TOPIC - ARREST AND THE RIGHTS OF THE ARRESTED

IN INDIA

CODE OF CRIMINAL PROCEDURE I

FACULTY OF LAW
LUCKNOW UNIVERSITY
SESSION 2020 -2021

SUBMITTED TO: SUBMITTED BY:

Ms Taruna R Singh Ved Prakash Rao

SECTION A

UNIVERSITY OF LUCKNOW ROLL NO. 180013015095

I would like to express my special thanks of gratitude to Ms Taruna R Singh who gave me
the golden opportunity to do this wonderful assignment of “Arrest and the rights of the
arrested in India” who also helped me in completing my assignment .I am really thankful to
him .

Many people especially my classmates, have made valuable comment suggestions on this
proposal which gave us an inspiration to improve my assignment .I am thank all the people
for their help directly and indirectly to complete my assignment .

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 TABLE OF CONTENTS

Introduction………………………………………………………….4-5

Arrest How Made…………………………………………….………5

Rights Of Arrested Person……………………………………….5-7

Protection To Females………………………………………….…7-9

Misuse Of Power Of Arrest…………………………………...…9-11

Conclusion…………………………………………………………….12

Bibliography………………………………………………………..13

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 INTRODUCTION:
“The term arrest in its ordinary sense means the apprehension or restraint or the deprivation
of one’s personal liberty. To understand this term in Indian law, Criminal procedure Code,
1973 in its chapter V (section 41 to 60) deals with arrest of a person. Ironically, Code has not
defined the term arrest. 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. Thus, we can say arrest means
‘apprehension of a person by legal authority resulting in deprivation of his liberty’. An arrest
consists of taking into custody of another person under authority empowered by law for the
purpose of holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence. 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.
It has to be noted 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. This code
proposes two types of arrests: Arrest made in pursuance of a warrant issued by a magistrate
and arrest made without such a warrant but made in accidence with some legal provision
permitting such arrest.”
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. 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 also justified and
therefore rights of arrested person are being recognised by this code.
Though the police have been given various powers for facilitating the making of arrests, the
powers are subject to certain restraints. These restraints are primarily provided for the
protection of the interests of the person to be arrested, and also of the society at large. The
imposition of the restraints can be considered, to an extent, as the recognition of the rights of
the arrested person. There are, however, some other provisions which have rather more
expressly and directly created important rights in favour of the arrested person.

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WHO CAN ARREST
“Arrest can be made by police officer or Magistrate. 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 (Sec. 45).
Any private individual may arrest a person only when the person a proclaimed offender and
the person commits a non bailable offence and cognizable offences in his presence (sec. 43).
Any magistrate (whether Executive or judicial) may arrest a person without a warrant (sec.
44). Under section 41, Arrest by police officer can be made without warrant only in
cognizable offences (sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)).
Cognizable offences are of more serious nature as compare to non cognizable offences i.e.
Murder, kidnapping, theft, etc.
Sec. 46 describes the mode in which arrests are to be made (whether 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. The person making an arrest
may use ‘all means’ necessary to make arrest if person to be arrested resists or attempts to
evade the arrest. A police officer may, for the purpose of arresting without warrant any
person whom is authorized to arrest, pursue such person into any place in India (sec 48).
Arrested person shall not be subjected to unnecessary restraint and physical inconvenience
unless it’s necessary to do so to prevent his escape (sec. 49).”
“RIGHTS OF ARRESTED PERSONS ”
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

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not only be legal but justified also, even the Constitution of India also recognizes the rights of
arrested person under the Fundamental Rights and these rights are as follows: ”

“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.”

“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.”

“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)”

“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 person.”

“Right of arrested person to meet an advocate of his choice during interrogation under
sec. 41D and sec. 303 crpc.”

“Arrested person have a right to inform a family member, relative or friend his arrest
under sec 50 of crpc.”

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“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.”

“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 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.”

“Arrested person have right to remain silent under Sec. 20(3) of Indian constitution so
that police can’t extract self – incriminating statement from a person without will or
without his consent.”
“SPECIAL PROTECTION TO FEMALES”

“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.”

