CR.P.

C – ARREST
SHARDA
 ARREST
 It Is the taking of a person into custody in order that he may be bound to answer for
the commission of an offence. It may be actual restraint of the person to be
arrested, or by his submission to the custody of the person making the arrest. It
signifies restraint on person, depriving one of his own will and liberty, binding him
to become obedient to the will of the law.
“A person who, being suspected by a police officer of having committed an offense,
was invited by the latter and who voluntarily went with him, was considered
arrested, for arrest includes submission to the custody of the person making the
arrest. The basis for his arrest being merely on suspicion, his arrest was illegal.”
The application of actual force, manual touching of the body, physical restraint or
formal declaration of arrest is not required. It is enough that there be an intent on
the part of one of the parties the arrest the other and an intent on the part of the
other to submit, under the belief and impression that submission is necessary.
NO VIOLENCE OR UNNECESSARY FORCE shall be used in making an arrest.
The person arrested shall not be subject to any greater restraint than is necessary
for his detention
 If the arresting officer employs violence which is unnecessary to effect the arrest
or to prevent the escape of the person arrested, he may be held criminally liable for
resulting offence, unless he can show the justifying circumstance precluding “any
person who acts in the fulfillment of a duty or in the lawful exercise of a right or
office” from incurring criminal liability.
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC),
chapter V (Section 41 to 60) talks about Arrest of a person but it does not define
arrest anywhere.
Arrest can be made by police officer, Magistrate or any private person, like you
or me can also arrest a person but that can made only in accordance with the legal
provisions mentioned in CrPC.
CrPC exempts the members of Armed forces from being arrested for anything
done by them in discharge of their official duties except after obtaining the consent
of the government (section 45 CrPC).
Purpose
1. For securing the attendance of the accused during trial.
2. For prevention of an apprehended offence or as a precautionary
measure.
3. For obtaining the correct name and address of the person
arrested
4. For retaking of a person escaped from custody.
 According to section 43 of CrPC, Any private individual may arrest a
person without warrant only when the person is a proclaimed offender
under section 82 CrPC and the person commits a non-bailable offence and
cognizable offences in his presence.

According to section 44 of CrPC, Any Magistrate, whether Executive or

Judicial, may arrest a person when any offence is committed in his
presence then he may himself arrest or order any person to arrest the
offender and thereafter, subject to the provisions herein contained as to
bail, may commit the offender to custody.

A military officer may arrest under section 130 and 131 CrPC
 Arrest by Police Officer
 A police officer may arrest without a warrant under Sections 41
(1) to 151 CrPC; under a warrant under Sections 72 to 74 CrPC;
under the written order of an officer in charge under Sections 55
and 157; under the orders of magistrate under Section 44 and in
non cognizable offence under Section 42 CrPC. A superior officer
may arrest under Section 36 CrPC. An Officer-in-Charge of a
Police Station may arrest under Section 42 (2) and 157 CrPC.
Under Sections 41, 42, 151 CrPC, a Police officer may arrest without
warrant in the following conditions:

1. Who has been concerned in any cognizable offence or

2. Who has in possession, without, lawful excuse, of any house

breaking weapon or

3. Who has been proclaimed as an offender either under CrPC or by

order of the State Govt. or

4. Who is in possession of any stolen property or

5. Who obstructs a police officer while in the execution of his duty

or

6. who has escaped, or attempts to escape, from lawful custody

7. Who is reasonably suspected of being a deserter from any of
the Armed forces of the Union or
8. Who has been concerned in any law relating to extradition
or
9. Who, being a released convict commits a breach of any rule
made under sub-section (5) of Section 356 CrPC or
10. For whose arrest any requisition has been received from
another police officer specifying the person to be arrested
and the offence and other cause for which the arrest is to be
made.
 Rights of arrested person
 The constitution of India guarantees several rights to an arrested
person under article 22
1. Right to be informed, as soon as may be, of the grounds for
such arrest.
2. Right to consult and to be defended by legal practitioner of his
choice.
3. Right to be produced before the nearest Magistrate within 24
hours with his arrest, excluding the time necessary for the journey
from the place of arrest to the court of Magistrate.
4. Right not to be determined in custody beyond the period of 24
hours without the authority of the Magistrate.
 Case laws
 In the case of Joginder Kumar vs State of UP, 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, 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.
 DK Basu v. State of West Bengal along with Ashok K. Johri v. State of UP
 The Issue in the Present Case pertained to Custodial Torture and Deaths by the Police.
 The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards

which were to be followed in all cases of arrest and detention. The guidelines are as follows: –
 (i) The Police Personnel carrying out the arrest and handling the interrogation of the arrestee should

bear accurate, visible and clear identification and name tags with their designations. The Particulars

of all such personnel who handle interrogation of the arrestee must be recorded in a register.
 (ii) That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of the arrest

at the time of arrest and such memo shall be attested by at least one witness who may be either a

member of the family of the arrestee or a respectable person of the locality from where the arrest is

made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
 (iii) A person who has been arrested or detained and is being held in custody in a police station

or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other

person known to him or having interest in his welfare being informed, as soon as practicable,

that he has been arrested and is being detained at the particular place, unless the attesting

witness of the memo of the arrest is himself such a friend or a relative of the arrestee.
 (iv) The time, place of arrest and venue of custody of an arrestee must be notified by the police

where the next friend or relative of the arrestee lives outside the district or town through the

Legal Aid Organisation in the District and the police station of the area concerned

telegraphically within period of 8 to 12 hours after the arrest.

 (v) The person arrested must be made aware of his right to have someone informed of his

arrest or detention as soon he is put under arrest or is detained

 (vi) An entry must be made in the Case Diary at the place of detention
regarding the arrest of the person which shall also disclose the name
of the next friend of the person who has been informed of the arrest
and the names and particulars if the police official in whose custody
the arrestee is.
 (vii) The Arrestee should, where he so requests, be also examined at
the time of his arrest and major and minor injuries, if present on
his/her body, must be recorded at that time. The “Inspection Memo”
must be signed both by the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.
 (viii) The arrestee should be subjected to medical examination by
a trained doctor every 48 hours during his detention in custody by
a doctor on the panel of approved doctors appointed by the
Director, Health Services of the concerned State or Union
Territory.
 (ix) Copies of all the documents including the memo of arrest should
be sent to the Magistrate for his record.
 (x) The Arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
 (xi) A Police Control Room should be provided at all district and state
headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing
the arrest, within 12 hours of effecting the arrest and at the Police
Control Room Board, it should be displayed on a conspicuous notice
board
 Arnesh Kumar v/s State Of Bihar & Another, (2014) 8 SCC 273

 Arrest must be made after satisfying necessary parameters as mentioned under section 41 of the

CrPC.
 Rules about ‘arrest’ as laid down by the Supreme Court- 
 The arrest brings humiliation, curtails freedom and cast scars forever. It has not come out of its colonial

image despite six decades of independence, it is largely considered as a tool of harassment, oppression

and surely not considered a friend of public. The power of arrest is one of the lucrative sources of

police corruption.
 Law Commissions, Police Commissions and the Supreme Court in a large number of judgments

emphasized the need to maintain a balance between individual liberty and societal order while

exercising the power of arrest. Police officers make an arrest as they believe that they possess the

power to do so.
 The Supreme Court said that no arrest should be made only because the
offense is non-bailable and cognizable and therefore, lawful for the police
officers to do so. The existence of the power to arrest is one thing, the
justification for the exercise of it is quite another. Apart from power to
arrest, the police officers must be able to justify the reasons thereof. No
arrest can be made in a routine manner on a mere allegation of
commission of an offense made against a person. It would be prudent and
wise for a police officer that no arrest is made without a reasonable
satisfaction reached after some investigation as to the genuineness of the
allegation. Ultimately, the Parliament on the recommendation of the
177th Report of the Law Commission submitted in the year 2001, enacted
Section 41 of the Code of Criminal Procedure (for short ‘[Link]).
 From a plain reading of the section 41, it is evident that 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 officer only on its

