B.

Law Relating to Arrest and Rights of Arrestee

Introductory Remarks:

Process of arrest confers on the police a power to interfere with a person’s freedom from physical
restraint. In other words, in the process of arrest State is empowered to interfere with the
personal liberty of a person.

However, if we look at this power with a view to secure a crime free society then arrest is a process
that ensures:
 effective conduct of investigation,
 prevention of further criminal designs and
 availability of the accused for trial and consequent punishment.

Thus the law of arrest entails fine balancing between the liberties of the arrestee, and the interest
of State and people to secure a crime free society.

Under this topic we will discuss the following:

 Concept and Meaning of Arrest
 Provisions which deals with the arrest of a person without warrant by the police officer, private
person and magistrate,
 Provisions which deals with the power of courts to issue arrest warrant and arrest of a person
with warrant by the police
 Various steps taken by the judiciary and the legislature for the prevention of arbitrary arrest
[With the help of the case laws given in your case material]
 The manner of effecting the arrest and the rights of the arrestee.

The Concept and Meaning of Arrest:

 The term arrest is not defined in the Code. The code only provides the procedure for effecting
the arrest and the circumstances in which arrest can be made.
 According to Black’s Law Dictionary (6th edition) Arrest means the restraint of a person’s
liberty through some lawful authority
 In other words Arrest means:
- Deprivation of a person
- Of his liberty
- By legal authority

Note: Every compulsion or physical restraint is not arrest but when the restraint is total and
deprivation of liberty is complete that would amount to arrest.
 Arrest can also be defined as taking a person into (lawful) custody for making him answerable
to a criminal charge.
(We will discuss this in detail with the help of State of Harayana v Dinesh Kumar)
 Legal Framework for Effecting Arrest With or Without Warrant under CrPC

ARREST

Arrest without Warrant [Chapter V Arrest with/under Warrant [Chapter VI of

of the Code] the Code]: Sections 70 to 81 provide the
procedure for effecting the arrest under
the warrant, the various kinds of warrant

General Powers of Arrest Special/Preventive Powers of

[Section 60A, Sections 41-45] Arrest [Section 151]

Arrest by:
- Police [Section 41 provides for the situations when police may arrest without warrant.
Section 42 deals with situation where a police officer can arrest without warrant in case of
non-cognizable offences]

- Private Person [Section 43 provides for the situation where an arrest can be made by a
private person and the procedure to be followed thereafter]

-Magistrate [Section 44 deals with arrest by a magistrate]

Lets discuss the Legal Framework of Arrest Law under the Code in Detail:

General Powers of Arrest under CrPC: Section 60A of the Code provides that no arrest shall be
made except in accordance with the provisions of this Code or any other law for the time being in
force providing for arrest.

1. Arrest Without Warrant: General Powers of Arrest:

The provisions which authorize arrest without warrant are as follows:

(i) Arrest without Warrant by Police Officer: [Relevant Provision- Sections 41 & 42]

Sections 41 & 42 deals with the powers of police officer to make arrest without warrant. It means
that in all the cases arrest cannot be made by the police office without warrant, except only in
circumstances enumerated in these sections.

The Supreme Court in two landmark cases; Joginder Kumar v. State of U.P., (1994) 4 SCC 260; D.K.
Basu v. State of West Bengal, AIR 1997 SC 610 decided to limit the potential misuse of power of
arrest by the police. Through these cases the Supreme Court has laid down various guidelines for
prevention of the arbitrary exercise of such power of arrest.

In the case of Joginder Kumar v. State of U.P. the Supreme Court has held that:
no arrest can be made because it is lawful for the police officer to do so. The existence of the power
is one thing. The justification for the exercise of it is quite another. No arrest should be made
without a reasonable satisfaction reached after some investigation about the genuineness and bona
fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to
the need to effect arrest. Denying a person his liberty is a serious matter

After making such observation the Court has laid down following steps to be followed in cases of
arrest in a cognizable case:
 An arrested person being held in custody is entitled, if he so requests, to have any friend,
relative or other person who is known to him or likely to take an interest in his welfare, told, as
far as practicable, that he has been arrested and where he is being detained.
 The Police Officer shall inform the arrested person when he is brought to the police station of
this right.
 An entry shall be required to be made in the Diary as to who was informed of the arrest.

In D.K. Basu v. State of West Bengal, the Supreme Court has further extended the protection from
arbitrary arrest. In this case the Supreme Court laid down the various requirements which should
be followed while arresting a person. [This case law is given in study material, therefore we will
discuss it in detail]

Lets discuss Section 41 of the the Code:

Section 41(1) clause (a) to clause (i) enumerates the circumstances in which a police officer is
empowered to make the arrest without warrant. This sub-section of section 41 only gives the
discretionary power to police to make arrest.

