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THE LAW OF ARREST

THE LAW OF ARREST

Final draft submitted in fulfillment of the course Criminal Law - II, Semester IV
during the academic year 2017-18

Submitted by-

Govind singh Chauhan - 1528

B.A LL.B

Submitted to-

Dr. Peter F. Ladis

April, 2018

Chanakya National Law University,

Mithapur, Patna, 800001

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ACKNOWLEDGEMENT

We are feeling highly elated to work on under the guidance of my Criminal Law II faculty. I am
very grateful to him for the exemplary guidance. I would like to enlighten my readers regarding
this topic and I hope I have tried my best to bring more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my university
who made every relevant materials regarding to my topic available to me at the time of my
busy research work and gave me assistance.

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OBJECTIVE OF THE STUDY

The following are the aims and objectives of the researcher:

1. To study the laws relating to arrest.


2. To study the procedure relating to arrest.
3. To study the rights of arrested persons before and after the arrest.

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HYPOTHESIS

The research has adopted the hypothesis that:

1. Arrest does not infringe Right to personal liberty.


2. Arrested persons enjoy certain human and fundamental rights.

RESEARCH METHODOLOGY

The research includes different options. They are:

• Exploratory research:

It is usually a small-scale study undertaken to define the exact nature of a problem and to gain a
better understanding of the environment within which the problem has occurred. It is the initial
research, before more conclusive research is under taken.

• Descriptive research:

It is to provide an accurate picture of some aspects of market environment. Descriptive research is


used when the objective is to provide a systematic description that is as factual and accurate as
possible. It provides the number of time something occurs, or frequency, lends itself to satisfied
calculations such as determining average number of occurrences.

REVIEW OF LITERATURE

The researcher intends to examine the secondary sources in thus project. The secondary sources
include books, websites, photographs, articles, e-articles and reports in appropriate form, essential
for this study.

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SOURCES OF DATA

The researcher will rely upon primary and secondary sources of data.

These include: -

i. Primary Sources- Code of Criminal Procedure, 1973, Constitution of India, 1950,


Indian Penal Code, 1860.
ii. Secondary Sources- Books, articles and cases.

STYLE OF WRITING

The researcher will be using both analytical and descriptive styles of writing.

MODE OF CITATION

The researcher will be using a uniform mode of citation throughout this paper.

METHOD OF DATA COLLECTION

The researcher will make use of doctrinal methods that includes within its ambit the library work.

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LIMITATION OF RESEARCH

The researcher has undergone time and monetary limitation.

SCOPE OF RESEARCH

This piece of study would be very helpful for the lawmakers as it would explicitly state about its
utility in the present context. If found of not much relevance there is an urgent need to either amend
or repeal it. Law exists to sub serve social needs and therefore it is desirable that it should change
with the changing needs of society and life otherwise its results would be contrary to the general
belief ‘Law Is Dynamic’.

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TABLE OF CONTENTS
CHAPTER1- ARREST: MEANING AND DEFINITION......................................................................................... 8
WHAT IS ARREST? ..................................................................................................................................... 8
WHO CAN ARREST? ................................................................................................................................... 8
HOW ARREST IS MADE? ............................................................................................................................ 9
CHAPTER2- ARREST PROVISIONS UNDER CrPC ........................................................................................... 12
Arrest by Police Officer ........................................................................................................................... 13
CHAPTER 3- ARREST PROVISIONS IN OTHER LEGAL SYSTEM ...................................................................... 16
UNITED KINGDOM .................................................................................................................................. 16
UNITED STATES OF AMERICA .................................................................................................................. 16
CHAPTER 4- CONTITUTIONAL VALIDITY OF ARREST PROVISION ................................................................ 19
RIGHTS OF ARRESTED PERSON ............................................................................................................... 19
CHAPTER 5- CONCLUSION, CRITICISM AND SUGGESTION .......................................................................... 25
BIBLIOGRAPHY ............................................................................................................................................ 27

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CHAPTER1- ARREST: MEANING AND DEFINITION


