Conceptual Contours of Arrest
Conceptual Contours of Arrest
PROCEDURE, 1973
PROJECT REPORT
ON
UILS 138/16
PU
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CONTENTS
CONCEPTUAL CONTOURS OF ARREST.......................................................3
1) JUDICIAL PRONOUNCEMENT ON ARREST.......................................4
ARREST WITHOUT WARRANT BY POLICE.................................................5
2) 41. WHEN POLICE MAY ARREST WITHOUT WARRANT-...............5
CONSTITUTIONAL AND STATUTORY RIGHTS OF ARRESTED PERSON
..............................................................................................................................9
3) Right to Silence...........................................................................................9
4) Right to Know The Grounds of Arrest......................................................10
5) Information Regarding the Right To Be Released On Bail......................11
6)......................................................................................................................11
7) Right To Be Taken Before A Magistrate Without Delay..........................11
8) Rights at Trial............................................................................................13
9) Right To Consult A Legal Practitioner.....................................................13
10) Rights Of Free Legal Aid.......................................................................13
11) Right To Be Examined By A Medical Practitioner...............................14
BIBLIOGRAPHY...............................................................................................16
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TABLE OF CASES
D.K. Basu v. State of W.B................................................................15
Jogindar Kumar v. State of Uttar Pradesh......................................4
Khatri (II) v. State of Bihar.............................................................12
Satish Chandra Rai v. Jodu Nandan Singh...................................10
Sharifbai v. Abdul Razak.................................................................12
Sheela Barse v. State of Maharashtra.............................................15
State of Punjab v. Ajiab Singh........................................................12
Suk Das v. Union Territory of Arunachal Pradesh.......................14
Tis Hazari Court v. State of Gujarat................................................8
Udaybhan Shuki v. State of UP......................................................10
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CONCEPTUAL CONTOURS OF ARREST
Thus, Arrest in criminal jurisprudence signifies the detention of a person under the authority
of law in connection with an alleged or expected violation of the law.
Arrests can be made in both criminal and civil cases, although in civil matters, arrest is a
drastic measure which is not looked upon with favor by the courts.3
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC), chapter V
(Section 41 to 60) talk about Arrest of a person but it does not define arrest anywhere.4
Magistrates have powers of arrest in certain circumstances and even private persons have the
power to arrest in extraordinary circumstances. However, the power to arrest has to be
exercised with intelligent discretion and caution.5
Arrest is undoubtedly a serious interference with fundamental right of Personal liberty of the
citizen, which includes an arrestee or an accused, guaranteed under Articles 21 and 22 of the
Constitution of India and it has to be strictly in accordance with the law.6
Though the police has power to arrest a person, this power is not unfettered or unlimited. The
Supreme Court in Jogindar Kumar v. State of Uttar Pradesh7 has held that “except in
heinous offences, an arrest must be avoided… no arrest can be made merely because it is
lawful for the police officer to do so…. It would be prudent for police officer in the interest
1
http://hanumant.com/CrPC-Unit2-Arrest.html
2
https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320
3
https://lawschoolnotes.wordpress.com/2017/08/18/provisions-relating-to-arrest-under-crpc/#_ftn2
4
Ibid.
5
Ibid.
6
Ibid.
7
AIR 1994 SC 1349
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of protection of the Constitutional rights of a citizen and perhaps in his own interest that no
arrest should be made without a reasonable satisfaction reached after some investigation as to
genuineness and bonafide of a complaint and a reasonable belief as to the person’s complicity
and even so, as to the need to effect arrest.”8
The exigencies of the circumstances may require a person to be arrested without warrant if
such person is reasonably suspected to have committed a serious (cognizable) offence even in
case of less serious crime (non-cognizable offence) immediate arrest without warrant may
become necessary to ascertain the name and address of the offender perpetrating the crime. It
may also be necessary as a preventive measure to make arrests without warrant for the
forestalling of impending crimes, and for enabling police to discharge their duties effectively.
Arrest without warrant can be made by police officers or even by private citizens in
emergencies. Wide powers have been conferred on the police for making arrests without
warrant under circumstances mentioned in sections 41 and 42.
Any police officer may without an order from a Magistrate and without a warrant, arrest any
person—
(b) against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less than seven years or which may
extend to seven years whether with or without fine, if the following conditions are satisfied,
namely:-
(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
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(b) for proper investigation of the offence; or
(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, and the police officer shall record while making such arrest, his reasons in writing.
