Arrest under CrPC

Arrest means apprehension (to arrest, to nab) of a

person by legal authority so as to cause deprivation
of his liberty. Thus, after arrest, a person's liberty is
in control of the arrester. Arrest is an important tool
for bringing an accused before the court as well as to
prevent a crime or prevent a person suspected of
doing crime from running away from the law.

We can cover the topic of arrest under in two heads

arrest with warrant and arrest without warrant.- an
arrest that is made for the execution of a warrant
issued by a magistrate and an arrest that is made
without any warrant but in accordance with some
legal provision that permits arrest.

Secs. 70-80 of CrPC deals in warrant and its process.

Warrants can also be bailable or non bailable.
Bailable warrants are those warrants which have an
endorsement or direction for the security to be taken
from the arrested person by the officer making arrest
and if the person arrested ready to give security for
his attendance before the court, he shall be released
from the custody as provided under section 71 CrPC.

Form of warrant of arrest

FORM NO. 2
WARRANT OF ARREST
(See section 70)
To.............................. (name and designation of the
person or persons who is or are to execute the
warrant).

WHEREAS (name of accused) of (address) stands

charged with the offence of.................... (state the
offence), you are hereby directed to arrest the
said........................., and to produce him before me.
Herein fail not.
Dated, this............... day of................, 20.....
(Seal of the Court) (Signature)

(See section 71)

This warrant may be endorsed as follows:—
If the said......................... shall give bail himself in
the sum of rupees................ with one surety in the
sum of rupees............... (or two sureties each in the
sum of rupees...............) to attend before me on
the................. day of................. and to continue so to
attend until otherwise directed by me, he may be
released.
Dated, this.................day of................, 20.....
(Seal of the Court) (Signature)

Section 41 to 44 contain provisions that govern the

arrest of a person by police and private citizens,
while Section 46
describes how an arrest is a made.

Arrest without warrant

Secs. 41, 42, 151 and 432(3) empowers the police to
arrest without warrant. Further there are situations
when a person may be arrested by a police officer, a
magistrate or even private citizen without a warrant.
These are described in Section 41, 42, 43, and 44 as
follows -

Arrest by Police - 41. When police may arrest

without warrant.—
(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any
person—
(a) who commits, in the presence of a police
officer, a cognizable offence;

(b) 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 punishable with
imprisonment for a term which may be less than
seven years or which may extend to seven years
whether with or without fine, if the following
conditions are satisfied, namely:—

(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;

(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 causing the
evidence of the offence to disappear or 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 such
arrest, his reasons in writing:

Provided that a police officer shall, in all

cases where the arrest of a person is not required
under the provisions of this sub-section, record the
reasons in writing for not making the arrest.

(ba) against whom credible information has been

received that he has committed a cognizable offence
punishable with imprisonment for a term which may
extend to more than seven years whether with or
without fine or with death sentence and the police
officer has reason to believe on the basis of that
information that such person has committed the said
offence;

(c) who has been proclaimed as an offender either

under this Code or by order of the State Government;
or

(d) in whose possession anything is found which

may reasonably be suspected to be stolen property
and who may reasonably be suspected of having
committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the

execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a

deserter from any of the Armed Forces of the Union;
or

(g) who has been concerned in, or against whom

a reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists, of his having been concerned in,
any act committed at any place out of India which, if
committed in India, would have been punishable as
an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or

(h) who, being a released convict, commits a

breach of any rule made under sub-section (5) of
section 356; or

(i) for whose arrest any requisition, whether

written or oral, has been received from another police
officer, provided that the requisition specifies the
person to be arrested and the offence or other cause
for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested
without a warrant by the officer who issued the
requisition.

(2) Subject to the provisions of section 42, no person

concerned in a non- cognizable offence or against
whom a complaint has been made or credible
information has been received or reasonable
suspicion exists of his having so concerned, shall be
arrested except under a warrant or order of a
Magistrate.

Court's guidelines on arrest: 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.

In Joginder Kumar v state of UP, 1994 , 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.

