Detailed study of Arrest under CrPC

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INDEX
Sr.no. Topic Page.no
1. Introduction 4
2. Research objectives 5
3. Research questions 5
4. Research methodology 6
5. Literature review 6
6. Analysis 7 to 16
7. Conclusion 17
8. Bibliography 18

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INTRODUCTION

Arrest refers to the deprivation of a person of his liberty by legal authorities. For example,
when a police officer apprehends a pick pocket he is arresting the pick pocket but when a
thief apprehends a person with a view to extract ransom, the thief is not arresting the person
but wrongfully confining the person. Also 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. Preventing a person from making his movements and from moving according to his
will amounts to arrest. Criminal procedure Code, 1973 in its chapter V (section 41 to 60)
deals with Arrest of a person. The code propose 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.

Arrest can be made by police officer, Magistrate or any private person and it can made only
in accordance with some legal provision permitting such arrest. 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.

In a free society like ours , law is quite careful toward one’s “personal liberty” and does not
permit the detention of any person without a legal sanction. Even article 21 of our
constitution provides that “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.

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RESEARCH OBJECTIVES

The following are the research objectives of the paper :

1. To understand the pre trial procedure of arrest and the rights of the arrested persons.
2. To describe the process of how arrests are made.
3. To throw light upon what powers have been given to persons making arrests to facilitate
their work.
4. To know about what restraints are put on the exercise of these powers for safeguarding
public interest.
5. To get to know about the rights that are given to the arrested person for facilitating his
defence.
6. To learn about the legal consequences of the non compliance of the rules of the aforesaid
matter.

RESEARCH QUESTIONS

The following are the research questions :

1. How is the arrest made by the police officers magistrates and other person and what
are the additional powers given to them for effecting the arrest ?
2. What is the procedure followed after a person is arrested by the police officers or any
other person ?
3. What are the rights given to the arrested persons with a special reference to a case
law?

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 REASEARCH METHODOLOGY

The methodology of this thesis can be described as ‘doctrinal‘. Terry Hutchinson and
Nigel Duncan have described doctrinal research as ‘research into the law and legal
concepts. In that context, this thesis presents research into the law of Arrest under CrPC,
combining a description of primary resources and interpretative comments to identify
principles by which to understand its exercise. As such, this thesis researches the law by
analysing legal decisions and legal instruments, such as statutes, international
conventions, and judicial decision-making in order both to identify legal practice and
legal principles, and to draw normative conclusions on the regulation of the said topic.

LITERATURE REVIEW

The Criminal procedure code, 1973 with state amendments and short notes, 29 th edition
has been referred. It covers the supreme court case laws on all criminal matters and is a
universally acknowledged law report.

I also referred R.V Kelkars criminal procedure book which is the sixth edition.

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 ANALYSIS

1. How is the arrest made by the police officers magistrates and other person and what
are the additional powers given to them for effecting the arrest ?

The circumstances under which police officers and other persons are authorised to
make arrest without warrant are mentioned in sections 41 to 44.
According to section 41 any person maybe arrested without a warrant and an order
from the magistrate when :
1.
a) Theres a reasonable suspicion or information received or if a person is involved in
a cognizable offence.
b) When a person is involved in house breaking.
c) If the person has been proclaimed an offender under this code or by the state
government.
d) If a stolen property is found in possession of such a person and who may be
reasonably suspected of stealing it.
e) If a person obstructs a police officer during his duty or escapes from lawful
custody.
f) If a person is reasonably suspected of being a deserter from any of the Armed
Forces of the Union.
g) If a person commits crime outside India which would be a punishable offence in
India.
h) If a person is a released convict, commits a breach of any rule made under sub-
section (5) of section 356.
i) A person for whose arrest any requisition either oral or written is received from
other police officer.
2. Any officer in charge of a police station may arrest or cause to be arrested any person,
belonging to one or more of the categories of persons specified in section 109 or
section 110.

According to section 42 the police have the power to arrest a person if he refuses to give
correct name and residential address. Police can arrest him to identify the actual place of
residence. If it is a non cognizable offence, he may get bail by completing necessary
formalities or with the help of sureties.