WHAT IS ARREST?
This term “Arrest” is very common term that we pick up a lot in our day today life. Normally, we
see a person, who do or have done something against the law, get arrested. Generally, the term
“arrest” in its ordinary sense, means the apprehension or restraint or the deprivation of one’s
personal liberty. Let’s understand this term in Indian law, Criminal procedure Code, 1973 in its
chapter V (section 41 to 60) deals with Arrest of a person. Ironically, Code has not defined the
term “Arrest”. Every deprivation of liberty or physical restraint is not arrest. Only the deprivation
of liberty by legal authority or at least by apparent legal authority, in a professionally competent
and adept manner amounts to arrest. Thus, we can say arrest means ‘apprehension of a person by
legal authority resulting in deprivation of his liberty’. An arrest consists of taking into custody of
another person under authority empowered by law for the purpose of holding or detaining him to
answer a criminal charge and preventing the commission of a criminal offence. However, a person
against whom no accusation of crime has been made may be arrested /detained under a statute for
certain purposes like removal in safe custody from one place to another, for example – removal of
a minor girl from a brothel. One thing to be noted that ‘custody’ and ‘arrest’ don’t have same
meaning. Taking of a person into judicial custody is followed after the arrest of the person by
Magistrate on appearance or surrender. In every arrest there is custody but not vice versa. Thus,
mere taking into custody of a person an authority empowered to arrest may not necessarily amount
to arrest. This code proposes two types of arrests: (i) arrest made in pursuance of a warrant issued
by a magistrate (ii) arrest made without such a warrant but made in accidence with some legal
provision permitting such arrest.

WHO CAN ARREST?


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 some legal provision permitting such
arrest. The code 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 (Sec.
45).

Any private individual may arrest a person only when the person a proclaimed offender and the
person commits a non bailable offence and cognizable offences in his presence (sec. 43). Any

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magistrate (whether Executive or judicial) may arrest a person without a warrant (sec. 44). Under
section 41, Arrest by police officer can be made without warrant only in cognizable offences
(sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)). Cognizable offences are of more
serious nature as compare to non-cognizable offences i.e. Murder, kidnapping, theft, etc.

HOW ARREST IS MADE?


Sec. 46 describes the mode in which arrests are to be made (whether with or without warrant). In
making an arrest the police officer /other person making the same actually touches or confines the
body of the person to be arrested unless there be a submission to custody by words or action. When
the police arrest a person in execution of a warrant of arrest obtained from a magistrate, the person
so arrested shall not be handcuffed unless the police have obtained orders from the Magistrate in
this regard. The person making an arrest may use ‘all means’ necessary to make arrest if person
to be arrested resists or attempts to evade the arrest. A police officer may, for the purpose of
arresting without warrant any person whom is authorized to arrest, pursue such person into any
place in India (sec 48). Arrested person shall not be subjected to unnecessary restraint and physical
inconvenience unless it’s necessary to do so to prevent his escape (sec. 49).
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 v. Emperor1, 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.

1
AIR 1941 Nag 86 (B)

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In case of Birendra Kumar Rai v. Union of India 2 , 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 run away, 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 v. Circle Inspector of Police3, 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

2
AIR 1992 All 151, 1992 CriLJ 1436
3
ILR 1991 KAR 3198, 1991 (4) KarLJ 358

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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.

The Code of Criminal Procedure (Amendment) Bill, 2005, to quote the Home Minister, would
make the law more humane, more scientific and more effective. However, after the Act got the
Presidential assent, the implementation of these amendments have been deferred indefinitely by
the Government amidst nationwide protests by lawyers and objections by the Bar Council of India
against some of the provisions, which according to them, adversely affects the interests of the
accused. The lawyers have protested against provisions like the ones that provide for prompt arrest
of an accused after rejection of his anticipatory bail, confiscation of the property of an accused
who has repeatedly evaded court process and the powers of a Magistrate to recommend to the
prosecution to file an appeal in a criminal case even if the offence is not of a serious nature, even
though in our country, jumping bails, evading trial by not appearing before the court and
ineffectual prosecution is the norm!

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CHAPTER2- ARREST PROVISIONS UNDER CrPC

The word, ‘arrest’ has not been defined in an enactment dealing with the offences including the
Code of Criminal Procedure and the Indian Penal Code. It is a word derived from the French word
‘Arreter’ which means to stop or stay. We can say that the arrest is physically restraining a person
by the person authorized by law or the Court of Law. The Constitution of India guarantees every
citizen the right of liberty. As such liberty is a fundamental right of Human Being; it shall not be
curtailed without the due procedures established by law.