Then again in D.K. Basu v. State of West Bengal

(1997) 6 SC 6421 which are as under court gave
following guidelines:
(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 of
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.

Police control room should be provided at every

district and State Headquarters.
The above guidelines were later adopted in the CrPC
by way of 2009 Amendment.

Position after the Amendment: After the amendment

of 2009 in Cr. P.C. all the above guidelines have been
incorporated under following provisions of Cr. PC:

1. Section 41A Notice of appearance before police

2. Under, 41-B, the police officer making the arrest

is bound to bear identification mark and prepare
memorandum of arrest.
3. Under Section 41-C, police control rooms are
established at state as well as district level

4. Under Section 41-D, the arrested person shall have

access to lawyers during interrogation.

5. Under Section 50-A, the arrestee is to be entitled

to have his friend or relative to be informed of his
arrest.

6. Under Section 54, provisions of his medical

examination is made.

7. Under Section 55A, the police officer is bound to

ensure health and safety of the arrested person.

8. 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 SCC
273, 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.
Police officers were directed not to automatically
arrest where a case is registered under Section 498-A
of Indian Penal Code and also in cases where offence
is punishable with imprisonment for a term which
may be less than seven years or which may extend to
seven years. They have to satisfy themselves about
the necessity for arrest under the parameters laid
down in Section 41 of the Code.

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.
The court gave the following directions:-
(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 he may also be subject to
departmental action.

Sections 41A to 41D are newly inserted by way of

amendment to the Code in the year 2008 as inserted
by Section 6 of the Code of Criminal Procedure
(Amendment) Act, 2008(Act 5 of 2009),in the
following manner:

SECTION 41A
As per the provisions of Section 41A of the Code,
every police officer might be ensured that in all cases
in which arrest is not required to be made as
indicated in sub-section (1) to Section 41 of the
Code, but as per the provisions of sub-section (1) to
Section 41A of the Code, such a police officer is
authorised, to issue notice of appearance before him
by the person whose arrest is not required to be
made, duly directing him to be present in person or at
the place mentioned in such notice, against whom
such police officer has received a credible
information and reasonable complaint has been made
against such person or has a reasonable suspicion
that exists about his commission of a cognizable
offence.
As per the provisions of sub-section (2) to section 41
of the Code, it shall be the earnest duty of the person
against whom such a notice is issued, to comply with
the terms of the said notice.
As per the provisions of sub-section (3) to Section 41
of the Code, if such person has complied and would
be in continuation of such compliance with the said
notice, such person shall not be arrested in
connection with the offence referred to in that
particular notice, unless and until the specific reasons
are to be recorded if the police officer is of the
opinion that the said person is ought to be arrested.
As per the provisions of newly introduced
sub-section (4) to Section 41 of the Code, if such a
person fails to comply with the terms of the notice or
he is unwilling to identify himself, the police officer
who has issued such notice, is empowered to arrest
him for the offence so mentioned in the said notice
provided to such orders that may have been passed
by a competent Court in that behalf.
A plain reading of the above provisions, it is to be
understood that in all cases arrest cannot be made, as
indicated in Section 41 of the Code, but a notice of
appearance be issued to the person against whom a
reasonable complaint or credible information has
been received, duly directing him to comply with the
said notice, and it is the earnest duty of the person
who has received that notice to comply with the
terms mentioned in the said notice, and if the police
officer found him that he has complied with the
notice terms, he cannot be arrested, but if he is found
to be the person who has failed to comply with the
said notice terms, he is liable to be arrested by such
police officer, subject to obtaining appropriate orders
from competent court in that behalf.

SECTION 41B
PROCEDURE FOR ARREST & DUTIES OF A
POLICE OFFICER
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:
As per the provisions of sub-section (1) to Section
41C of the Code, it is indicated that every State
Government shall establish one police control room
(a) in every district; and (b) at State level. .As per the
provisions of sub-section (2) to Section 41C of the
Code,.such State Government shall cause to display
in its notice board which was kept at its control
rooms at its every district , the names and addresses
of the persons so arrested so also the designations of
the police officers who has caused those arrests.
As per the provisions of sub-section (3) to Section
41C of the Code, the control rooms so established at
the police head quarters at the State levels shall
collect the details about the arrested persons, nature
of the offence with which they are charged from time
to time and should invariably be maintain a database
for the general public information.

