BHARTI MISHRA1

ARREST

INTRODUCTION
Irrespective of the fact that what crime or what level of crime a person must have done, every
person needs to be treated first as a human being first. Even if a person is a criminal he must not
treated as an object or as an animal. That is why an accused is considered to be innocent until
he/she is proven guilty by a court of law. It is one of the important features of our democratic
society even though an accused is charged by an offence, his rights are deemed to be sacrosanct.

Our statute does not permit the detention of a person until and unless there is a proper legal
sanction for the same because our statue is very careful towards anyone’s “personal liberty”. Our
Constitution specifies it very well “that no person who should be deprived of his life or personal
liberty except in the instances and the circumstances and the cases which are mentioned in the
Criminal Procedure Code”.i

There is a significant rise in the number of cases of corruption in our country, one of the most
important sources of corruption and extortion in country is the power of arrest which is done by
the police officers. The moment at which a particular case is registered at the Police Station by a
concerned Police officer, and the complaint is of a cognizable offence which is committed, the
police officer gets the power to arrest any person who in any way may be concerned in the
commission of that particular offence’, this arrest can be either on the basis of the complaint
itself or on credible information otherwise received.ii

Chapter V of the Criminal Procedure Code, 1973 deals with the arrest and process of arrest of a
person under Sections 41 to Section 60. Arrest can be issued by three people who are as follows:-

i) A police officer with or without warrant, or

ii) A private person, or

iii) A magistrate

1
BA-LLB SECTION B
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MEANING OF ARREST
The term “Arrest” means in order to cause deprivation of liberty of a person, apprehension by
legal authority of that person. It also means the deprivation of liberty of a person by a legal
authority or at least by any concerned apparent legal authority. Thus, after arrest, a person’s
liberty is in control of the arrester iii. “For instance, when a police officer apprehends a pick –
pocket he is arresting the pick- pocket; but when a dacoit apprehends a person with a view to
extract ransom, the dacoit is not arresting that person but wrongfully confining that person.
Secondly, each and every compulsion or physical restraint does not amount to arrest but when
the deprivation of liberty is complete and also the arrest is total, then that would amount to arrest.
A person is said to imprison other person, if the person overpowers or suppresses the voluntary
action of another and also detains that other person in a particular place or compels him to go in
a specific direction, then he is said to imprison that other person. But on the other hand that
imprisonment would amount to arrest if such a detention or imprisonment is in pursuance of any
legal authority or of an apparent legal authority” (R.V. Kelkar: Fifth Edition: 68) Preventing a
person from making movement or moving according to his wish amounts to arrest of a person.iv

As per the Dictionary of Law by Farlex, the term “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.

The purpose of an arrest is to bring the arrestee before a court or otherwise to secure the
administration of the law. An arrest also serves the function of notifying the community that an
individual has been accused of a crime and also may admonish and deter the arrested individual
from committing other crimes.v 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.vi

WHO CAN ARREST?

Arrest can be done by a police officer or a magistrate or any private person also. For ex- a private
person like you or any other person can make an arrest but that arrest has to be in accordance
with the legal provisions in the Code for Criminal Procedure. vii “Criminal Procedure Code
exempts the members of Armed forces from being arrested for anything done by them in
discharge of their official duties except after obtaining the consent of the government.”viii

According to Section 41(1) - ix “Any police- officer may without a order from the 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."
Section 42 of CrPC authorizes a police officer to make an arrest of a person for a non-cognizable
offence if a person to be arrested refuses to give his name and residence.

Section 43 gives the right to a private person to carry out an arrest of a person who in his
presence commits a cognizable or a non- bailable offence or who is a proclaimed offender.
Section 44 talks about arrest made by magistrate as per section 44(1) of CrPC, the Magistrate has
been given the power to arrest an individual who has committed an offence in his presence and
also commit him to custody.

Criminal Procedure Code explains that how arrest can be made with or without warrant. x Section
46(4) of CrPC deals with “special protection as females, that forbids 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 obtaining a prior permission from the
concerned judicial magistrate of first class within whose local jurisdiction the offence is
committed or the arrest is to be made.”xi

ARREST BY POLICE OFFICER

Arrest without warrant can be done by a police officer under Section 41(1) of the Criminal
Procedure Code. Arrest with warrant is done by police officer under Sections 72 to 74 of the
Criminal Procedure Code, which is done by the order of the officer in charge and that order must
be in written under Sections 55 and 157 of the Criminal Procedure Code; under the orders of the
magistrate under Section 44 and in case of non cognizable offence it is done under Section 42 of
the Criminal Procedure Code. Arrest can also be made by a superior officer under Section 36 of
the Criminal Procedure Code. Also arrest can be made by an officer- in- charge of a Police
Station under Section 42(2) and also Section 157 of the Criminal Procedure Code.

