 years,
with or without fine, the police officer can arrest such person without warrant if:
• (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person
has committed the said offence; and
• (ii) the police officer is satisfied that such arrest is necessary—
• (a) to prevent such person from committing any further offence; or
• (b) for proper investigation of the offence; or
• (c) to prevent such person from tampering with such evidence in any manner; or
• (d) to prevent such person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police
officer; or
• (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making/not making such arrest, his reasons in writing.
3. Offences punishable with death, life
Imprisonment, etc. [Section 41 (1) (ba)] :
If a person has committed a cognizable offence punishable with death, life
imprisonment or imprisonment for a term exceeding 7 years, with or
without fine and police officer has reason to believe on the basis of credible
of credible information received that such person has committed such
offence, the police-officer may arrest him without warrant.
4. Proclaimed Offender [Section 41 (1)(c)

Any person who has been declared a proclaimed offender

• either under this Code or
• by order of State Government
can be arrested without warrant.
5. Possessor of Stolen Property
[Section 41 (1) (d)]:
• Any person may be arrested without warrant
in whose possession anything is found which is reasonably suspected
to be a stolen property and
• who may reasonably be suspected of having committed an offence
with reference to such thing
6. Obstructs or escapes from
custody of police officer [Section 41
(1) (e)]:
• A police officer may arrest without warrant any person:
• who obstructs a police officer while in the execution of his duty, or
• or who has escaped, or attempts to escape, from lawful custody;
7. Deserter -Section 41(1)(f)
• A person who is reasonably suspected of being a deserter from any of
the Armed Forces of the Union can be arrested without warrant;
8. Offence outside India [Section 41
(1) (g)]
• Any person who has been concerned in or
• Against whom a reasonable complaint is made or
• credible information is received
• that he has committed an act outside India
• which is an offence in India and
• for which he is liable to be apprehended under any law of extradition
can be arrested.
9. Breach of rule under Section 356 (5)
[Section 41(1) (h)]
• Any person who,
• being a released convict,
• breaches any rule made under Section 356 (5) of the Code
• can be arrested by a police officer without warrant.

SS. 356 CRPC talks about “Order for notifying address of previously
convicted offender”
10. Arrest upon requisition [Section
41 (1) (i)]:
• Any person for whose arrest on oral or a written
requisition has been received from another police officer can be
arrested without warrant if:
• the requisition specifies the person to be arrested, and
• the offence or other cause for which arrest is made is provided in
requisition, and
• it appears that the person might lawfully be arrested without a
warrant by the police officer issuing requisition.
11. Non-disclosure of name or address [Section 42]:

• According to Section 42, a police officer can arrest a person even in

non-cognizable case
• if such person refuses to give or gives false name or address.

No warrant is necessary to make such arrest, and such arrest is valid

until such name or address is not ascertained
12. Preventing commission of cognizable offence
[Section 151|:
• A police officer is authorized to arrest a person under Section 151
without warrant
• if such person is designing to commit a cognizable offence and arrest
is necessary to prevent him from doing so.
13. Breach of condition under Sections
432 & 433 CrPC
• A police officer may arrest a person without warrant
• whose sentence has been suspended or remitted by State
Government upon certain conditions and
• he has breached those conditions.
 SS. 41A. Notice of appearance before
police officer.
• This provision was inserted by Amendment Act of 2009.
• [The police officer shall], in all cases where the arrest of a person is not
required under the provisions of sub-section (1) of section 41, issue a notice
directing the person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.

• The person to whom the notice is issued is duty bound to comply with the notice.
• Where such person complies and continues to comply with the notice, he shall
not be arrested in respect of the offence referred to in the notice unless, for
reasons to be recorded, the police officer is of the opinion that he ought to be
arrested.
 41B. Procedure of arrest and duties of officer making arrest.—

• Every police officer while making an arrest shall—

• (a) bear an accurate, visible and clear identification of his name which will
facilitate easy identification;
• (b) prepare a memorandum of arrest which shall be—
• (i) attested by at least one witness, who is a member of the family of the person
arrested or a respectable member of the locality where the arrest is made;
• (ii) countersigned by the person arrested; and
• (c) inform the person arrested, unless the memorandum is attested by a
member of his family, that he has a right to have a relative or a friend named by
him to be informed of his arrest.
• Section 41C: Establishnment of police control room by State Government in
every district and at State level.
41D. Right of arrested person to meet an advocate
of his choice during interrogation.—