“The salutary principle that the medical examination of a female should be made by
female medical practitioner has been embodied in sec 53(2).”
In case of State of Maharashtra v. Christian Community Welfare Council of India1
In this case, SC departing from long tradition of not arresting women at night and not arrest
women in the absence of a female constable, The Supreme Court held that “We do agree with
the object behind the direction issued by the High court, We think a strict compliance with
said direction, in given circumstances, would cause practical difficulties to investing agencies
and might even room for evading the process of law by unscrupulous accused. While it is
important to protect the female sought to be arrested by the police from police misdeeds but it
may not possible and practical to have the presence of lady constable. It is issued to the
arresting authority that while arresting a female person , all efforts should be made to keep a

1
(2003) 8 SCC 546

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lady constable present but in circumstances where that arresting officers are reasonably
satisfied that such presence of a lady constable is not available or possible and or the delay is
arresting caused by securing the presence of a lady constable would impede the course of
investigation, such arresting officer for reasons to be recorded either before the arrest or
immediately after the arrest be permitted to arrest a female person for lawful reasons at any
time of the day or night depending on the circumstances of the case even without the
presence of a lady constable”.
Arrest to be made strictly according to the code (Sec 60A) – “No arrest shall be made except
in accordance with provision of this code or any other law for time being in force providing
the arrest”.

“The Following guidelines are laid down by the Hon'ble Supreme Court in its
judgment in Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat and others.2”

“In this ruling, the Apex Court held that in view of' the paramount necessity of
preserving the independence of judiciary and at the same time ensuring that
infractions of law are' properly investigated the following guidelines are to 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 fact 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 for communication with his
family members, legal advisors 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 test be conducted except in the presence of the Legal Advisor of
the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if
available.”

2
1991 SCR (3) 936

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“(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. But the burden would be on the Police to establish the
necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be
established that the physical arrest and hand-cuffing of the Judicial Officer was unjustified,
the Police Officers causing or responsible for such arrest and handcuffing would be guilty of
misconduct and would also be personally liable for compensation and/or damages as may be
summarily determined by the High Court. It was further held that these guidelines are not
exhaustive but are the minimum safeguards to be observed in case of arrest of a Judicial
Officer. These should be implemented by the State Governments as well as by the High
Courts. No judicial officer should visit a Police Station on his own except in connection with
his official and judicial duties and functions, and this also with prior intimation to the District
and Sessions Judge.”
“MISUSE OF 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.”
“ CASE LAW: In law, there are always precedents that have to be followed. As, in case of
“Arrest” we have landmark judgments that have been given by Supreme Court of India which
sets some rules in favour of arrested person and putting some bars on powers of police
officers with regard to arrest and also prevent the misuse of this powers.”

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“JOGINDER KUMAR v. STATE OF U.P3,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.”
“K BASU v. STATE OF WEST BENGAL4, This case is of the landmark in which steps were
taken to prevent “Custodial torture”. This matter was brought before the court by Dr. D.K
Basu, Executive Chairman of the Legal Aid Services, and a NGO of West Bengal through a
PIL. He addressed a letter to the Chief justice drawing his attention to certain news items
published in the newspapers regarding deaths in the police lock – ups and custody. This letter
was treated as the writ petition by the Supreme Court. In this case, the Supreme Court took a
serious note of Custodial violence and death in police lock-up. To check the abuse of police
power, transparency of public action and accountability are two possible safeguards. The
apex court laid down guidelines (as preventive measure) to be followed in all cases of arrest
or detention till legislative measures are taken. Some are the recent amendment made to the
code codifies some of the Supreme Court guidelines regarding arrest of a person laid down in
D. K Basu case. i.e. like amendments to sec. 41 like 41 A (Notice for appearance), 41B
(Procedure of arrest and duties of officer making arrest), 41C (control room at district), 41D
(Right to arrested person to meet an advocate of his choice during interrogation) section 50A
(obligation of person making arrest to inform about the arrest, etc., to nominated person),
Right to arrested person to get medically examined etc. Even Court directed that these
directions should be widely circulated as Court mentioned” “Creating awareness about the
rights of arrestee would be a step in the right direction to combat the evil of custodial crime
and bring in transparency and accountability”.
“STATE OF HARYANA VS DINESH KUMAR 5
In this case, the issue was what constitute arrest and custody in relation to criminal
proceedings. In other words, whether the manner in which respondent had appointed
appeared before the Magistrate and was released without being taken into formal custody
could amount to arrest. The respondent without surrendering to the police had appeared