SECTION 41D
As per the provisions of Section 41D of the Code,
when any person so arrested and interrogated by the
police officer, he shall be entitled and is
also having mandatory right to meet an advocate of
his choice during the course of such case
interrogation though not throughout such
interrogation Further any officer in charge of a police
station may, in like manner, arrest or cause to be
arrested any person, belonging to one or more of the
categories of persons specified in section 109 or
section 110.

In the case of Joginder Kumar vs State of UP, CrLJ,

1994, it was held that no arrest can be made merely
because it is lawful to do so. There must be a
justifiable reason to arrest. Further, in State vs Bhera,
CrLJ, 1997, it was held that the "reasonable
suspicion" and "creditable information" must relate
to definite averments which must be considered by
the Police Officer himself before he arrests the
person.

Section 42 allows a police officer to arrest a person

for a non-cognizable offence, if he refuses to give his
name and residence. As per Section 42(1), when any
person who, in the presence of a police officer, has
committed or has been accused of committing a
non-cognizable offence refuses, on demand of such
officer, to give his name and residence or gives a
name or residence which such officer has reason to
believe to be false, he may be arrested by such
officer in order that his name or residence may be
ascertained.
However, as per sub clause (2), the person must be
released when the true name and residence of such
person have been ascertained. He may be required to
execute a bond, with or without sureties, to appear
before a Magistrate if necessary. Provided that, if
such person is not resident in India, the bond shall be
secured by a surety or sureties resident in
[Link], as per sub clause (3), should the true
name and residence of such person not be ascertained
within twenty-four hours from the time of arrest or
should he fail to execute the bond, or, if so required,
to furnish sufficient sureties, he shall forthwith be
forwarded to the nearest Magistrate having
jurisdiction.

Arrest by Private person

Even private persons are empowered to arrest a
person for protection of peace in certain situations.
This is important because police cannot be present at
every nook and corner and it is up to private citizens
to protect the society from disruptive elements or
criminals. As per section 43(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. Thus, if a person is drunk and is
committing assault on others, he may be rightly
arrested by any citizen and taken to the nearest police
station.
However, it is important to note that this power can
be exercised only when the person making an arrest
is under a bona fide impression that a non-bailable
and cognizable office is being committed in his
presence. One does not have a right to arrest on mere
suspicion or on mere opinion that an offence has
been committed.

Procedure on arrest by private person -

As mentioned above, the private person must take the
arrested person to the police officer or police station
without any reasonable delay. If he keeps the person
in his own custody, he will be guilty of wrongful
confinement as given in Section
342 of IPC.
As per section 43(2), If there is reason to believe that
such person comes under the provisions of section
41, a police officer shall re-arrest him. Further, as per
section 43(3), 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 new provision has been incorporated as Section

50A, which makes it obligatory for the police officer
or any other person making an arrest to give the
information regarding such arrest and place where
the arrested person is being held to any of his friends,
relatives or such other persons as may be disclosed or
nominated by the arrested person for the purpose of
giving such information. Further, the police officer
shall inform the arrested person of his rights under
subsection as soon as he is brought to the police
station. He must make an entry of the fact as to who
has been informed of the arrest of such person in a
book to be kept in the police station in such form as
may be prescribed in this behalf by the State
Government. It is the duty of the Magistrate before
whom such arrested person is produced, to satisfy
himself that the requirements of this section has been
complied with in respect of such arrested person.