“A police officer may arrest without warrant under the following conditionsxii:

1. A person who has been concerned in any cognizable offence or

2. Who has in possession, without, lawful excuse, of any house breaking weapon or
3. Who has been concerned in any cognizable offence or
4. Who has been proclaimed as an offender either under CrPC or by order of the State Govt.
or
5. Who is in possession of any stolen property or
6. Who obstructs a police officer while in the execution of his duty or who has escaped, or
attempts to escape, from lawful custody or
7. Who is reasonably suspected of being a deserter from any of the Armed forces of the
Union or
8. Who has been concerned in any law relating to extradition or
9. Who, being a released convict commits a breach of any rule made under sub-section (5)
of Section 356 CrPC or
 10. For whose arrest any requisition has been received from another police officer specifying
the person to be arrested and the offence and other cause for which the arrest is to be
made.”xiii
It was held in the case of Swami Hariharanand Saraswati v. Jailer I/C Dist. Varanasi xiv that
“arrested person must be produced before another magistrate within 24 hours, otherwise it will
be considered to be illegal detention of the person.”xv
In the case of Joginder Kumar vs State of UPxvi, 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.

Moreover, it was held in the case of State vs Bhera,xvii 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.

PROCEDURE OF ARREST

The way in which arrest is actually made is described under Section 46 of the Code of Criminal
Procedure. “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”.xviii

In the case of Bharosa Ramdayal v Emperor, it was held that “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.”xix

It was held in the case of Birendra Kumar Rai v. Union of India that “arrest need not be by
handcuffing the person, and it can also be completely by spoken words if the person submits to
custody.”xx

If a person attempts to evade arrest or forcibly resists the endeavor to arrest him, then such
arresting officer or police officer or other person may use all means that are necessary to effect
the arrest. So, it is clear that if a person tries to runway from the police officer, then the police
officer can take all the necessary actions to prevent his escape, he can also use physical force in
doing so to immobilize the accused.xxi However, there is no right to the police officer to cause
death to a person who is not an accused of an offence which is punishable with death or with life
imprisonment, while making the arrest of such person. Also, “an arrested person must not be
subjected to more restraint than is necessary to prevent him from escaping.”xxii

Due to increase in the number of cases of violation of rights against women a provision was
inserted in the Criminal Procedure Codexxiii which forbids “the arrest of women after sunset and
before sunsire, except in exceptional circumstance, in which 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 First class.”xxiv

It was held in the case of Kultej Singh v. Circle Inspector of Police xxv, 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.”xxvi

The cases which are not covered under Section 41 (1) of the Criminal Procedure Code a dealt in
section 41A, “wherein a police officer is directed to issue a notice and not to make an arrest
unless the notice after receiving notice does not comply with the terms of notice or complies
once and then flouts it subsequently. If the notice complies with terms of notice, he may only be
arrested for the offence concerned for reason to be recorded in writing by the police officer.”

The conduct of Police officers in the process of making an arrest is directed by Section 41B of
the Criminal Procedure Code. Section 41B directs them to “ensure that while making an arrest
they bear an accurate, clear & visible identification of his name for the purposes of easy
identification, prepare an arrest memo attested by either a family member of arrestee or a
respectable member of society and countersigned by the arrestee himself. The arrestee is also to
be informed of his right to have a relative or a friend of his informed of his arrest, if arrest memo
is not attested by his family member.”xxvii

CONSEQUENCES OF NON COMPLIANCE WITH THE PROVISIONS OF

ARREST

Generally, non- compliance with the provisions of arrest does not void a trail. The core reason
behind the fact is that the liability of the accused is not affected and also is not complied with
provisions relating to arrest. However, if there is any violation, then that will be of material in
case where the accused is prosecuted on the charge of resistance to or escape from the lawful
custody.