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 According to section 43 a private person can arrest a person in the following cases :

1. When any person who in his presence commits a non-bailable and cognizable offence
and the arrested person to be taken to the nearest police station or handed over to a
police officer.
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 a person commits a non cognizable offence and refuses to give his name or address
of residence or gives false address.

According to section 44 a magistrate can arrest a person when :

1. Any offence is committed in the presence of a Magistrate under his jurisdiction
2. May arrest any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.

Arrest being a restraint of liberty of a person it can be effected by actually contracting or

touching the body of such person or by his submission to the custody of the person making
the arrest. An oral declaration of arrest without actual contact or submission to custody will
not . amount to an arrest1. The submission to custody may be by express words or may be
indicated by conduct2.

If a person makes a statement to a police officer, accusing himself of committing an offence,

he would be considered to have submitted to the custody of the police officer.3

In case there is an attempt to evade arrest or forciable resistance the person whon is
responsible for making the arrest may use all necessary means for the same. Whether the
means used for the arrest were necessary or not would depend upon whether a reasonable
person having no intention to cause any serious injury to the other would have used to effect
his arrest. On the other hand section 46(3) states that though persons making arrest can use
necessary means for the purpose, they do not have the right to cause the death of the person
being arrested who is not accused of life imprisonment or death.

1
Harmohanlal v. emperor, (1929) 30 Cri LJ 128, Aludomal v. emperor, (1916) 17 Cri LJ 87 (Sind JCC).
2
Paramhamsa v. state, AIR 1964 Ori 1444, State of U.P. v. Deheradun Upadhyaya, 1960 Cri LJ 1504 : AIR 1960
SC 1125, 1131.
3
Bharosa v. emperor, (1941) 42 Cri LJ 390: AIR 1941 Nag 86, 90

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Section 49 provides that the person arrested shall not be subjected to more restraint than is
necessary to prevent his escape.

The following are the additional powers provided for effecting the arrest :
1. Search of a place - According to section 47 an occupier of a house in under legal duty
to afford to the police all the facilities to search the house for the purpose of making
arrests. If such facilities are denied to the police officer then the police officer can use
force to get entry in the said house for search and also for the purpose of liberating
himself in case he is detained in the house.

2. Pursuit of offenders – section 48 states that “a police officer may, for the purpose of
arresting without warrant any person whom he is authorised to arrest, pursue such
person into any place in India.” A police officers power to arrest is ordinarily limited
to the police district4. This power has been supplemented by this section.
In case the arrest is made with a warrant according to section 77 “a warrant of arrest
may be executed at any place in India.” Sections 78 to 81will be used when the
warrant of arrest has to made the local jurisdiction of the court.

3. Deputing subordinate to arrest – if a subordinate police officer or any other person in

the presence of the senior police officer is required to make the arrest of a person who
can be arrested without a warrant then they are required to do so. Section 55 provies
that if a senior officer wants to send and depute a subordinate to make an arrest
without a warrant then he can give the order in writing to the subordinate specifying
the name of the person to be arrested and the cause.

4. Power on escape, to pursue and retake –Section 60(1) provides that if a person in
lawful custody escapes or is rescued then the person from whose custody he escaped
can immediately arrest him from any place in India. Section 46 and 49 provide the
powers to arrest. Therefore is a police officer is rearresting the thief he has no right to
shoot the thief.5 Even if a person making the rearrest is not a police officer the same
provisions would apply according to section 60(2).

4
Section 22 Police act 1861
5
Dakhi singh v. state, 1955 Cri LJ 905: AIR 1955 All 379

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2.What is the procedure followed after a person is arrested by the police officers or any other
person ?

1. Search of arrested person.- section 51 states that:

(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.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by
another female with strict regard to decency.
The power to search under this section is available only if the arrested person is not released
on bail. Other than the necessary clothes worn by the person every article is to be seized and
a receipt showing that the articles are taken into possession is to be shown by the police so as
to account for the seized articles.
Simply because there was some irregularity in making the search that in itself will not make
the search evidence inadmissible.6 Example- the failure of police to take out a recovery memo
was not considered as an irregularity vitiating the trial.7

2. Seizure of offensive weapons – under section 52 :

The officer or other person making any arrest under this Code may taken 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.