Arrest by Magistrate
As per Section 44(1), when any offence is committed
in the presence of a Magistrate, whether Executive or
Judicial, within his local jurisdiction, he may himself
arrest or order any person to arrest the offender, and
may thereupon, subject to the provisions herein
contained as to bail, commit the offender to custody.
Further, (2) Any Magistrate, whether Executive or
Judicial, may at any time arrest or direct the arrest, in
his presence, within his local jurisdiction, of any
person for whose arrest he is competent at the time
and in the circumstances to issue a warrant.
Important thing to note here is that magistrates have
wider power than private citizen. A magistrate can
arrest on the ground of any offence and not only on
cognizable offence. As held in the case of Swami
Hariharanand Saraswati vs Jailer I/C Dist. Varanasi,
AIR 1954, the arrested person must be produced
before another magistrate within 24 hours, otherwise
his detention will be illegal.

SECTION 45
ARMED FORCES ARREST PROTECTION
Sub-section (1) to this Section ordains that no Armed
Forces member of the Union of India shall be
arrested for anything or purported to be done
by him while such Armed Forces member
discharging his official duties except after obtaining
Central Government’s consent and also
notwithstanding anything contained in Sections 41 to
44 (both inclusive) of the Code. Sub-section (2) to
this Section, authorises the State Government, may,
by specific notification, direct that the provisions of
sub-section (1).shall apply to such class or category
of Force members who were charged with the
maintenance of the public order or as may be
specified in such notification, whenever they may be
serving, and thereupon the provisions of that
sub-section shall apply as if for the expression
‘Central Government’ occurring therein, the
expression ‘State Government’ were substituted.
Arrest how made -
Section 46 describes the way in which an arrest is
actually made. As per Section 46(1), unless the
person being arrested consents to the submission to
custody by words or actions, the arrester shall
actually touch or confine the body of the person to be
arrested. Since arrest is a restraint on the liberty of
the person, it is necessary for the person being
arrested to either submit to custody or the arrester
must touch and confine his body. Mere oral
declaration of arrest by the arrester without getting
submission to custody or physical touching to
confine the body will not amount to arrest. The
submission to custody may be by express words or
by action. For example, as held in the case of
Bharosa Ramdayal vs Emperor AIR 1941, if a person
makes a statement to the police accusing himself of
committing an offence, he would be considered to
have submitted to the custody of the police officer.
Similarly, if the accused proceeds towards the police
station as directed by the police officer, he has
submitted to the custody.

In such cases, physical contact is not required. In

case of Birendra Kumar Rai vs Union of India, CrLJ,
1992, it was held that arrest need not be by
handcuffing the person, and it can also be complete
by spoken words if the person submits to custody.
Section 46(2) If such person forcibly resists the
endeavor to arrest him, or attempts to evade the
arrest, such police officer or other person may use all
means necessary to effect the arrest. Thus, if the
person tries to runaway, the police officer can take
actions to prevent his escape and in doing so, he can
use physical force to immobilize the accused.
However, as per Section 46(3), there is no right to
cause the death of the person who is not accused of
an offence punishable with death or with
imprisonment for life, while arresting that person.
Further, as per Section 49, an arrested person must
not be subjected to more restraint than is necessary to
prevent him from escaping. Due to concerns of
violation of the rights of women, a new provision
was inserted in Section 46(4) that forbids the arrest
of women after sunset and before sunrise, except in
exceptional circumstances, in which case the arrest
can be done by a woman police officer after making
a written report and obtaining a prior permission
from the concerned Judicial Magistrate of First class.
In Kultej Singh vs Circle Inspector of Police, 1992, it
was held that keeping a person in the police station
or confining the movement of the person in the
precincts of the police station amounts to arrest of the
person.

