ACKNOWLEDGEMENT

Firstly, I would like to express my profound sense of gratitude towards the almighty
“ALLAH” for providing me with the authentic circumstances which were mandatory for
the completion of my project.
Secondly, I am highly indebted to Prof Asad Malik at Faculty of Law, Jamia Millia
Islamia University, New Delhi for providing me with constant encouragement and
guidance throughout the preparation of this project.
Thirdly, I thank the Law library staff who liaised with us in searching material relating to
the project.
My cardinal thanks are also for my parents, friends and all teachers of law department in
our college who have always been the source of my inspiration and motivation without
which I would have never been able to unabridged my project.
Without the contribution of the above said people I could have never completed this
project.

1
 INDEX

• MEANING OF ARREST………………………………..3
• DIFFERENCE BETWEEN ARREST AND
CUSTODY………………………………………………4
• TPES OF CUSTODY UNDER THE
CODE…………………………………………………....4
• ARREST WITH
WARRANT……………………………………………..6
• ARREST WITHOUT
WARRANT…………………………………………….6
• RIGHTS OF ARRESTED
PERSON…………………………………………….…22
• SAFEGUARDS………………………………….…….28
• CONCLUSION………………………………...............30
• REFERENCE……………………………………...........31

2
 Arrest and Custody

Meaning of Arrest:
The word ‘arrest’ has neither been defined in the code nor in the IPC nor in any
other enactment dealing with criminal offences. Simply speaking, Arrest means
apprehension of a person by legal authority resulting in deprivation of his liberty.
Every confinement is not arrest, for arrest legal authority is essential. For instance, when
a police officer apprehends a thief he is arresting the thief; but when a dacoit apprehends
a person with a view to extract ransom, the dacoit is not arresting that person but
wrongfully confining him. Further, 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. An arrest implies the actual seizure or touching of the person with a view to keep
him in detention.
Arrest of a person is made with a view to ensure his presence at trial in connection
with any offences in which he is directly or indirectly involved. In case of serious
offences, arrests are often made. But in ordinary cases, which are not of serious nature the
accused person is normally called to the police station through, summon to answer certain
questions and thereafter there presence is ensured at the trial of the case too.

Credible information and a reasonable suspicion: -

Information upon which arrest may be made by a police officer must be based
upon definite facts. The police officer must consider over all materials placed before him
in support of arrest before taking final decision in this respect. Where a wrong arrest is
made by a police officer under a bona fide mistake he will be protected and an illegal
arrest does not affect the trial of the case. Similarly where an arrest is made on mere
suspicion, it must be reasonable and in such cases investigation should be carried out by
the police without delay. Magistrate must also be watchful, for this power is very likely to
be abused by the police1. Whether there are reasonable grounds for suspicion will depend
upon the circumstances in each case. If a person is suspected to be in possession of stolen
clothes and he fails to answer satisfactorily, it would be a reasonable ground for suspicion
justifying his arrest2. However, mere suspicion would not be enough, it must be
reasonable. 3In State of Maharshtra v. C.C.W. Council of India4, the High Court by an
order prevented the police from arresting a lady without the presence of Lady Constable.
And further prohibited the arrest of lady after sunset & before sunrise under any
circumstances.

1
AIR 1965 Trip 27
2
Kasturi Lal v. State of U.P, AIR 1965 SC 1039.
3
Faish Mian v. Tripura Administration, (1962) Cr LJ 673.
4
(2004) Cri.L.J. 14 SC
3
DIFFERENCE BETWEEN ARREST AND CUSTODY:
The word ‘Arrest’ and ‘Custody’ are not synonymous. In every arrest there is
custody but vice versa is not true. What amounts to arrest is laid down by the legislature
in Section 46. Whether the arrest to be made is with a warrant or without the warrant, it
is necessary that in making such an arrest the police officer or 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 word or action5. Arrest is a mode of formally taking a person in
police custody. Whereas ‘custody’ merely denotes surveillance or restriction on the
movement of the person concerned. A person may be taken in custody completely or even
partially. The concept of being in custody is, therefore, different from that of a formal
arrest. Thus, it would be seen that in every arrest there is custody but the converse is not
true and as such, arrest and custody are not synonymous terms.

TYPES OF CUSTODY UNDER THE CODE

A. POLICE CUSTODY
B. JUDICIAL CUSTODY

POLICE CUSTODY:-

When following to the receipt of an information/complaint/report by

police about a crime, an officer of police arrests the suspect involved in the crime
reported, to prevent him from committing the offensive acts further, such officer
brings that suspect to police station, it’s called Police Custody. The officer in charge of
the case is required to produce the suspect before the appropriate judge within 24 hours,
these 24 hours exclude the time of necessary journey from the police station to the court.

JUDICIAL CUSTODY:-

Police Custody means that police has the physical custody of the accused while
Judicial Custody means an accused is in the custody of the concerned Magistrate. In
former, the accused is lodged in police station lockup while in latter, it is the jail. When
Police takes a person into custody, the Cr.P.C kicks-in and they were produced him/her
before a Magistrate within 24 hours of the arrest.

What happens after Judicial Custody:

A person may be held in the custody of the police or in judicial custody. The first thing
that happens to a suspect on arrest is that he is taken into police custody, following which

5
Roshan Beevi v. Jt. Secy. To Government of T.N., 1984 Cri LJ 134 Mad
4
 he is taken before a magistrate and he may either be remanded to judicial custody or be
sent back into police custody.