satisfaction that such person had committed the offence punishable as aforesaid. Police

officer before arrest, in such cases, has to be further satisfied that such arrest is necessary to

prevent such person from committing any further offence; or for proper investigation of the

case; or to prevent the accused from causing the evidence of the offence to disappear; or

tampering with such evidence in any manner; or to prevent such person from making any

inducement, threat or promise to a witness so as to dissuade him from disclosing such facts

to the Court or the police officer; or unless such accused person is arrested, his presence in

the court whenever required cannot be ensured. These are the conclusion.s, which one may

reach based on facts

 The law mandates the police officer to state the facts and record the reasons in writing which

led him to come to a conclusion covered by any of the provisions aforesaid while making such

arrest. Law further requires the police officers to record the reasons in writing for not making

the arrest. In pith and core, the police officer before arrest must put a question to himself, why

arrest? Is it really required? What purpose will it serve? What object will it achieve? It is only

after these questions are addressed and one or the other conditions as enumerated above is

satisfied, the power of arrest needs to be exercised. An accused arrested without warrant by

the police has the constitutional right under Article 22(2) of the Constitution of India

and Section 57, [Link] to be produced before the Magistrate without unnecessary delay and in

no circumstances beyond 24 hours excluding the time necessary for the journey. During the

course of the investigation of a case, an accused can be kept in detention beyond a period of 24

hours only when it is authorized by the Magistrate in the exercise of power under Section

167 [Link].
 The court ordered the following directions:
 All the State Governments to instruct its police officers not to automatically arrest when a case under Section

498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters

laid down above flowing from Section 41, [Link];

 All police officers be provided with a checklist containing specified sub- clauses under Section 41(1)(b)(ii);
 The police officer shall forward the checklist duly filed and furnish the reasons and materials which

necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention;
 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police

officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the

institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police

of the district for the reasons to be recorded in writing;

 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of

the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the

reasons to be recorded in writing;

 Notice of appearance in terms of Section 41A of [Link] be served on the accused within two weeks from the date of

institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be

recorded in writing;
 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for

departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court

having territorial jurisdiction.

 Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for

departmental action by the appropriate High Court.

 The court also added that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C.

or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is 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.
 The Supreme Court of India has repeatedly condemned the unnecessary
use of handcuffs by the police as a violation of the right to personal
liberty guaranteed by Article 21 of the Constitution of India. The
landmark Supreme Court case on handcuffing is Prem Shankar Shukla v.
Delhi Administration (1980).

 Sunil Batra vs. Delhi Administration[3]was a revolutionary judgment

given by a constitutional bench preserving the Fundamental Rights of the
prisoners by invoking Article 14, 19 and 21 of the Constitution for
guarding against the wretched environment of the jail
 PROCEDURE OF ARREST
PROCEDURE OF ARREST
 Section 46 CrPC 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.

 It was held in the case of  Bharosa Ramdayal vs Emperor, 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, 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) provides that if any 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.
 Section 41A deals with cases not covered under Section 41 (1), wherein a police officer is

directed to issue a notice and not to make an arrest unless the noticee after receiving notice

does not comply with the terms of notice or complies once and then flouts it subsequently.

If the notice complies with terms of notice, he may only be arrested for the offence

concerned for reasons to be recorded in writing by the police officer.