Rights of an Arrested person

Cr P C gives wide powers to the police for arresting a
person. Such powers without appropriate safeguards
for the arrested person will be harmful for the
society. To ensure that this power is not used
arbitrarily, several restraints have been put on it,
which, indirectly, can be seen as recognition of the
rights of a person being arrested. Further, once
arrested, a person is already at a disadvantage
because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet
the needs of "fair trial", several provisions are given
in CrPC, that give specific rights to an arrested
person. These rights can be described as follows -

1. Right to know the grounds of arrest - Section

50(1) - According this provision, 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 for such arrest. Similarly, when a
subordinate officer is deputed by a senior police
officer to arrest a person under Section 55, the
subordinate officer must notify the person to be
arrested of the substance of the written order given
by the senior officer, which clearly specifies the
offence for which he is being arrested. The same
provision exists in case of an arrest made under a
warrant in Section 75. In this case, the police officer
or any person making arrest under warrant must
notify the substance of the warrant to the person
being arrested and if required, must show the
warrant. As held in Satish Chandra Rai vs Jodu
Nandan Singh, ILR 26 Cal 748, if the substance of
the warrant is not notified, the arrest would be
unlawful.

In Udaybhan Shuki vs State of UP 1999 CrLJ, All

HC held that right to be notified of grounds of arrest
is a precious right of the arrested person. This allows
him to move the proper court for bail, make a writ
petition for habeas corpus, or make appropriate
arrangements for his [Link] right is also a
fundamental right given by the Constitution in Art
22(1), which says, "No person who is arrested shall
be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor
shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.``. It
embodies two distinct rights - the right to be told of
the grounds of arrest and the right to consult a legal
practitioner of his choice. The second right of
consulting a legal the practitioner of his choice
actually depends on the first right of being told about
the grounds of arrest. If the person doesn't know why
he is being arrested, he cannot consult a legal
practitioner meaningfully. In Harikishan vs State of
Maharashtra AIR 1962, SC held that the grounds of
arrest must be communicated to the person in the
language that he understands otherwise it would not
amount to sufficient compliance of the constitutional
requirement.

2. Right to be informed of the provision for bail -

Section 50(2) - Some offences that are not very
serious do not require the offender to be kept in
custody. For such offences, Cr P C allows the
offender to ask for bail as a matter of right. However,
not every person knows about Cr P C and so they
cannot know that they can get bail immediately.
Thus, Section 50(2), provides that where a police
officer arrests any person other than a person accused
of a non-bailable offence without warrant, he shall
inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties
on his behalf.

3. Right to be taken to magistrate without delay -

Holding a person in custody without first proving
that the person is guilty is a violation of human rights
and is completely unfair. At the same time, holding a
person in custody is necessary for the police to carry
on their investigation of a crime. These two are
contradictory requirements and a balance must be
found between them. Since police has arrested the
person, it cannot be the agency that determines
whether person must be kept confined further. This
can only be decided by a competent judicial
authority. This is exactly what is embodied in Art
22(2) that gives a fundamental right to the arrested
person that he must be produced before a magistrate
within 24 hours of arrest.
It says, "Every person who is arrested and detained in
custody shall be produced before the nearest
magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the
journey from the place of arrest to the court of the
magistrate and no such person shall be detained in
custody beyond the said period without the authority
of a magistrate."
Section 57 of CrPC also contains a similar provision
for a person arrested without a warrant. It says, "No
police officer shall detain in custody a person
arrested without warrant for a longer period than
under all the circumstances of the case is reasonable,
and such period shall not, in the absence of a special
order of a Magistrate under Section 167, exceed
twenty four hours exclusive of the time necessary for
the journey from the place of arrest to the
Magistrate's court."
Section 76 contains a similar provision for a person
arrested under a warrant. It says, "The police officer
or other person executing a warrant of arrest shall
(subject to the provisions of section 71 as to security)
without unnecessary delay bring the person arrested
before the court before which he is required by law
to produce such person. Provided that such delay
shall not, in any case, exceed twenty-four hours
exclusive of the time necessary for the journey from
the place of arrest to the Magistrate's court."
Thus, it can be see that it is a very important right
that is meant to prevent abuse of police power and to
prevent the use of a police station as a prison. It
prevents arrest merely for the purpose of extracting
confessions. The arrested person gets to be heard by
a judicial authority that is independent of the police.
In Khatri (II) vs State of Bihar 1981 SCC, SC has
strongly urged upon the State and its police to ensure
that this constitutional and legal requirement of
bringing an arrested person before a judicial
magistrate within 24 hours be scrupulously met. This
is a healthy provision that allows magistrates to keep
a check on the police investigation. It is necessary
that the magistrates should try to enforce this
requirement and when they find it disobeyed, they
should come heavily upon the police.
Further, in Sharifbai vs Abdul Razak, AIR 1961, SC
held that if a police officer fails to produce an
arrested person before a
magistrate within 24 hours, he shall be held guilty of
wrongful detention. Constitutional Perspective on
Art 22(2) - On the face of it, this article seems to be
applicable on arrests with or without warrants.
However, in State of Punjab vs Ajiab Singh AIR
1953, SC observed that it applies only to cases of
arrests without warrant because in case of an arrest
with warrant, the judicial mind has already been
applied while issuing the warrant. So further
safeguard is not required. This decision has been
widely criticized. In any case, the proviso to Section
76 unmistakably provides that a person arrested
under a warrant must be produced before a
magistrate within 24 hours.