Purpose of Arrest:
Arrest of a person might be necessary under the following circumstances: -
6) To secure the attendance of an accused person at trial. –When a person is to be
tried on the charge of some crime, his attendance at the time of trial becomes
necessary. If his attendance is not likely to be ensured by issuing a notice or
summons to him, probably his arrest and detention is the only effective method of
securing his presence at the trial.
(2) As a preventive or precautionary measure. –If there is imminent danger of the
commission of a serious crime (cognizable offence), arrest of the person intending to
commit such a crime may become necessary as a preventive measure. There may be other
circumstances where it is necessary as a precautionary measure to arrest a habitual
offender or an ex-convict, or a person found under suspicious circumstances.
(3) For obtaining correct name and address. –Where a person, on being asked by a
police officer, refuses to give his name and address, then under certain circumstances, it
would be proper on the part of the police to arrest such a person with a view to ascertain
his correct name and address.
(4) For removing obstruction to police. –Whoever obstructs a police officer in the
execution of his duty would be and should be liable to be arrested then and there by such
a police officer. This is essential for the effective discharge of police duties.
(5) For retaking a person escaped from custody. –A person who has escaped from
lawful custody should be arrested forthwith by the police?
It would be seen that the Code contemplates two types of arrests:
6) Arrest made in pursuance of a warrant issued by a magistrate; and
(b) Arrest made without such a Warrant but made in accordance with some legal
provision permitting such an arrest.

Arrest
Ss, 41 to 60

Arrest with Warrant Arrest without Warrant

Ss. 70 to 81 Ss. 41, 42, 43, 44, 45

Arrest how made

Ss. 46,47, 48, 49, 55, 60

After Arrest Procedures 5

Ss. 51, 52, 53, 53A, 54A, 58, 59
 Right of arrested person
Ss. 50, 50A, 54, 55A, 56, 57

Consequences of non-compliance with Provisions relating to arrest

Arrest with warrant:

There are some circumstances in which arrest of a person is essential or at least
desirable. The determination as to the existence of such circumstances and the consequent
decision to arrest should be made fairly having due regard to the liberty of the individual
and the interests of the society. Ideally a judicial officer is best suited to decide such
issues with a fair measure of reasonableness, impartiality and detachment. Therefore,
basically it is for a magistrate to make an arrest decision on the information generally
obtained from the police or the complainant. If the magistrate makes a decision to arrest
he would issue a warrant of arrest. Sections. 70 to 81 deals with the provisions of arrest
with warrant. The provisions relating to arrest with warrant will be discussed under
Chapter ‘Processes to Compel Appearance’.

Arrest without warrant:

Sometimes, there might be circumstances where prompt and immediate arrest is
necessary and there is no time to approach a magistrate and obtain a warrant from him.
For instance, in a case where a person has perpetrated a serious crime and there is chance
of the person absconding unless immediately arrested, it would be certainly unwise to
insist on the arrest being made only after obtaining a warrant from a magistrate. There
may be occasions where preventive action may be necessary in order to avert the danger
of sudden outbreak of crime. In those cases, often the arrest decision will have to be made
by a person other than a judicial magistrate. In such cases it is the investigating agency
that has discretion to effect arrests.
In all such cases arrests can be made by the investigating agency, however, the
Code contemplates a judicial scrutiny soon after such arrest. According to the Code,
every person arrested without a warrant is required to be produced before the judicial
magistrate within 24 hours of his arrest (Sections 56 & 57 of Cr.P.C. and Art. 22(2) of the
Constitution of India). The police are reported to have been flouting this legal
requirement quite often. In the case of Poovan v. S.I. of Police6, the Kerala High Court
ruled that whenever a complaint is received by a magistrate that a person has been
arrested within his jurisdiction but has not been produced before him within 24 hours or a

6
1993 Cr.LJ 2183
6
 complaint is made to him that a person is being detained within his jurisdiction beyond 24
hours of his arrest he can and should call upon the police officer concerned to state,
whether the allegations are true, and if so, on what and under whose custody he is being
so held. If the officer denies the arrest the magistrate can make an inquiry and pass
appropriate orders.

An arrest without warrant can be effected under the Code by

A Police Officer A Private A Magistrate A Custodian

(Sections 41 & Person (Section 44) or Rescuer
42) (Section 43)
(Section 60)

Under following circumstances a person may be arrested without warrant.

A police officer may arrest without a warrant (Sec 41)

(1) Any police officer may without an order from a Magistrate and without a warrant,
arrest any person-
(a) who commits, in the presence of a police officer, a cognizable offence;
(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:
(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;
(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
I 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;

7
 and the police officer shall record while making such arrest, his reasons in writing;
Provided 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.
(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 and the police
officer has reason to believe on the basis of that information that such person has
committed the said offence;
I who has been proclaimed as an offender either under this Code or by order of the State
Government; or
(d) in whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an offence
with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable suspicion exists, of his having
been concerned in, any act committed at any place out of India which, if committed in
India, would have been punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or detained in custody in
India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section
(5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested and
the offence or other cause for which the arrest is to be made and it appears therefrom that
the person might lawfully be arrested without a warrant by the officer who issued the
requisition.
(2) 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.

Thus, Section 41(1) enumerates ten categories of offences where a police officer
may arrest any person without an order from a Magistrate and without a warrant.

The word ‘may’ in S.41 (1) suggests that a police officer has discretion in making
arrest without warrant. In the case of Binoy Jacob v. CBI7, the Delhi High Court held that

7
1993 Cri LJ 1293,
8
in a country governed by rule of law the discretion of the investigating agency does not
mean whim, fancy or wholly arbitrary exercise of discretion. The Magistrate, therefore,
has to be watchful as the power of arrest without warrant under suspicion is liable to be
abused.
This section is a depositary of general powers of the police officer to arrest but
this power is subject to certain other provisions contained in the Code as well as in the
special statute to which the Code is made applicable. If Sec. 155(2) prohibits a police
officer from investigating a non-cognizable offence without an order of the Magistrate
then in respect of such an offence a police officer cannot exercise the powers contained in
Sec. 4l(1)(d)8.
Information upon which arrest may be made by a police officer must be based
upon definite facts. The police officer must consider over all materials placed before him
in support of arrest before taking final decision in this respect. Where a wrong arrest is
made by a police officer under a bona fide mistake he will be protected and an illegal
arrest does not affect the trial of the case. Similarly where an arrest is made on mere
suspicion, it must be reasonable and in such cases investigation should be carried out by
the police without delay. Magistrate must also be watchful, for this power is very likely to
be abused by the police9.. Whether there are reasonable grounds for suspicion will depend
upon the circumstances in each case. If a person is suspected to be in possession of stolen
clothes and he fails to answer satisfactorily, it would be a reasonable ground for suspicion
justifying his arrest10.. But mere suspicion would not be enough, it must be reasonable11.

