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What do you understand by Arrest? How is an arrest made? When can the
police arrest a person without an order from a magistrate and/or
without a warrant? Explain the rights of an arrested person. [Right to
know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to consult
and to be defended by legal practitioner of his choice - Art 22(1), Sec
303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2),
Right to be produced before nearest magistrate within 24 hrs - Art
22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs -
Art 22(2) Sec 57, 167, Right to be examined by medical practitioner]
Arrest means apprehension of a
person by legal authority so as to cause deprivation of his liberty.
Thus, after arrest, a person's liberty is in control of the arrester.
Arrest is an important tool for bringing an accused before the court as
well as to prevent a crime or prevent a person suspected of doing crime
from running away from the law. Cr P C contemplates two types of
arrests - an arrest that is made for the execution of a warrant issued
by a magistrate and an arrest that is made without any warrant but in
accordance with some legal provision that permits arrest.
Section 41 to 44 contain provisions that govern the arrest of a person by police and private citizens, while Section 46 describes how an arrest is a made.
(Note - Arrest in case of Warrant is discussed in another question.)
Arrest without warrant
There are situations when a person may be arrested by a police
officer, a magistrate or even private citizen without a warrant. These
are described in Section 41, 42, 43, and 44 as follows -
Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a) who has been concerned in any
cognizable offence, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or
(2) Any officer in charge of a police station may, in like manner,
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.
(b) who has in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty,
or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India, would
have been punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition
specifies the person to be arrested and the offence or other cause for
which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued
In the case of Joginder Kumar vs State of UP, CrLJ, 1994,
it was held that no arrest can be made merely because it is lawful to
do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997,
it was held that the "reasonable suspicion" and "creditable information"
must relate to definite averments which must be considered by the
Police Officer himself before he arrests the person.
Section 42 allows a police
officer to arrest a person for a non-cognizable offence, if he refuses to
give his name and residence. As per Section 42(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
However, as per sub clause (2), the person must be released when the
true name and residence of such person have been ascertained. He may be
required to execute a bond, with or without sureties, to appear before
a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
Further, as per sub clause (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.
Arrest by Private person
Even private persons are empowered to arrest a person for protection of
peace in certain situations. This is important because police cannot be
present at every nook and corner and it is up to private citizens to
protect the society from disruptive elements or criminals. As per section 43(1), any
private person may arrest or cause to be arrested any person who in his
presence commits a non-bailable and cognizable offence, or any
proclaimed offender, and, without unnecessary delay, shall make over or
cause to be made over any person so arrested to a police officer, or,
in the absence of a police officer, take such person or cause him to be
taken in custody to the nearest police station. Thus, if a person is drunk and is committing assault on others, he may
be rightly arrested by any citizen and taken to the nearest police
However, it is important to note that this power can be exercised only
when the person making an arrest is under a bona fide impression that a
non-bailable and cognizable office is being committed in his presence.
One does not have a right to arrest on mere suspicion or on mere
opinion that an offence has been committed.
Procedure on arrest by private person -
As mentioned above, the private person must take the arrested person to
the police officer or police station without any reasonable delay. If
he keeps the person in his own custody, he will be guilty of wrongful
confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person
comes under the provisions of section 41, a police officer shall
re-arrest him. Further, as per section 43(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.
A new provision has been incorporated as Section 50A, which makes it
obligatory for the police officer or any other person making an arrest
to give the information regarding such arrest and place where
the arrested person is being held to any of his friends, relatives or
such other persons as may be disclosed or nominated by the arrested
person for the purpose of giving such information. Further, the
police officer shall inform the arrested person of his rights under
subsection as soon as he is brought to the police station. He must
make an entry of the fact as to who has been informed of the arrest of
such person in a book to be kept in the police station in such form as
may be prescribed in this behalf by the State Government. It is the
duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of this section has been complied
with in respect of such arrested person.
Arrest by Magistrate
As per Section 44(1), when any
offence is committed in the presence of a Magistrate, whether Executive
or Judicial, within his local jurisdiction, he may himself arrest or
order any person to arrest the offender, and may thereupon, subject to
the provisions herein contained as to bail, commit the offender to
custody. Further, (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.
Important thing to note here is that magistrates have wider power than
private citizen. A magistrate can arrest on the ground of any offence
and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24 hours, otherwise his detention will be illegal.
Arrest how made -
Section 46 describes the way in which an arrest is actually made. As per Section 46(1),
unless the person being arrested consents to the submission to custody
by words or actions, the arrester shall actually touch or confine the
body of the person to be arrested. Since arrest is a restraint on
the liberty of the person, it is necessary for the person being
arrested to either submit to custody or the arrester must touch and
confine his body. Mere oral declaration of arrest by the arrester without
getting submission to custody or physical touching to confine the body will not amount to arrest.