Section 41 to 60 of CrPC deal with various provisions regarding the arrest. Section 41 provides
for the situations when the police may arrest without warrant. This section gives wide power to
the police officer to make an arrest without an order from the magistrate and without warrant only
in circumstances limited by the provisions contained in the Section, and it is necessary in
exercising such large powers to be cautious and circumspect. What is a reasonable complaint or
suspicion must depend on the circumstances of each particular case, but it must be at least founded
or some definite fact tending to throw suspicion on the person arrested, and not a mere vague
surmise or information?

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 435of 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

4
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.
5
43. Arrest by private person and procedure on such arrest.

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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 446of 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

(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.
6
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.

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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.7
As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi 8 , the
arrested person must be produced before another magistrate within 24 hours, otherwise his
detention will be illegal.

In the case of Joginder Kumar vs State of UP9, 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 10 , 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.

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

7
http://www.caclubindia.com/forum/the-code-of-criminal-procedure-arrest-and-bail-185533.asp ( last visited mar,
2018).
8
1954 CriLJ 1317
9
1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662
10
1997 CriLJ 1237( last visited mar, 2018)

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used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition
of the rights of a person being arrested.

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CHAPTER 3- ARREST PROVISIONS IN OTHER LEGAL SYSTEM

UNITED KINGDOM
Arrests under English law fall into two general categories—with and without a warrant—and then
into more specific subcategories. Regardless of what power a person is arrested under, they must
be informed11 that they are under arrest and of the grounds for their arrest at the time or as soon
after the arrest as is practicable, otherwise the arrest is unlawful12.

In the United Kingdom a person must be told that they are under arrest in simple, non-technical
language, the essential legal and factual grounds for his arrest. A person must be 'cautioned' when
being arrested or subject to a criminal prosecution procedure, unless this is impractical due to the
behaviour of the arrested person.13

The caution required in England and Wales states,

You are now under arrest on suspicion of, such and such. You do not have to say anything, but it
may harm your defence if you do not mention when questioned something which you later rely on
in court. Anything you do say may be given in evidence.

The caution required in Scotland states:

You are not obliged to say anything, but anything you do say will be noted and may be used in
evidence.

UNITED STATES OF AMERICA


Based on the U.S. Supreme Court ruling in Miranda v. Arizona14, after making an arrest, the police
must inform the detainee of their rights in order for statements made during questioning to be
admissible as evidence against the detainee in court. A Miranda warning is required only when a
person has been taken into custody (i.e. is not free to leave) and is being interrogated, and the
results of this interrogation are to be used in court. An officer is not required to inform a person of

11
section 28, Police and Criminal Evidence Act 1984
12
Ibid
13
Taylor v Thames Valley Police [2004] EWCA Civ 858
14
384 U.S. 436

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their Miranda rights if they will not be questioning them any further after their arrest. An officer
is also not necessarily required to provide a Miranda warning if the person they are questioning
has not been arrested or if a person they have arrested speaks spontaneously without being
questioned. There is also an exception that permits questioning without providing the warning
under circumstances involving urgent matters of public safety.

The warning must inform the detainee that they have the right to be silent, the right to legal council
(and the availability of pro bono legal assistance), and that what they say can be used against them.
The failure to provide a detainee with an adequate warning could make information obtained from
an interrogation inadmissible in court, but does not prevent other evidence from being used to
obtain a conviction. As in the British system, the exact phrasing of the warning is not explicitly
mandated under federal law. There are also additional requirements about the warning that vary
from state to state and may depend on the circumstances (such as when the arrestee is a non-citizen
or juvenile). Since the exact wording used in an arrest is legally important, police officers often
carry a printed copy of the rights with them and read from it when providing the warning to ensure
accuracy.

