BABASAHEB BHIMRAO

AMBEDKAR UNIVERSITY,
CENTRAL UNIVERSITY

COURSE- B.B.A. LL.B.(HONS.)

SEMESTER- 5th
SUBJECT- Criminal Procedure Code (Part -1)
TOPIC-Arrest under Criminal Procedure
Code,1973
SUBMITTED BY-Hershpreet Kaur
SUBMITTED TO-Dr. Shweta Triwedi
 INDEX

SERIAL TOPIC PAGE

NUMBER NUMBER
1. INTRODUCTION 1-2

2. PRE-ARREST 2-3

3. POST ARREST 3-5

4. CONTENT 6-12

5. ARREST WITH RESPECT TO INDIAN 12-16

CONSTITUTION

6. CONSEQUENCES OF NON-COMPLIANCE 16
WITH THE PROVISIONS RELATING TO
ARREST

7. MISUSE OF THE POWER OF ARREST 17-18

8. CONCLUSION 18

9. SUMMARY FOR ARREST 18-21

10. BIBLIOGRAPHY 21
 INTRODUCTION
Code of Criminal Procedure, 1973 lays down the procedural aspects of
procedure of arrest. Under this, the complete process been mentioned related to
arrest a person who committed any offence. The essential object of criminal law
to protect the society from criminals and from law-breakers. Therefore, criminal
law consists both substantive and procedural law. Chapter V of Code of
Criminal Procedure, 1973 deals with the arrest of persons under (Sections 41 to
Section 60).Three People can issue the process of arrest, they are as follows:

1. A police officer with or without warrant, or

2. A private person, or
3. A magistrate

This term “Arrest” is very common term that we pick up a lot in our day today
life.

A person, who do or have done something against the law, get arrested. Thus,
term ‘arrest’ means apprehension of a person by legal authority so as to
cause deprivation of liberty.

As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible

restraint; an exercise of the power to deprive a person of his or her liberty; the
taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge.”

In R.R. Chari v. State of Uttar Pradesh1, the apex court defined arrest as the
act of being taken into custody to be formally charged with a crime . The court
observed that in a Constitutional sense, it means the seizure of a person (body of
a person).

In State of Punjab v. Ajaib Singh2, the court observed that arrest is the
physical restraint put upon an abducted person in the process of recovering and
taking that person into legal custody with or without any allegation or
accusation of any actual or suspected commission of the offence

Arrest can be made in both criminal and civil matters, -:

1
AIR 1951 SC 207
2
(1965) SC
  In civil matters the arrest is the drastic measure which is not looked upon
in favour by the court.

 In criminal law, arrest is a important tool for bringing an accused before

the court and to prevent him from absconding. Thus, after arrest, a
person’s liberty is under the control of arrester. Every deprivation of
liberty or physical restraint is not arrest. Only the deprivation of liberty
by legal authority or at least by apparent legal authority, in a
professionally competent and adept manner amounts to arrest. However,
a person against whom no accusation of crime has been made may be
arrested /detained under a statute for certain purposes like removal in safe
custody from one place to another, for example – removal of a minor girl
from a brothel. One thing to be noted is that ‘custody’ and ‘arrest’ don’t
have same meaning. Taking of a person into judicial custody is followed
after the arrest of the person by Magistrate on appearance or surrender. In
every arrest there is custody but not vice versa. Thus, mere taking into
custody of a person an authority empowered to arrest may not necessarily
amount to arrest.

PURPOSE: The mere purpose of arrest is to bring a arrestee before a court and
to secure the administration of the law. An arrest also serve the function of
notifying society that an individual has been committed a crime and to deter
him from committed any other crime in future.

PRE-ARREST
The power to arrest without a warrant should be exercised only after a
reasonable satisfaction is reached, after some investigation, as to the guidelines
and bonafides of a complaint and a reasonable belief as to both the person’s
complicity as well as the need to effect arrest 3. Arrest cannot be justified
merely on the existence of power, as a matter of law, to arrest without a warrant
in a cognizable case. After Joginder Kumar’s pronouncement of the Supreme
Court the question whether the power of arrest has been exercised reasonable or
not is clearly a justifiable one. Arrest in cognizable cases may be considered
justified in one or other of the following circumstances:

(i). The case involves a cognizable offence like murder, dacoity, robbery, rape,
etc., and it is necessary to arrest the suspect to prevent him from escaping or
evading the process of law.
3
Joginder Kumar Vs State of Uttar Pradesh (1994) 4 SCC 2006
(ii). The suspect has committed some violent behaviour and is likely to commit
further offences.