The submission to custody may be by express words or by action. For
example, as held in the case of Bharosa Ramdayal vs Emperor AIR 1941,
if a person makes a statement to the police accusing himself of
committing an offence, he would be considered to have submitted to the
custody of the police officer. Similarly, if the accused proceeds
towards the police station as directed by the police officer, he has
submitted to the custody. In such cases, physical contact is not
required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992,
it was held that arrest need not be by handcuffing the person, and it
can also be complete by spoken words if the person submits to custody.
Section 46(2) If such person
forcibly resists the endeavor to arrest him, or attempts to evade the
arrest, such police officer or other person may use all means necessary
to effect the arrest. Thus, if the person tries to runaway, the police
officer can take actions to prevent his escape and in doing so, he can
use physical force to immobilize the accused. However, as per Section 46(3),
there is no right to cause the death of the person who is not accused
of an offence punishable with death or with imprisonment for life,
while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4)
that forbids the arrest of women after sunset and before sunrise,
except in exceptional circumstances, in which case the arrest can be
done by a woman police officer after making a written report and
obtaining a prior permission from the concerned Judicial Magistrate of
In Kultej Singh vs Circle Inspector of Police, 1992,
it was held that keeping a person in the police station or confining
the movement of the person in the precincts of the police station
amounts to arrest of the person.
Rights of an Arrested person (GBMLLIM)
Cr P C gives wide powers to the police for arresting a person.
Such powers without appropriate safeguards for the arrested person will
be harmful for the society. To ensure that this power is not used
arbitrarily, several restraints have been put on it, which, indirectly,
can be seen as recognition of the rights of a person being
arrested. Further, once arrested, a person is already at a
disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of "fair
trial", several provisions are given in CrPC, that give specific
rights to an arrested person. These rights can be described as
1. Right to know the grounds of arrest - Section 50(1)
- According this provision, every police officer or other person
arresting any person without warrant shall forthwith communicate to him
full particulars of the offence for which he is arrested or other
grounds for such arrest.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55,
the subordinate officer must notify the person to be arrested of the
substance of the written order given by the senior officer, which
clearly specifes the offence for which he is being arrested. The same
provision exists in case of an arrest made under a warrant in Section 75.
In this case, the police officer or any person making arrest under
warrat must notify the substance of the warrant to the person being
arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be unlawful.
In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC
held that right to be notified of grounds of arrest is a precious right
of the arrested person. This allows him to move the proper court for
bail, make a writ petition for habeas corpus, or make appropriate
arrangements for his defence.
This right is also a fundamental right given by the Constitution in Art 22(1),
which says, "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.". It embodies two distinc
rights - the right to be told of the grounds of arrest and the right to
consult a legal practioner of his choice. The second right of
consulting a legal practitioner of his choice actually depends on the
first right of being told about the grounds of arrest. If the person
doesn't know why he is being arrested, he cannot consult a legal
practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962,
SC held that the grounds of arrest must be communicated to the person
in the language that he understands otherwise it would not amount to
sufficient compliance of the constitutional requirement.
2. Right to be informed of the provision for bail - Section 50(2) -
Some offences that are not very serious do not require the offender to
be kept in custody. For such offences, Cr P C allows the offender to
ask for bail as a matter of right. However, not every person knows
about Cr P C and so they cannot know that they can get bail
immediately. Thus, Section 50(2),
provides that where a police officer arrests any person other than a
person accused of a non-bailable offence without warrant, he shall
inform the person arrested that he is entitled to be released on bail
and that he may arrange for sureties on his behalf.
3. Right to be taken to magistrate without delay
- Holding a person in custody without first proving that the person is
guilty is a violation of human rights and is completely unfair. At the
same time, holding a person in custody is necessary for the police to
carry on their investigation of a crime. These two are contradictory
requirements and a balance must be found between them. Since police has
arrested the person, it cannot be the agency that determines whether
person must be kept confined further. This can only be decided by a
competent judicial authority. This is exactly what is embodied in Art 22(2) that
gives a fundamental right to the arrested person that he must be
produced before a magistrate within 24 hours of arrest. It says, "Every
person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of
arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a
Section 57 of CrPC also
contains a similar provision for a person arrested without a warrant.
It says, "No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances of
the case is reasonable, and such period shall not, in the absence of a
special order of a Magistrate under Section 167, exceed twenty four
hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate's court."
Section 76 contains a similar
provision for a person arrested under a warrant. It says, "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. Provided that such delay shall not, in
any case, exceed twenty-four hours exclusive of the time necessary for
the journey from the place of arrest to the Magistrate's court."
Thus, it can be see that it is a very important right that is meant to
prevent abuse of police power and to prevent the use of a police
station as a prison. It prevents arrest merely for the purpose of
extracting confessions. The arrested person gets to be heard by a
judicial authority that is independent of the police.
In Khatri (II) vs State of Bihar 1981 SCC, SC
has strongly urged upon the State and its police to ensure that this
constitutional and legal requirement of bringing an arrested person
before a judicial magistrate within 24 hours be scrupulously met. This
is a healthy provision that allows magistrates to keep a check on the
police investigation. It is necessary that the magistrates should try
to enforce this requirement and when they find it disobeyed, they
should come heavily upon the police.