**[Provided that a police officer shall, in all cases where the arrest of a person is
not required under the provisions of this sub-section, record the reasons in writing for
not making the arrest]
( b a ) a g a i n s t w h om c r e d i b l e i n f o r m a t i o n h a s b e e n r e c e i v e d t h a t h e h a s
c o m m i t t e d a cognizable offence punishable with imprisonment for a term which may
extend to more t h a n s e v e n y e a r s w h e t h e r w i t h o r w i t h o u t f i n e or w i t h d e a t h
s e n t e n c e a n d t h e p o l i c e o f f i c e r h a s r e as o n t o b e l i e v e o n t h e b a s i s o f t h a t
i n f o r m a t i o n t h a t s u c h p er s o n h a s committed the said offence;” ’
*[sub-clauses (a) and (b) substituted by Code of Criminal Procedure Amendment act, 2008]
**[Proviso to sub-clause (b) inserted by Code of Criminal Procedure Amendment Act, 2010]
(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
9
Section 41. Code of Criminal Procedure,1973
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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.
(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.10
Wide powers have been conferred on the police for making arrests without warrant under
circumstances mentioned in Sections 41 and 42.
Clauses (a), (d) and (g) of Section 41(1) clearly shows that the police have very wide powers
of making arrest without warrant in respect of cognizable offences. However, these powers
are not without limitations.11 The requirement of reasonability and creditability would
hopefully prevent the misuse of such powers. What is reasonable complaint or suspicion or
what is credible information must depend upon the facts and circumstances in each case.12 It
may be noted that malicious and excessive exercise of powers of arrest under these sections
would be punishable under Section 220 IPC.
The word ‘may arrest’ shows that the power of arrest is discretionary. A police officer is not
always bound to arrest for a cognizable offence. The power of arrest given under Section 41
given to the police officer is not absolute and is not to be exercised in arbitrary manner13, but
judiciously, subject to the limitations specified under the provisions of Cr.P.C.
No arrest is to be made because it is lawful for the Police officer to do so. The police officer
must be able to justify the arrest apart from his power to do so. Arrest is not a must in every
case, there must be sufficient reasons for exercising such powers by the police officers.
A Magistrate, Judge or any other judicial Officer is, liable to criminal prosecution for an
offence like any other citizen but in view of paramount necessity of preserving the
10
Section 42. Code of Criminal Procedure, 1973
11
Joginder Kumar v. State of U.P., (1994) 4 SCC 260.
12
Kajal Dey v. State of Assam, 1989 Cri LJ 1209 (Gau).
13
State of Rajsthan v. Bhera. 1997 CrL J 1237 (Raj-DB).
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independence of judiciary and at the same time ensuring that infractions of law are properly
investigated, the following guidelines laid down by the Supreme Court in Delhi Judicial
Service Association, Tis Hazari Court v. State of Gujarat14, should be followed:
(A) If a judicial officer is to be arrested for some offence, it should be done under intimation
to the District Judge or the High Court as the case may be.
(B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the
subordinate judiciary, a technical or formal arrest may be effected.
(C) The facts of such arrest should be immediately communicated to the District and Sessions
Judge of the concerned District and the Chief Justice of the High Court.
(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior
order or directions of the District & Sessions Judge of the concerned District, if available.
(E) Immediate facilities shall be provided to the Judicial Officer to communication with his
family members, legal advisers and Judicial Officers, including the District & Sessions
Judge.
(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be
drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of
the Judicial Officer concerned or another Judicial Office of equal or higher rank, it' available.
(G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to
arrest is offered or there is imminent need to effect physical arrest in order to avert danger to
life and limb, the person resisting arrest may be over-powered and' handcuffed. In such case,
immediate report shall be made to the District & Sessions Judge concerned and also to the
Chief Justice of the High Court
The above guidelines are not exhaustive but these are minimum safeguards, which must be
observed in case of arrest of Judicial Officer.
Section 41(a) authorizes any police officer to arrest any person even without a warrant, if
such a person sought to be arrested has been concerned in any cognizable offence etc.
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officer must consider for himself, before he can take any action. It is not enough for a person,
under this section, that there was likelihood of cognizable offence being committed, in future.
The existence of a warrant is equivalent to credible information.