• When any person is arrested and interrogated by the police,

• he shall be entitled to meet an advocate of his choice during
interrogation,
• though not throughout interrogation.
 Ss. 43 Arrest by private person
• Section 43 lays down the circumstances when a private person can arrest
and the procedure on such arrest.
Circumstances in which a private person can arrest:
• Any private person may arrest or cause to bearrested any person who-
• in his presence commits a non-bailable and cognizable offence or
• who is a proclaimed offender
Procedure after arrest:
• if any private person arrests any person then without unnecessary shall make
over that person so arrested to a police officer or in absence of police officer
take that arrested person to nearest police station.
• Consequently, If there is reason to believe that such person falls under
provisions of Section 41, the police otticer shall re-arrest him.
 Ss.44-Arrest by Magistrate:

Section 44 lays down power of a Magistrate (Executive or Judicial) to make arrest.

Essentials to invoke this section-

(i) Offence must be committed in presence of Magistrate (Executive or Judicial)

(ii) Within his local jurisdiction;
• He may himself arrest or order any person to arrest the offender and
subject to provisions of bail commit him to custody.
• Here the offence may be cognizable or non-cognizable.
• Magistrate may also arrest any person, within his local jurisdiction, for
whose arrest he is competent to issue a warrant
Ss.45- Protection of members of Armed Forces

• Section 45 lays down that notwithstanding anything contained in

Sections 41 to 45 (both inclusive),
• no member of Armed Forces of Union shall be arrested for anything
done or purported to be done by him
• in discharge of his official duty
• except after obtaining consent of Central Government.
• State govt may also provide immunity from arrest on the same lines
to members of state Forces vide notification in this regard.
Mo d e o f Ar re st
Ss.46,47,48 CrPC
Mode of Arrest
• Section 46 provides that in making an arrest, the police officer or
other person shall actually touch or confine the body of the person to
be arrested, unless there be submission to the custody by word or
action.
• Therefore, it can be seen from this provision that arrest does not
necessarily means actually touching and confining the body. Arrest
can also be made by submission to custody.
 Arrest of woman(proviso to Section 46 r/w Section 46(4))

• In case of arrest of a women proviso to Section 46 lays down that on an oral

intimation of arrest, the arrest shall be presumed unless the circumstances are
indicated to the contrary.
• Police shall not touch the person of women for making the arrest unless the
police officer is female
• Section 46(4), which was inserted by Amendment of 2005, provides that
Except in exceptional circumstances, no woman shall be arrested after sunset
and before sunrise.
Where such exceptional circumstances exists, 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.
Forcible arrest:
If the person
• forcibly resists the endeavor to arrest him, or
• attempts to evade arrest,
police officer or other person may use all means necessary to eftect the
arrest.
• This has been provided under section 46(2).
• This provision has to be read in light of Section 49 which provides that the
person arrested shall not be subjected to unnecessary restraint.
• While arresting the person, death of the person cannot be caused unless
the person is accused of an offence punishable with death or with
imprisonment for life.
 Section 47 -Search of place in order to arrest

• Section 47 provides that any person who has authority to arrest and has
reason to believe that the accused has entered in some place
• shall demand free ingress in that place
• and the person in-charge of that place will allow him so.
• If free ingress is not allowed then it shall be lawful for the person
authorized to break open any outer or inner door or window of any
house.
• If that place is in occupation of a purdanashin woman then adequate
opportunity shall be afforded to her to withdraw.
• Section 48 lays down that a police officer for the purpose of arresting any
person without warrant, whom he is authorized to arrest, can pursue such
person in any place in India.
 42. Arrest on refusal to give name and residence.—

• Section 41(2) lays down that in non-cognizable offences police officer cannot arrest without the
warrant or order from the magistrate.
• Section 42 is an exception to this general rule.
• Section 42 lays down that it a person, in presence of a police officer, is accused of committing a
non-cognizable offence refuses:
• on demand to give his name and residence or
• gives name or residence which police officer has reason to believe to be false,
then the police officer may arrest such person in order to ascertain the correct name and residence.
• When correct name or residence is ascertained then he shall be released on his executing a bond
with or without sureties.
• If
the name or residence is not ascertained or
he fails to furnish the sureties
the police officer shall forward such accused to nearest magistrate.
• The purpose of such arrest is only to ascertain name or address of the person.
Rights of Arrested
Persons
Rights of Arrested Persons
1. Right to know the ground of arrest
[Article 22(1) of Constitution, Sections 50, 55 and 75 of the Code]:

