THE CODE OF CRIMINAL PROCEDURE,1973

LLB 301

UNIT- II

Ms. Anugya Rani

Assistant Professor
DME Law School
a.rani@dme.ac.in
 Topic 2.1
Arrest and Rights of Arrested Person

Synopsis:
1. Meaning of arrest
2. Purpose of arrest
3. Difference between arrest and custody
4. Types of arrest
5. Provisions related to arrest
6. Arrest how made?
7. Rights of arrested person
8. Landmark judgment: D.K.Basu v. State of West
Bengal, 1997
9. Conclusion
2
 Meaning of ‘arrest’
• The word ‘arrest’ is derived from the French word ‘aratter’
which means ‘to stop or stay’.
• Arrest is a restrain of man's person, obliging him to be
obedient to law.
• According to Black’s dictionary, ‘arrest’ means to keep a
person in lawful custody.
• A warrant, crime or statute can authorise this.
• The word ‘arrest’ has not been defined in the code of criminal
procedure or in any other law.
• However, in its ordinary and natural sense ‘arrest’ means the
apprehension or restrain or the deprivation of one’s personal
liberty. 3
 Meaning of ‘arrest’

• The question whether the person is under arrest or not,

depends not on the legality of arrest, but on whether he has
been deprived of his personal liberty to go where he pleases.
• Directorate of Enforcement v. Deepak Mahajan and
another 1994 SC: In legal sense, in the procedure
connected with the criminal offence an ‘arrest’ consist in the
taking into custody of another person under authority
empowered by law for the purpose of holding on the training
him to answer a criminal charge or for preventing the
commission of a criminal offence.
• Chapter V (Section 41 to 60) of Cr.P.C., 1973 talks about
Arrest of a person. 4
 Purpose of ‘arrest’

• An arrest serves the function of notifying the community

that an individual has been accused of a crime; and
• may also admonish and deter the arrested in individual from
committing other crimes.
• Arrest can be made on both criminal charges
and civil charges.

5
 Difference between ‘arrest’ and ‘custody’

• The two words custody and arrest are not synonymous.

• In every arrest there is custody but not vice versa.
• Custody may amount to arrest in certain circumstances but
not under all circumstances. when an accused appears
before a magistrate or surrender's voluntary, the magistrate
me take him into custody.
• Thus, arrest of a person is a condition precedent for taking
him into judicial custody. The, taking of the person into
judicial custody is followed after arrest of the
person concerned.

6
 Types of arrest

• Arrest made in pursuance with a warrant issued by the

magistrate. [Section 41(2)]
• Arrest made without any warrant but within the
established legal provisions. [Section 41(1)]
• Arrest by Private person [Section 43]
• Arrest by Magistrate [ Section 44]

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 Provisions related to arrest under Cr.P.C.

When police officer may arrest without warrant?

• Section 41(1): Any police officer- may without an order
from a magistrate and without a warrant arrest any person
who has committed a cognizable offence, who is in
possession of stolen property, or is a state offender, who
obstructs a police officer in discharge of his duty, who
attempts to escape from lawful custody, who is declared as
a deserted from any of the Armed Forces of the Union, who
is a released convict and breaches his contract of release
etc.

8
 Provisions related to arrest under Cr.P.C.

When police officer may arrest without warrant?

• Section 41(1) states that the following conditions must be
satisfied:
(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

9
 Provisions related to arrest under Cr.P.C.

When police officer may arrest without warrant?

• Section 41(1) states that the following conditions must be
satisfied:
(c) 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.
*( Refer Bare Act, Section 41)
10
 Provisions related to arrest under Cr.P.C.

When police officer shall arrest with warrant or order of

Magistrate?
• Section 41(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.
• An arrest warrant authorizes the arrest or detention of the
person or capture or seizure of an individual’s property.

*( Refer Bare Act, Section 41(2))

11
 Provisions related to arrest under Cr.P.C.

• Section 41A – gives direction to the police officer to issue a

notice of appearance to the person if he feels the person is not
required to be arrested.
• Section 41B – enjoins that while making an arrest the police
officer shall: –
a) bear an accurate, visible, and clear identification of name
which will facilitate the identification.
b) prepare a memo of arrest which shall be:
1.Attested by one family member or member of the society.
2.counter signed by the accused.
(This evidently is in terms of Articles 20 and 21 which
insulates a person from arbitrary arrest.)
12
 Provisions related to arrest under Cr.P.C.

c) inform the person arrested that he has a right to have a

relative or a friend named by him to be informed of his arrest.
• Section 41C: Control room at districts.—(1) The State
Government shall establish a police control room—
(a) in every district; and
(b) at State level.
• Section 41D: Right of arrested person to meet an advocate of
his choice during interrogation-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

13
 Provisions related to arrest under Cr.P.C.

Section 42. Arrest on refusal to give name and residence.—

(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.
14
 Provisions related to arrest under Cr.P.C.

