ARREST: MEANING

The word "arrest" has neither been defined in the Code nor in the Indian Penal Code nor in any other enactment
dealing with criminal offences. Arrest means taking of a person in custody under legal authority. Arrest is the
restraint of the liberty of a person in order to compel obedience to the order of the Court of Justice or to prevent
the commission of a crime or to ensure that a person charged with or suspected of a crime may be forthcoming
to answer it.

"Arrest" may be defined as "the execution of the command of a court of law or of a duly authorised officer"."

The terms 'arrest' and 'custody' are not synonymous. In every arrest, there is custody, but vice versa is not true.
Custody may or may not amount to arrest. The arrest starts with an arrester taking a person in his custody and
continues until such person is released.

3. BY WHOM ARREST BE MADE

Arrest may be made by a (i) police officer; or (ii) magistrate; or (iii) private person.

(a) By Police Officer

Sections 41 and 42 confer very wide powers on a police officer to arrest any person without a warrant and
without an order from a magistrate. These provisions, however, are not exhaustive and an arrest can be made
under other special laws; e.g. under the Arms Act, Explosives Act, Indian Railways Act, Income-tax Act, Preventive
Detention Laws, etc.

A police officer may arrest without warrant-

(1) Any person who commits a cognizable offence in his presence;

(2) Any 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 punishable with imprisonment up to
seven years; Proviso to clause (b) of Section 41(1) as inserted by the Code of Criminal Procedure (Amendment)
Act, 2010 states that where in such cases a police officer does not effect arrest, he shall record reasons for not
doing so.

(3) Any person against whom credible information has been received that he has committed a cognizable offence
punishable with imprisonment for more than seven years and the police officer has reason to believe that such
person has committed the said offence;

(4) any proclaimed offender;

(5) any person in possession of anything reasonably suspected to be stolen property;

(6) any person obstructing a police officer in the execution of his duty or escaping or attempting to escape from
lawful custody;

(7) any deserter from the Armed Forces;

(8) any person concerned in any offence committed outside India, which if committed in India would have been
punishable as an offence;

(9) any released convict committing breach of any rule (relating to previously convicted offenders);

(10) any person for whose arrest a requisition has been received;

(11) any person who in the presence of a police officer has committed a non- cognizable offence and refuses to
give his true name and address;

(12) any person designing to commit a cognizable offence which cannot otherwise be prevented;

(13) any person whose suspension or remission of sentence has been cancelled by the Government;

Section 41 of the Code allows police to arrest individuals without a warrant, but these powers must be strictly
interpreted and enforced. The Amendment Act, 2008, amended sub-section (2) of Section 41, stating that no
person can be arrested for non-cognizable offenses without a warrant or magistrate's order. When a court
challenges the legality of arrest without a warrant, the police officer must prove the arrest was lawful and
reasonable.

Section 42 allows police officers to arrest individuals if they commit a non-cognizable offense in the presence of a
police officer, are accused of such offense, refuse to give their name and address, or provide false information.
The purpose of arrest is to ascertain the person's identity, and if the officer is aware of the person's name and
address, no arrest can be made.

(b) By Magistrate

A Magistrate (Executive or Judicial) may arrest without warrant-

(i) any person who commits an offence in his presence;
(ii) any person for whose arrest he is competent to issue a warrant.
There is a distinction between sub-section (1) and sub-section (2) of Section 44. Under sub-section (1), the magistrate is
empowered to arrest a person who has committed an offence in his presence and also to commit him to custody, whereas
sub-section (2) empowers the magistrate only to arrest a person who is suspected of having committed an offence. The
power to commit the offender to custody is not conferred. The omission of power to commit such suspect to custody is not
accidental but deliberate.
(c) By Private Person
A private person can arrest without warrant-

(i) any person who commits a non-bailable and cognizable offence in his presence; or

(ii) any person who is a proclaimed offender,

Section 43 permits private individuals to arrest someone under specific circumstances, but it must be interpreted
strictly to prevent enlarging their power. The offense must be non-bailable, cognizable, and not bailable or non-
cognizable, and the words used must be personal knowledge. The right to arrest must be exercised
simultaneously with the offense, and private individuals must surrender the person or take them to the nearest
police station.

5. SAFEGUARDS

With a view to protect personal liberty and ensure individual freedom, the Code has provided several safeguards against
illegal, arbitrary and wrongful exercise of power of arrest.

The Code has thus provided that no arrest of any person shall be made except in accordance with the provisions of the
Code or any other law for the time being in force. It has also provided that normally no person concerned in a non-
cognizable offence shall be arrested except under a warrant . Amendments in the Code in 2008 and 2010 further provide
that except in cases covered by Section 41(1), a police officer shall issue notice to appear before him if arrest of the person
is not required Other safeguards also have been provided.