It is not mandatory to make the arrest on the part of police officers in the circumstances mentioned
in this section. As the opening line of section 41(1) reads thus: “Any police officer may without an
order from a Magistrate and without a warrant, arrest any person”.

Note: Exercise of power of arrest under Section 41(1)should be reasonable and to be exercised
only in cases where the immediate arrest and the prompt action is needed. In case, the legality of
an arrest made under this provision is questioned before the court, the burden is on the police
officer to satisfy the Court that he had reasonable ground of suspicion.

Note: The malicious and excessive exercise of the power of arrest under these Sections would be
punishable under Section 220 of the IPC.

The various circumstances enumerated under clause (a) to clause (i) of Section 41(1) of the code in
which a police officer may arrest without warrant are as follows:
Section 41(1): Any police officer may without an order from a Magistrate and without a warrant,
arrest any person:

Clause (a): who commits, in the presence of a police officer, a cognizable offence;

Clause (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:

Condition (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;

Condition (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.

Proviso: 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. [Inserted by
Code of Criminal Procedure (Amendment) Act, 2010]

Clause (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
&
the police officer has reason to believe on the basis of that information that such person has
committed the said offence;

Note: Clause (b) provides for the less serious offences which are punishable upto the imprisonment
of seven years, in case of those offences the arrest can be made without warrant but only for the
purposes mention in that clause and the police officer is also required to record the reason for
making the arrest.
However the police officer is empowered to make the arrest without warrant only on the ground of
credible information in case of the serious offences which are punishable with the imprisonment
of more than seven years under clause (ba). This clause (ba) gives a wide discretionary power and
does not, like clause (b), provide the purposes only for which the arrest can be made and like
clause (b) no reason is required to be recorded.

Clause (c):Arrest of Proclaimed Offender

 any person, who has been proclaimed as an offender either under this Code or by the order of
the State Government, can be arrested by the police officer without warrant.

Clause (d): Arrest of Person in Possession of Stolen Property

 a person, who is suspected to be in possession of stolen property or a person who is suspected
to have committed an offence in relation to that property, can be arrested without warrant.

In order to exercise the power clause (d), the suspicion of the police must be ‘reasonable’, i.e.
founded on unsatisfactory replies of the person on interrogation as to his belongings or on inquiries
as might be proper in the circumstances, so that he may be said to have acted in good faith.

Clause (e): Arrest of Person Obstructing Police Officer or Absconder from Lawful Custody:
 a person, who obstructs a police officer in the discharge of his duties, can be arrested without
warrant. This clause also provides that a person who has escaped or attempts to escape, from
lawful custody, can be arrested without warrant.

Note 1: Obstructing a public servant in the discharge of his official duties is a non-cognizable
offence under Section 186 of the IPC. But this clause provides that in case of obstruction to the
police officer, arrest can be made without warrant.

Note 2: it is not necessary that the escaped person must have committed a cognizable offence. The
person, who escapes from lawful custody, can be convicted for such an action under Section 224 of
the IPC.

Clause (f): Arrest of a Deserter

 a person who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union, can be arrested without warrant.

Clause (g): Arrest of the Person having Committed the Offence Outside India
 a person, who has been concerned in or against a reasonable complaint has been made or a
credible information has been received or a reasonable suspicion exits of his having been so
concerned in the commission of an offence outside India, can be arrested without warrant.

Note: It is not necessary that the act done by the accused must be punishable as an offence in that
foreign country and it is also not necessary that the offence must be cognizable one. This clause
applies in case commission of any offence, whether cognizable of non-cognizable, committed
outside India.

Clause (h): Arrest of a Person who Violates the Conditions Imposed under Section 356:
 in case of violation of the conditions imposed under Section 356(5) relating to the notification
of residence or change in, or absence from residence by the released convicts, arrest can be
made without warrant.
Clause (i): Arrest in Case of Requisition by Another Police Officer:
 when a requisition, written or oral, is received from another police officer for the arrest of a
person, then he can be arrest without warrant

Note: Arrest without Warrant by Subordinate Police Officer and Procedure thereof [Section 55]-
See below.

Now Lets Discuss Section 42 which provides for the Power of Police to Arrest without Warrant in
case of Non-cognizable Offence:

A combined reading of Section 2(l) & Sub-section (2) of Section 41 provides the general rule that
Police officer does not have any authority to arrest without warrant in case of non-cognizable
offence. However under Section 41(2) this rule is subject to the provisions of Section 42 which
empowers the police officer to arrest without warrant in case of non-cognizable offence.

Section 41(2) reads thus:

 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.