Since, everybody has a right to defend himself against an arrest that is unlawful, so a person will
not be liable for any injury caused, if he does so in the exercise of rights which are mentioned
under Section 96 to 106 of the Code of Criminal Procedure. Also, the person who is making the
arrest is guilty of wrongful confinement if he makes an illegal arrest and in a civil suit it also
exposes him to damages.
A person will be liable to be prosecuted under Section 220 of the Indian Penal Code who has an
authority to arrest a person, arrests the person with having full knowledge that the arrest is an
illegal one. In the similar manner a private person can be prosecuted for wrongful confinement
under Section 342 of the Indian Penal Code for arresting a person with having full knowledge
that the arrest is illegal and also without having any authority to make the arrest.xxviii

CONCLUSION

Our society is a democratic society, and in a free society like ours, “law is quite zealous of
personal liberty of every individual and does not tolerate the detention of any person without
legal sanction”. (Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South
Asia: 1st ed. 2013: 543). “The right of personal liberty is a basic human right recognized by the
General Assembly of the United Nations in its Universal Declaration Human Rights. This has
also been prominently included in the Convention on the Civil and Political Rights to which
India is now a party”.xxix

The power of arrest that is given to the police officer is misused at certain instances in spite of
the safeguards that are provided in the Criminal Procedure Code, 1973. Also there are many
instances which came into light where it is seen that police uses the authority that it has in order
threaten person and demand money from them. There are many reports that show that how police
has failed to perform their task of informing the arrested people about the charges that are framed
against them and also they have failed to provide adequate means of representation that they
must get. So, as there is increase in number of such cases, it has brought about a need to bring
about changes in the Criminal Justice Administration. This change is also necessary so that the
state must know that what its primary duty is, the primary duty of the state is to seize and reform
the wrongdoer and not just punish him.

The foremost and the most important duty of the police officer to protect the individuals present
in the society and also to protect the rights of individuals present in the society which also
includes the rights of the people who are arrested.
i
Article 21 of the Constitution of India
ii
https://blog.ipleaders.in/rights-person-arrest-india/ on 13/04/2020 at 8:42 a.m.
iii
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.
iv
Kaiser Otmar v. State of T.N., 1981 Mad LW (Cri) 158 (Mad).
v
Section 46 of CrPC, 1973
vi
https://lawschoolnotes.wordpress.com/2017/08/18/provisions-relating-to-arrest-under-crpc/ on 13/04/2020 at 9:27 a.m.
vii
 https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320 on 14/04/2020 at 11:46 a.m.
viii
Section 45 of Criminal Procedure Code, 1973
ix
Section 41(1) of Criminal Procedure Code, 173
x
Section 46 of Criminal Procedure Code, 1973
xi
http://www.caclubindia.com/forum/the-code-of-criminal-procedure-arrest-and-bail-185533.asp on 14/4/2020 at 8:21 p.m.
xii
Section 41, 42, 151 of the Criminal Procedure Code, 1973
xiii
http://www.caclubindia.com/forum/the-code-of-criminal-procedure-arrest-and-bail-185533.asp on 14/4/2020 at 10:39
p.m.
xiv
Swami Hariharanand Saraswati v. Jailer I/C Dist. Varanasi 1954 CriLJ 1317
xv
http://hanumant.com/CrPC-Unit2-Arrest.html on 14/4/2020 at 11:44 p.m.
xvi
1994 AIR 1349, 1994 SCC (4) 260
xvii
1997 CriLJ 1237, 1997 (1) WLC 745, 1996 (2) WLN 371

xviii
Section 46(1) of the Code of Criminal Procedure, 1973
xix
(1941) 42 Cri LJ 390
xx

xxi
Section 46(2) of the Criminal Procedure Code, 1973
xxii
Section 49 of the Criminal Procedure Code, 1973
xxiii
Section 46(4) of the Criminal Procedure Code, 1973
xxiv
https://lawschoolnotes.wordpress.com/2017/08/18/provisions-relating-to-arrest-under-crpc/ on 15/04/2020 at 8:13 a.m.
xxv

xxvi
http://hanumant.com/CrPC-Unit2-Arrest.html on 15/04/2020 at 8:27 a.m.
xxvii
 http://www.desikanoon.co.in/2015/08/procedure-of-arrest-in-india.html on 15/04/2020 at 8:47 a.m.
xxviii
 http://hanumant.com/CrPC-Unit2-Arrest.html on 15/04/2020 at 01:53 p.m.
xxix
https://www.legalbites.in/concept-of-arrest/ on 16/04/2020 at 4:55 p.m.

REFERENCES
1. R.V. Kelkar: Criminal Procedure Law: Fifth Edition
2. Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia: 1st ed. 2013