Legal Internship Program 2023

Project Report on:- Arrest: An exhaustive

note

Student’s Name:- Divya Pandey

Enrollment No.:- 20FLICDDN02016
Batch Name & Year:- BALLB(Hons.) & 4th Year
Project Title:- Arrest: An exhaustive note

Submitted By Submitted To
Divya Pandey Dr. Suneel Kumar Sir
20FLICDDN02016 Assistant Professor
BALLB(Hons) 4th Year ICFAI LAW SCHOOL

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 INDEX

Page No.
1. Introduction 3

2. Significance of the topic 3

3. Types of Arrest 3-5

4. Procedure of Arrest 5-7

5. Additional Power for affecting arrest 7-8

6. Post arrest procedures 8-11

7. Report of arrests to be sent to district 12

magistrate and the procedure
8. Rights of an arrested person 12-16

9. Consequences of non- compliance with the 16

provisions relating to arrest
10.Conclusion 17
11.Bibliography 18

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INTRODUCTION

Arrest is an act of taking a person into custody because he may be suspected of a crime or of
a crime. This is done because a person is caught doing something wrong. Once a person is
arrested, other actions such as interrogations and investigations are carried out. It is part of
the criminal justice system. After arrest, the relevant authority physically restrains the person.
If we look at the meaning of the word 'arrest' in the dictionary, it means to catch or imprison,
stop or disable. From all the meanings it can be concluded that arrest means stopping the
activity of a person. A person can be arrested by the police or a judge. But can a person arrest
another person? If so, when can he be arrested and for what reason? Does the detainee have
fundamental rights? How does he work? All these basic arrest questions have been answered
in this project.

SIGNIFICANCE OF THE TOPIC

Arrest is one of the most important subjects in the criminal justice system. Why is it
important to study this topic? This is because the arrest is used as a tool against the person
accused of the offences. It tries to avoid injustice in society. It is used to instil fear in people
that if something is done wrong, movement will be restricted to four walls with very basic
amenities. A person values his freedom the most, and arrest takes that freedom away from a
person. The great political philosopher Bolingbroke once said: "Freedom is to the collective
body what health is to each individual. Without health, man cannot taste pleasure; without
freedom, society cannot enjoy happiness." For these reasons, it is important that we give this
subject our full attention. In any case it is part of our daily life.

TYPES OF ARREST
The term Arrest has been defined neither in the CrPC (The Code of Criminal
Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided
even in any enactments dealing with Criminal Offences. The only indication of what does an
arrest constitute can be made out of Section 46 of CrPC which deals with ‘How an arrest is
made’.

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If broadly characterized Arrest is of two types:-

1. Arrest made in pursuance with a warrant issued by the magistrate.

2. Arrest made without any warrant but within the established legal provisions.

Another type of arrest is private arrest, where another person arrests the person. But this is
allowed only if the person commits a non-bailable crime in the presence of another, or has
been caught committing a crime against the person or his property, and if he has not been
given the correct residential address or is unknown. But before arresting a person, there
should be sufficient suspicion and reasonable cause to arrest that person.

ARREST BY WARRANT
If a person commits a crime that cannot be arrested, an arrest warrant must be issued. The
police cannot make such an arrest without a warrant. The order is issued by a judge or a judge
on behalf of the state. A seizure order gives the right to arrest or detain a person or to seize or
confiscate a person's property. Section 41(1) CrPC 1973 explains when a person can be
arrested without any warrant. Section 41(2) of CrPC 1973 provides that under the provisions
of Section 42, a person cannot be arrested without the permission and order of a Magistrate in
case of non-cognizable offense and complaint. The procedure that must be followed when
arresting a person is specified in § 46 of the Code. However, this code of conduct is not quite
sufficient to present all the procedures, but here the instructions given in different cases are
followed.

ARREST WITHOUT WARRANT

A arrest without warrant means that the police have the right to arrest a person without a
warrant. This can only happen in cases where the person is suspected of an arrestable crime.
Section 41 (1) contains a number of grounds on the basis of which an arrest can be made
without a warrant. This is usually done in relation to a cognizable offence, following a
documented complaint or receipt of reliable information. In the United States, an arrest
without a warrant still requires probable cause, which must be reported immediately.

