Introduction

The code has not defined the term arrest. The term arrest means apprehension of a person by legal
authority so as to cause deprivation of liberty.
As per Legal Dictionary by Farlex, Arrest means a seizure or forcible restraint; an exercise of the
power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal
authority, especially, in response to a criminal charge. Chapter V of the CrPC titled Arrest of Persons
deals with the arrest of persons and their rights. The provisions for the same are contained in sections
41 to 60-A of the CrPC.

Definition
In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as the act of being taken into
custody to be formally charged with a crime. The court observed that in a Constitutional sense, it
means the seizure of a person (body of a person).
In State of Punjab v. Ajaib Singh, the court observed that arrest is the physical restraint put upon an
abducted person in the process of recovering and taking that person into legal custody with or without
any allegation or accusation of any actual or suspected commission of the offence

Elements
The elements necessary to constitute arrest were summarized by the Madras High Court in Roshan
Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to institute arrest are:
There must be an intent to arrest under legal authority,
There must be seizure or detention of the person,
The person must be in the lawful custody of the arresting person and
The act of arrest must include the actual confining of the person and not mere oral declaration of
arrest.

Arrest is broadly classified into two categories:

i) Arrests under warrants issued by a Court;

ii) Arrests otherwise than such warrants.

Arrest without warrant

The police officers have been authorized to arrest any person without the warrant ordered by the court
under Sections 41, 42, 151 of CrPC.
Section 41 of CrPC provides for the instances where a police officer is authorized to arrest an
individual without a warrant from the magistrate.
Thus, when the individual is:
 1. Involved in any cognizable offense such as murder, rape, kidnapping, theft, etc. or

2. In possession, without, lawful excuse, of any housebreaking weapon or

3. Proclaimed as an offender either under CrPC or by order of the State Govt. or

4. In possession of any stolen property or

5. Obstructing a police officer while in the execution of his duty or who has escaped, or attempts
to escape, from lawful custody

6. Reasonably suspected of being a deserter from any of the Armed forces of the Union

7. Concerned with any law relating to extradition

8. Involved in breach of any rule made under sub-section (5) of Section 356 CrPC

9. The one whose arrest's requisition has been received from another police officer specifying
the person to be arrested and the offense and other cause for which the arrest is to be made.

Section 42 specifies yet another situation where a police officer can arrest a person. According to this
section, if a person commits an offense in the presence of a police officer or where he has been
accused of committing a non-cognizable offense and refuses, on demand being made by a police
officer to give his name and residence or gives false name or residence, such person may be arrested
but such arrest shall be only for the limited purpose of ascertaining his name and residence.

After such ascertaining, he shall be released on executing a bond with or without sureties, to appear
before a magistrate if so required. In case the name and residence of such person cannot be
ascertained within 24 hours from the date of arrest or if such person fails to execute a bond as
required, he shall be forwarded to the nearest magistrate having jurisdiction.

Also, Section 151 of The CrPC, 1973 provides for the arrest of a person who is suspected to commit
any cognizable offense by the police officer without a warrant from the magistrate, if the police
officer finds no other way of preventing the execution of such offense. A person arrested under this
section can be detained for more than 24 hours from the time of arrest unless such extended detention
is required under provisions of CrPC.

Arrest Made by Magistrate

Section 44 of CrPC provides for the provision of an arrest made by a magistrate. The sub-section 1 of
this section provides that when an offense is committed in the presence of the magistrate within his
jurisdiction, he may himself arrest or order someone to arrest the offender and may commit the
offender to custody. Under sub-section 2 the magistrate can arrest or order for the arrest of a person
for whose arrest he is competent to issue a warrant.
Further, Section 107 of CrPC provides the power to the Executive Magistrate who has received
information for arresting a person who is likely to commit a breach of the peace or disturb public
tranquility in any way, to show cause why he should not be ordered to execute a bond with or without
sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

Arrest by Private Persons

Section 43 of CrPC provides the procedure for arrests made by private individuals. This section gives
the right to a private person to arrest the individual, who in his/her presence, commits a cognizable or
a non-bailable offense or who is a 'proclaimed offender' The private person can arrest such an offender
to hand over his custody to the nearest police station and if the police officer finds such person
coming under the provisions of section 41, the police officer has to re-arrest the offender.

Provision for Members of Central Armed Forces

Section 45 of CrPC exempts the members of the Armed forces from being arrested for anything done
by them in the discharge of their official duties except after obtaining the consent of the government.
Sub-section 1 of this section provides that sections 41 to 44 of CrPC would not be applicable on
members of armed forces of the union and they cannot be arrested for anything done by them during
the discharge of their official duty, but they can be arrested after taking consent of the central
government. If a member of Armed Forces of the union has been conferred with a responsibility to
maintain public order in a specific state or region, then the state government of the state where the
members are deployed may make the provisions of section 45(1) applicable, just like the Central
Government does, for such members of Armed forces.