When there exists probable cause to believe that a person has committed a minor crime, such as
petty theft, driving on a suspended license, or disturbing the peace, law enforcement agents
typically issue the individual a citation but do not otherwise detain them. The person must then
appear in court on the date provided on the citation. Prior to the court date, the prosecution will
decide whether to file formal criminal charges against the individual. When the accused appears
in court, they will be advised if formal criminal charges have been filed. If charges are filed, they
will be asked to plead guilty or not guilty at the initial court hearing, which is referred to as
the arraignment.15

When a person is arrested for a serious crime, under certain circumstances (i.e. where the public
won't be endangered by one's release from custody), the accused may be entitled to release upon
payment of a reasonable bail. The accused will be advised of the bail amount, which is based
upon a bail schedule that is established on an annual basis by the judges in each county. When
law enforcement agents believe to have probable cause to arrest a person for a serious crime, the

15
http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/family/chapter_14.authchec
kdam.pdf

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police typically handcuff an arrested person. The accused will have their mug shot taken and be
held in a police station or jail pending their ability to post bail. If the accused cannot post bail,
they will appear at their arraignment where the judge will determine if the bail set by the
schedule should be raised, lowered, or remain at the initial amount.16

16
CA Codes (pen:1268-1276.5)

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CHAPTER 4- CONTITUTIONAL VALIDITY OF ARREST PROVISION

Any person has to be treated as a human being, irrespective of the fact that such person is a
criminal. The accused persons are also granted certain rights, the most basic of which are found in
the Indian Constitution. The basic assumption behind these rights is that the government has
enormous resources available to it for the prosecution of individuals, and individuals, therefore,
are entitled to some protection from misuse of those powers by the government. An accused has
certain rights during the course of any investigation; enquiry or trial of offence with which he is
charged, and he should be protected against arbitrary or illegal arrest. Given below are some of the
most important rights of an arrested person:

RIGHTS OF ARRESTED PERSON


1. Right To Silence

The ‘right to silence’ has been derived from common law principles. It means that normally courts
or tribunals should not conclude that the person is guilty of any conduct merely because he has not
responded to questions which were asked by the police or by the court. The Justice Malimath
Committee in its report was of the opinion that right to silence is very much needed in societies
where anyone can be arbitrarily held guilty of any charge. As per the law of evidence, any
statement or confession made to a police officer is not admissible in a court of law. Right to silence
is mainly concerned about confession. The breaking of silence by the accused can be before a
magistrate but should be voluntary and without any duress or inducement.

As per Article 20(3) of Constitution of India guarantees every person has been given a right against
self-incrimination, it states that any person who has been accused of any offence, shall not be
compelled to be a witness against himself. The same was again reiterated by a decision of Supreme
Court in the case of Nandini Sathpathy v. P.L.Dani; wherein it was held that no one can forcibly
extract statements from the accused and that the accused has the right to keep silent during the
course of interrogation (investigation). The Supreme Court again in the year 2010, held that narco-
analysis, brain mapping and lie detector test are in violation of Article 20(3) of the Constitution of
India.

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2. Right To Know The Grounds of Arrest

As per Section 50(1) of Cr.P.C., every person who is being arrested by any police officer, without
any warrant, is entitled to know the full particulars of offence for which he is being arrested, and
that the police officer is duty bound to tell the accused such particulars and cannot deny it.

Further, As per Section 55 of Cr.P.C., when any person is being arrested by any police officer,
who is deputed by a senior police officer, then such subordinate officer shall before making such
arrest, notify the person to be arrested the substance of the written order given by the senior police
officer specifying the offence or other cause for which the arrest is to be made. If this provision is
not complied with, then the arrest would be rendered illegal.

If the person is being arrested under a warrant, then as per Section 75 of Cr.P.C, any person who
is executing such warrant must notify the person to be arrested, the particulars of such warrant, or
even show such warrant if needed. If the substance of the warrant is not notified, the arrest would
be unlawful.

The Constitution of India also confers this right as one of the fundamental rights. Article 22(2) of
the constitution provides that “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.”

In Harikishan v. State of Maharashtra17, 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.

3. Information Regarding The Right To Be Released On Bail

17
(1962) 64 BOMLR 522

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Any person who is to be arrested without a warrant and is not accused of a non-bailable offence
has to be informed by the police officer that he is entitled to be released on bail on payment of the
surety amount.18 This helps persons who are arrested for bailable offences and are not aware of
their right to be released on bail.