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ARREST ON REFUSAL TO GIVE NAME AND RESIDENCE
Section 42 of CrPC states the course of action in case of arrest on refusal to give name and
residence.

Section 42(1) of the Act says that if a person who has committed a non-cognizable crime
refuses to reveal his name or address or gives a false name and address at the request of an
official, the official can arrest him to find out. his real identity. name or place of residence.

According to Section 42(2) of the Act, a detainee can be released after his real name or
residence is ascertained, but only after he has given bond with or without bond, and he can
appear before a judge if necessary. . But if the person is not resident in India, the bond must
be secured by security or securities situated in India.

As per Section 42(3) of the Act states that if the correct name or address of the person cannot
be found within 24 hours, or if he does not provide a bond or the required bond, he must be
brought before a competent judge.

PROCEDURE OF ARREST BY A PRIVATE PERSON

The procedure of arrest by a private person is expressly provided in Section 43 of the

Criminal Procedural Code.

According to Section 43 (1) of the Act, a private person can arrest another person who has
committed an offence for which he is not responsible, or who has been recognized as a
criminal, and take him to the police without loss of time. in the absence of the police, the
accused must be prosecuted. was taken to the nearest police station.

Section 43(2) of the Act states that if the arrest of a person falls within the scope of Section
41, the police must re-arrest him.

Section 43(3) of the Act states that if there is sufficient reason to believe that he has
committed a bailable offense and refuses to disclose his real name or address to the police, he
shall be dealt with in accordance with section 42. shall be released unless there is sufficient
reason to believe that he committed an offence.

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ARREST BY MAGISTRATE

Magistrate here includes both administrative and judicial magistrate . Under section 44 (1) of
the Penal Code, he has the power to arrest the person concerned himself or order someone to
be arrested if the offense is committed in the presence of a magistrate in his local jurisdiction.
to detain the accused under bail conditions.

Section 44 (2) of the Act provides, in addition to subsection 1, that a magistrate may arrest or
in his presence refer a person under local jurisdiction whom he is competent to arrest at the
time and under the circumstances.

AN EXCEPTION OF THE ARMED FORCES

The members of the Armed Forces are protected from arrest as provided in Section 45 of
CrPC.

Section 45(1) of the Act provides that no member of the armed forces shall be arrested for
anything done in the course of official duties except with the consent of the Central
Government. It is subject to the conditions specified in sections 41 to 44 of the Code.

Section 45(2) of the Act provides that the State Government may, by notification, direct that
subsection (1) shall apply to any class or class of armed forces charged with the maintenance
of public order. after they serve. In other words, the State Government, like the Central
Government, has the right to exercise the power mentioned in sub-section (1).

PROCEDURE OF ARREST

Section 46 explains how arrest is made.

It is the only place that gives meaning to detention. Section 46(1) states that during an arrest,
the police or the detainee must actually touch or close the body of the detainee. In the case of
a woman, it is assumed that a verbal arrest warrant has been issued against her, and if the
officer is not a woman, the officer may not touch her during the incident. But in exceptional
circumstances it can be done otherwise than mentioned.

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According to Section 46 (2), the police can use reasonable means of force to arrest if the
arrested person violently resists or tries to avoid arrest. A good example can be seen in the
recent Hyderabad rape case (2019). A police officer exercising powers under that provision
used some force to prevent the escape of the accused. The court will examine whether the
amount of force used was reasonable or not.

Section 46 (3) of the Act does not confer the right to cause the death of a person who is not
charged with a crime. In such cases, the punishment is death or life imprisonment.

Section 46(4) of the Act states that, except under certain conditions, a woman cannot be
arrested after sunset and before sunrise, and in such exceptional circumstances, a female
police officer can obtain prior permission from a magistrate by written notification of local
jurisdiction to arrest.

ADDITIONAL POWERS FOR EFFECTING ARREST

SEARCH OF PLACE

Section 47 of the Criminal Procedure Code provides for the search of a place entered by the
place to be searched. It also provides that the person who receives the arrest warrant must
enter the premises of the person to be arrested.

If the person cannot easily enter the premises or is not allowed to enter, he has the right to
break down the door. This is done to surprise the person.

However, if a woman lives in the premises, the detainee must notify the woman of the
withdrawal and give her all reasonable opportunities to withdraw so that she can breach the
accommodation. Any police officer or arrester has the right to break down a door to free
himself if he is arrested in the process.