Section 41: - Section 41(1) of Cr.P.C. provides for ten clauses of persons who
may be arrested by the police without warrant. Cases where a police officer
may arrest a person without warrant are specified in Schedule I of the Code.
Sec. 41 is not exhaustive. There are various other Acts, e.g. Arms Act,
Explosives Act, etc. which also confers such powers on police officers

Notice of appearance before police officer (Sec 41-A)

(1) The police officer shall, in all cases where the arrest of a person is not required under
the provisions of sub-section (1) of Section 41, issue a notice directing the person against
whom a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence, to appear
before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to
comply with the terms of the notice.

8
Avinash v State, 1983 CrLJ 1833 (Bom.)
9
AIR 1965 Trip 27
10
Kasturi Lal v. State of U.P, AIR 1965 SC 1039
11
Faish Mian v. Tripura Administration, (1962) Cr LJ 673.
9
(3) Where such person complies and continues to comply with the notice, he shall not be
arrested in respect of the offence referred to in the notice unless, for reasons to be
recorded, the police officers is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is
unwilling to identify himself, the police officer may, subject to such orders as may have
been passed by a competent court in this behalf, arrest him for the offence mentioned in
the notice.

Procedure of arrest and duties of officer making arrest (Sec 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
I 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.

Control room at districts (Sec 41-C)

(l) The State Government shall establish a police control room
(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the
control rooms at every district, the names and addresses of the persons arrested and the
name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time
to time, details about the persons arrested, nature of the offence with which they are
charged and maintain a database for the information of the general public.

Right of arrested person to meet an advocate of his choice during interrogation.

(Sec 41-D)
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.
New Sections 41-A, 41-B, 41-C, and 41-D have been inserted and amended by the
Cr.P.C. (Amendment) Act, 2008 (5 of 2009) and the Cr.P.C. (Amendment) Act, (41 of
2010) respectively.

Arrest on refusal to give name and residence (Sec 42)

10
(1) When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuses, on demand of such officer, 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 in order that his name or residence
may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a Magistrate if
so required:
Provided that, if such person is not resident in India, the bond shall be secured by a surety
or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-
four hours from the time of arrest or should he fail to execute the bond, or, if so required,
to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate
having jurisdiction.
Under this Section the arrest is to be made for the purpose of ascertaining the
name or residence; and after such ascertainment the arrestee must be released on
executing a bond (with or without sureties) before a Magistrate if so required.
In one case, a police constable asked a man not to create any disturbance on a
public road. When the man declined to do so, the constable demanded his name and
address, which were not furnished. Thereupon, the constable arrested the man. It has been
held that, in the circumstances, the constable had lawfully exercised his powers under this
section12. However, when two police officers arrested a man without a warrant, for being
drunk and creating disturbance on a public road, and confined him in the police station,
although one of the police officers knew his name and address, held that the police
officers’ action was not justified13.

Section 42: - Section 42 provides for arrest of a person if he refuses to disclose

his identity & if he is suspected to be one of the offenders. But such person
must be released on bail after securing a bond if he is suspected to having
committed a non-cognizable offence.

Arrest by Private person and procedure on such arrest (Sec. 43)

(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.

12
(1903) 5 Bom LR 597
13
(1922) 46 Mad 605].
11
(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.
Under S. 43, a private person can arrest any person, who has in his presence,
committed a non-bailable and cognizable offence, or any person who is a proclaimed
offender.
This right of arrest arises under the common law, which applies, to India. Thus, if a
person is drunk and disorderly and is assaulting others he can rightly be arrested by a
private citizen under this section14 It cannot be argued that this section applies only to
those cases when the offence committed in the presence of the private person is a
substantive offence, and that this power is not available when there is merely an attempt
to commit an offence. Further, an arrest is justified even if the private person is under a
bona fide impression that a non-bailable and cognizable offence, as for instance,
abduction of a girl, is being committed in his presence, although it may turn out
subsequently that the case is not one of abduction15 .
However, the words “in his presence” in Sec. 43(1) cannot be extended to mean “in
his opinion” or “on suspicion” or “on receipt of information”. Where, therefore, an
individual seeing a person fleeing with a knife in his hand pursued by others, tries to
arrest him, his exercise of power of arrest cannot be brought under this section16. After
making an arrest, the person arresting must take the arrestee to the police, otherwise he
would be guilty of the offence of wrongful confinement.

Section 43: - Any private individual may arrest a person only when: -
1) The person is a proclaimed offender, or
2) The person commits a non-bailable & Cognizable offence in his
presence.

6.5.4 Arrest by Magistrate (Sec 44)

(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.
Sub section (1) gives the magistrate the power to arrest a person who has committed an
offence in his presence and also to commit him to custody. Under sub section (2) the

14
AIR 1921 Mad 458.
15
27 Cr LJ 1378
16
Abdul Habib v. State, 1974 Cr LJ 248
12
magistrate has the power to arrest a person who is suspected of having committed an
offence but he has no power to commit him to custody in this case.
Thus, any Magistrate (whether Executive or Judicial) may arrest a person without
a warrant. Sec. 44(1) deals with the situation when any offence is committed in the
presence of a Magistrate, within his local jurisdiction. In such case he may himself arrest
or order any person to arrest the offender and also to commit him to custody (subject to
the bail provisions).
Under sec. 44 (2), the Magistrate has power to arrest a person who is suspected of
having committed on offence but has not been given any power to commit him to
custody. The omission of this power to commit such suspect to custody is not accidental
but deliberate17. In the latter case, committing to custody will have to be done in
accordance with Ss. 57 and 167 of the Code.