(iii). The suspect requires to be prevented from destroying evidence or

interfering with witnesses or warning other suspects who have not yet been
arrested.

(iv). The suspect is a habitual offender who, unless arrested, is likely to commit
similar or further offences 4.

Except in heinous offences, as mentioned above, an arrest must be avoided if a

Police officer issues notice to the person to attend the Police Station and not
leave the station without permission 5.

The power to arrest must be avoided where the offences are bailable unless
there is a strong apprehension of the suspect absconding.

Police officer carrying out an arrest or interrogation should bear clear

identification and name tags with designations. The particulars of Police
personnel carrying out the arrest or interrogation should be recorded
contemporaneously, in a register kept at the Police Station.

POST ARREST
The person under arrest must be produced before the appropriate court within
24 hours of the arrest 6.The person arrested should be permitted to meet his
lawyer at any time during the interrogation7.Such person arrested without
warrant should be taken before Magistrate or office in charge of police station
without unnecessary delay 8.

The interrogation should be conducted in a clearly identifiable place, which has

been notified for this purpose by the Government. The place must be accessible

4
3rd Report of National Police Commission
5
Joginder Kumar Vs State of Uttar Pradesh (1994) 4 SCC 260
6
Section 57 of Civil Procedure Code,1973
7
Section 41-D of Civil Procedure Code ,1973
8
Section 56 of Civil Procedure Code,1973
and the relatives or friend of the person arrested must be informed of the place
of interrogation taking place9.

The methods of interrogation must be consistent with the recognized rights to

life, dignity and liberty and right against torture and degrading treatment.

Seizure of offensive weopens:- The police officer will seize offensive weapons
and shall deliver all weapons to Magistrate or can keep in safe custody subject
to the order of Magistrate(Section 52).

Identification of the Arrested Person:-_After the police arrest one or more

suspects, it is necessary that the suspect is being identified either by the victim
or any witness who saw the person committing the offence or saw him at the
scene of the offence. Section 54-A provides for that. This process is generally
called the ‘test-identification parade or T.I. Parade’ whereby the police officers
prepare a lineup of the suspects along with other persons with similar built and
look to ensure that the accused from amongst the suspect is identified with
surety10.

It may be noted that no specific procedure to conduct the identification has been
provided but the power is left to the court to decide the procedure. Thus, the
parade can be conducted in the police station or the office of the Executive
Magistrate, except when the identifying person is physically or mentally
disabled. The person identifying the accused is always kept hidden from the
suspects to ensure his/her safety. It is believed that T.I., the parade is not
completely accurate because when two similar looking persons come together,
the witness can be confused but, however, it is still an important step to dissect
the accused from several suspects.

Search of Arrested person :-Under Section 47 of Cr.P.C., the police or any

other person is empowered to effect search of a place by a person sought to be
arrested or an occupier of a house who is sought to arrested, under a legal duty
acting under a warrant of arrest, all the facilities to search the house for the
purpose of making arrests. If such facilities are denied or obstructions are put in
the search, the police shall have power to use force for getting entry into the
house for search and also for the purpose of liberating himself in case he is

9
Section 50-A of Civil Procedure Code,1973
10
Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 1973
detained in the house. These powers are subject to reasonable restrictions if the
part of the house to be searched is in occupation of any pardanashin woman. In
such instances either she should be called out of the house or the search is to
done in the presence of a woman or a woman police.

Search of Body -: A police officer while carrying search of the body will seize
all the articles other than necessary wearing apparels and a receipt showing the
articles taken in possession by the police officer shall be given to such person
and all seized things are kept in safe custody. Where the search of the female is
to be carried, then it shall be carried by another female with strict regard to
decency.(Section 51)

Report of Arrest to be sent to District Magistrate:- Section 58 of the Code

requires a police officer to send the report of all cases where the accused
person(s) is “arrested without a warrant within the local limits of his police
station to the District Magistrate or if the District Magistrate directs, to the Sub-
divisional Magistrate”11. The object of the section is “to keep the District
Magistrate, etc. informed of the situation regarding grave offences”12 .The
administration of police in a district is under “the general control and direction
of the District Magistrate”13 .Therefore, report under this section would enable
him to see whether the police are exercising their powers appropriately or not.