(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.

15
 Provisions related to arrest under Cr.P.C.

Section 43. Arrest by private person and procedure on such

arrest.—(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.

16
 Provisions related to arrest under Cr.P.C.

Section 43. Arrest by private person and procedure on such

arrest
(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.

17
 Provisions related to arrest under Cr.P.C.

Section 44. Arrest by Magistrate.—(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.

18
 Provisions related to arrest under Cr.P.C.

Section 45. Protection of members of the Armed Forces

from arrest.—(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. 19
 Arrest how made ?

Section 46. Arrest how made

(1) 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 woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to
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 woman for making her arrest.

20
 Arrest how made ?
Section 46. Arrest how made
(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 woman shall be
arrested after sunset and before sunrise, and where such
exceptional circumstances exist, the woman 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.
(Christian Community Welfare Council v. State of
Maharashtra, 2003) 21
 Arrest how made ?

Section 47. Search of a place entered by person sought to be

arrested:
• It provides that the person having the warrant has the duty to
enter the premises of the person being arrested. If the person is
not able to easily ingress the premises or is not allowed to enter,
then they have the authority to break open the door. It is done to
take the person by surprise.
• But if there is any female occupying the premises then the
person arrested has to give notice to that female to withdraw
and shall afford every reasonable facility for withdrawing and
they may break the apartment.
• Any police officer or person making the arrest is authorised to
break open the door in order to liberate himself if he is detained
in that process. 22
 Rights of an Arrested Person

• The Indian legal system depends on the concept of “innocent

till proven guilty.”
• Any person has to be treated as a human being, 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 basic assumption behind these rights is to protect those
individuals from misuse of the powers by the government.
• The arrest of a person can violate Article 21 of the
Constitution, which states, “no person shall need his right to
life and personal liberty except a procedure established by
law.”
• The procedure must be fair, transparent, and not casually or
repressive. 23
 Rights of an Arrested Person
1. The Right to be Informed about the grounds of arrest:

• As per Section 50(1) of Cr.P.C., every person who is being

arrested by any police officer, without any warrant, is entitled to
know the full particulars of offence for which he is being
arrested, and that the police officer is duty bound to tell the
accused such particulars and cannot deny it.
• As per Section 55 of Cr.P.C., when any person is being arrested
by any police officer, who is deputed by a senior police officer,
then such subordinate officer shall before making such arrest,
notify the person to be arrested the substance of the written order
given by the senior police officer specifying the offence or other
cause for which the arrest is to be made. If this provision is not
complied with, then the arrest would be rendered illegal.
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 Rights of an Arrested Person

1. The Right to be Informed about the grounds of arrest:

• If the person is being arrested under 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 needed. If the substance
of the warrant is not notified, the arrest would be unlawful.

• The Constitution of India also confers 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.” (Cf. Section
41D). 25
 Rights of an Arrested Person

1. The Right to be Informed about the grounds of arrest:

• D.K. Basu v. State of West Bengal (1997) highlighted the

importance of this right and established guidelines under
Section 50(1) of CrPC, emphasising the right to be informed
about the grounds of arrest. The case also outlined
procedures to be followed during arrest, ensuring the
protection of individual rights.

26
 Rights of an Arrested Person

2. The Right to Legal Representation:

• 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 41D 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. 27
 Rights of an Arrested Person

2. The Right to Legal Representation:

• This right is essential for safeguarding the interests of the

accused, allowing them to present their case effectively in court.

• The Supreme court upheld the right of consulting a legal

practitioner by an accused as a Constitutional right under
Articles 21 and 22(1) of the Constitution of India.

• The mandatory procedural requirement, reiterated by

the Supreme Court in the 1997 case of DK Basu v. Union of
India, entails that the person arrested has to not only be
informed of the grounds of such arrest, but should also be asked
by the Magistrate as to whether he/she requires to consult and be
defended by his choice of lawyer. 28
 Rights of an Arrested Person

3. The Right to Remain Silent:

• The right to remain silent is based on the principle that no

person can be compelled to be a witness against themselves,
as per Article 20(3) of the Indian Constitution.

• This right allows the accused to avoid self-incrimination and

ensures that they are not forced to provide evidence that
could be used against them during the legal proceedings.

• Nandini Satpathy Vs. P.L. Dani (1978), a significant case in

Indian jurisprudence, clarified that no person accused of an
offence shall be compelled to be a witness against
themselves, reiterating the importance of the right to remain
silent. 29
 Rights of an Arrested Person

4. Information Regarding the Right to Be Released on Bail:

• As per Section 50(2), any person who is to be 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.