Protection of members of the Armed Forces from arrest (Sec. 45)

(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.
It may be noted that the protection from arrest under this section is not absolute. A
member of the Force may be arrested after obtaining the consent of the Central/State
Government. Further, a member of the Force cannot make a pretended or fanciful claim
under this provision, that he did the act in performance of his duties. Thus, acts like
cheating ‘or taking a bribe would fall outside the scope of the expression “discharge of
official duties” [Satwant Singh v. State, AIR 1960 SC 266].

Immunity of Members of Judicial Service

Though there is no provision in the Code of Criminal Procedure granting
immunity or protection from arrest to the members of judicial service, the leading
decision of the Supreme Court in Delhi Judicial Service Association v. State of
Gujarat18, lays down certain guidelines to be followed.
In that case, a Chief Judicial Magistrate of Nadiad in Gujarat was humiliated,
arrested, assaulted, handcuffed and tied with a thick rope around his arms and body on
flimsy charges. In that condition, he was taken to the public exhibiting to the members of
public that the police had the power and privilege to apprehend and deal with a Chief

17
Ram Chandra v. State, 1977 CrLJ 1783 (All).
18
AIR 1991 SC 2176
13
Judicial Magistrate to its sweet will. Treating the assault on an individual judicial officer
as an onslaught on judicial institution, disapproving and strongly condemning it and
punishing the erring police officers under the Contempt of Courts Act, 1971, the Supreme
Court considered it necessary to lay down guidelines to be followed in the case of arrest
and detention of a Judicial Officer. Holding the guidelines as “minimum safeguards” and
not treating them exhaustive, SINGH, J. (as he then was) stated:

6) If a Judicial
Officer is to be arrested for some offence, it should be done under intimation to
the District Judge or the High Court as the case may be.

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

(iii) The fact of such arrest should be immediately communicated to the District and
Sessions Judge of the concerned District and the Chief Justice of the High Court.

(iv) The Judicial Officer so arrested shall not be taken to a police station, without the
prior order or directions of the District and Sessions Judge of the concerned District, if
available.

(v) Immediate facilities shall be provided to the Judicial Officer for communication with
his family members, legal advisers and Judicial Officers, including the District and
Sessions Judge.

(vi) No statement of a Judicial Officer who is under arrest be recorded nor any
panchnama be drawn up nor any medical tests be conducted except in the presence of the
Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or
higher rank, if available.

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

14
“The above guidelines are not exhaustive but these are minimum safeguards which must
be observed in case of arrest of judicial officer.”

Arrest how made (Sec. 46)

6) In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.
Provided that where a women is to be arrested, unless the circumstances indicate to the
contrary, her submission to the custody on an oral intimation of arrest shall be presumed
and, unless the circumstances otherwise require or unless the police officer is a female,
the police officer shall not touch the person of the women for making her arrest.

(2) If such 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.

(3) Nothing in this section gives a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment for life.

(4) Save in exceptional circumstances, no Women shall be arrested after sunset & before
sunrise, and where such exceptional circumstances exist, the women police officer shall,
by making a written report, obtain the prior permission of the Judicial Magistrate of the
first class within whose local jurisdiction the offence is committed or the arrest is to be
made.

The word ‘Arrest’ and ‘Custody’ are not synonymous. In every arrest there is
custody but vice versa is not true. What amounts to arrest is laid down by the legislature
in Section 46. Whether the arrest to be made is with a warrant or without the warrant, it
is necessary that in making such an arrest the police officer or 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 word or action19. ()
Explaining the meaning of arrest, the Apex Court in State of U.P. v. Deoman20],
observed. “arrest consists in the seizure or touching of a person’s body with a view to his
restraint. Words may however, amount to an arrest if, in the circumstances of the case,
they are calculated to bring, and do bring, to a person’s notice that he is under compulsion
and he thereafter submits to the compulsion.”
However, Section 46 Cr. P.C. does not contemplate any formality before a person
can be said to be taken in custody, submission to custody by words of mouth or action by
a person is sufficient. A person directly giving a police officer by words of mouth

19
Roshan Beevi v. Joint Secy. To Government of T.N., 1984 Cri LJ 134 Mad
20
AIR 1960 SC 1125
15
information that may be used as evidence against him may be deemed to have submitted
himself to the custody of police officer.
The person making an arrest may use ‘all means’ necessary to make the arrest if
the person to be arrested resists or attempts to evade the arrest [Sec. 46(2)]. The words
“all means” are very wide and include the taking of assistance from others in effecting the
arrest21

Sec. 46(3) lays down that the power to use necessary force for making an arrest shall not
extend to causing the death of a person who is not accused of an offence punishable with
death or imprisonment for life. Thus, where fire was opened to disperse an unlawful
assembly and death of an innocent person was caused, Sec. 46 could not be invoked for
the protection of the police officer22.
In State of Maharshtra v. C.C.W. Council of India23, the High Court by an order
prevented the police from arresting a lady without the presence of Lady Constable. And
further prohibited the arrest of lady after sunset & before sunrise under any
circumstances.

Search of place entered by person sought to be arrested (Sec. 47)

6) If any person acting under a warrant of arrest, or any police officer having
authority to arrest, has reason to believe that the person to be arrested has entered
into, or is within, any place, any person residing in, or being in charge of, such
place shall, on demand of such person acting as aforesaid or such police officer,
allow him free ingress thereto, and afford all reasonable facilities for a search
therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in
any case for a person acting under a warrant and in any case in which a warrant may
issue, but cannot be obtained without affording the person to be arrested an opportunity of
escape, for a police officer to enter such place and search therein, and in order to effect an
entrance into such place, to break open any outer or inner door or window of any house or
place, whether that of the person to be arrested or of any other person, if after notification
of his authority and purpose, and demand of admittance duly made, he cannot otherwise
obtain admittance;
Provided that, if any such place is an apartment in the actual occupancy of a female (not
being the person to be arrested) who, according to custom, does not appear in public, such
person or police officer shall, before entering such apartment, give notice to such female
that she is at liberty to withdraw and shall afford her every reasonable facility for
withdrawing, and may then break open the apartment and enter it.