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PURSUIT OF OFFENDERS

Pursuit is following someone or something. In this case, it's basically criminals. Section 48
gives the police the power to pursue offenders anywhere in India who have the right to do so
without a warrant.

DEPUTING SUBORDINATE TO ARREST

If a police officer in charge of a police station or a police officer conducting an investigation

under Chapter XII requests the arrest of a subordinate without a warrant, the person lawfully
arrested must give written reasons for the arrest. Before the arrest, the subordinate must
inform the arrested person about the content of the order and, if necessary, present the order
to him. This is mentioned in Section 55 of CrPC.

POWER , ON ESCAPE, TO PURSUE AND RETAKE

Section 60 of CrPC says that I f there is a person who is in the lawful custody of the police
tries to escape or is rescued, may be immediately pursued and arrested in any place in India.

POST ARREST PROCEDURES

First of all, according to Section 50 (1) of the Criminal Code, the police or the person
arrested without a warrant must inform the arrested person of the reasons for committing the
crime in order to arrest him.

Second, if the arrest is made with a warrant, the police must inform the detainee of the
content of the arrest and, if necessary, issue a warrant in accordance with Section 75 of the
Criminal Code. Failure to do so will render the arrest illegal. The Constitution of India also
supports this and has emphasized it in Article 22 (1) which is a fundamental right. It provides
certain rights that the accused has at the time of arrest (fundamental in nature). It provides
that no detainee shall be detained without being informed of the reason for the detention and
consult a lawyer of his choice. In the case of Madhu Limaye, the petitioner was not informed
of the reasons for the arrest of him and his companions. He challenged this in the Supreme
Court under Article 32 as a violation of his fundamental right. The Supreme Court declared
that the applicant's important and essential right was violated.

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Third, if a police officer makes an arrest without a warrant, it is their duty to appear before a
judge without unreasonable delay (usually within 24 hours). It is also mentioned that the
arrested cannot be taken anywhere except the police station until he has appeared before the
judge. This is governed by sections 22, 56 and 76 of the Criminal Code.

In addition, the police must always have a clear, visible and relevant identification of his
name, which can facilitate his identification. Immediately after the arrest, a memorandum
must be drawn up, witnessed by at least one witness and signed by the detainee.

According to Section 41 D and Section 303 of the Criminal Code, the detainee also has the
right to consult a lawyer of his choice during interrogation. Apart from these, many other
rights and procedures are mentioned in the second part of the article.

SEARCH OF AN ARRESTED PERSON

Section 51(1) provides that the person arrested can be searched for articles on the body and
the receipt of all those articles is to be provided to that person.

Section 51(1) says that in case of a search of female, it will happen only by a female
maintaining some amount of decency.

SEIZURE OF OFFENSIVE WEAPONS

The officer or the person arresting has the power to seize any offensive weapon which he
possesses and deposit all weapons to the court or the officer before whom the person making
the arrest is required by the Code to produce the person arrested as stated in Section 52.

MEDICAL EXAMINATION OF ACCUSED

Section 52(1) of the Act states that if a person who has been taken into custody for such a
crime, there is reason to believe that evidence of the crime will be obtained during the
inspection.

It is lawful for a registered medical practitioner not below the rank of sub-inspector to
conduct a search using reasonable force at the request of the police. But this power cannot be
too great.

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Section 52(2) of the Act states that if an examination is performed on a woman, it can only be
performed by a woman or under the supervision of a female doctor.

Section 53A deals with the method of medical examination of a person accused of rape.
According to Article 20 of the Constitution, the accused cannot be forced to testify against
himself. This provision applies to this section.

State of Bombay V. Kathi Kalu Oghad

In the case of State of Bombay vs. Kathi kalu Oghad, the Supreme Court provided certain
guidelines in respect of Testimonial Compulsion or Right to self-incrimination.

1. The mere fact that a statement was made in police custody cannot be proposed by
the accused that the statement made at such time will be of compelling him to be a
witness against himself.

2. The mere answer to a question asked by a police officer which is voluntarily given
would not amount to ‘compulsion’.

3. The meaning of the “terms to be a witness” and “furnishing evidence” is different

if seen from a broader view. As it includes not only merely giving an oral evidence
but also the production of documents or giving material at a trial to prove the
innocence or guilt of the person accused.