• Constitution of India has conferred “right to know the grounds of arrest” the
status of Fundamental Rights.
• Article 22(1) of the Constitution of India provides that no person who is
arrested shall be detained in custody without being informed, as soon as may
be, the ground of the arrest.
• In re Madihu Limaye, (1969) 1 SCC 292, Supreme Court held that Article 22(1)
of the Constitution embodies a rule which has always been regarded as vital
and fundamental for safeguarding personal liberty.
• Legislative manifestation of this fundamental right has been provided under
Sections 50, 55 and 75 of theCode.
• Section 50(1) of the Code provides that every police officer or other person
arresting any person without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other grounds tor arrest.
• Section 55 provides that when a subordinate officer is deputed by a senior police officer to arrest
a person under Section 55, such subordinate officer shall, before making an arrest, notify to the
person to be arrested the substance of the written order given by the senior police officer.

• Section 75 provides that the police officer or other person executing a warrant of arrest shall
notify the substance of the warrant of arrest to the person arrested.

• Section 50A was inserted by Amendment Act of 2005. This amendment is the result of the
decisions in Joginder Kumar's case and D.K. Basu's case.
• It makes it obligatory on the part of the police to inform the friend or relative of the arrested
person about the arrest.

• If the arrest is made by Magistrate without warrant under Section 44, the case is covered neither
by Section 50 nor 55. This is the lacuna in the Code. However, it will not create any difficulty in
practice as the Magistrate would still be bound to state the grounds under Article 22 (1) of
Constitution [In re Madhu Limaye, (1969) 1 SCC 292].
2. Right to be informed about the
release on bail [Section 50(2)] :
• Section 50(2) provides that when a police officer arrests without a
warrant, a person accused of a bailable offence,
• he shall inform him that he is entitled to be released on bail and he
may arrange for sureties on his behalf.
3. Right to be produced before Magistrate without delay
[Article 22(2), Section 57, 76 and 167:
• This right has also got the constitutional protection in form of fundamental right in
Article 22(2) ofthe Constitution.
• It provides that every person who has been arrested and detained in the custody
shall be produced before the nearest Magistrate within a period of 24 hours of such
arrest and no such person shall be detained in custody beyond the said period
without the authority of the Magistrate.
• It must however, be noted that the time of 24 hours shall exclude the time
necessary for the journey from the place of arrest to the court of Magistrate.
• Article 22(2) applies to cases of arrest without warrant as well as with warrant.
• Section 57 and 76 are legislative manifestation of the constitutional right.
• Section 57 applies to arrest without warrant while Section 76 applies to arrest with
a warrant.
 …
• Section 57 provides that police officer shall not detain in custody a person
arrested without a warrant for a longer period than what is reasonable
and such period shall not exceed 24 hours except with an order of
Magistrate under Section 167 of the Code.
• Sec.167 provides the procedure when the investigation cannot be
completed within 24 hours.
• It aIso lays down the powers of Magistrate when accused is produced
before him within 24 hours of arrest.

• If the police officer fails to produce an arrested person before the

Magistrate, he will be guilty of wrongful detention.
4. Right to consult a legal practitioner [Article 22(1) of the
Constitution, Sections 41D and 303 CrPC
• Art. 22(1) of the Constitution provides that arrested person shall not be denied the
right to consult legal practitioner of his choice.

• The right to consult legal practitioner is closely associated with right of free legal
aid.
• The right of free legal aid is also implicit in Article 21.
• Supreme Court in Khatri (II) v. State of Bihar, (1981) 1 SCC627, has held that the
State is under a constitutional mandate to provide free legal aid to an indigent
person.
• This right accrues not only when the trial begins but when the person is arrested
and produced before a Magistrate.

• Supreme Court in Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401, has even
held that if this constitutional right is denied then it would vitiate the trial.
 …
• Section 41D, inserted by Amendment Act of 2009, provides that when any
person is arrested and interrogated by police, he shall be entitled to meet an
advocate of his choice during interrogation, though not throughout the
interrogation.

