Code of Criminal Procedure: Notes by Priyanka B Chavan

CHAPTER 5 – ARREST OF PERSONS

(S. 41 TO 60A)

1. Introduction
2. Arrest – Meaning
3. Need to arrest
4. Two Types of arrest
5. Arrest by Police, Magistrate & Private Persons
6. How Arrest is done
7. Rights of arrested persons
8. Landmark judgment: D. K. Basu vs. State of West Bengal

1. INTRODUCTION:
Article 21 of Indian Constitution - Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according
to procedure established by law.
The term “Arrest” is not defined under Code of Criminal Procedure.

2. ARREST – MEANING

General Meaning: The deprivation of personal liberty by way of

confinement is arrest.
A. “the act of being taken into custody to be formally charged with a
crime is arrest”
B. There must be
 Intent to arrest under legal authority
 Seizure of detention of person
 The person must be in lawful custody of arresting person
 There must be actual confining of person and not mere oral
declaration of arrest.
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State of Haryana vs. Dinesh Kumar (2008) 3 SCC 222

The apex court observed that the expression arrest has neither been
defined in the Cr. P. C. nor in the IPC or any other enactment
dealing with criminal offences. The only indication as to what would
constitute arrest may perhaps be found in Section 46 of the code,
which describes the mode in which arrests are to be made.

Note:
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.

3. NEED TO ARREST:
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.
Arrest is made by a person with a belief that the suspect has
committed, or is committing, or is about to commit a crime
A. For securing the attendance of the accused at trial
B. For prevention of an apprehended offence or as a precautionary
measure.
C. For obtaining the correct name and address of the person arrested.
D. For removing obstruction created by the police
E. For retaking a person escaped from custody.

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4. TWO TYPES OF ARREST:

A. Arrest made in pursuance of a warrant issued by a Magistrate.

(Arrest with Warrant – Non-cognizable offence)
B. Arrest made without such a warrant but made in accordance
with some legal provisions permitting such an arrest (Arrest
Without Warrant – Cognizable offences)

5. ARREST BY POLICE, MAGISTRATE & PRIVATE

PERSONS:

A. When Police may arrest without warrant (S. 41):

S. 41(1) – Any Police Officer may without an order from an
Magistrate and without a warrant, arrest any person.

Further, no arrest can be made merely because it is lawful to

do so. There must be a justifiable reason to arrest.

Also, “reasonable suspicion” and “creditable information”

must relate to definite averments which must be considered by
the Police Officer himself before he arrests the person.

B. Arrest for non-cognizable offences (S. 42):

Allows a police officer to arrest a person for a non-cognizable
offence, if he refuses to give him name and address.

C. Arrest by Private Persons (S. 43):

S. 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.

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Note:
The private person must take the arrested person to the police
officer of police station without any reasonable delay. If he
keeps the person in his own custody, he will be guilty of
wrongful confinement.

D. Arrest by Magistrate (S. 44)

S. 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.

Note:
Magistrates have wider power than private citizens. A
Magistrate can arrest on the ground of any offence and not
only on cognizable offence.

E. Protection of Members of Armed forces from

Arrest (S. 45):
S. 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

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Government" occurring therein, the expression" State

Government" were substituted.

6. HOW ARREST IS DONE: (S. 46)*****

Describes the mode in which arrests are to be made. (Both with or

without warrant)

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 of custody may be by express words or by action.

Further, if a person makes a statement to the police accusing

himself of committing of 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.

Arrest need not be by handcuffing the person and it can be also be

complete by spoken words if the person submits to custody.

S. 46(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.

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Note:
Thus, if a person tries to runaway, the police officer can take
actions to prevent his escape and in doing so, he can use physical
force to immobilize the accused.

S. 46(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.

S. 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 concerned
Judicial Magistrate First Class.

S. 47 – search of place entered by person sought to be arrested.

S. 48 – pursuits of offenders into other jurisdictions.

S. 49 – An arrested person must not be subjected to more restraint

than is necessary to prevent him from escaping.

7. RIGHTS OF ARRESTED PERSONS:

Code provided wide powers to the police for arresting a person.

Such powers without appropriate safeguards for the arrested
person will be harmful for the society. To ensure that this power
is not used arbitrarily, several restraints have been put on it,
which, indirectly, can be seen as recognition of the rights of a
person being arrested.

Further, once a person is arrested, he is already at a disadvantage

because of his lack of freedom and so he cannot take appropriate
steps to defend himself. Thus, to meet the needs of “fair trial”,

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several provisions are given in Cr. P. C., that gives specific rights
to an arrested person. These rights can be describes as follows:-

A. Rights to know the grounds of arrest. (S. 50(1))

B. Rights to be informed of the provisions for bail - (S. 50(2))
C. Examination of the accused by medical practitioner at the
request of police officer. (S. 53)
D. Examination of the accused of Rape by medical practitioner.
(S. 53A)
E. Health and safety of arrested person. (S. 55A)
F. Persons arrested to be taken before Magistrate or officer-in-
charge of police station . (S. 56)
G. Persons arrested not be detained for more than twenty-four
hours. (S. 57)
H. Right to consult legal Practitioner – (S. 303 CrPC)
I. Rights to be informed about his arrest to his relative or friends.
J. Rights to free legal aid (S.304 of CrPC)

8. LANDMARK JUDGMENT: D. K. BASU VS. STATE OF

WEST BENGAL (AIR 1997 SC 610):

While arresting, the police officer making arrest should have his name
and designation on his batch.
Memo of arrest:
 it will be prepared by police mentioning the name of the person to
be arrested
 Name of person arresting
 Charges
 Place where such arrest is made
 Counter signed by 3 witnesses
 Within 12hrs of arrest, police to inform of such arrest made and
also where person is put-up in custody of police.
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The Hon'ble Supreme Court, in D.K.Basu Vs State of West Bengal,

has laid down specific guidelines required to be followed while
making arrests.

The principles laid down by the Hon'ble Supreme Court are given
hereunder:

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 shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least
one witness, who may be either a member of the family of the arrestee
or a respectable person of the locality from where the arrest is made. It
shall also be counter signed by the arrestee and shall contain the time
and date of arrest.
3. A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock up,
shall be entitled to have one friend or relative or other person known
to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
4. 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.
5. The person arrested must be made aware of his right to have someone
informed of his arrest or detention as soon as he is put under arrest or
is detained.
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6. An entry must be made in the diary at the place of detention regarding

the arrest of the person which shall also disclose the name of the next
friend of the person who has been informed of the arrest and the
names land particulars of the police officials in whose custody the
arrestee is.
7. 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 effecting the
arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by the trained
doctor every 48 hours during his detention in custody by a doctor on
the panel of approved doctors appointed by Director, Health Services
of the concerned State or Union Territory, Director, Health Services
should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.

A police control room should be provided at all district and State

headquarters where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing the
arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board.

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