Section 42 provides that:

 when any person who, in the presence of a police officer, has committed or has been accused
of committing a non-cognizable offence refuses 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 for the purpose of ascertaining his true name and residence.[sub-sec. (1)]
 As soon as the name and residence is ascertained, that person shall be released on his
executing a bond.[sub-section(2)]
 If the name and residence cannot be ascertained within 24 hours, then he is required to be
produced before the Magistrate. [sub-section(3)]

Note: While exercising the powers given under Section 42 the police officer must have reason to
believe that the name or residence is false only then the power can be exercised under this Section.

(ii) Arrest without Warrant by Private Person: [Section 43]

Section 43 provides that a private person may arrest or cause to be arrested the following two
categories of persons:
 a person who in his presence commits a non-bailable and cognizable offence, or
 a proclaimed offender.

Procedure to be followed after such Arrest: Sub-section(1) further provides that after making the
arrest, the private person shall immediately hand over the accused to the police officer and if no
police officer is present there, to the nearest police station.

Sub Section(2) provides that - if the police officer has reason to believe that such person comes
under Section 41, then he shall re-arrest him.
Sub Section (3) provides that - 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.

Legal Consequences of Wrongful Arrest made by the Private Person: If wrongful arrest is made by
private person, i.e. Arrest in case of a non-cognizable offence or arrest long after the commission of
the offence or arrest with the intention to detain, then:

 the accused has the right of private defence against the private person and the accused cannot
be convicted for the resistance to arrest under Section 224 or Section 225 of the IPC.
 the private person can be made liable for the offence of wrongful confinement under Section
340 of the IPC.

However, the private person cannot be made liable for the bonafide arrest, as for example it was
not known to him that whether the offence is cognizable or non-cognizable

(iii) Arrest without Warrant by Magistrate [Both Executive and Judicial Magistrate]: [Section 44]

According to Section 44 Magistrate can arrest the following to categories of persons:

(i) any person who commits an offence in the presence of the Magistrate. [Sub Section (1)]
(ii) any person for whose arrest, such Magistrate is competent to issue a warrant. [Sub Section (2)]

Note 1: Power to arrest without warrant under Section 44 can be exercised by any Magistrate
whether executive or judicial and with respect to any offence, whether cognizable or
non-cognizable, if committed in presence of the Magistrate, the arrest can be made

Note 2: After making the arrest that Magistrate is required to produce the accused within 24 hours
before another Judicial Magistrate for the purposes of Section 57 and Section 167. That Magistrate
is not empowered to authorize the remand of the arrested person under Section 167.

Protection of members of the Armed Forces from arrest [Section 45]

Sub-section (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.

Sub-section (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.
2. Special/ Preventive Powers of Police to Arrest without Warrant [Section 151 of CrPC]

Arrest to prevent the commission of cognizable offences [Section 151]

Sub-section (1): A police officer knowing of a design to commit any cognizable offence may arrest,
without orders from a Magistrate and without a warrant, the person so designing, if it appears to
such officer that the commission of the offence cannot be otherwise prevented.

Sub-section (2): No person arrested under sub-section (1) shall be detained in custody for a period
exceeding twenty-four hours from the time of his arrest unless his further detention is required or
authorised under any other provisions of this Code or of any other law for the time being in force.

3. Process to Effect/Make Arrest: Section 46 of CrPC provides how the arrest be made.This
Section provides that:
 the arrest is made by actual touching or confining the body of the person to be arrested. But if
the person to be arrested submits himself/herself to the custody then actual touch or
confinement of the body is not required.
The submission may be expressed by words or may be inferred from the conduct of the
person.[sub-section (1)]

 If the person to be arrested resists or tries to evade the arrest, then the person making the
arrest is empowered to use all necessary means for the purpose of effecting the arrest.
[sub-section (2)]

 for the purpose of making the arrest even the death of the person to be arrested can be caused;
if the person is alleged to have committed an offence punishable with death penalty or life
imprisonment. [Sub section (3)]

Note 1: But in that case the burden shall be on the police officer or the other person making the
arrest to prove that the accused was trying to escape and it was necessary to cause the death and
there were reasonable grounds to believe that the accused has committed an offence punishable
with death penalty or life imprisonment.

Note 2: For the purpose of arresting the accused force can be used against him but this force
should be reasonable force and be in proportion to resistance and necessary for the purpose of
making the arrest. Unnecessary and unreasonable force should not be used.

Note 3: If a person resist the arrest and evade the arrest then such person may be convicted under
Section 224 or Section 225 of the IPC.

