Table of Contents

PROCEDURE OF ARREST AND RIGHTS OF

ARRESTED PERSON........................................................1
MEANING OF ARREST...................................................1
WHO CAN ARREST?........................................................2
Arrest by Police Officer......................................................3
PROCEDURE OF ARREST..............................................4
RIGHTS OF AN ARRESTED PERSON..........................6
PROTECTION TO FEMALES.........................................9
CONSEQUENCES OF NON-COMPLIANCE WITH
THE PROVISIONS RELATING TO ARREST..............9
PROCEDURE OF ARREST AND RIGHTS OF
ARRESTED PERSON

MEANING OF ARREST
The term “Arrest” means apprehension 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 arrestee1. In criminal law, arrest is an important tool for
bringing an accused before the court and to prevent him from absconding.

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible

restraint; an exercise of the power to deprive a person of his or her liberty;
the taking or keeping of a person in custody by legal authority, especially,
in response to a criminal charge.”2

The purpose of an arrest is to bring the arrestee before a court or otherwise to

secure the administration of the law. An arrest also serves the function of
notifying the community that an individual has been accused of a crime and
also may admonish and deter the arrested individual from committing other
crimes.3 Arrests can be made in both criminal and civil cases, although in
civil matters, arrest is a drastic measure which is not looked upon with favor
by the courts.

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.

WHO CAN ARREST?

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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)4.

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; with warrant u/s 72 and 73, under order
of a Police officer u/s 37 and under order of a magistrate u/s 37 and 44 Cr.
P.C. and also 60 (1) CrPC.

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.

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Section 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.
 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
who has escaped, or attempts to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the
Armed forces of the Union or
7. Who has been concerned in any law relating to extradition or
8. Who, being a released convict commits a breach of any rule made
under sub-section (5) of Section 356 CrPC or
9. 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.5
As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist.
Varanasi, 1954, the arrested person must be produced before another
magistrate within 24 hours, otherwise his detention will be illegal. 6

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.

PROCEDURE OF ARREST

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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 7.

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 member8.

RIGHTS OF AN ARRESTED PERSON 

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

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 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 inArticle 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. Further, 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 9.

 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

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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.10

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