• Section 303 also provides that any person against whom proceedings are
initiated under the Code may of right be defended by a pleader of his choice.
• Section 304 provides for the legal aid to the accused at the expense of State in
sessions trial as well as other trials.
• Supreme Court in Mohd. Azmal Amir Kasab v.State of Maharashtra, 2012 9 SCC
1, held that it is the duty of Magistrate and courts to inform the indigent accused
about his right to get free legal aid
 5. Right to be examined by a medical practitioner [Section 53, 54]:

• Section 53 enables a police officer to compel an arrested person to

undergo medical examination with a view to facilitate investigation.

• Section 54 gives the right to the accused person to have him medically
examined to enable him to defend and protect himself properly.

• Supreme Court in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96,

has held that arrested person must be informed by the Magistrate about
his right to be medically examined under Section 54.
Guidelines for arrest

• Joginder Kumar v. State of UP (1994) 4 SCC 260.

• D.K. Basu v. State of West Bengal (1997) I SCC 416.
• 2009 Amendments
• Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
• Supreme Court in Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443 held
that the law of arrest is one of balancing individual rights, liberties and privileges, on one hand and
individual duties, obligations and responsibilities on the other hand.

• No arrest can be made in a routine manner on a mere allegation of commission of an offence made
against a person.
• No arrest should be made without reasonable satisfaction reached after some investigation as to the
genuineness and bona fide of a complaint and a reasonable belief both as to the person's complicity
and even so as to the need to effect arrest.

• A person accused of offence punishable with imprisonment for a term which may be less than seven
years or which may extend to seven years with or without fine, cannot be arrested by the police
unless conditions mentioned in Section 41(1)b) have been fulfilled.

• Supreme Court in the case of Joginder Kumar v. State of UP., (1994) 4 SCC 260, held that regulating
the nature of interaction between the accused and the police authorities is at the crux of developed
criminal justice system. In this case the court laid down certain guidelines in order to have
transparency in the accused-police relations
Need for guidelines
• Prior to the 2009 Amendment of Code of Criminal Procedure, Section 41 empowered police
officer to arrest any person without warrant if he has committed any cognizable offence in his
presence or against whom a reasonable complaint or credible information is received to that
effect.

• Thus, mere fact that the offence is cognizable gave them power to curtail the liberty of any person
and arrest.
• Thus, in Joginder Kumar's case, the court observed that arrest and custodial deaths have become
a handy rule and common phenomenon. The court clarified that power to arrest is one thing and
the exercise of such power is another. So, the court directed the police officers not to make arrests
in routine manner but only under compelling circumstances and laid down following guidelines:
(a) An arrested person in custody is entitled to have one friend, relative or other person interested in his
welfare to be informed of his arrest.

(b) He shall be informed of this right by the police officer making arrest.

(c) An entry shall be made in a diary as to who was informed of his arrest. These protection from
power must be held to flow from Article 21 and 22 (1) of Constitution.
 ..
The frequent instances of police atrocities and custodial deaths, however, continued and
pre-empted Supreme Court to issue further guidelines for protecting arrested persons in
the case of D. K. Basu v. State of West Bengal (1997) 6 SC 642] which are as under :
• (a) The police personnel carrying out the arrest and handling the interrogation should bear
an accurate and clear identification mark with their designation.
• (b) The police officer carrying out the arrest shall prepare the memo of arrest which shall
be attested by at least one witness.
• (c) Arrested person shall be entitled to have his friend or relative to be informed of his
arrest
• (d) He must be aware of his right to have someone being informed of his arrest.
• (e) The arrestee must be examined at the time or arrest and every major or minor injury
must be recorded
• (f)The arrestee should be subject to medical examination by a trained doctor every 48 hours.
• (g) The copies of all documents including memo of arrest should be sent to the Magistrate for
record.
• (h) The arrestee must be produced before Magistrate within 24 hours.
• (i)He must be permitted to meet a lawyer during interrogation.
Position after the 2009 Amendment:
After the amendment of 2009 in Cr. P.C. all these guidelines have been incorporated under following
provisions of Cr. PC:
• 1. Under Section 41-B, the police officer making the arrest is bound to bear identification mark and
prepare memorandum of arrest.
• 2. Under Section 41-C police control rooms are established at state as well as district level
• 3.Under Section 41-D, the arrested person shall have access to lawyers during interrogation.
• 4. Under Section 50-A, the arrestee is to be entitled to have his friend or relative to be informed of 4.
his arrest.
• 5.Under Section 54, provisions of his medical examination is made.
• 6.Under Section 55A, the police officer is bound to ensure health and safety of the arrested person.
• 7.Under Section 41, the offences are divided into two categories, i.e.,
(a)Offence punishable with imprisonment for a term up to 7 years |Section 41 (1) (b)].
(b)Offence punishable with death, life imprisonment and imprisonment exceeding 7 years. [Section 41(1)(ba)]
 …