Special Provision Regarding Arrest of Females

Women have been given some special privileges which have to be necessarily followed while carrying
out their arrest. The general rule is that Females are not be arrested without the presence of a lady
constable and further no female is arrested after sun-set. But there is an exception in those cases
where crime is very heinous and arrest is important as in these cases arrest can be made upon special
orders based on the facts of such cases. Separate lock-ups are to be provided to women.
Additionally, section 53 sub-section 2 of CrPC provides that only registered female medical
practitioners have to be appointed for medically examining female accused.
D.K. Basu's Case and Rights of Arrested Person
In 1996, a landmark judgment was passed in the D.K. Basu v. State of West Bengal case, provided
for certain guidelines which were to be necessarily followed in all cases of arrest and detention. This
case additionally discussed certain rights which have been provided to the arrested or detained person.
This was done so as to eliminate the incidences of police atrocities and cases of custodial deaths.
Some of the important points which were held by the court while deciding upon this case have been
listed below:

Right to be informed:
As Per Section 50 of the Criminal Procedure Code and Article 22 of the Indian Constitution which
provides certain rights to detained persons, the right to be informed about the grounds for arrest is a
basic right. It is the police officer's responsibility to notify and tell the arrested person whether the
offense is bailable or not.

Essentials of a warrant:
In non-cognizable offenses, an arrest is made with a warrant, and the arrested person has the right to
read the warrant under Section 75 of the CrPC. A warrant of arrest must satisfy specific conditions,
including being in writing, signed by the presiding officer, and bearing the seal of the court, as well as
the accused's name and address and the offense for which the arrest is made. If any of these are
absent, the warrant is invalid and illegal.

Memo of Arrest:
The police officer must wear a distinct and legible identification allowing for simple recognition. At
the moment of arrest, a memo of arrest must be written, which must be certified by at least one
witness, who might be a family member or a member of the local area where the arrest is made and
countersigned by the detained individual.

Right to Remain Silent:

Article 20(3) of Constitution of India guarantees every person the right against self-incrimination, and
it has been stated under this article that no person, who has been accused of an offence, shall be
compelled to act as a witness against himself. This same rule has been reiterated by a decision of
Supreme Court in the case of Nandini Sathpathy v. P.L.Dani and it was held by the court in this case
that no one can forcible extract any statement from the accused and no matter what, the accused has
the sole right of being silent during the course of investigation and interrogation.
Right to be not Detained more than 24 Hours:
To avoid illegal arrests, arrested persons have the right not to be kept for more than 24 hours without being
produced before a magistrate. It is a basic right conferred by Article 22 of the Indian Constitution and backed by
Sections 57 and 76 of the CrPC.

Rights regarding detention

If the arrested person is not produced before a magistrate within 24 hours of the arrest, by the police officer then
he shall be held guilty of wrongful detention.

According to Gunupati Keshavram v. Nafisul Hasan this right has been created with a view-

1. that the arrestee is not compelled to give confessions, or as a means of compelling people to give
information;
2. So, the police stations don’t act like prisons for which they are unsuitable.

Rights at trial

Fair trial is necessary to protect the accused individual’s basic rights from unlawful and arbitrary deprivation
and it is also based on the principle of natural justice as held in the case of Rattiaram v. Territory of Madhya
Pradesh

Rights to free legal aid

In India, this facility is provided to all poor accused in spite of the severity of the crime they have committed. In
the case of Hussainara Khatoon v. State of Bihar (1979) is one such case that talks about fundamental rights
that are essential for every prisoner, i.e., the right to a speedy trial and the right to free legal aid.

Right to choose an advocate:

The Supreme Court upheld the right of consulting a legal practitioner by an accused as a
Constitutional right under Article 21 and 22(1) of the Constitution as held in the case of Janardhan
Reddy v State of Hyderabad. Under section 41D and section 303 CrPC, the arrested person has been
given a right to meet an advocate of his choice during the course of interrogation.

Right to be Medically Examined:

Under Section 53 and 54 of CrPC, an Arrested person has been given the right to be medically
examined by a medical officer when he is produced before a magistrate or at any time while in
custody, with a view to establishing that the offense with which he is charged was not committed by
him or that he was subjected to physical torture.

Conclusion
Various provisions have been laid down under CrPC and Indian Constitution in order to ensure
smooth functioning and to prevent any sort of bewilderment while carrying out the arrest of any
individual. Responsively, various rights have been granted to the arrested persons so as to ensure that
they are not subjected to any sort of exploitation by the arresting authority. Thus, the law has
emphasized both the arrested and the arrest.