• Arnesh Kumar v. State of Bihar (2014): This case underlined

the need to protect personal liberty and stated that arrest
should not be made in a mechanical manner without proper
justification, reinforcing the right to bail.

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 Rights of an Arrested Person

5. Right to Be Taken Before a Magistrate Without Delay:

• Irrespective of the fact, that whether the arrest was made with
or without a warrant, the person who is making such arrest has
to bring the arrested person before a judicial officer without
any unnecessary delay. Further, 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, 57 and 76.

31
 Rights of an Arrested Person
5. Right to Be Taken Before a Magistrate Without Delay:
• Section 56 of Cr.P.C. states that 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”.
( R/W Section 57)
• Section 76 of Cr.P.C. states that 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”.

32
 Rights of an Arrested Person

5. Right to Be Taken Before a Magistrate Without Delay:

• Further, it has been mentioned in the proviso of Section 76 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 eliminate 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. 33
 Rights of an Arrested Person

6. Rights at Trial:
6.1) Right to A Fair Trial: The Constitution under Article 14
guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it
must be an open court trial. This provision is designed to ensure
that convictions are not obtained in secret. In some exceptional
cases the trial may be held in camera.
6.2) 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 v.
State of Bihar (1980) has made it mandatory that the
investigation in the trial must be conducted “as expeditiously as
possible.” 34
 Rights of an Arrested Person

In cases, wherein 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.

35
 Rights of an Arrested Person

7. Right to Free Legal Aid:

• The Supreme Court in the case of in Khatri (II) v. the State of
Bihar has held that the state is under a constitutional
obligation (implicit in Article 21) to provide free legal aid to
an indigent accused person.
• This right does not come into picture only at the time of trial
but exists at the time when the accused is produced the first
time before the magistrate, as also when remanded from time
to time.
• The Supreme Court further states that failure on the part of the
state to inform the accused of this right will vitiate the whole
process of trial.
36
 Rights of an Arrested Person

• Therefore, a duty is imposed on all magistrates and courts to

inform the indigent accused of his right to get free legal aid.
• The apex court has gone a step further in Suk Das v. Union
Territory of Arunachal Pradesh, wherein it has been laid
down that this constitutional right cannot be denied if the
accused failed to apply for it. It is clear that unless refused,
failure to provide free legal aid to an indigent accused would
vitiate the trial entailing setting aside of the conviction and
sentence.

37
 Rights of an Arrested Person

8. Right to Be Examined by A Medical Practitioner:

• Section 54 of Cr.P.C. enumerates that 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. 38
 Rights of an Arrested Person

8. Right to Be Examined by A Medical Practitioner:

• Sheela Barse v. State of Maharashtra (1986) emphasised the
necessity of medical examination of female prisoners and
detainees to prevent abuse, reinforcing the importance of
medical examination to prevent custodial abuse.

39
 Landmark Judgment:
D.K. Basu v. State of West Bengal, 1997
The Supreme Court, in this case, issued some guidelines which were
required to be mandatorily followed in all cases of arrest or detention:
• The person who is going to arrest any accused should bear accurate,
visible, and clear identification along with their name tags with their
designation. ( Refer Section 41B (a))
• The police officer who is arresting the arrestee must prepare 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. ( Section 41B(b)) The memo must contain the date and time of
arrest and must also be countersigned by the arrestee. 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 as soon as possible.
• 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. ( Refer Section 41B(C))
40
• 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 particulars of the police officials in whose custody the arrestee
is. ( Refer Section 50A)
• 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. (Section 54)
• 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. Copies of all the
documents including the memo of arrest, referred to above, should be sent to illaqa (area)
Magistrate for his record.
• The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation. (Section 41D)
• The court also ordered that in every district and state headquarters, a police control room
should be established, wherein every arrest which is being made must be reported by the
police officer making such arrest within 12 hours of such arrest, and it should be displayed
on a conspicuous notice board. (Section 41C)
• The Court also emphasized failure to fulfil the given requirements would render the
concerned officer liable for contempt of court along with departmental actions, and such
proceedings can be initiated in any High Court having the territorial jurisdiction over the
matter. 41
 Conclusion

• These rights, outlined within specific sections of the

Criminal Procedure Code and supported by constitutional
provisions, collectively safeguard the interests and dignity of
arrested persons in India, ensuring that they are treated justly
and fairly within the legal system.
• Under the Constitution, the arrested person’s rights are to
grant the accused person some fundamental rights for safety
and living. Ultimately, we all are citizens of Indian society,
and our protection is the responsibility of the police
authorities, no matter if a person is held against the bar.

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