21
AIR 1951 All 3 (F.B.)
22
Karan Singh v Haradayal Singh, 1979 Cr LJ 1211 (Punj)
23
(2004) Cri.L.J. 14 (S.C.)
16
(3) Any police officer or other person authorized to make an arrest may break open any
outer or inner door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose of making an arrest, is detained
therein.

Pursuit of offenders into other jurisdictions (Sec. 48)

A police officer may, for the purpose of arresting without warrant any person whom he is
ecognized to arrest, pursue such person into any place in India.
A police officer may, for the purpose of arresting without warrant any person
whom he is authorized to arrest, pursue such a person into any place in India. Hence the
arrest of a person by the police officer, investigating an offence, in pursuit of an offender
is legal though it is made outside his circle24.

No unnecessary restraint (Sec. 49)

The Person arrested shall not be subjected to more restraint than is necessary to prevent
his escape.
Sec. 49 lays down that the person arrested shall not be subjected to more restraint
than is necessary to prevent his escape. In other words, unnecessary restraint and physical
inconvenience, like tying of hands and feet, is not to be resorted to, unless it is absolutely
necessary to do so. In Citizens for Democracy v State of Assam25, it has been held that
where a person is arrested by the police without warrant, the police officer if he is
satisfied that it is necessary to handcuff such a person, he may do so till the time he is
taken to the police station and thereafter his production before the Magistrate. Further use
of fetters thereafter can only be under the orders of the Magistrate. When the police
arrests 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. Similar orders are required in respect of persons arrested by
police for production before the Magistrate for a remand.

Procedure when police officer deputes subordinate to arrest without warrant (Sec.
55)

(1) 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

24
AIR 1955 Nag 23
25
(1995) 3 SCC 743
17
to be arrested the substance of the order and, if so required by such person, shall show
him the order.
(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person
under section 41.

Power, on escape, to pursue and retake (Sec. 60)

6) 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.
(2) The provisions of section 47 shall apply to arrests under sub-section (1)
although the person making any such arrest is not acting under a warrant and is
not a police officer having authority to arrest.
This section applies not only to police officers but also to other persons or
officials making arrest under the Code.

Arrest to be made strictly according to the code (Sec. 60 A)

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.

After Arrest Procedures:

Search of arrested person (Sec. 51)

(1) Whenever a person is arrested by a police officer under a warrant which does not
provide for the taking of bail, or under a warrant which provides for the taking of bail but
the person arrested cannot furnish bail, and
whenever a person is arrested without warrant, or by a private person under a warrant,
and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the
arrest or, when the arrest is made by a private person, the police officer to whom he
makes over the person arrested, may search such person, and 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.
6) Whenever it is necessary to cause a female to be searched, the search shall be
made by another female with strict regard to decency.
This section deals with the search of an arrested person & not the search of the
place, which is dealt with in section 100 of the Code.
The search of an arrested person without communicating him the grounds of his
arrest will be illegal. Before making a personal search of the accused, the searching
officer and others assisting him should give their personal search to the accused before
searching the person of the accused. This rule is meant to avoid the possibility of

18
implanting an object to be shown in the search.26. Though the section does not require the
search to be conducted in the presence of witnesses, the rules made under the Police Act,
1861 direct that the search should be made in the presence of (independent and
respectable) witnesses.
This section does not require that the signature of the person searched shall be
taken on the memo of the recovery list. If recovery memo is not signed by the accused,
the search is not illegal27. Where the arrested person is a woman, the search shall be made
by another woman with strict regard to decency. It is not necessary that the witnesses also
be female28 . This case shows that some irregularity in making a search will not make the
search-evidence inadmissible.

Power to seize offensive weapons (Sec. 52)

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.
This section authorizes the seizure of the offensive weapon from the person
arrested. Where the evidence of the investigating officer is convincing, the evidence as to
the recovery of the offensive weapon need not be rejected on the mere ground that the
seizure witnesses do not support the prosecution story29.

Examination of accused by medical practitioner at the request of police officer (Sec.

53)
(1) 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.

(2) 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.

Explanation: - in this section and in sections 53A and 54,

(a) “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

26
Rabindranath Prusty v State of Orissa, 1984 Cr LJ 1392 (Ori.)
27
Mahadeo v State, 1990 Cr LJ 858 (All)
28
Kamla Bai v State of Maharashtra AIR 1962 SC 1189
29
Mohan Singh v. State of Rajasthan, AIR 1978 SC 1511.
19
use of modern and scientific techniques including DNA profiling and such other tests
which the registered medical practitioner thinks necessary in a particular case;
(b) “Registered medical practitioner” means a medical practitioner who possess 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.

This provision has been made to facilitate effective investigation. It comes into
effect only when there are reasonable grounds that a police officer bona fide entertains. It
may be noted that the section does not bar other superior officers or the court concerned
from exercising the said power if it is necessary for doing justice in a criminal case 30 . It
was held in Anil A. Lokhande Case that examination of person of the accused cannot be
confined only to external examination of his body but many a times it may become
necessary to make examination of some organs inside the body for the purpose of
collecting evidence. In that case examination may include taking of blood from the
accused.
This section provides that a medical examination will be done at the request of a
police officer not below the rank of a Sub-inspector. However superior officers of the
police or the court are not barred from exercising the said power if it is necessary for
doing justice.
If the conditions presented under sub-section (1) are fulfilled it shall be lawful for
a registered medical practitioner and for any person acting in good faith in his aid and
under his directions to make such examination. According to Andhra Pradesh High Court
it is lawful to subject an arrested person to medical examination. Thus we see that sub-
section (1) protects a medical practitioner for lawful medical examination, of the person
accused of committing an offence, made by him at the request of a police officer. As the
medical examination, of the accused under Section 53 is part and parcel of the process of
investigation, the police could get the accused medically examined even after the framing
of the charge by the court by exercising their powers of further investigation under
Section 173 (8). It was held in State of Maharashtra v. Dyanaba Bhikoba Dagade31 that
a Magistrate has no authority under Section 53 to pass an order allowing a medical
practitioner to extract blood of the accused. Investigation is a task of the police and such
functions must be performed by them alone.