In the case of State of U.P. v. Deoman Upadhaya, AIR 1960 SC 1125 the accused approached a
police officer investigating the offence. He offered to give information leading to the discovery of
fact having a bearing on the charge which might be made against him. Supreme Court held that he
had submitted to the custody by action within the meaning of sub-section (1) of Section 46
Additional Powers for Effecting Arrest: Read the following provisions with Section 46 of the Code:

(a) Power to Search a Place for Effecting Arrest: According to Section 47 of the Code, an occupier
of a house is under a legal duty to afford to the police all the facilities to search the house for the
purpose of making arrests.
 If such facilities are denied and obstructions are put in the way of the police officer,the section
allows the officer to use force for getting entry into the house for search or also for the
purpose of liberating himself in case he is detained in the house.
 This section also puts reasonable restrictions on the police when the part of the house to be
searched is occupied by a pardanashin woman.

(b) Power to Pursue Offenders for the Purpose of Effecting Arrest: Section 48 of the Code provides
that “a police officer may, for the purpose of arresting without warrant any person whom he is
authorised to arrest, pursue such person into any place in India.”

(c) Power, on Escape, to Pursue and Retake:

 If a person in lawful custody escapes or is rescued, the person from whose custody he escaped
or was rescued may immediately pursue and arrest him in any place in India.[Section 60(1)]

(d) Power of Officer Incharge of Police Station or any IO to Depute Subordinate to Arrest:
 When any officer in charge of a police station or any police officer making an investigation
under Chapter XII requires any officer subordinate to him to arrest without a warrant
(otherwise than in his presence) any person who may lawfully be arrested without a warrant,
he shall deliver to the officer required to make the arrest an order in writing, specifying the
person to be arrested and the offence or other cause for which the arrest is to be made and
the officer so required shall, before making the arrest, notify to the person to be arrested the
substance of the order and, if so required by such person, shall show him the order. [Section
55(1)]

(e) Power of Police to Search Arrested Person:

 Section 51 empowers a police officer to make a search of the arrested person under the
circumstances mentioned therein. Such search may prove useful for conducting proper
investigation.
Note: If incriminating things or stolen articles are found in such search, the police officer can seize
them under Section 102 and the same is produced before the court. [See also the discussion on
Seizure.
 Though this Section does not require the search to be conducted in the presence of the
witnesses, the rules made under the Police Act direct that the search of arrested person should
be made in the presence of independent and respectable witnesses.
 The police officer effecting the search shall place in safe custody all articles, other than
necessary wearing apparel found upon him and where any article is seized from the arrested
person, a receipt showing the articles taken in possession by the police officer shall be given to
such person. [This would ensure that the articles seized are properly accounted for.]
Note: In case the arrested person is a woman the search can be made only by a female with strict
regard to decency. [Sub-section (2) of Section 51]

(f) Seizure of Offensive Weapons: Section 52 of the Code provides:

The officer or other person making any arrest under this Code may take from the person arrested
any offensive weapons which he has about his person, and shall deliver all weapons so taken to the
court or officer before which or whom the officer or person making the arrest is required by this
Code to produce the person arrested.

Note: Under this section seizure can be made by any person making arrest under this Code.

4. Duties of Police Officer Effecting Arrest: [Only an Illustrative discussion not Exhaustive. You
may add more duties of the police officer while effecting arrest or post arrest]
(i) Duties of Police Officer while Making Arrest [Section 41 B]
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.

(ii) Duty to Take Care of Health and Safety of Accused [Section 55A]
 It shall be the duty of the person having the custody of an accused to take reasonable care of
the health and safety of the accused.

(iii) Duty of Officer Incharge of Police Station to Report Arrests to District Magistrate [Section 58]
 Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to
the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or
otherwise.

(iv) Duty of Police Officer no to subject the person arrested to more restraint than is necessary to
prevent his escape. [Section 49]
 RIGHTS OF ARRESTEE

Part III of the Constitution of India and Chapter V of CrPC provide certain rights to the arrestee in
case of arrest without warrant. The jurisprudence of Rights of Arrestee is strengthened by Supreme
Court in Joginder Kumar v. State Of U.P (1994) D.K.Basu v. State of West Bengal (1997) Arnesh
Kumar v. State of Bihar (2014). We will discuss these case laws in detail in our lectures.

Here are the rights of arrestee under the provisions of CrPC:

Let us discuss the Rights of Arrestee under the provisions of the Constitution of India and CrPC:

(i) Right to know the grounds of arrest [Article 22(1) read with Section-50(1)]

 Section 50(1) provides that when a police officer or any other person makes an arrest without
warrant then he is required to inform to the arrested person the grounds of his arrest. This is a
mandatory provision.

This provision fulfills the constitutional objective given under Article 22(1) which reads thus:
“ 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.”

 An accused must be informed of the bare necessary facts leading to his arrest. It is difficult to
prescribe any form in which the information must be given. An arrested person must know the
grounds and the reasons and the facts that in respect of whom and by whom the offence is said
 to have been committed as well as the date, time and place of the offence etc. [See Vikram v.
State, 1996 Cr.L.J. 1536]

 The burden lies on the police officer to prove that the provisions of this Section have been
complied.