Discharge of Arrested Person only on Bond or Bail:- According to Section

59, once a person is arrested by the police, s/he can be enlarged only after
taking a bond or bail for his appearance before a Magistrate. The police cannot
discharge him on their own responsibility without the order of a Magistrate. The
special order of the Magistrate contemplated in this section is an order
under Section 167 of the Code which prescribes procedure when “the
investigation, according to the police, cannot be completed within the stipulated
period of 24 hours” 14.

Re-Arrest of arrested person on escape:-According to Section 60,if a person

in lawful custody escapes or is rescued, the preson from whose custody he
escapes or was rescued may immediately pursue and arrest him in any place in

11 S.58, Cr.P.C, 1973

12 Law Commission Report, No. 37, 1968 para. 206.

13 Code of Criminal Procedure, No. 2, Act of Parliament, 1973 (India).

14 Pillai
India.For such , arrest the provisions of Section 47 shall apply , although the
person making such arrest is acting without warrant and is not a police
officer.Arrest of any way need to be strictly made according to the
code.(Section 60A)

CONTENT
Types of arrest:-

1. arrest made in pursuance of a warrant issued by a magistrate

2. arrest made without such a warrant

Arrest can be made by a police officer, magistrate or any private person, like
you and me can also arrest any person but the arrest should be made according
to the process mentioned under Crpc. A police officer is authorized to arrest a
person with warrant and without warrant. The 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 15 .Any
private individual may arrest a person only when the person is a proclaimed
offender and the person commits a non-bailable offence and cognizable
offences in his presence 16. Any magistrate (whether Executive or judicial) may
arrest a person without a warrant 17

Any police officer has been authorized to arrest any person without the
warrant. Under Sections 41, 42, 151 CrPC, a Police officer may arrest without
warrant in the following conditions:

1. Who has been concerned in any cognizable offence such as murder, rape,
kidnapping, theft, etc. or

Against whom 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

15
Section 45 of Civil Procedure Code,1973
16
Section 43 of Civil Procedure Code ,1973
17
Section 44 of Civil Procedure Code ,1973
than 7 years or which may extend to 7 years, if the following conditions are
satisfied, namely:

i. The police officer has a reason to believe that such person has
committed the social offence.
ii. The police officer is satisfied that such arrest is necessary.
iii. To prevent such person from committing any further offence.
iv. For a proper investigation of the offence.
v. To prevent such person from causing the evidence to disappear or
tampering with such evidence.
vi. To prevent such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so as to
dissuades him from disclosing such facts to the court or to the police
officer; or
vii. To ensure his presence in the court whenever required and the police
officer shall record his reason in writing while making an arrest.

Provided that police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-sections
record the reasons in writing for not making the arrest.
(If a police officer thinks that arrests are not required then he will
record the reasons in writing for not making an arrest.)
2. Against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a team
which may extend to more than 7 years whether with or without fine or
with a death sentence and the police officer has reason to believe that such
person has committed the said offence.
a. Who has been proclaimed as an offender either under this code or by
order of State Government?
b. In whose possession anything found which is suspected to be stolen
property and who may reasonably be suspected of having committed
an offence with reference to such thing.
c. Who obstructs a police officer in the execution of his duty or who has
escaped or attempts to escape from lawful custody.
d. Who is reasonably suspected of being a deserter from any of the
armed forces of Union (Army, Navy, Air Force, BSF, a paramilitary
force, etc.)
e. Who committed an act outside India, which if committed in India,
would have been punishable as an offence under any law relating to
extradition or under any other law for the time being in force, liable to
be apprehended or detained in custody in India.
f. Who being a released convict commits a breach of any rule made
under section 356(5). Before releasing, the bond is executed that if a
 person leaves the jurisdiction of the police station or his residence for
moving outside then before leaving he will give information to the
police or to any authority which the State government has prescribed
by rates.
g. For whose arrest any requisition, whether written or oral has been
received from another police officer and his matter is covered in the
above mention matters then the person can be arrested without a
warrant.
2. In non-cognizable offence, the police officer can arrest subject to
provisions of Sec.42, under a warrant or order of Magistrate.
Sec.42 (Arrest on refusal to give name and residence)
i. When any person who has committed or has been accused of committing a
non-cognizable offence in presence of a police officer and he refuses to
give his name and residence or gives a name or residence which such
officer has reason to believe to be false then he may be arrested by such
officer in order that his name or residence maybe ascertained
ii. .When true name and residence is ascertained then he shall be released on
executing a bond, to appear before Magistrate if so required. Provided
when such person is not resident in India the bond shall be secured security
or securities in India.
iii. When true name and resident of such person is not ascertained within 24
hours of quest or when he fails to execute the bond or if so required, to
furnish sufficient sureties, he shall forthwith, be forwarded to the nearest
Magistrate having jurisdiction.