Examination of person accused of rape by medical practitioner (Sec. 53A)

(l) 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 this
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

30
Anil A. Lokhande v State of Maharashtra, 1981 CrLJ 125 (SC)
31
1979 Cr L J 277(Bom)
20
kilometers 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.
(2) 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.
6) The report
shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be
noted in the report.
(5) The registered medical practitioner shall without delay, forward the report of 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 sub-section (5) of that section.

Identification of person arrested (Sec. 54A)

Where a person is arrested on a charge of committing an offence and his identification by
any other person or persons is considered necessary for the purpose of investigation of
such offence the Court, having jurisdiction, may on the request of the officer in charge of
a police station, direct the person so arrested to subject himself to identification by any
person or persons in such manner as the Court may deem fit.

Police to report apprehensions (Sec. 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.
The object of the report is to keep the D.M. informed of the situation regarding
grave offences. And the report would enable the D.M. to see whether the police are
exercising their powers properly or not.

Discharge of person apprehended (Sec. 59)

No person who has been arrested by a police officer shall be discharged except on his
own bond, or on bail, or under the special order of a Magistrate.

21
 This section provides that a person who has been arrested by a police officer shall
not be discharged except- (a) on his own bond, or (b) on bail, or (c) under the special
order of a Magistrate under section 167 of the Code. Once police arrests a person, he can
be enlarged only after taking a bond or bail for his appearance before a Magistrate; the
police cannot discharge him on their own responsibility without the order of a Magistrate.
If the arrest is found to be illegal, there would arise no question of releasing the accused
on his own bond or bail and the only proper order would be an order of discharge by the
Magistrate.

RIGHTS OF ARRESTED PERSON:

The right of personal liberty is a basic human right recognized by the General Assembly
of the United Nations in its Universal Declaration of human rights. Our Constitution
recognizes it as a fundamental right. Although the police have been given various powers
for facilitating the making of arrests, the powers are subject to certain restraints. These
restraints are primarily provided for the Protection of the interests of the person to be
arrested and also of the society at large. The arrest should not only be legal and justified
but it should be effected strictly according to the procedure established by law. The
imposition of the restraints can be considered, to an extent, as the recognition of the rights
of the arrested person. There are, however, some other provisions which have rather more
expressly and directly created important rights in favour of the arrested person. The
Constitution of India also recognizes the rights of arrested person under the ‘Fundamental
Rights’.
Article 21 of the Constitution provides: “No person shall be deprived of his life or
personal liberty except according to Procedure established by law”. The procedure
contemplated by this Article must be right, just and fair and not arbitrary fanciful or
oppressive.

Rights of arrested Person:

1. Right to be informed of the grounds for arrest (Sec. 50(1))
2. Right to be informed of right to bail (Sec. 50(2))
3. Obligation of person making arrest to inform about the arrest, etc., to a
nominated person (Sec. 50A)
4. Right to be examined by a Medical Practitioner (Sec. 54)
5. Right to be produced before Magistrate without Delay (Sec. 56)
Person
6. arrested to be informed
Person arrested of detained
not to be grounds of arrest
more and
than bail (Sec.
of right to hours
twenty-four (Sec.50)
57)
(1) Every police
7. Right to officer
consult or otherpractitioner
a legal person arresting any person without warrant shall
(Sec. 41D)
forthwith communicate to him full particulars of the offence for which he is arrested or
8. Right of an arrested indigent person to free legal aid and to be informed
other grounds for such arrest.
about it (Sec. 304)
9. Right to obtain compensation for illegal arrest (Sec. 358)
22
10. Right to Health and Safety (Sec. 55A)
(2) Where a police officer arrests without warrant any person other than a person accused
of a non-bailable offence, he shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his behalf.

Making known to the accused grounds of his arrest is a constitutional requirement

and failure to comply with this requirement renders the arrest illegal. In Ajit Kumar v.
State of Assam32, the Gauhati High Court held that when a person arrested without
warrant alleges by affidavit that he was not communicated with full particulars of the
offence leading to his arrest, in the face of this affidavit the police diary cannot be
perused to verify the police officer’s claim of oral communication of such particulars. No
counter affidavit denying the petitioner’s allegation was filed. Therefore even if such oral
communication was made it is not clear whether full particulars were communicated or
mere section was communicated. Hence the arrest and detention of that person was
illegal.
Secondly when a subordinate officer is deputed to arrest a person under section 55
such subordinate officer must notify to the person to be arrested the written order or the
other cause for which the arrest is to be made.
Thirdly, in case of arrest to be made under a warrant Section 75 provides that the
police officer or other person executing the warrant must notify the substance thereof to
the person to be arrested and if required they must show him the warrant.
Apart from these provisions, our Constitution has also conferred on this right.
Article 22(1) of the Constitution provides: “No person who is arrested shall be detained
in custody without being informed as soon as may be, of the grounds for such arrest.” The
right to be informed of the grounds of arrest is an important right of the arrested person.
Timely information of the grounds of arrest helps him in many ways like (i) moving
proper Court for bail, and (ii) to make expeditious arrangement for his defence.

Obligation of person making arrest to inform about the arrest, etc., to a nominated
person (Sec. 50A)
(l) 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. .
6) 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.
6) 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.