(ii) Right to be Informed about his/right to be Released on Bail in Bailable Offences [Section
50(2)]

Sub Section (2) of Section-50 provides that when a police officer makes an arrest without warrant
in case of a bailable offence then he is required to inform the arrestee that the he has a right to be
released on bail.

(iii) Right to be Taken before a Magistrate without Delay: [Section 56 & Section 76 of CrPC]

 Whether the arrest is made without warrant by a police officer, or whether the arrest is made
under a warrant by any person, the person making the arrest must bring the arrested person
before a judicial officer without unnecessary delay
Note: The arrested person should not be confined in any place other than a police station before he
is taken to the Magistrate.
(iv) Right of the Arrestee to be produced before a Magistrate within 24 hours [Article 22(2) of
Constitution r/w Section 57 of CrPC]

 Section-57 of the Code provides that when a police officer makes an arrest without warrant
then the arrestee is required to be produced before the Magistrate without unnecessary delay
and this period should exceed 24 hours from the arrest.

 Section 57 is in consonance with the constitutional mandate given under Article 22(2) of the
Constitution which reads:

Object: Arrest must come into the judicial consideration and some or the other Judicial Magistrate
must check the legality of the arrest.

 Not necessary under this Section that the arrestee must be produced before the Magistrate
having jurisdiction, but before any nearest Magistrate.

 This period of 24 hours is excluding the time necessary for the journey from the place of arrest
to the Magistrate’s Court.

Note: This is a mandatory provision and the detention beyond 24 hour becomes illegal and the
police officer can be convicted for the offence of wrongful confinement under Section-340 of the
IPC.

 This Section does not authorize the police officer to detain the arrestee for the period of 24
hour in all the cases without any reasonable cause.
 Section 57 of the Code does not empower a police officer to keep an arrested person in
custody a minute longer than is necessary for the purpose of investigation and it does not give
him an absolute right to keep a person in custody till 24 hours. The police officer shall, without
unnecessary delay, take or send the arrested person before a Magistrate. The 24 hours
prescribed under Section 57 is the outermost limit beyond which a person cannot be detained
in the police custody. It is certainly not an authorization for the police to detain him for 24 hour
in their custody. It is only in a case where a police officer considers that the investigation can
be completed within 24 hours that such detention for 24 hours is permitted. [See - P. Swarupa
and etc. v. State of A.P. 1996 Cr.L.J. 2607]

(v) Right of Arrestee to Meet a Lawyer of his Choice during Interrogation [Article 22(1) r/w
Section 41D]

Section 41-D of the Code provides that when any person is arrested and interrogated by the police,
he shall be entitled to meet an advocate of his choice during interrogation, though not throughout
interrogation.

(vi) Right of Information Regarding Arrest and Place of Detention to a Nominated Person
[Section 50A]

Section 50A: Obligation of person making arrest to inform about the arrest, etc., to a nominated
person.—
(1) Every police officer or other person making any arrest under this Code shall forthwith 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.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as
he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a
book to be kept in the police station in such form as may be prescribed in this behalf by the State
Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy
himself that the requirements of sub-section (2) and sub-section (3) have been complied with in
respect of such arrested person.

(vii) Right of Arrestee to be Medically Examined by Medial Officer [Section 54]

 When any person is arrested, he shall be examined by a medical officer in the service of Central
or State Government, and in case the medical officer is not available, by a registered medical
practitioner soon after the arrest is made. [Sub-section (1)]

 Where the arrested person is a female, the examination of the body shall be made only by or
under the supervision of a female medical officer, and in case the female medical officer is not
available, by a female registered medical practitioner. [Proviso to sub-section (1)]
 The medical officer or a registered medical practitioner so examining the arrested person shall
prepare the record of such examination, mentioning therein any injuries or marks of violence
upon the person arrested, and the approximate time when such injuries or marks may have
been inflicted.[Sub-section (2)]

 Where an examination is made under sub-section (1), a copy of the report of such examination
shall be furnished by the medical officer or registered medical practitioner, as the case may be,
to the arrested person or the person nominated by such arrested person. [Sub-section (3)]

Note:
A. Examination of accused by medical practitioner at the request of police officer [Section 53]

 When a person is arrested on a charge of committing an offence of such a nature and alleged
to have been committed under such circumstances that there are reasonable grounds for
believing that an examination of his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical practitioner, acting at the request of a police
officer not below the rank of sub-inspector, and for any person acting in good faith in his aid
and under his direction, to make such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force
as is reasonably necessary for that purpose.[Sub-section (1)]