4. Right to consult Legal Practitioner - Art 22 (1) -

For conducting a fair trial it is absolutely necessary
that the accused person is able to consult with a legal
practitioner whom he trusts. Second part of Article
22(1) gives this fundamental right to an arrested
person. It says that no person who is arrested shall be
denied the right to consult, and to be defended by, a
legal practitioner of his choice. However, this does
not mean that the State must provide a legal
practitioner of the person's choice. It is up to the
arrested person to contact and appoint a such a legal
practitioner. The State's responsibility is only to
ensure that he is not prevented from doing so. The
same right is also provide by CrPC under Section
303, which says, "Any person accused of offence
before a Criminal Court or against whom
proceedings are instituted under this Code, may of
right be defended by a pleader of his choice."

5. Right to free legal aid - Art 21 and Section 304 -

A person who does not have the means to hire a legal
practitioner is unable to defend himself appropriately.
This casts a cloud on the fairness of the trial.
Therefore, Section 304 provides that where, in a trial
before the Court of Session, the accused is not
represented by a pleader, and where appears to the
Court that the accused has not sufficient means to
engage a pleader, the Court shall assign a pleader for
his defense at the expense of the State. In Khatri (II)
vs State of Bihar 1981 SCC, Supreme Court has also
held that access to a legal practitioner is implicit in
Article 21, which gives fundamental right to life and
liberty. The state is under constitutional mandate to
provide free legal aid to an indigent accused person
and this constitutional obligation arises not only
when the trial is commenced but also when the
person is first produced before a magistrate and also
when he is remanded from time to time. In Suk Das
vs Union Territory of Arunachal Pradesh 1986, SCC,
SC has held that non-compliance of this requirement
or failure to inform the accused of this right would
vitiate the trial entailing setting aside of the
conviction and sentence. The right of an accused
person to consult his lawyer begins from the moment
of his arrest. The consultation with the lawyer may
be within the presence of a police officer but not
within the police officer's hearing. SC also held that
it is the duty on all courts and magistrates to inform
the indigent person about his right to get free legal
aid.

6. Right to be informed about the right to inform

of his arrest to his relative or friend - In order to
ensure a fair trial and to improve people-police
relationship, the Supreme Court, in Joginder Kumar
vs State of UP 1994, formulated the rules that make
it mandatory on the police officer to inform one
friend, relative, or any other person
of the accused person's choice, about his arrest.
These rules were later incorporated in CrPC under
section 50 A in 2005. Section 50 A (1) provides that
once the arrested person is brought to the police
station, the police officer must inform a relative or a
friend, or any other person of the arrested person's
choice, about his arrest. He must also tell the place
where the arrested person has been kept. This is a
very important step in ensuring justice with the
arrested person because this allows the arrested
person and his well wishers to take appropriate legal
steps to secure his release. However, all this will
amount to nothing if the arrested person does not
even know about this very critical right. Thus,
Section 50 A (2) provides that the police officer must
inform the arrested person of this right. Further, as
per Section 50 A (3) he must note down the name
and address of the person who was informed about
the arrest. To make sure that there is no violation of
this right, section 50 A (4) makes it a duty of the
magistrate to verify that the provisions of this section
were complied with.