32
(1976 Cr LJ 1303 Gau)
23
 The provisions of sections 50 and 50A are mandatory. Where a person is arrested
without any warrant, he should be immediately informed of the particulars of the offence
and grounds of his arrest and where the offence is a bailable one, of his right to be
released on bail. That is an arrest without warrant can be justified only if it is an arrest on
a charge made known to the person arrested. This section confers a valuable right and
non-compliance with it amounts to disregard of the procedure established by law. The
allegation that the grounds of arrest or its particulars as would be, enough to enable him
to file a writ petition of habeas corpus were not given, has to be proved by the person
making such allegations. Making known to the accused grounds of his arrest is a
constitutional requirement and failure to comply with this requirement renders the arrest
illegal.
In Raj Kumari v. S.H.O. Noid33,. The petitioner a leader of workers who had
resorted to strike and violence was arrested in night after F.LR. of incident was lodged.
The arrest was made by the police after investigation which showed that she had led the
mob. The petitioner complained that she was arrested in the night in violation of the
Supreme Court’s decision in Joginder Kumar v. State of U.P., and D.K. Basu v. State of
West Bengal, the petitioner supported her allegation on affidavit but affidavit of her
relatives were not filed. She also complained that police officers who arrested her did not
bear name plates and no memo of arrest was prepared. The allegation that she was
arrested in night was denied by police by filing affidavit. It was held that the affidavit of
the petitioner was the only supportive evidence on record. There was no other
corroborative material or affidavit of her relatives. Therefore, the plea of petitioner that
she was arrested at night was not tenable, more so because the plea of violation of
Supreme Court decision was not raised in her bail application moved on same day and
with legal assistance. Therefore, the allegation of petitioner was not accepted and the
petition to initiate action against police was held liable to be set aside.

Examination of arrested person by medical officer (Sec. 54)

l) When any person is arrested, he shall be examined by a medical officer in the service of
Central or State Governments and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made:
Provided that 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.
(2) 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.
(3) 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,

33
(2004) Cri.L.J. 9 SC
24
as the case may be, to the arrested person or the person nominated by such arrested
person.
This section confers on the arrested person the right to have his medical
examination done. It was held in V.J. Vaghela v. Kantibhai Jethabhai34, that the
Magistrate owes a duty to inform the arrested person about his right to get himself
examined in case he has complaints of physical torture or maltreatment in police custody.
The Supreme Court has cautioned the lower Courts not to adapt a casual approach to
custodial torture35. In case the Magistrate considers the test of the accused to-be vexatious
or for defeating the ends of justice, he may refuse it. It has been held in Mukesh Kumar
v. State36, that the procedure adopted by the Magistrate to examine the body of the
accused himself and then dismissing the application with his observation that they were
seen in normal posture was wholly unwarranted and erroneous.

Health & Safety of arrested person (Sec 55A)

It shall be the duty of the person having the custody of an accused to take reasonable care
of the health & safety of the accused.

Person arrested to be taken before Magistrate or officer in charge of police station

(Sec. 56)
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.

Person arrested not to be detained more than twenty-four hours (Sec. 57)
No police officer shall detail in custody a person arrested without warrant for a longer
period than under all the circumstances of the case is reasonable, and such period shall
not, in the absence of a special order of a Magistrate under section 167, exceed twenty-
four hours exclusive of the time necessary for the journey from the place of arrest to the
Magistrate’s Court.
A person arrested cannot to be detained more than twenty-four hours. It may also
be noted that the right has further been strengthened by its incorporation in the
Constitution as a fundamental right. Article 22(2) of the Constitution provides: “Every
person who is arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest excluding the time necessary for the
journey from the place of arrest to the Court of the Magistrate and no such person shall be
detained in custody beyond the said period without the authority of a Magistrate.”
The right of the arrested person to be brought before a magistrate within a period
of not more than 24 hours of arrest has been created with a view to prevent arrest and

34
1985 Cr.L.J. 974 (Guj)
35
Sheela Barse v. state of Maharashtra, 1983 Cr.LJ 642 SC
36
1990 Cr LJ 1923 (Del)
25
detention for the purpose of extracting confession or as a means of compelling people to
give information, to prevent police stations being used as prisons or to afford an early
recourse to a judicial officer independent of the police on all questions of bail or
discharge.
It was held in Saptawna v. State of Assam37, , that where an accused is illegally
detained, the detention becomes lawful when subsequently he is arrested and produced
before a Magistrate within twenty-four hours. In Kultej Singh v. Circle Inspector of
Police38, , the accused was arrested in the morning of 27-9-1990 and produced before the
Magistrate on 29-9-1990. First information report revealed that the delay in producing the
accused before the Magistrate was caused since the respondent officials were
immediately required to go to other place in connection with communal rioting. They also
tendered unconditional apology for the delay. It was held that the detention or custody
beyond twenty-four hours was not illegal because there was reasonable explanation for
the delay and the conduct of the respondents was not lacking in bona fides.

Right to consult a legal practitioner

Both the Constitution & the Provisions of the Code recognize the right of every
arrested person to consult a legal Practitioner of his choice. The right begins from the
moment of arrest (S 303 of the Code and Article 22(1) of the constitution of India).
Section 303 provides that any person accused of an offence before a Criminal
Court, or against whom proceedings are instituted under this Code, may of right be
defended by a pleader of his choice.
This section contemplates that the accused should not only be at liberty to be
defended by a lawyer but also implies that he should have a reasonable opportunity, if in
custody, of getting into communication with his legal adviser for the purpose of his
defence. This section does not confer a right on the accused person to be provided with a
lawyer but it is a privilege given to him to ask for a lawyer if he wants to engage one.
Article 22(1) of the Constitution provides that no person who is arrested shall be
denied the right to consult and to be defended by a lawyer of his choice. The objective
behind conferring this right is that an accused person generally does not have the
knowledge of law and the professional skill to defend himself before a Court of law.
In R.M. Wasawa v. State of Gujarat39, the Supreme Court has held that “the
Sessions Judge should view with sufficient seriousness the need to appoint State counsel
for undefended accused in grave cases. Indigence should never be a ground for denying
fair trial or equal justice. Therefore, advocates competent to handle cases should be
appointed. Sufficient time and complete papers should also be made available to them so
that they may prepare the case and the accused also may feel confident that the counsel
chosen by the court has had adequate time and material to defend him properly."

37
AIR 1971 SC 813
38
1992 CrLJ 1173 (Karn)
39
AIR 1974 SC 1143
26
 In case of trial of a criminal case, which carry a sentence of imprisonment as and
when the accused is produced or brought before a magistrate, the Magistrate should make
it known to the accused that he has a 'right, a constitutional right of being represented by
a counsel of his choice and if he has no means to engage a lawyer, then arrangement may
be made for his defence.