The person arrested shall not be subjected to more restraint than is necessary to
prevent his escape.(Section 49)
The police officer will seize offensive weapons and shall deliver all weapons to
Magistrate or can keep in safe custody subject to the order of
Magistrate(Section 52).

Protection of members of the Armed forces from arrest(Section 45) :-

1. No member of the Armed Forces of the union shall be arrested for
anything is done or proposed to be done by him is the discharge of his
official duties except after obtaining the consent of the Central
Government.
2. The State Government may by notification direct that provisions of
subsection 1 shall apply to such class or category of the members of the
force charged with the maintenance of public order wherever they may be
serving and thereupon the provisions of that sub-section shall apply and
Central Government is substituted with State Government (when
members of an armed force who has been given charge for maintenance
of public order when State Government has made the declaration that
 regarding this first permission of State Government must be taken, then in
such case firstly permission will be taken from State Government.

The police power to obtain assistance: - A police officer can reasonably ask any
person to assist him in the taking of or preventing the escape of any other
person whom he (the officer) is authorized to arrest under Section 37 of CrPC.
The person asked to assist is under a legal obligation to give assistance and any
intentional failure on his part is punishable under Section 187 IPC.

The mode of arrest is been mentioned under section 46 with or without warrant.
In making an arrest the police officer /other person making the same actually
touches or confines the body of the person to be arrested unless there be a
submission to custody by words or action. When the police arrests a person in
execution of a warrant of arrest obtained from a magistrate, the person so
arrested shall not be handcuffed unless the police have obtained orders from the
Magistrate in this regard.

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.
2. If such person forcibly resists the endeavour 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 women 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.

The police power to pursue Offenders any place in India: - under Section 48 of
CrPC a police officer may, for the purpose of arresting without warrant any
person whom he is authorized to arrest, pursue such a person into any place in
India. This provision facilitates the police to conduct and complete investigation
of a case in hand promptly and effectively.

And in case the arrest is to be made by the investigating police under a warrant,
Section 77 of CrPC makes it clear that the warrant may be executed at any place
in India. However, when a warrant 6 of arrest is to be executed outside the local
jurisdiction of the court issuing it, a special procedure as prescribed in Sections
78-81 of CrPC will have to be followed.

Arrest with respect to Females -:As regarding to females they had been given
following special protection as:-

General rule is that Females are not be arrested without the presence of a lady
constable and further no female be arrested after sun-set but there are exception
in some cases, where crime is very serious and arrest is important then arrest
can be made with special orders and it depends on facts and circumstances of
each case. Separate lock ups to be provided for them 18.

 The salutary principle that the medical examination of a female should be

made by female medical practitioner has been embodied in section 53(2).

Section 43 of the Code of Criminal Procedure provides that a private person

also can arrest:

1. (a). an offender who in his presence has committed or commits a non-

bailable or a cognizable offence or(b). any proclaimed offender ,
2. He should then, without unnecessary delay, make over the 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.
3. When the arrested person is brought before a Police Station, the Police
Officer shall re-arrest him if he has reason to believe that such person
comes under the provisions of section 41 of the Code of Criminal
Procedure, 1973.
4. If there is reason to believe that the person produced has committed a
non-cognizable offence and if he refused, on demand by a Police officer,
to give his name and residence or gives name and residence which the
Police officer has reason to believe to be false, the person produced shall
be dealt with under section 42 of the Code of Criminal Procedure, but if

18
State of Maharashtra Vs Christian Community Welfare Council of
India [(2003) 8 SCC 546]
 there is no such reason to believe that he has committed any offence , he
shall be at once released.

Section 44 lays down the procedure of 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.