4. Right To Be Taken Before A Magistrate Without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who
is making such arrest has to bring the arrested person before a judicial officer without any
unnecessary delay. Further, the arrested person has to be confined in police station only and
nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C.
under sections 5619 and 7620.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed 24
hours in any case. While calculating the time period of 24 hours, the time necessary for the journey
is to be excluded. The same has been enumerated in the Constitution as a Fundamental Right under
Article 22(2). This right has been created with a view to eliminate the possibility of police officials
from extracting confessions or compelling a person to give information.

If the police officials fails to produce an arrested person before a magistrate within 24 hours of the
arrest, the police officials shall be held guilty of wrongful detention21.

18
Section 50(2) of Cr.P.C.,1973
19
Person arrested to be taken before Magistrate or officer in charge of police station- A police officer making an
arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail,
take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge
of a police station.
20
Person arrested to be brought before Court without delay- The police officer or other person executing a
warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the
person arrested before the Court before which he is required by law to produce such person.
21
Khatri II v. state of bihar,1981 SCR (2) 408 1981 SCC (1) 627

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6. Rights at Trial

6.1) Right To A Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some exceptional
cases the trial may be held in camera.

6.2) Right To A Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however, the SC in the
Hussainara Khatoon case 22 has made it mandatory that the investigation in the trial must be
conducted “as expeditiously as possible.”

In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused is
arrested, the investigation for the trial has to be completed within the period of six months or
stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts,
with his reasons in writing, that there is cause to extend the investigation.

7. Right To Consult A Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own choice. This has
been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which cannot
be denied in any case. Section 50(3) of the Code also lays down that the person against whom
proceedings are initiated has a right to be defended by a pleader of his choice. This starts begins
as soon as the person is arrested. The consultation with the lawyer may be in the presence of police
officer but not within his hearing.

22
1979 AIR 1369, 1979 SCR (3) 532

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8. Rights Of Free Legal Aid

The Supreme Court in the case of in Khatri(II) v. the State of Bihar23 has held that the state is under
a constitutional obligation (implicit in Article 21) to provide free legal aid to an indigent accused
person as is implicit in Article 21 of the Constitution . This right does not come into picture only
at the time of trial but exists at the time when the accused is produced the first time before the
magistrate, as also when remanded from time to time. The Supreme Court further states that failure
on the part of the state to inform the accused of this right will vitiate the whole process of trial.
Therefore, a duty is imposed on all magistrates and courts to inform the indigent accused of his
right to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of
Arunachal Pradesh24, wherein it has been laid down that this constitutional right cannot be denied
if the accused failed to apply for it. It is clear that unless refused, failure to provide free legal aid
to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence.

9. Right To Be Examined By A Medical Practitioner

Section 54 of Cr.P.C. enumerates this right. It states that:

Section 54 of Cr.P.C:- “Examination of arrested person by medical practitioner at the request of


the arrested person- When a person who is arrested, whether on a charge or otherwise, alleges, at
the time when he is produced before a Magistrate or at any time during the period of his detention
in custody that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other person of
any offence against his body, the Magistrate shall, if requested by the arrested person so to do
direct the examination of the body of such person by a registered medical practitioner unless the
Magistrate considers that the request is made for the purpose of vexation or delay or for defeating
the ends of justice.”

23
1981 SCR (2) 408 1981 SCC (1) 627
24
1986 SCC (2) 401 1986 SCALE (1)368

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Some other Miscellaneous rights of the arrested person in a nutshell:

 Right against Self-incrimination e. no one shall be compelled to be a witness against


himself. This is a constitutionally guaranteed right provided under Article 20(3). The
Supreme Court again in the year 2010 held that narco-analysis, brain mapping and lie
detector test are in violation of Article 20(3) of the Constitution of India.

 The Supreme Court of India in Hussainara khatoon& ors. v. Home secretary, state of
Bihar 25said that right to speedy trial shall be treated as a fundamental right.

 The practice of handcuffing the accused while taking him the court from the jail and then
back to jail from the court has been disapproved by the court in Prem Shanker v. Delhi
administration26. It is necessarily implicit in Article 14 and Article 19 of the constitution
that unless need arises, person’s limbs should not be fettered.

 In Rudal Shah v. State of Bihar27 the Supreme Court laid down the rule of Compensation
for the wrongs committed by the State to the citizens.