3. Medical examination of accused after arrest – To facilitate effective investigation provision

has been made authorising an examination of the arrested person by a medical practitioner if
from the nature of the alleged offence or the situation under which it was alledged to have
been committed there is a reasonable ground for believing that an examination of a person
will afford evidence. Section 53 empowers police officers to compel the accused person in
custody to submit to medical examination.
A question might arise as to whether this provision is violative of the constitutional privilege
against self incrimination. The law commission after referring to the decision of the Supreme
court in the case of State of Bombay v. Kathi Kalu Oghad has given the view that the
6
Kamlabai jethamal v. state of maharastra, (1962) 2 Cri LJ 273; AIR 1972 SC 1189
7
Mahadeo v. state, 1990 Cri LJ 858 (All)

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decision has the effect of confining the privilege under articl 20(3) to only written or oral
testimony. Relying by the decision of supreme court in the said case it was held that section
53 is not violative of article 20(3) and that a person cannot be said to have been compelled to
be a witness against himself if he is merely required to undergo a medical examination in
accordance with the provisions of section 538.
The medical examination here may take various forms. The expression “examination of tZA
qhe person” as used in section 53 cannot be restrictively confined to the examination of the
skin or what else is visible on the body itself. The examination of some organs inside the
body for the purpose of collecting evidence may become necessary and such an examination
cannot be held beyond the scope of this section. Examination by a medical practitioner may
logically take in examination by testing his blood, sputum, semen, urine etc. 9It may include
X ray examination or taking electrocardiograph depending upon the nature of the case.
The section permits the use of force as reasonably necessary for the purpose of medical
examination of the arrested person. Sometimes the medical examination may cause pain and
hurt to the examinee. When samples of blood or semen are taken it may be painful or cause
discomfort to some people but if this process is reasonable under the section then causing
discomfort is justified.
A person who is released on a bail can still be an examinee to medical examination because
he is still in the custody of the court10.
A newly inserted section 53A empowers investigating agency to compel medical
practitioners to help it to get the person accused of rape examined promptly.

4. report of arrest to be sent to district magistrate – section 58 provides that theobject of the
report is to keep the district magistrate informed of the situation regarding grave offences11.
Th administration of police in a district is under the general control and direction of the
district magistrate12. Therefore the report under this section would enable him to see whether
the police are exercising their powers properly or not.

5. person arrested not to be discharged except on bond or bail – once a person is arrested by
the police he can be enlarged only by taking a boud or bail for his appearance before the
magistrate, the police cannot discharge him on their own responsibility before the order of the
magistrate. The special order of a magistrate under this section is a special order of a
magistrate under sec 167 which prescribes procedure when investigation according to the
police cannot be completed within 24 hours.

3. What are the rights given to the arrested persons with a special reference to a case law?

8
Anil a lokhande v. state of maharastra, 1981 Crj LJ 125,130(BOM)
9
Neeraj sharma v. state of UP 1993 Cri LJ 1680
10
Anil A. lokhande v state of maharastra, 1981 Cri LJ 125, 130
11
37th report, 206
12
Sec 4, police act, 1861

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 Everyone has to be treated as a human, 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 following are the rights :

1. Right To Silence

The ‘right to silence’ has been taken from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct only
because he has not answered 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
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.

2. Right To Know The Grounds of Arrest

As per Section 50(1) of Cr.P.C., every person arrested by a police officer, without a
warrant, is entitled to know the full particulars of an offence for which he is arrested, and
that the police officer is bound by his duty to tell the accused the required information.

As per Section 55 of Cr.P.C., when any person is arrested by any police officer, who is
deputed by a senior police officer, then such subordinate officer before making the arrest
will notify the person to be arrested the substance of the written order given by the senior
police officer specifying the offence for which the arrest is going to be made. If this
provision is not followed then the arrest would be considered illegal.

If the person is being arrested with 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 necessary. If the substance of
the warrant is not notified, the arrest would be unlawful.

The Constitution of India also gives 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.”

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 3. Information Regarding The Right To Be Released On Bail

Any person who is 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. 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

Arrest with or without warrant, the person who is making such arrest has to bring the
arrested person before a judicial officer without any further delay. Also, 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 56 and 76.