Rights of arrestee-:

1. Right of arrested person to meet an advocate of his choice during

interrogation under sec. 41D and sec. 303 crpc.protected by Article 22(1)
of the Constitution of India.
2. Arrested person have a right to inform a family member, relative or friend
his arrest Under sec. 50 of crpc.
3. Arrested person have right not to be detained for more than 24hrs,
without being presented before magistrate, it is to prevent unlawful and
illegal arrests. This right is fundamental right under article 22 of Indian
constitution and supported under section 57 and 76 of crpc.
4. Arrested person have right to be medically examined (Sec 54,55A) the
person who is arrested should be given the right to have his body
examined by the medical officer when is produced before a magistrate or
at any time under custody, with a view to enabling him to establish that
the offence with which he is charged was not committed by him or that he
was subjected to the physical torture. With the insertion of Section 55A,
“it shall be duty of a person having custody of an accused to take
reasonable care of the health and safety of the accused” and it attempt to
take care of “custodial violence”( torture, rape, death in police
custody/lock-up) to some extent.
5. Arrested person have right to remain silent under Article 20(3) of Indian
constitution so that police can’t extract self – incriminating statement
from a person without will or without his consent.
 6. Right of person arrested without warrant to be informed of grounds of
arrest and of right to bail for bailable offence19 and obligation of person
making arrest to inform about the arrest and the place where such arrest is
held etc. to a nominated person20
7. Under section 55 of Cr.P.C., it is the right of the accused , in case of
being arrested to be notified of the substance of the written order against
him, so delivered by the officer in-charge of the police station to the
officer subordinate to him requiring him to make such arrest to the
accused without a warrant , specifying the offence or other cause for
which the arrest is being made . The arrest will be illegal in case of non
compliance of this provision as well as Section 41 of Cr.P.C.

8. In case when the person is being arrested under a warrant, then according
to Section 75 of Cr.P.C, any person who is executing such warrant must
notify the person who is being arrested, the content of such warrant, or
show the warrant if required. If under any circumstance the substance of
the warrant is not notified, the arrest would be unlawful.

9. Right of arrestee to free legal aid and to be informed about it,implicit in

Article 21 of the Constitution of India21.

ARREST WITH RESPECT TO INDIAN

CONSTITUTION
Arrest of a person is made in order to ensure his presence at the trial in
connection with any offences to which he is directly or indirectly connected or
to prevent the commission of a criminal offence. In law, there is principle of
“presumption of innocence till he has proven guilty” it requires a person
arrested to be treated with humanity, Dignity and respectfully till his guilt is
proof. In a free society like ours, law is quite careful toward one’s “personal
liberty” and doesn’t permit the detention of any person without legal sanction.
Even article 21 of our constitution provides: “No person shall be deprived of
his life or personal liberty except according to procedure established by law”.
The procedure contemplated by this article must be ‘right, just and fair’ and not
arbitrary, fanciful or oppressive. The arrest should not only be legal but justified
also, Even the Constitution of India also recognize the rights of arrested person
under the ‘Fundamental Rights ‘and here I will inform you about those rights :-

19
Section 50 of Civil Procedure Code,1973
20
Section 50-A of Civil Procedure Code,1973
21
Khatri(2) Vs State of Bihar(1981)SCC 627
Clause (1) of Article 22 of the Constitution which is one of the fundamental
rights in Part III, declares that “no person who is arrested shall be detained in
custody without having informed, as soon as maybe, on 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.” Clause (2) of Article 22 says that every person
arrested and detained in custody shall be produced before the nearest magistrate
within a period of 24 hours of such arrest excluding of course the time
necessary for the journey from the place of arrest to the court of magistrate. The
clause further 5 declares that no such person shall be detained in custody
beyond the said period without the authority of a magistrate. Clause (3) of
Article 22 however provides that clauses (1) and (2) shall not apply to an
enemy-alien or to a person who has been arrested under any law providing for
preventive detention.

Right to A Fair Trial:-Right to equality has been granted under article 14 of the
constitution. It has been provided under the Code of Criminal Procedure that for
a trial to be fair, it must be an open court trial. In order to prevent secret
designing and obtaining of convictions this provision has been designed. The
trial can be held in camera as well in certain exceptional conditions.

Right to a speedy trial:-Regardless of this right not being mentioned in the

constitution, the SC in the Hussainara Khatoon case has made it mandatory that
the investigation in the trial must be conducted as expeditiously as possible.