25
1979 AIR 1369, 1979 SCR (3) 532
26
1980 AIR 1535, 1980 SCR (3) 855
27
1983 AIR 1086, 1983 SCR (3) 508

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CHAPTER 5- CONCLUSION, CRITICISM AND SUGGESTION

Up to now we tried to understand the term “Arrest”, procedure of arrest, rights of the arrested
person and related case laws to the topics. Above mentioned each case has its own significance.
By going through Law Commission paper on Law of arrest, by we can read with data’s that how
power of arrest is being misused and more because of unawareness of people about their right. We
somehow console ourselves that these protectors of law and order must be doing right but we have
hundreds of cases where we witnessed of this power being misused. These report shows high
percentages of arrests are made even in bailable offences, bails are not granted to those where
getting bail is one’s right. Increasing percentage of no. of under trial prisoners in jails, we can deal
with the plight of this topic separately. Arrest has a diminishing and demoralizing effect on the
personality28. He is outraged, alienated and becomes hostile. But there need to be balance between
security of state on one hand and individual freedom on other hand. There need to be some checks
on this power and more awareness need to be created among the peoples about their rights, so that
balance system can be form.

Arrest has far reaching consequences; the social status and dignity of an individual suspect
becomes at stake, even his discharge cannot blot out the stigma consequent upon arrest. There are
financial implications for the arrested person and his family. The public suffers its repercussion as
we. Naturally, it needs to be ensured that arrests are not effected in a frivolous manner and that the
rights of arrested persons are fully guaranteed. Towards this effect, The Cr.P.C. lays down
safeguards such that the rights of persons enshrined in Art. 21 and 22(1) are not violated. However,
it has been some time before the statutory provisions have been understood in all its implication
and they have been given effect to. Mostly the criminal administration system ignores such
safeguards and the judiciary for quite some time has been lax about ensuring the proper observance
of prisoner’s rights. So there have been many later declarations and statutory enactments which
reaffirm the faith in the rights of arrested persons. The endeavour is to look into various rights of
arrested persons, enshrined in statutes, conventions and judicial pronouncements.

28
Bharat Joshi, ARREST: PROCEDURE & RIGHTS IN INDIA RACOLB LEGAL, http://racolblegal.com/arrest-procedure-
and-rights-of-arrested-person-in-india/ (last visited Mar 20, 2018).

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Beside this, the researcher feels an urge to point out the other side, i.e., victims, they have either
less rights or they do not have one. Our socialist, Court and even Cr.P.C. talks about the rights of
arrested person, but there are no such provisions to safeguard the interest of the victim. They are
ignored fully or partially, later they become the news of the media channels nowadays. Earlier or
today itself, remedies are available to the accused and not to who against the crime is committed.
The researcher admits the fact that there are some people who suffer because they are falsely
implicated into a case, but there are also those people who are benefitted with these provisions.

Hence, The Researcher would like to conclude with that, our law system and police while
investigating the case should be so particular about the case that the victim should not suffer. It is
duty upon the Court of Law that it should not violates the right of liberty of any innocent person
and at the same time also not infringes the rights of victims.

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BIBLIOGRAPHY

PRIMARY SOURCE

 BOOKS
 Ratanlal & Dhirajlal,The Code Of Criminal Procedure –As Amended By The
Criminal Law (Amendment) Act, 2013, Lexis Nexis, Second edition (1 June
2013)
 SudiptoSarkar and VR Manohar, The Code of Criminal Procedure, LexisNexis;
10th edition (1 June 2013)
 Rega Surya Rao, Lectures on Criminal Procedure Code, Asia Law house, Second
Edition (2018)
 K.N.Chandrasekhar Pillai, R,V. Kelkar's Criminal Procedure, Eastern Book
Company, sixth edition edition (2016)

SECONDARY SOURCE

 WEBSITES
 https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320
 https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-
section-167-of-the-code-of-criminal-procedure https://www.bu.edu
 http://racolblegal.com/arrest-procedure-and-rights-of-arrested-person-in-india/
 http://thelegiteye.in/2016/12/12/law-arrest-india
 https://www.fairtrials.org/arrested-abroad/arrested-in/arrested-in-the-usa

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