7. Right to be examined by a medical practitioner

- While Section 53 allows a police officer to get the
accused examined by a registered medical
practitioner, Section 54(1) gives the accused a right
to get himself examined by a registered medical
practitioner. Section 54 (1) says thus, "When a
person who is arrested, whether on a charge or
otherwise, alleges, at the time when he is produced
before a Magistrate or at any time during, the period
of his detention in custody that the examination of
his body will afford evidence which will disprove the
commission by him of any offence or which
Magistrate shall, if requested by the arrested person
so to do direct the examination of' the body of such
person by a registered medical practitioner unless the
Magistrate considers that the request is made for the
purpose of vexation or delay or for defeating the ends
of Justice". While Section 53 is meant to aid the
police in investigation, Section 54(1) is meant for the
accused to prove his innocence. This right can also
be used by the accused to prove that he was
subjected to physical injury. Section 54 of CrPC
confers on the arrested person the right to have his
medical examination done. It was held that this
section protects the arrested person from physical
torture and maltreatment in police custody.

In Sheela Barse vs State of Maharashtra 1983 SCC,

SC held that the arrested accused person must be
informed by the magistrate about his right to be
medically examined in terms of Section 54(1).
However, it is not clear in the section whether the
medical person must be of the choice of the accused
or shall be appointed by the magistrate. The section
is also silent on who will bear the expense of the
examination.
Non compliance to this important provision
prompted Delhi High court to issue directions that
make it obligatory for the magistrates to ask the
arrested person as to whether he has any complaint of
torture or maltreatment in police custody.

Consequences of non-compliance with the

provisions relating to arrest -
In general, non-compliance does not void a trial. Just
because any provision relating to arrest was not
complied with does not affect whether the accused is
guilty or not. However, the violation will be material
in case the accused is prosecuted on the charge of
resistance to or escape from lawful custody. Further,
everybody has a right to defend himself against
unlawful arrest and a person can exercise this right
under Section 96 to 106 of IPC and he will not be
liable for any injury caused due to it. Also, a person
who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself to damages in
a civil suit.
If a person who has an authority to arrest, arrests a
person with full knowledge that the arrest is illegal,
he will be liable to be prosecuted under Section 220
of IPC. Similarly, any private person who does not
have an authority to arrest, arrests a
person with full knowledge that the arrest is illegal,
can be prosecuted under Section 342 of IPC for
wrongful confinement.
A person making illegal arrest also exposes himself
to civil suit of false imprisonment.
It is important to note that the provisions regarding
arrest cannot be by-passed by alleging that there was
no arrest but only
an informal detention. Informal detention or restraint
of any kind by the police is not authorized by law.

Guidelines on arrest of judicial officer

In Delhi Judicial Service Association, Hazari Court

Vs State of Gujarat AIR 1991 SC, following
directions issued by Supreme Court:

(A) A Judicial Officer should be arrested for any

offence under intimation to the District Judge or the
High Court as the case may be.
(B) In case of necessity for immediate arrest of a
Judicial Officer only a technical or formal arrest may
be effected.
(C) The fact of such arrest should be immediately
communicated to the District and Sessions Judge of
the concerned District and the Chief Justice of the
High Court.
(D) The Judicial Officer so arrested shall not be
taken to a police station, without the prior order or
directions of the District and Sessions Judge of the
concerned district, if available.
(E) Immediate facilities shall be provided to the
Judicial Officer for communication with his family
members, legal advisers and Judicial Officers,
including the District and Sessions Judge.
(F) No statement of a Judicial Officer who is under
arrest be recorded nor any panchnama be drawn up
nor any medical tests be conducted except in the
presence of the Legal Adviser of the Judicial Officer
concerned or another Judicial Officer of equal or
higher rank, if available.
(G) Ordinarily there should be no handcuffing of a
Judicial Officer.