 Section 41B directs the conducts of Police officers while making and arrest. It directs them

to ensure that while making an arrest they bear an accurate, clear & visible identification of

his name for the purposes of easy identification, prepare an arrest memo attested by either

a family member of arrestee or a respectable member of society and countersigned by the

arrestee himself. The arrestee is also to be informed of his right to have a relative or a

friend of his informed of his arrest, if arrest memo is not attested by his family member.
 RIGHTS OF AN ARRESTED PERSON UNDER Cr.P.C
 CrPC 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 -:
 Right to be informed of the grounds of arrest under Section 50 of
CrPc and Article 22 of Indian Constitution, it is a fundamental
right to be informed. It is the duty of the police officer to inform
you and also tell whether the offense is bailable or non-bailable.
Normally, Bailable offenses are those where bailable can be
granted and it is right of the person to be granted bail and Non-
bailable offenses are where bail can’t be granted generally and it’s
the discretion of the court. In Harikishan vs State of Maharashtra
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.
 In non-cognizable cases, arrests are made with a warrant and the
person going to be arrested has a right to see the warrant under
Section 75 of CrPC. Warrant of arrest should fulfill certain
requirements such as it should be in writing such as signed by the
presiding officer, should have the seal of the court, Name and
address of the accused and offense under which arrest is made. If
any of these is missing, the warrant is illegal.
 Under Section 41, police have the power to arrest a person
without a warrant for a prompt and immediate arrest is needed,
no time to approach magistrate and obtain a warrant for example
in a case where a serious crime has been perpetrated by a
dangerous person or where chances of that person absconding
unless immediately arrested. Not in all cases arrest in necessary,
Notice of appearance before police officer can be made if
reasonable complaint has been made, credible information has
been received and suspicion exists of cognizable offence and if
concerned person continues to comply with such notice and
appears, then arrest is not necessary but he if he doesn’t, then
arrest can be made.
 The police officer must be wearing a clear, visible and clear identification
of his name which facilitates easy identification. A memo of arrest must
be prepared at the time of arrest – (i) attested by least one witness, it can
be a family member or member of the locality where an arrest is made (ii)
countersigned by arrested person.
 Right of arrested person to meet an advocate of his choice during
interrogation under Section 41D and Section 303.
 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, 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.
 An arrested person has a right to inform a family member, relative or friend about

his arrest under Section 50 of CrPC.

 An arrested person have right not to be detained for more than 24hrs,
without being presented before a magistrate, it is to prevent unlawful and
illegal arrests. This right is a fundamental right under Article 22 of the
Indian constitution and under Sections 57 and 72 of CrPC.
 In Khatri (II) vs State of Bihar 1981, 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.
 In Sharifbai vs Abdul Razak,  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.
 An arrested person has the right to be medically examined (Sections
54,55A). An arrested person has a right to remain silent under Article
20(3) of Indian constitution so that police can’t extract self – incriminating
statement from a person without a will or without his consent
 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 the liability of
accused. 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 for
damages for false imprisonment.
 Also, informal detention or restraint of any kind by the police is not
authorized by law.
 PROTECTION TO FEMALES
 The General rule is that females are not be arrested without the presence
of a lady constable and no female be arrested after sun-set but there are
exceptions in some cases, where crime is very serious and arrest is
important then the arrest can be made with special orders and it depends
on facts and circumstances of each case. Separate lock ups to be provided
for them. State of Maharashtra Vs Christian Community Welfare
Council of India [(2003) 8 SCC 546
 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 the liability of accused. 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 for
damages for false imprisonment.
 Also, informal detention or restraint of any kind by the police is not
authorized by law.
 45. Protection of members of the Armed Forces from arrest.
 1. Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of

the Armed Forces of the Union shall be arrested for anything done or purported to be done by

him in the discharge of his official duties except after obtaining the consent of the Central

Government.
 2. The State Government may, by notification, direct that the provisions of sub- section (1)

shall apply to such class or category of the members of the Force charged with the

maintenance of public order as may be specified therein, wherever 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.

 43. Arrest by private person and procedure on such arrest.
 (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.
 (2) If there is reason to believe that such person comes under the provisions of section 41, a police officer

shall re- arrest him.

 (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
 44. Arrest by Magistrate.
 (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.
 (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.
Thank you