3
(1994) 4 SCC 260
4
AIR 1997 SC 610
5
(2008) 3 SCC 222

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before the Magistrate with his lawyer and was immediately granted bail. The high Court held
that since the accused had neither surrendered nor had taken into custody, it could not be said
that he had actually been arrested. The Supreme disagreed with the High Court. It held that
even in such circumstances, the appearance of the accused before the Magistrate amounts to
arrest. It held that a person can be in custody not merely when the police arrest him, produces
him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be
in judicial custody when he surrenders before the Court and submits to its directions.
Supreme Court said that high court had erred in coming to a finding that the accused had
never been arrested since he had voluntarily appeared before the magistrate and had been
granted bail immediately.”
“ARNESH KUMAR VS STATE OF BIHAR6 In this case, the apex Court emphasized the
need for caution in exercising the drastic power of arrest by the police and also by the
Magistrate while authorizing detention of the accused. It would be prudent and wise for a
police officer that no arrest is made without a reasonable satisfaction reached after some
investigation as to the genuineness of the allegation. In short, the police officers do not arrest
accused unnecessarily and Magistrate does not authorize detention causally and
mechanically.”

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(2014) 8 SCC 273

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 CONCLUSION:
“It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in
the Constitution, the power of arrest given to the police is being misused till this day. It is
also believed that the police often use their position of power to threaten the arrested persons
and take advantage of their office to extort money. There have also been innumerable reports
on custodial violence that lead many to believe that deprivation of basic rights of the arrested
persons has become commonplace nowadays.
The Mallimath Committee in its Report on the reforms in the Criminal Justice System has
stated that the accused has the right to know the rights given to him under law and how to
enforce such rights. There have also been criticisms that the police fail to inform the persons
arrested of the charge against them and hence, let the arrested persons flounder in custody, in
complete ignorance of their alleged crimes. This has been attributed to the Colonial nature of
our Criminal Justice System where the duty of arrest was thrust upon the Indian officers
while the Britishers drew up the charge against the accused. Thus, it is entirely possible that
the English origins of the Indian Criminal Justice system may have resulted unwittingly in the
rights of the arrested persons falling through the cracks.
There is imminent need to bring in changes in Criminal Justice Administration so that state
should recognize that its primary duty is not to punish, but to socialize and reform the
wrongdoer and above all it should be clearly understood that socialization is not identical
with punishment, for its comprises prevention, education, care and rehabilitation within the
framework of social defence. Thus, in the end we find that Rule of law regulates the
functionary of every organ of the state machinery, including the agency responsible for
conducting prosecution and investigation which must confine themselves within the four
corners of the law.
It is the duty of the police to protect the rights of society. It must be remembered that this
society includes all people, including the arrested. Thus, it is still the police’s duty to protect
the rights of the arrested person. Hence, in light of the discussed provisions, a police officer
must make sure that handcuffs are not used unnecessarily, that the accused is not harassed
needlessly, that the arrested person is made aware of the grounds of his arrest, informed
whether he is entitled to bail and of course, produced before a Magistrate within twenty-four
hours of his arrest”

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 BIBLIOGRAPHY:

“PRIMARY SOURCES
• Constitution of India, 1950
• Criminal procedure Code, 1973
• The Indian Penal Code, 1860.
• R.V.Kelkar, Criminal procedure code, 6th edition, Eastern Book Company.
• Ratanlal and Dhirajlal’s the Code of Criminal Procedure - As amended by the
Criminal Law (Amendment) Act, 2013
•
SECONDARY SOURCES
• http://www.legalserviceindia.com/article/l174-Prison-Reforms-In-Indian-Prison-
System.html( visited on 10.08.17)
• http://www.humanrightsinitiative.org/index.php?option=com_content&id=199%3Asu
preme-court-directives-on-police-reform&Itemid=98( visited on 20.08.17)
• http://indiankanoon.org/doc/853252/( visited on 02.09.17)
• http://indiankanoon.org/doc/768175/( visited on 12.09.17)
• http://indiankanoon.org/doc/108844/( visited on 20.09.17)”

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