 Whenever the person of a female is to be examined under this section, the examination shall
be made only by, or under the supervision of, a female registered medical
practitioner.[Sub-section (2)]
B. Examination of person accused of rape by medical practitioner [Section 53A]

 When a person is arrested on a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the Government or by a local authority and
in the absence of such a practitioner within the radius of sixteen kilometres from the place
where the offence has been committed, by any other registered medical practitioner, acting at
the request of a police officer not below the rank of a sub-inspector, and for any person acting
in good faith in his aid and under his direction, to make such an examination of the arrested
person and to use such force as is reasonably necessary for that purpose.[Sub-section (1)]

 The registered medical practitioner conducting such examination shall, without delay, examine
such person and prepare a report of his examination giving the following particulars, namely:—
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail. [Sub-section (2)]

 The report shall state precisely the reasons for each conclusion arrived at.[Sub-section (3)]

 The exact time of commencement and completion of the examination shall also be noted in the
 report.[Sub-section (4)]

 The registered medical practitioner shall, without delay, forward the report to the investigating
officer, who shall forward it to the Magistrate referred to in section 173 as part of the
documents referred to in clause (a) of subsection (5) of that section.[Sub-section (5)]

Note:
In sections 53, 53A and 54,“examination” shall include:
the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat,
hair samples and finger nail clippings by the use of modern and scientific techniques including DNA
profiling and such other tests which the registered medical practitioner thinks necessary in a
particular case;

In sections 53, 53A and 54“registered medical practitioner” means:

a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2
of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State
Medical Register.

Note: Right of an Arrested Indigent Person to Free Legal Aid and to be Informed about it: [Article
21 of the Constitution of India]
In Khatri v. State of Bihar, (1981) 1 SCC 62, the Supreme Court has held that the State is under a
constitutional mandate implicit under Article 21 to provide free legal aid to an indigent accused
person, and this constitutional obligation to provide free legal aid does not arise only when the trial
commences but also when the accused is for the first time produced before the Magistrate as also
when he is remanded from time to time. However this constitutional right of an indigent accused to
get free legal aid may prove to be illusory unless he is promptly and duly informed about it by the
Court when he is produced before it. The Supreme Court has therefore cast a duty on all Magistrates
and courts to inform the indigent accused about his right to get free legal aid.
[Also see decision of Supreme Court in Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401]
 Arrest under Warrant
Chapter VI of the Code: Sections 70 to 81 provide the procedure for effecting the arrest under the
warrant, the various kinds of warrant.

Meaning of Warrant of Arrest: A warrant is a written order issued and signed by a Magistrate
addressed to a certain person to arrest the accused to take him into custody and bring him before
the Court issuing the warrant.

 Ordinarily in all warrant cases arrest may be made under warrant of the court.[Section 204] &
A Magistrate taking cognizance of an offence can issue a warrant for the arrest of the accused.

Circumstances in which the court empowered to issue summons for the appearance of any
person may issue warrant of arrest: [Section 87]
(a) if either before the issue of summons, or after the issue of the same but before time fixed for
his appearance, the court sees reason to believe that he has absconded or will not obey the
summons; or
(b) if, at such time he fails to appear and the summons is proved to have been duly served in time
to admit of his appearing in accordance therewith and no reasonable excuse is offered for such
failure.

Some Important Points to Remember on Warrant of Arrest:

(i) Personal liberty of accused is of paramount importance and where his presence may be secured
otherwise, the court must not issue warrant of arrest.Therefore, A warrant of arrest should not, as
a general rule, be issued where summons would be sufficient to secure the ends of justice.

(ii) A warrant once issued remains in force until it is cancelled or executed.

(iii) Where Warrant may be Executed: A warrant of arrest may be executed at any place in India
and it is not restricted to the local limits of the jurisdiction of the Magistrate issuing such warrant.
[Section 77]

(iv) Generally, a court has no jurisdiction to issue a warrant where the offence has been committed
outside his jurisdiction but in certain circumstances a Magistrate is empowered to issue a warrant
for arresting a person within his jurisdiction for an offence committed by him outside his
jurisdiction. [Section 187]

(v) A warrant may be issued for the arrest of a person who fails to appear in Court, after having
executed a bond in that behalf. [Section 89]

Formal requirements of a warrant of arrest: Section 70 of the Code provides for form of warrant of
arrest. Every warrant of arrest must satisfy following requirements
i) Issued by a Court;
ii) in writing;
iii) bear name and designation of the person who is to execute it;
iv) give full name and description of the person to be arrested;
v) state the offence charged;
vi) signed by the presiding officer;
vii) bear seal of the Court.