Right To Consult A Legal Practitioner:-It is the right of every arrested person to

consult a legal practitioner of his own choice. This has also been enshrined as a
fundamental right in Article 22(1) of the Constitution of India, which is
undeniable in all cases. Section 50(3) of the Code also states that the person
against whom proceedings are initiated has a right to be defended by a pleader
of his choice. This right begins as soon as the person is arrested.

Rights of Free Legal Aid:-The Supreme Court in the case of in Khatri(II) v. the
State of Bihar22 held that the state is under a constitutional obligation as is
implicit in article 21 of the constitution as well to provide free legal aid to an
indigent accused person .

22
(1981)I SCC 627
Examination By A Medical Practitioner:-First under Section 53, medical
examination of the accused by a registered ,medical practitioner[8] to ensure
that anything can be found from the examination of the body of blood of the
accused that may prove to be strong evidence in court. For e.g., if a victim
claims that the accused was very drunk when he attacked, the discovery of
alcohol in the blood can connote sufficient evidence.

Section 53 of Cr.P.C empowers senior police officers to compel the accused

person in custody to submit to the medical examination. Now, questions have
arisen whether this provision is violative of the right against self-incrimination
under Article 20(3) of the Constitution of India.

The landmark case with respect to “self-incrimination is State of Bombay v.

Kathi Kalu Oghad23” The Bombay High Court relied upon the principles laid
down in Oghad by the Supreme Court and held that “Section 53 is not violative
of Article 20(3) and a person cannot be said to have been compelled “to be a
witness” against himself if he is merely required to undergo a medical
examination in accordance with the provisions of Sections 5324.

Second, Section 54 of Cr.P.C. enumerates the right and it states the examination
of arrested person by a medical officer in the service of Central/State
Government for the purpose of investigation or interrogation. When an arrested
person, whether on a charge or otherwise alleges at the time when he is
produced before a Magistrate or at any time for which he is detained in custody
that the examination of his body will afford evidence which will lead to
disproving the commission of offence by him or which will establish the
committing of offence by any other person against his body, the Magistrate
shall, direct the examination of the body of such person by a registered medical
practitioner.

The use of the term “shall” under Section 54, makes it “mandatory for the
arrested person to be examined by a registered medical practitioner soon after
thearrest25.

23 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

24 Anil Lokhande v. the State of Maharashtra, 1981 Cri. L.J 125 (Bom).
25
D.K.Basu Vs State of West Bengal (1997) SCC 416
The newly inserted Section 53-A empowers the investigating agency to compel
medical practitioners to help it to get the person accused of rape examined
promptly. Immediately after report of offence of rape, accused has to be
subjected to examination by the Medical Practitioner.

By virtue of Section 53A (2) the registered medical practitioner conducting

such examination shall, without delay, examine such person and prepare a
report of his examination giving the following particulars, namely:-

(i) the name and address of the accused and of the person by whom he was
brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA
profiling, and

(v) other material particulars in reasonable detail.

The report shall state precisely the reasons for each conclusion arrived at.
[S. 53A (3)]The exact time of commencement and completion of the
examination shall also be noted in the report. [S. 53A (4)] .

The registered medical practitioner shall, without delay, forward the report of
the investigating officer, who shall forward it to the Magistrate referred to in
section 173 as part of the documents referred to in clause (a) of sub-section (5)
of that section. [S. 53A (5)].

IMPORTANT CASE:

 D.K. Basu v. State of W.B26 -: 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-

26
(1997) SCC 416
 1. Right to be informed of the grounds of arrest under sec.
50 of crpc and article 22 of Indian Constitution, it’s a fundamental
right to be informed. It is the duty of the police officer to inform
you and also tell whether the offence is bailable or non bailable.
Normally, Bailable offences are those where bailable can be
granted and it is right of the person to be granted bail and Non-
bailable offences are where bailable can’t be granted generally and
it’s the discretion of the court.
2. In non- cognizable cases ,arrest are made with warrant
and the person going to be arrested have a right to see the warrant
under Sec. 75 of crpc. Warrant of arrest should fulfill certain
requirements such as it should be in writing , signed by the
presiding officer , should have seal of court , Name and address of
the accuse and offence under which arrest is made. If any of these
is missing, warrant is illegal.
3. Under sec. 41 , police have a power to arrest a person
without warrant as prompt and immediate arrest is needed , no time
to approach magistrate and obtain a warrant for example in case
where serious crime is has been perpetrated by a dangerous person
or where chances of that person absconding unless immediately
arrested. Section 41 got amended in 2008/2010 because of misuse
of power conferred by this section to police and amendments
targeted the power conferred to police officer must be exercised
after reasonable care. Some clauses were put to this section such as
police officer must act reasonably that such arrest is necessary.