4. The term “to be a witness” does not include the thumb impression or impression of
foot.

5. “To be a witness” means imparting knowledge of relevant facts in oral or written

in a court.

6. The court has gone beyond the strict literal interpretation of the expression “to be a
witness” which now bears a broader meaning.

7. To bring the statement in question with the prohibition of Article 20(3), the person
must be in the character of the accused person at the time he made the statement. 1

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State of Bombay V. Kathi Kalu Oghad
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IDENTIFICATION OF AN ARRSETED PERSON

According to Section 54 A of the Act, if a person has been taken into custody accused of
committing a crime and the identification of another person is considered necessary, the
competent investigative court can compel the arrested person to testify. before any person or
persons the court deems necessary. If the person identifying the arrestee is mentally or
physically disabled, the identification process will take place before a judge who will ensure
that he or she identifies him or her using whatever means he or she deems appropriate. And
this detection must be recorded in video form.

PROCEDURE WHEN DELEGATED PERSON ARREST

WITHOUT WARRANT
If a delegated person arrests a defendant without a warrant, the person lawfully arrested must
provide the officer with a written reason for the arrest. The official must inform the detainee
about the contents of the arrest and, if necessary, show the detainee the work order.

REPORT OF ARRESTS TO BE SENT TO DISTRICT

MAGISTRATE AND THE PROCEDURE

Section 58 provides that the Superintendents of Police Stations must report to the District
Magistrate or, if he directs a Subordinate Magistrate, the cases of all persons arrested without
warrant in their local jurisdiction, and whether they have been admitted on bail or otherwise.

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RIGHTS OF AN ARRESTED PERSON

The Constitution of India provides a number of fundamental rights to the accused during
detention. It is part of the Magna Carta (Part III) of the Constitution. This makes it very
important in nature. Since these rights are not exercised, they can be contested by written
petition under Articles 32 and 226 of the Constitution. This means that these rights cannot be
violated in any way because they are fundamental. In addition to the Constitution, it is also
mentioned in the Criminal Procedure Act 1973. Such rights as the right to information, the
right to appear before a judge within 24 hours, the right to hear the counsel of the chosen
person are given in article 22 and CrPC .

RIGHT TO BE INFORMED OF THE GROUNDS OF ARREST

Section 50(1) CrPC also mentions that every police officer or any other person arrested
without a warrant has the duty to inform all the particulars of the offence to the accused
forthwith (immediately). The time duration between which it is essential to inform the
accused should be reasonable. If the police officer or the person arresting skips this right then
the accused can move to the court under Article 32. The petitioner would be entitled to a writ
of Habeas Corpus which can result in their release.

The rules originating from the decisions such as Joginder Singh v. State of U.P. and D.K.
Basu v. State of West Bengal have been enacted in Section 50-A making it obligatory on the
part of the police officer not only to inform the friend or relative of the arrested person about
his arrest etc. but also to make an entry in a register maintained by the police in the police
station. The magistrate who is observing such arrest is also under an obligation to satisfy
himself about the compliance of the police of all the procedures in this regard.2

RIGHT TO BE RELEASED ON BAIL

Section 50(2) of the Penal Code states that "when the police arrest without a warrant for an
offence, except for a non-bailable offence, they are required to inform the arrested person that
he has the right to bail. They may arrange for guarantees on his behalf ." This will definitely

2
Joginder Singh v. State of U.P. and D.K. Basu v. State of West Bengal
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help people who may not know their rights to get bail for bail offences. As a result, this
provision can to some extent improve people's relationship with the police and reduce
dissatisfaction with the police.

RIGHT TO BE PRODUCED BEFORE A MAGISTRATE

Section 56 and 57 of CrPC also provides that if the person arrested is not presented before
the Magistrate within the reasonable time and without a just reason, the arrest will be
unlawful.

PROTECTION AGAINST ARREST AND DETENTION

Article 22 sets out several rights that the accused has in relation to arrest and detention.
Article 22(1) of the Act talks about the duty to inform the accused about the reasons for arrest
and to consult a lawyer of his choice. According to section 22 (2) of the law, the police must
bring the arrested person before the judge within 24 hours, and after that they cannot be taken
into custody. According to Article 22(4) of the Act, no one can be detained for more than
three months, except according to a proposal of the advisory council. The arrested person
must be informed of the reason for the arrest as soon as possible and given the opportunity to
appeal the order as soon as possible.