In Siddhram vs State of Maharasthra the Supreme Court, by way of illustrative cases made the following suggestions which
may be helpful before an accused is arrested;
(1) Direct the accused to joint the investigation and only when the accused does not cooperate with the investigating
agency, then only the accused he arrested.
(2) Seize either the passport or other related documents, such as, the title deeds of properties or the fixed deposit
receipts/share certificates of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of a number of persons which according to the prosecution are
necessary in view of the facts of the particular case.
(5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the
possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
(6) Bank accounts be frozen for small duration during the investigation, etc.

6. PREVENTIVE MEASURES
In the leading case of D.K. Basu v. State of West Bengal WRITE THE DK BASU RULINGS

7. IMMUNITY OF PRESIDENT AND GOVERNORS

Article 361(3) of the Constitution grants immunity from arrest to the President or Governor, during the term of office under
any process issued by any court.

8. IMMUNITY OF MEMBERS OF ARMED FORCES

Section 45 of the Code enacts that no members of the Armed Forces of the Union shall be arrested for anything done or
purported to be done in the discharge of his official duties shall be except with the consent of the Central government. The
State Government is empowered to extend the protection afforded to the members of Armed Forces to members of the
force charged with the maintenance of public order.
9. IMMUNITY OF MEMBERS OF JUDICIAL SERVICE

The Delhi Judicial Service Association v. State of Gujarat case established guidelines for the arrest and detention
of judicial officers, despite the absence of immunity or protection from arrest in the Code of Criminal Procedure.
The court treated the assault as an onslaught on the judicial institution and imposed punishment under the
Contempt of Courts Act, 1971.
(i) If a Judicial Officer is to be arrested for some offence, it should be done under intimation to the District Judge
or the High Court as the case may be.

(ii) If facts and circumstances necessitate the immediate arrest of a Judicial Officer of the subordinate judiciary, a
technical or formal arrest may be effected.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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.

(vii) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or
there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting
arrest may be overpowered and handcuffed. In such case, immediate report shall be made to the District and
Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police
to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established
that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or
responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for
compensation and/or 39 damages as may be summarily determined by the High Court

10. NOTICE BEFORE ARREST

An accused of a criminal case cannot claim a right of notice and opportunity of hearing before arrest is effected.
The rule of audi alteram partem (" hear the other side") and principles of natural justice have no application to
an action of arrest of accused. Power to arrest a person is statutory in nature and it cannot be interfered with or
curtailed by a court directing the officer/authority to exercise such power only after prior notice to the person
concerned.

11. PROCEDURE OF ARREST

The Code outlines procedures for arresting individuals, including touching or confinement of males unless they
submit to the process. Females can be arrested on oral intimation, and they cannot be arrested after sun set or
before sun rise except in unavoidable circumstances. Police officers must communicate the arrest grounds,
inform the person of their right to bail, report the arrest to the District Magistrate or Sub-Divisional Magistrate,
seize offensive weapons, disclose the person's name and identification, inform their relative or friend, prepare a
memorandum of arrest, and inform the person of their right to have their relative informed about the arrest.

12. ARREST OF WOMAN

Special provisions have been made for arrest of a woman or a female.

The Code of Criminal Procedure (Amendment) Act, 2008, includes a Proviso to Section 46(1), which states that a
woman can be arrested with an oral intimation of arrest. It also prohibits police officers from touching the
woman's person, and she cannot be arrested after sun set or before sun rise except in unavoidable
circumstances. She must be examined under female medical supervision. In exceptional cases, a woman police
officer must obtain written permission from the Judicial Officer of the first class. Searches of a woman can only
be made by another woman with strict decency.

13. HOW ARREST BE MADE?

Section 46(1) of the Criminal Procedure Code states that a police officer must not touch or confine the person's
body to make an arrest unless they submit to custody through word or action. However, it is not necessary for an
arrest to be made if the person submits to custody. The essential elements of an arrest include an intention to
arrest under the law and the seizure or detention of a person in a manner recognized by law.

14. RIGHTS AND DUTIES OF PERSONS EFFECTING ARREST

Arresting individuals in India is a legal process that requires the use of all means necessary to effect the arrest.
Force can be used if the person resists or attempts to evade arrest, but this right do not extend to causing death
for someone not accused of an offence punishable with death or imprisonment for life.
Arrest can also be effected by entering and searching the place occupied by the offender or breaking open an
outer or inner door or window of a house or place. Police officers may pursue a person they are authorized to
arrest to any place in India, but the person should not be subjected to unnecessary restraint. They should be
informed of the grounds for their arrest and their right to bail, and their relative or friend should be informed
about the arrest.
Section 50-A of the Code of Criminal Procedure (Amendment) Act 2005 recognizes this right of the accused. After
arrest, all articles seized must be placed in safe custody, and a weapon recovered from the arrested person must
be delivered to the court. Officers-in-charge of police stations must report cases of all persons arrested without a
warrant. If a person in lawful custody escapes or is rescued, the person from whose custody they escape or are
rescued can pursue and arrest them.