Not in all cases arrest in necessary, Notice of appearance before

police officer can be made if reasonable complaint has been made
,credible information has been received and suspicion exits of
cognizable offence and if concern person continues to comply with
such notice and appears then arrest is not necessary but he don’t,
arrest can be made.( sec 41A)
4. The police officer must be wearing a clear, visible and
clear identification of his name which facilitate easy identification.
A memo of arrest must be prepared at the time of arrest – (i)
attested by least one witness, it can be family member or member
of locality where arrest is made (ii)counter signed by arrested
person27.

27
Section 41-B of Civil Procedure Code,1973
 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 the liability of accused.
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 for
damages for false imprisonment.

Also, informal detention or restraint of any kind by the police is not authorized
by law.

MISUSE OF THE POWER OF ARREST

Although, there have been may safeguard provided by the code and Constitution
of India as mentioned above but the fact remain that the power of arrest is being
wrongly and illegally used in large no. of cases in all over the country. The
power is very often is utilized to extort monies and other valuable property or
the instance of the enemy of the person arrested. Even in civil disputes, this
power is being restored to a basis of a false allegation against the party to a civil
dispute at the instances of the opponent. The vast discretion given by Crpc to
arrest a person even in case of a bailable offence (not only where the bailable
offence is cognizable but also where it is non – cognizable) and further power to
make preventive arrest (e.g. under section 151 of the crpc and several city
police enactments), clothe the police with extraordinary power which can be
easily abused. Neither there is any in- house mechanism in the police
department to check such misuse or abuse nor does the complaint of such abuse
and misuse to higher police officers bear fruit except in some exceptional cases.

RELEVANT CASES:

As, in cases of “ arrest” we have landmark judgments that have been given by
the Supreme court of India which sets some rule in favour of arrested persons
and also to prevent the misuse of powers.

Case 1:

JOGINDER KUMAR VS STATE OF U.P 28.

OBSERVATION- In this case Apex Court ruled that an arrested person being
held in custody is entitled , if he so requests, to have one friend , relative or
other person interested in his welfare , told that he has been arrested and where
he is being detained. The police officer shall inform the arrested person when is
brought to the police station of this right. An entry shall be requested to be made
in the diary as to who was informed of the arrest. The Magistrate is obliged to
satisfy himself that there requirements have been complied with.

Case 2:

ARNESH KUMAR VS STATE OF BIHAR29

OBSERVATION- ,In this case Apex Court ruled that an arrested person being
held in custody is entitled , if he so requests, to have one friend , relative or
other person interested in his welfare , told that he has been arrested and where
he is being detained. The police officer shall inform the arrested person when is
brought to the police station of this right. An entry shall be requested to be made
in the diary as to who was informed of the arrest. The Magistrate is obliged to
satisfy himself that there requirements have been complied with.

28
(1994) 4 SCC 260
29
(2014) 8 SCC 273
 CONCLUSION
Up to now we tried to understand the term “Arrest”, procedure of arrest,
rights of the arrested person and related case laws to the topics. Above
mentioned each case has its own significance. By going through Law
Commission paper on Law of arrest, by we can read with data’s that how
power of arrest is being misused and more because of unawareness of people
about their right. We somehow console ourselves that these protectors of law
and order must be doing right but we have hundreds of cases where we
witnessed of this power being misused. These report shows high percentages
of arrests are made even in bailable offences, bails are not granted to those
where getting bail is one’s right. Increasing percentage of no. of under trial
prisoners in jails, we can deal with the plight of this topic separately. Arrest
has a diminishing and demoralizing effect on the personality. He is outraged,
alienated and becomes hostile. But there need to be balance between security
of state on one hand and individual freedom on other hand. There need to be
some checks on this power and more awareness need to be created among
the peoples about their rights, so that balance system can be form.

SUMMARY FOR ARREST

 As a rule use of force should be avoided while effecting arrest. However,
in case of forcible resistance to arrest, minimum force to overcome such
resistance may be used 30. However, care must be taken to ensure that
injuries to the person being arrested, visible or otherwise, is avoided.