Section 56 of Cr.P.C. states that “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”.

Section 76 of Cr.P.C. states that “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.

Section 76 explains 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 cross out the possibility of
police officials from extracting confessions or compelling a person to give information.

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

5. Rights at Trial

Right To A Fair Trial

Article 14 guarantees the right to equality before the law. Crpc also states that for a trial
to be fair, it must be an open court trial. This provision is designed to ensure that

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 convictions are not obtained in secret. In some exceptional cases the trial may be held in
camera.

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 has made it mandatory that the investigation in the
trial must be conducted “as expeditiously as possible.”

Cases where 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.

8. Rights Of Free Legal Aid

The Supreme Court within the case of in Khatri(II) v. The State of Bihar has held that the
country is beneath a constitutional duty to offer free legal useful resource to accused man
or woman as is implicit in Article 21 of the Constitution . This right does not come into
picture simplest at the time of trial however exists on the time whilst the accused is
produced the first time earlier than the Justice of the Peace, as also when remanded from
time to time. The Supreme Court similarly states that failure on the a part of the police to
inform the accused of this proper will vitiate the entire system of trial. Therefore, a duty is
imposed on all magistrates and courts to tell the indigent accused of his right. The apex
court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, in
which it's been laid down that this constitutional right can't be denied if the accused didn't
practice for it. It is apparent that unless refused, failure to offer free prison aid to an

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 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:- “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.”

An important case law in this regard is as follows :

D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to eradicate
the possibility of the committing torture by the police officials, there were frequent
instances of police atrocities and custodial deaths. Therefore, the Supreme Court, in this
case, issued some guidelines which were required to be mandatorily followed in all cases
of arrest or detention. Following are some of the important ones-

1. the person who is going to arrest should have proper identification means with him.

2. The police officer who is arresting the arrestee must make a memo of arrest, and it
should be attested by at least one person who may either be a family member of the
arrestee or any other respectable person in the locality. The memo must contain the date
and time of arrest and must also be countersigned by the arrestee.

3. If the person who has signed the memo of arrest is not a family member, relative or
friend of the arrestee, then the arrestee is entitled to have one friend or relative being
informed about his arrest at the earliest.

4. The person arrested must be made aware of this 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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 5. 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 and the information about the police officials in
whose custody the arrestee is.

6. The police officer should, on the request of arrestee, record at the time of his arrest
major and minor injuries, if any, present on arrestee’s body, after subjecting the arrestee
to an examination. The “Inspection Memo” must be signed both by the arrestee and the
police official making such arrest, and one copy of that memo must be provided to the
arrestee.

7. Copies of all the documents including the memo of arrest should be sent to the
Magistrate for his record.

8. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

9. there should be a police headquater in every district and state and everyone who is
arrested should be taken within 12 hoursof arrest.

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CONCLUSION
It is said that despite of the safeguards provided the powers are misused by the police officers
and that they use their positon to extract money and threaten the prisoners. There have been
reports of custodial violence too.
The Mallimath committee has stated that the accused has the right to know their rights and
enforce them. There have also been criticisms that the police fail to inform the persons
arrested of the charge against them and hence, let the arrested persons flounder in custody, in
complete ignorance of their alleged crimes.
There is imminent need to bring in changes in Criminal Justice Administration so that state
should recognize that its primary duty is not to punish, but to socialize and reform the
wrongdoer and above all it should be clearly understood that socialization is not identical
with punishment, for its comprises prevention, education, care and rehabilitation within the
framework of social defence
It is the duty of the police to protect the rights of society. It must be remembered that this
society includes all people, including the arrested. Thus, it is still the police’s duty to protect
the rights of the arrested person. Hence, in light of the discussed provisions, a police officer
must make sure that handcuffs are not used unnecessarily, that the accused is not harassed
needlessly, that the arrested person is made aware of the grounds of his arrest, informed
whether he is entitled to bail and of course, produced before a Magistrate within twenty-four
hours of his arrest.

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BIBLIOGRAPHY
The following sites were referred for this paper :
Legalservicesindia.com
blogpleaders.in
latestlaw.com
I referred to the bare act of criminal procedure code and the textbook by R.V Kelkars.

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