Right of an arrested indigent person to free legal aid and to be informed about it. –
In Khatri (II) v. State of Bihar40, the Supreme Court has held that the State is under a
constitutional Mandate (implicit in Article 21) to provide free legal aid to an indigent
accused person. Section 304 of the Code provides for legal aid to accused at State
expense in certain cases.

Apart from the above-mentioned rules the Supreme Court in D.K. Basu V. State Of West
Bengal (1997) 1 SCC 416 : 1997 SCC (Cri) 92, issued the following instructions: -(1)
The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one witness, who
may either be a member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be countersigned by the arrestee and
shall contain the time and date of arrest.
(3) The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the district and the Police Station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
(4) The arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if any present on his/her body must be recorded at that
time. The "Inspection Memo" must be signed both by the arrestee and the police officer
affecting the arrest and its copy provided to the arrestee.
(5) The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors
appointed by the Director, Health Services of the State or Union Territory concerned. The
Director, Health Services should prepare such a panel for all Tehsils and districts as well.
(6) Copies of all the documents including the memo of arrest referred to above should be
sent to the Illaqa Magistrate for his record.
(7) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout interrogation.
(8) A Police Control Room should be provided at all districts and State Headquarters,
where information regarding the arrest and the place of custody of the arrestee shall be

40
(1981) 1 SCC 627
27
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and
at the Police Control Room it should be displayed on a conspicuous Notice Board.
Failure to comply with the requirements herein above-mentioned shall apart from
rendering the official concerned liable for departmental action, also render him liable to
be punished for contempt of court and the proceedings for contempt of court may be
instituted in any High Court of the country having territorial jurisdiction over the matter.
The right to compensation for the victims of unlawful arrest and detention has
been recognised by the Supreme Court in Nilabati Behera v. State of Orissa41. It is to be
noted that these instructions are applicable to authorities like Directorate of Revenue
Intelligence, Directorate of Enforcement, C.B.I., C.LB., C.I.S.F., etc. which have the
power to effect arrest and detain persons for interrogation.

Consequences of non-compliance with the provisions relating to arrest:

(1) A trial will not be void simply because the provisions relating to arrest have not been
fully complied with.
(2) Though the illegality or irregularity in making an arrest would not vitiate the trial of
the arrested person, it would be quite material if such a person is prosecuted on a charge
of resistance to or escape from lawful custody.
(3) If the arrest is illegal, the person who is being so arrested can exercise the right of
private defence in accordance with, and subject to, the provisions contained in Sections
96 to 106 of the IPC.
(4) If the public servant having authority to make arrests, knowingly exercises that
authority in contravention of law and effects an illegal arrest, he can be prosecuted for an
offence under Section 220 of the IPC. Apart from this special provision, any person who
illegally arrests another is punishable under Section 342 of the IPC for wrongful
confinement.
(5) If the arrest is illegal, it is a tort of false imprisonment, and the arrested person is
entitled to claim damages from the person who made such an arrest.
In Muhammad Yusuf v. Queen Empress42,. observed, “it may well be that the
procedure taken was irregular and improper and brought a person wrongfully within the
jurisdiction. But if he is there and if he has committed an offence, whatever else may be
said about it, it is no answer to the offence committed within the jurisdiction that he has
been brought irregularly within the jurisdiction.
It has been categorically ruled by the Supreme Court in Nilabati Behera43 that victims of
unlawful arrest and detention have right to compensation.It may be mentioned here that
the provisions relating to arrest cannot be bypassed by alleging that there was no arrest
but only informal detention. Informal detention or restraint of any kind by the police is
not authorized by law.

41
(1997 SCC (Cri.) 434
42
(1897) 24 IA 137 (PC) Halsbury L.C
43
(1993) 2 SCC 746
28
SAFEGUARDS

Recently, in Siddharam v. State of Maharashtra (2011) 1 SCC 694 the Supreme

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

In the case of Indira Jaisingh v Supreme Court of India the apex court observed that the
law of arrest is of balancing individual rights, liberties and privileges, duties, obligations
and responsibilities and therefore any decision thereof should be taken keeping in mind
PART III of the constitution of India44
In Arnesh Kumar versus State of Bihar45, this Court observed that arrest brings
humiliation, curtails freedom and casts scars forever. It is considered a tool for
harassment and oppression and henceforth, drastic power is to be exercised with
caution.

In Rini Johar and Ors. v State of M.P.46 this Court considered the issue of wrongful
arrest and payment of compensation. It was observed that wrongful arrest
violates Article 21 of the Constitution and thus the victim of arrest was entitled to
compensation.

In the recent judgment of Dr. Subhash Kashinath Mahajan v State of Maharastra47

the apex court relying on various judgments observed that there is need to safeguard
innocent citizens against false implication and unnecessary arrest for which there is no
sanction under the law which is against the constitutional guarantee and law of arrest
laid down by this Court.

44
(2017) 9 SCC 766 34
45
(2014) 8 SCC 273
46
(2016) 11 SCC 703
47
2018 SCC OnLine SC 323
29
 CONCLUSION
Although, the Code of Criminal Procedure provides exhaustive provisions with
respect to procedure of arrest still the Police Authorities ignore the underlying
principle of Rule of Law however the judiciary has time and again curtailed the police
authorities from exceeding their powers but still there are lot of loop holes in the Code
which the Police Authorities have continuously exploited and the same needs to be
checked with immediate effect.

30
 REFERENCES
• B.B MITRA:Code of Criminal Procedure, Kamal Law
House,Kolkata.
• Durga Das Basu:Criminal Procedure Code, 1973, LexisNexis Indi,
Gurgaon.
• M.P. Tondon: Code of Criminal Procedur, Allahabad Law Agency,
Faridabad
• N. V. Pranjape: Code of Criminal Procedure, Central Law Agency,
Allahabad
• Ratan Lal & Dhiraj Lal, Code of Criminal Procedure, LexisNexis
India, Gurgaon

• indiankanoon.com

• livelaw.com

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