 The police officer will seize offensive weapons and shall deliver all
weapons to Magistrate or can keep in safe custody subject to the order of
Magistrate31

 Searches of the person arrested must be done with due respect to the
dignity of the person, without force or aggression and with care for the

30
Section 49 of Civil Procedure Code,1973
31
Section 52 of Civil Procedure Code, 1973
 person’s right to privacy. Searches of women should only be made by
other women with strict regard to decency 32.

 The use of handcuffs or leg chains should be avoided and if at all, it

should be resorted to strictly in accordance with the law repeatedly
explained and mandated in Judgement of the Supreme Court in Prem
Shanker Shukla V. Delhi Administration 33 and Citizen for
Democracy V. State of Assam 34.

 As far as practicable women Police officers should be associated where

the person or persons being arrested are women35. The arrest of women
between sunset and sunrise should be avoided36.

 Where children or juveniles are sought to be arrested, no force or

beatings should be administered under any circumstances. Police officer,
may for this purpose, associate respectable citizens so that the children or
juveniles are not terrorized and minimal coercion is used.

 Where the arrest is without a warrant, the person arrested has to be

immediately informed of the ground of arrest in a language which he or
she understands. Again, for this purpose, the Police if necessary may
take the help of respectable citizens. These grounds must have already
been recorded in writing in Police records. The person arrested should be
shown the written reasons as well and also given a copy on demand 37 .

 The arrested person can, on a request may by him or her, demand that a
friend, relative or other person known to him be informed of the fact of
his arrest and the place of his detention. The Police should record in a
register the name of the person so informed 38.

 If a person is arrested without warrant other than a person accused of a

non-bailable offence, the Police officer should inform him of his

32
Section 51(2) of Civil Procedure Code,1973
33
(1980) 3 SCC 526
34
(1995) 3 SCC 743
35
Section 46 proviso of Civil Procedure Code,1973
36
Section 46(4) of Civil Procedure Code,1973(Inserted by Act 25 of 2005)
37
Section 50(1) and 41 of Civil Procedure Code,1973
38
Joginder Kumar Vs State of Uttar Pradesh (1994) SCC 260
 entitlement to be released on bail and that he may arrange for sureties on
his behalf 39.

 Apart from informing the person arrested of the above rights, the Police
should also inform him of his rights to consult and be defended by a
lawyer of his choice. He should also be informed that he is entitled to
free legal aid at state expense 40.

 When the person arrested is brought to the Police Station, he should, if

he makes a request in this regard, be given prompt medical assistance.
He must be informed on this right. Where the Police officer finds that the
arrested person is in a condition where he is unable to make such request
but is in need of medical help, he should promptly arrange for the same.
This must also be recorded contemporaneously in a register. The female
requesting for medical help should be examined only by a female
registered medical practitioner41 .

 Information regarding the arrested and the place of detention should be

communicated by the Police officer effecting the arrest without any
delay to the Police Control Room at the District / State Headquarters .
The State Government shall cause to be displayed on the notice board
kept outside the control rooms at every district, the names and addresses
of the persons arrested and the name and designation of the police
officers who made the arrests. There must be a monitoring mechanism
working round the clock42.

 As soon as the person is arrested, Police officer effecting the arrest shall
make a mention of the existence of non-existence of any injury(s) on the
person of the arrestee in the register of arrest. If any injuries are found on
the person of the arrestee, full description and other particulars as to the
manner in which the injuries were caused should be mentioned in the
register, which entry shall also be signed by the Police officer and the
arrestee. At the time of release of the arrestee, a certificate of the Police
officer shall be issued to the arrestee.

39
Section 50(2) of Civil Procedure Code,1973
40
D.K. Basu Vs State of West Bengal (1997) 1 SCC
41
Section 53 of Civil Procedure Code,1973
42
Section 41-C of Criminal Procedure Code,1973
 If the arrestee has been remanded to Police custody under the orders of
the court, the arrestee should be subjected to medical examination by a
trained Medical Officer every 48 hours during his detention in custody
by a doctor on the panel of approved doctors appointed by Director,
Health Services of the concerned State or Union Territory. At the time of
his release from the Police custody, the arrestee shall be got medically
examined and a certificate shall be issued to him stating therein the
factual position of the existence or nonexistence of any injuries on his
person.

BIBILIOGRAPHY
1. Ratanlal and Dhirajlal , Criminal Procedure Code
2. R.V. Kelkar, Criminal Procedure Code
3. www.legalservicesindia.com
4. www.intolegalworld.com