Modes of execution of a Warrant of arrest:

General Rule: A warrant of arrest should be directed to a police officer or officers, for execution.
Where it is directed to more officers than one, it may be executed by all or by any one or more of
them.[See, Section 72]

Exception to the General Rule: Where the arrest is immediately necessary and no police officer is
available for execution of the warrant, a warrant of arrest may be directed to a person other than a
police officer. [See Section 72]

Instances in which a Warrant of Arrest may be Directed to a Person other than a Police Officer:
[See, Section 73]
The Code confers special powers on the Chief Judicial Magistrate and Judicial Magistrate of the First
Class to direct any person within his local jurisdiction to arrest:
i) Any escaped convict, or
ii) Proclaimed offender, or
iii) Any person accused of a non-bailable offence and is evading arrest

Procedure where a warrant of arrest is to be executed outside the local jurisdiction of the Court
issuing it: [See, Section 78 & 79]

 Where a warrant of arrest is to be executed outside the local jurisdiction of the Court issuing it,
such Court may forward it by post or otherwise to any Executive Magistrate or District
Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction
it is to be executed.
 In cases, when a warrant of arrest is directed to a police officer is to be executed outside the
local jurisdiction of the Court issuing it, he is required to take the same for endorsement either
to an Executive Magistrate or to a Police Officer not below the rank of an officer-in-charge of a
police station, within the local limits of whose jurisdiction it is to be executed.

Obligations upon the Person Executing a Warrant: [See, Sections 75 and 76]

The Code imposes following obligations upon the person executing warrant of arrest:
(i) To notify the substance of the warrant to arrestee:
Object: To inform the person arrested of the charge on which he was being arrested, so that he
may arrange for his release or defense.

(ii) To show the warrant, if required: The obligation to show the warrant arises only if the person
to be arrested demands it. It need not be shown when the substance thereof is notified. The
warrant should be shown in such a manner that the person gets an opportunity to read it.

Q What is the legal consequence of non-compliance with above-mentioned obligations?

Ans: Non compliance with these requirements will make the arrest illegal.

Note: The person executing a warrant of arrest is under an obligation to bring the person arrested
before the Court without unnecessary delay.
Two Kinds of Warrant of Arrest:

I. Bailable Warrants: The term ‘bailable warrant’ is not used in the Code. Section 71 of the
Code confers discretion upon the Magistrate issuing a warrant of arrest to make it ‘bailable’.

 Therefore, where the arrested person executes a bond with sufficient sureties for his
attendance before the Court at a specified time, the officer to whom the warrant is directed
shall take such security and release the person from custody.

II. Non-bailable Warrants: Merely because the warrant uses the expression like ‘non-bailable’
and that such terminology is not to be found in the Code, by itself cannot render the warrant bad in
law.

 Under section 70, a Judicial Magistrate can convert warrant of arrest into a bailable warrant.
He may also issue orders with regard to issuance of non-bailable warrants. It is for the court,
clothed with the discretion, to determine whether the presence of the accused can be secured
by a bailable or non-bailable warrant.

Supreme Court on Non-bailable Warrant of Arrest:

In Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012)9 SCC 791. the Supreme Court
has issued directions to the courts below in respect to non-bailable warrants and made following
observation:

 Since the execution of a non-bailable warrant directly involves curtailment of liberty of a

person, warrant of arrest cannot be issued mechanically/arbitrarily, but only after recording
satisfaction that in the facts and circumstances of the case, it is warranted.

 The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant;
else a wrongful detention would amount to denial of constitutional mandate envisaged in
Article 21 of the Constitution of India.

 But in situations where neither the accused nor his lawyer appear before the Court on the date
given and also fail to file petition seeking condonation of the absence, the issuance of
non-bailable warrant is justified.

In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 the Supreme Court instructed
that the non-bailable warrant should not be issued to bring a person to court when summons or
bailable warrants would likely to serve the purpose. Though issuance of a non-bailable warrant
would not be unjustified where:

 It is reasonable to believe that the person will not voluntarily appear in court; or
 The police authorities are unable to find the person to serve him with a summon; or
 It is considered that the person could harm someone if not placed into custody immediately.
In case of State of U.P. v. Poosu, (1976) 3 SCC 1 the Supreme Court made it clear that:

“before exercising its power to issue non-bailable warrant, the court should consider factors like
the nature and seriousness of the offence involved; the past conduct of the accused; his age and the
possibility of his absconding.”

Therefore we may conclude thus:

 The court should properly balance both personal liberty and societal interest before issuing
warrants.There cannot be any straightjacket formula for issuance of warrants but as a general
rule, unless an accused is likely to tamper or destroy the evidence or is likely to evade the
process of law, issuance of non-bailable warrants should be avoided.

 The court in all circumstances in complaint cases at the first instance should first prefer issuing
summons or bailable warrant failing which a non-bailable warrant should be issued.