Further, in Sharifbai vs Abdul Razak, AIR 1961,
SC held that if a police officer fails to produce an arrested person
before a magistrate within 24 hours, he shall be held guilty of
Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC
observed that it applies only to cases of arrests without warrant
because in case of an arrest with warrant, the judicial mind has
already been applied while issuing the warrant. So further safeguard is
not required. This decision has been widely criticized. In any case,
the proviso to Section 76 unmistakably provides that a person arrested
under a warrant must be produced before a magistrate within 24 hours.
4. Right to consult Legal Practitioner - Art 22 (1)
- For conducting a fair trial it is absolutely necessary that the
accused person is able to consult with a legal practitioner whom he
trusts. Second part of Article 22(1) gives this fundamental right to an
arrested person. It says that no person who is arrested shall be denied
the right to consult, and to be defended by, a legal practitioner of
his choice. However, this does not mean that the State must provide a
legal practitioner of the person's choice. It is up to the arrested
person to contact and appoint a such a legal practitioner. The State's
responsibility is only to ensure that he is not prevented from doing so.
The same right is also provide by CrPC under Section 303,
which says, "Any person accused of offence before a Criminal Court or
against whom proceedings are instituted under this Code, may of right
be defended by a pleader of his choice."
5. Right to free legal aid - Art 21 and Section 304 -
A person who does not have the means to hire a legal practitioner is
unable to defend himself appropriately. This casts a cloud on the
fairness of the trial. Therefore, Section 304 provides
that where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where appears to the Court that the
accused has not sufficient means to engage a pleader, the Court shall
assign a pleader for his defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21,
which gives fundamental right to life and liberty. The state is under
constitutional mandate to provide free legal aid to an indigent accused
person and this constitutional obligation arises not only when the
trial is commenced but also when the person is first produced before a
magistrate and also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC,
SC has held that non-compliance of this requirement or failure to
inform the accused of this right would vitiate the trial entailing
setting aside of the conviction and sentence. The right of an accused
person to consult his lawyer begins from the moment of his arrest. The
consultation with the lawyer may be within the presence of a police
officer but not within the police officer's hearing. SC also held that
it is the duty on all courts and magistrates to inform the indegent
person about his right to get free legal aid.
6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs State of UP 1994,
formulated the rules that make it mandatory on the police officer to
inform one friend, relative, or any other person of the accused
person's choice, about his arrest. These rules were later incorporated
in CrPC under section 50 A in 2005.
Section 50 A (1) provides that
once the arrested person is brought to the police station, the police
officer must inform a relative or a friend, or any other person of the
arrested person's choice, about his arrest. He must also tell the place
where the arrested person has been kept. This is a very important
step in ensuring justice with the arrested person because this allows
the arrested person and his well wishers to take appropriate legal steps
to secure his release. However, all this will amount to nothing if the
arrested person does not even know about this very critical right.
Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. Further, as per Section 50 A (3) he
must note down the name and address of the person who was informed
about the arrest. To make sure that there is no violation of this
right, section 50 A (4) makes it a duty of the magistrate to
verify that the provisions of this section were complied with.
7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the accused examined by a registered medical practitioner, Section 54(1) gives
the accused a right to get himself examined by a registered medical
practitioner. Section 54 (1) says thus, "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 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". While Section 53 is meant to aid the police in
investigation, Section 54(1) is meant for the accused to prove his
innocence. This right can also be used by the accused to prove that he
was subjected to physical injury.
In Sheela Barse vs State of Maharashtra 1983 SCC,
SC held that the arrested accused person must be informed by the
magistrate about his right to be medically examined in terms of Section
However, it is not clear in the section whether the
medical person must be of the choice of the accused or shall be
appointed by the magistrate. The section is also silent on who will
bear the expense of the examination.
Non compliance to this
important provision prompted Delhi High court to issue directions that
make it obligatory for the magistrates to ask the arrested person as to
whether he has any complaint of torture or maltreatment in police
Consequences of non-compliance with the provisions relating to arrest -
In general, non-compliance does not void a trial. Just because
any provision relating to arrest was not complied with does not affect
whether the accused is guilty or not. However, the violation will be
material in case the accused is prosecuted on the charge of resistance
to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful
arrest and a person can exercise this right under Section 96 to 106 of
IPC and he will not be liable for any injury caused due to it. Also, a
person who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full
knowledge that the arrest is illegal, he will be liable to be
prosecuted under Section 220 of IPC. Similarly, any private person who
does not have an authority to arrest, arrests a person with full
knowledge that the arrest is illegal, can be prosecuted under Section
342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.
It is important to note that the provisions regarding arrest cannot be
by-passed by alleging that there was no arrest but only an informal
detention. Informal detention or restraint of any kind by the police is
not authorized by law.