State of Punjab v. Ajaib Singh

This case defines Arrest as “Arrest is a physical restraint which is put on a person as a result
of accusations of the crime or offence he has committed”.

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The order of detention was not in accordance with the Defence of India Act,1962 and Rules
and must be set aside, as he was not then the District Magistrate, but only an Additional
District Magistrate.3

RIGHT TO CONSULT A LEGAL PRACTITIONER

Article 22(1) and Section 41(D) of CrPC gives the accused the right to be consulted and
defended by a legal practitioner of choice. He is entitled to meet an advocate of his choice
during interrogation, though not throughout the interrogation.

RIGHT TO FREE LEGAL AID

Free legal aid means providing free legal services to the people who are economically not
strong to conduct a case or any legal proceedings in a court of law or before any judicial
tribunal and judicial authority. Article 39A (Directive Principles of State Policy) provides
that it is the duty of the state to provide justice on easily accessible terms so that every citizen
can easily approach the courts to enforce their rights. It ensures to provide justice based on
equal opportunity through free legal aid or legislation favouring people who cannot access
justice because of economic conditions or any other difficulty. For this, institutions like Legal
Service Authorities are established at National, state and district levels.

Hussainara Khatoon v. State of Bihar

In the case of Hussainara Khatoon vs. State of Bihar, a Public Interest Litigation(PIL) was
filed in the name of Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court
held that if an accused is not able to afford the legal services he has the right to free legal aid
at the cost of the state. It is one of the duties of the state to provide a legal system which
promotes justice on the basis of equal opportunity for all citizens who are denied access to

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State of Punjab v. Ajaib Singh

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justice because of economic conditions or other disabilities. Therefore they must arrange for
free legal services for the individuals.4

RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER

Section 54 (1) of the CrPC gives the accused the right to have the doctor examine the whole
body if that examination provides evidence that can disprove the commission of a crime or a
crime against him or prove the commission of a crime committed by another. a person human
the time he is brought before a magistrate, or at any time during his arrest. This may be done
with the permission of the Magistrate, but if he thinks that it is only done for delay, he has the
power to set it aside.

Joginder Kumar Vs. State of UP

A petition was filed under Article 32. The Supreme Court said that the right of the accused to
be informed of the reasons for his crime, to be informed of his arrest and to consult a lawyer
is defined in Article 21 and 22. of the Constitution. also stated that the police cannot arrest
simply because he has the right to do so. Clear reasons must be given for each arrest. Because
there is some damage to a person's reputation when they are put behind bars. Therefore, any
arrest should be made after reasonable satisfaction and inquiry into the truth and good faith of
the complaint. In addition to them, some guidelines were also given which had to be strictly

4
Hussainara Khatoonv. State of Bihar
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followed during detention. This jurisprudence is also taken into account when looking for
rules other than those mentioned in the CrPC.5

CONSEQUENCES OF NON-COMPLIANCE WITH THE

PROVISIONS RELATING TO ARREST

Failure to comply with the provisions of the CrPC and other statutes does not render the
litigation process null and void. This does not affect the defendant's liability. But it is an
important fact whether the accused resisted or escaped from lawful custody. But a person has
the right to defend himself in case of illegal arrest or detention. He can exercise his rights
under sections 96-106 of the IPC. the person responsible for the illegal detention who may be
found guilty of illegal detention and may claim civil damages.

CONCLUSION

Every citizen of the country has rights. Even a person accused of a crime has various rights,
some of which are fundamental in nature. If the accused does not comply with these orders,
he can go to court, where a legal remedy is available. On the other hand, the police authorities
are obliged to follow the procedures defined in Chapter V of the Code of Criminal Procedure
(CrPC).

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Joginder kumar v. State of UP

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BIBLIOGRAPHY

 http://www.legalserviceindia.com/article/l470-Private-Defence.html

 https://indiankanoon.org/doc/441720/

 https://indiankanoon.org/doc/1373215/

 https://indiankanoon.org/doc/1670784/

 http://www.aapkaconsultant.com/blog/guidelines-for-arrest/

 https://indiankanoon.org/doc/501198/

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 CrPC Book by RV Kelkar

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