When arrest is made under the suspicion, the police has to carry out investigation without
unnecessary delay and the magistrate has to be watchful, as the power of arrest without
warrant under suspicion is liable to be abused. Arrest and seizure become doubtful when no
effort was made by police to join any independent witness amongst several person present.
Right to Silence
The ‘right to silence’ has been derived from common law principles. It means that
normally courts or tribunals should not conclude that the person is guilty of any
conduct merely because he has not responded to 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 very much 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.
As per Article 20(3) of Constitution of India guarantees every person has been given a
right against self-incrimination, it states that any person who has been accused of any
offence, shall not be compelled to be a witness against himself. The same was again
15
Gopal Naidu v. King Emperor, ILR(1923) 46 Mad 605, 625.
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reiterated by a decision of Supreme Court in the case of Nandini Sathpathy v.
P.L.Dani; wherein it was held that no one can forcibly extract statements from the
accused and that the accused has the right to keep silent during the course of
interrogation (investigation). The Supreme Court again in the year 2010, held that
narco-analysis, brain mapping and lie detector test are in violation of Article 20(3) of
the Constitution of India.
2.1) 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.
2.2) 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.
2.3) 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.
2.4) 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.”
As held in Satish Chandra Rai v. Jodu Nandan Singh16, if the substance of the
warrant is not notified, the arrest would be unlawful.
In Udaybhan Shuki v. State of UP17 it was held that right to be notified of grounds
of arrest is a precious right of the arrested person. This allows him to move to proper
16
ILR 26 Cal 248
17
1999 CrLJ, All HC
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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 distinct rights – the right to be told of the grounds of arrest
and the right to consult a legal practitioner 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.
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.
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.
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 and 76 which are as given
below:
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
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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”.
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.
In Khatri (II) v. State of Bihar,18 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 v. Abdul Razak19, 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 wrongful detention.
On the face of it, Art. 22(2) seems to be applicable on arrests with or without
warrants. However, in State of Punjab v. Ajiab Singh20, 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
18
1981 SCC
19
AIR 1961
20
AIR 1953
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proviso to section 76 unmistakably provides that a person arrested under a warrant
must be produced before a magistrate within 24 hours.
Rights at Trial
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.
The Supreme Court in the case of in Khatri(II) v. the State of Bihar 21has held that
the state is under a constitutional obligation (implicit in Article 21) to provide free
legal aid to an indigent accused person as is implicit in Article 21 of the Constitution .
21
1981 SCC
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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.
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.
22
1983 SCC
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Important case
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 any accused should bear accurate, visible, and clear
identification along with their name tags with their designation.
2) 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. 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 as soon as possible.
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.
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 particulars of 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, referred to above, should
be sent to illaqa Magistrate for his record.
23
(1997) 1 SCC 416
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8) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
9) 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.
The Court also emphasized failure to fulfill 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.24
BIBLIOGRAPHY
WEBLIOGRAPHY
24
https://blog.ipleaders.in/rights-arrested-person/
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http://shodhganga.inflibnet.ac.in/bitstream/10603/144597/8/chapter%20iv.pdf
https://gradestack.com/CBSE-Class-8th-Complete/Understanding-our/ARREST-BY-POLICE-
in/14851-2940-2346-study-wtw
https://www.legalbites.in/law-notes-crpc-functionaries-under-criminal-procedurecode/
http://shodhganga.inflibnet.ac.in/bitstream/10603/150175/8/08_chapter_02.pdf
https://lawnn.com/role-police-arrest/
http://bprd.nic.in/WriteReadData/userfiles/file/6798203243-Volume%202.pdf
http://amesshdabas.com/2016/02/01/rights-of-arrested-persons/
https://www.linkedin.com/pulse/20140930073913-37715434-crime-investigationand-court-
directives-in-india
https://www.lawteacher.net/free-law-essays/constitutional-law/provision-for-legalaid-in-
crpc-constitutional-law-essay.php
http://www.scribd.com/articles/Rights-of-arrested-persons-3723.asp
https://indiankanoon.org
https://justice.alberta.ca/programs_services/about_us/Page/concept-of-arrest-in-india.as px
BOOKS
Kelkar’s, R.V., Criminal Procedure, 5th Ed., 2018, EBC Publishing (P) Ltd.,
Lucknow.
Tandon, Justice Rajesh and M.P., The Code Of Criminal Procedure, Allahabad Law
Agency.
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