• In Arnesh Kumar v. State of Bihar, (2014) 8 SCC273, Supreme Court held that no
arrest should be made merely because the offence is non-bailable and
cognizable.
• The existence of power of arrest is one thing and the justification for arrest is
quite different.
• No arrest should be made without a reasonable satisfaction as to the
genuineness of the allegation.

• Court in Arnesh's case held that before the Magistrate authorizes detention
under Section 167 of the Code, he has to be first satisfied that the arrest made is
legal and in accordance with the Constitutional rights.
• If arrest is not in accordance with Section 41 then the Magistrate is duty bound
not to authorize further detention of the accused.
 Guidelines in Arnesh Kumar v. State of Bihar (2014) 8 SCC273
a. All the State Government must instruct their police officers that they are not
supposed to automatically arrest an accused.
b. All police officers must be provided with a checklist containing specified clauses
under Section 41 (1) (b)(i). Failure to do so will render police officer subject to
departmental actions.

c. The police officer shall forward the checklist furnishing the reasons for arrest to
the Magistrate who shall authorize detention after recording its satisfaction
otherwise the Magistrate may also be subject to departmental action.

d. Failure to comply with the directions will render the police officers for
departmental action. They will also be liable to be punished for the contempt
of the court.
Other important provisions
relating to arrest

Ss.51,53,53A,54A,55A,60 CRPC
 …
• Search of arrested persons: Section 51 of the Code provides for the search of
arrested person.
• It states that whenever a person is arrested with or without warrant by a police
officer or by a private person who makes over that person to police officer, such
police-officer may search such person and place in safe
custody all articles except wearing apparel and a receipt of any articles seized
from arrested person shall be
given to such person.
• This power is available only when arrested person is not released on bail.
• In case the arrested person is a woman, search shall be made by a female only
with strict regard to decency.

• Supreme Court in Kamalabai jethamal v. State of Maharashtra, AIR 1962 SC 1189

held that some irregularity in making such search that in itself will not make the
 …

• Sec. 53 provides for examination of accused by a medical practitioner at the request of police officer.
• In Ritesh v. State of U.P. and Anr (2019), Supreme Court held that Magistrate has power to direct the
accused to give voice samples during investigation without his consent.

• Sec.53A provides that if the arrested person has been accused of offence of rape or attempt to rape
and the police officer has reason to believe that the medical examination of the person will afford
evidence as to commission of such offence, then it shall be lawful for the medical practitioner in the
hospital run by Government or local authority to examine the arrested person on the request of police
officer.
• Identification of Accused: Section 54A provides that on request of police officer, the court can require
the accused to subject himself for identification by others if it is found necessary for investigation of an
offence.
• Health & safety of Accused: Section 55A provides that it shall be duty of the person having
custody of the accused to take reasonable care of health and safety of the accused.

• Section 60 provides that if an arrested person escapes then person from whose custody he escaped or
was rescued may immediately pursue and arrest him in any place in India.
 Consequences of non-compliance of provisions relating to arrest (Section 60A )
• Section 60A provides that arrest is to be made strictly in accordance with the Code
or any other law for the time being in force for arrest.
Following are the consequences of non-compliance of provisions of arrest
1. If a police officer or any public servant having authority to arrest knowingly
exercises the authority in contravention of law and effects an illegal arrest he shall
be prosecuted under Section 220 of Indian Penal Code.

2. Any person who illegally arrests is also liable under Section 342 Indian Penal Code
for wrongful confinement.

3. Illegal arrest also amounts to kind of false imprisonment and a civil suit will also lie
for damages.

4. Trial will not be void merely because the provisions for arrest have not been
followed.