Proclamation and Attachment of Property

Object of Proclamation and Attachment of Property: To put considerable pressure on the accused
so as to impel him to appear before the court in order to avoid deprivation of his property.

 A proclamation cannot be issued without first issuing a warrant of arrest. Before issuing a
proclamation the court must satisfy itself that a warrant of arrest had already been issued and
that the accused is absconding, concealing or evading the execution of warrant of arrest.

 The Criminal Procedure (Amendment) Act, 2005 strengthened the criminal courts while dealing
with accused of serious offences by empowering the courts to declare accused of serious
offences as proclaimed offenders where he fails to appear in response to its proclamation
under Section 80(4).

Procedure for Issuance of Proclamation:

 Where the court has reason to believe that any person against whom a warrant has been
issued by it i) has absconded, or ii) concealing himself to avoid execution of warrant, may
publish a written proclamation requiring him to appear at a specified time and place not less
than 30 days from the date of publishing such proclamation.[Read Section 82(1)]

 The Court issuing such proclamation may at any time thereafter, order the attachment of any
property, movable or immovable or both, belonging to the proclaimed person.[Read Section
83(1)]

 If the proclaimed person appears within the time specified in the proclamation, the court shall
make an order releasing the property from the attachment.
Modes of publication of Proclamation:

Section 82(2) prescribes three modes for publication of proclamation. These are:

i) The proclamation shall be publicly read in some conspicuous place of the town or village in which
such person ordinarily resides;

ii) The proclamation shall be affixed to some conspicuous part of the house in which such person
ordinarily resides or to some conspicuous place of such town or village;

iii) A copy of the proclamation shall be affixed to some conspicuous part of the Court house.

The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily
newspaper circulating in the place in which such person ordinarily resides.

Procedure Regarding Attachment of Property [Read Section 83]

 The court issuing proclamation, at any time after the issue of proclamation, may order the
attachment of property, movable or immovable or both, belonging to proclaimed person.

 The purpose of attachment of the property of the absconder is not to punish him but to
procure his presence. If the proclaimed person does not appear within the time specified in the
proclamation, the property under the attachment shall be at the disposal of the State
Government.

Situations in which the Property under Attachment may be sold:

i) Where the time period of six months from the date of the attachment is expired, and
ii) Where any claim preferred or objection made under section 84 is disposed of.

 Provided further that where the property is subject to speedy and natural decay, or the sale
would be for the benefit of the owner, the court may cause it to be sold whenever it thinks fit.

Circumstances in which Code allows Issuance of an Order of Attachment Simultaneously with the
Issue of the Proclamation
 Though no time limit is prescribed for issuing a proclamation under section 83 but the general
rule is that an order of attachment should be made only after the issuance of proclamation. But
in certain circumstances the Code allows issuance of an order of attachment simultaneously
with the issue of the proclamation and such order shall not be held illegal. The situations are as
follows:

i) Where the proclaimed person is about to dispose of the whole or any part of his property, or
ii) Where the proclaimed person is about to remove the whole or any part of his property from the
local jurisdiction of the court.

This provision removed the hardship in cases where the person concerned, even before knowing
issuance of proclamation, finds his property being attached.
Relevant Provisions of UP Police Regulation on Proclamation and Attachment of Property of
Proclaimed Offender:

Regulation 215. Action against proclaimed offender:

 Whenever an officer-incharge of a police station, or an officer making an investigation under
Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974) is satisfied that a person
whom he is empowered to arrest under Section 41 (1) of the Code has absconded or is
concealing himself so that he cannot be arrested,
 he must apply to the Court having jurisdiction, successively, for a warrant of arrest, a
proclamation under Section 82 of the Code of Criminal Procedure, 1973 (2 of 1974) and an
order of attachment under Section 83/84.
 All these applications should be made as early as may be desirable in the particular case; they
need not be delayed for the conclusion of an investigation; and a warrant of arrest, a
proclamation and an order of attachment may all legally be issued one after the other in their
proper order on the same day.
 The officer who asks a Court to issue a proclamation must be prepared to produce legal
evidence to prove that the person whose arrest desired has absconded, and must not accept
the mere statement or report of an officer who has no personal knowledge of the absconding
to satisfy the Court. When an order of attachment is issued he must satisfy himself that it is
efficiently executed.

Regulation 216: Absconded offer:

Any person for whose appearance a proclamation has been issued under Section 82 of the Code of
Criminal Procedure, 1973 (2 of 1974) is an absconded offender within the meaning of this Chapter.

Regulation 217: Types of absconded offenders: Absconded offenders shall be divided into two
classes : A and B.
Class A will include all absconders whose names, caste, residence, and antecedents have been
verified beyond all possibility of doubt;
Class B consists only of those persons whose real names, residence and antecedents have not been
ascertained.