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531 InternationalJournalof Law) Management & Humanities [Vol. 4 Iss 3; 531]

A Brief Overview on Arrest, Procedure of

Arrest and Right of the Arrested Person

SATABDI GUPTAI

ABSTRACT
This Article is based on the study of Arrest, procedure of arrest and the rights of the
arrested person. Initially the article address the meaning ofArrest, which propounded that
it, means seizing and detaining a person from his personal liberty and right to move freely.
Then it discussed about how the arrest made under the code of criminal procedure 1973,
which includes two method- one is arrest with warrant and second one is arrest without
warrant. Arrest with warrant take place when the person has committed a non-cognizable
offence, which means the offence is less serious in nature. Moreover, Arrest without
warrant take place when the person has committed a cognizable offence, which means the
offence is more serious in nature. Then it discussed about the rights of the arrested person
that is, right to consult a legal practitioner, right to know the grounds of their arrest under
which they have been charged, right to be taken before a magistrate without any delay and
so no. There are multiple case laws, which provided us with several guidelines of arrest
and the right of the arrested person. However, there were several crucks were this process
has been criticized and several questions has been raised in the functioning of this
procedural system in India. One of the biggest drawback is the scope of corruption and
connected malpractices in India, which primarily effect the detention of the correct person
and the rights of the arrested person.

Keywords: CRPC, Detention, Offence, Police Officer, Warrant.

I. INTRODUCTION

Every person at the first instance treated as a human being, irrespective of the fact that he can
be a criminal. Even an accused considered as an innocent person until and unless he has been
proven guilty in the court of law. Indian law and regulations are always careful towards
individual's personal liberty and henceforth it does not permit any detention or arrest without
any legal sanction. It is provided in our Indian Constitution under Article 21 that no individual
shall be deprived of his life or personal liberty until and unless they are deprived according to
the procedure. In several stages the scope of corruption and connected malpractices increased

1Author is a student at KIIT School of Law, Bhubaneswar, Odisha, India.

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 532 InternationalJournalof Law) Management & Humanities [Vol. 4 Iss 3; 531]

in everyday activities of the Police Officers.

One of the most important power of the police officers is to arrest a person who has committed
a crime, hence it also become an important source for the police officer to corrupt and extort.
The police officer can arrest a person when case registered against a person who has been
concerned of committing a cognizable offence. They can also arrest a person on receiving any
credible information regarding the commission of any cognizable offence by any person.
Article 21 of the Indian Constitution states that the procedure, which are followed, should be
in a 'right, just and fair' and should not any wrongful, arbitrary, fanciful or offensive manner.
It is expected and predicted that the detention not only should be based on legal grounds but it
should also be well justified. The Constitution also acknowledged the rights of the arrested
person as the Fundamental Rights.

II. DEFINITION AND MEANING OF ARREST

Arrest means depriving a person from his personal liberty and his right to move freely. It means
detaining a person under the police custody usually when the person suspected of committing
a crime.

However, the Criminal Procedure Code of 1973, deals with the concept of arrest but no-were
it has mentioned the proper definition of Arrest. When a person is arrested, such person is taken
into custody of any lawful authority for detaining that person, basically they are put under
restraint. Then the individual is asked to answer the charges against what he is detained so that
he cannot commit any further crime.

As per the legal dictionary, arrest means, "to take or hold a suspected criminal with legal
authority, as by law enforcement officer. An arrest may be made legally based on a warrant
issued by a court after receiving a sworn statement of probable cause to believe there has been
a crime committed by this person, for an apparent crime committed in the presence of the
arresting officer, or upon probable cause to believe that person has committed a crime." 2

III. PROCEDURE OF ARREST

The procedure of Arrest mentioned under the Code of Criminal Procedure, 1973, includes two
methods in which arrest is made.

(i) Arrest without warrant but in accordance with the legal provisions, which are
permitting such an arrest.

2 Legal Dictionay, https://dictionay.law.com/Default.aspx?typed=arrest&type=1

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533 InternationalJournalof Law) Management & Humanities [Vol. 4 Iss 3; 531]

(ii) Arrest with warrant issued by the magistrate.

(A) Arrest without Warrant

Under Section 41,42 and 151 of the CRPC, the police officers are authorised to arrest a person
without issuing any warrant from the Magistrate.

Section 41(1) of CRPC states that any police officer may arrest a person without warrant if he
finds that the person has committed any cognizable offence, or such person has been in
possession of any stolen property, or he has been declared as a proclaimed offender by the
state, or such person has obstruct a police officer in discharge of his duty, or who attempts to
abscond from lawful custody, etc.

Section 42 of CRPC implies that a police officer is authorise to arrest a person without warrant
even in a non-cognizable offence, if the arrested person refuses to give his name or address to
the police officer or if he gives a name or residence which such officer has reasonable ground
to believe that the information given was wrong.

Section 151 of CRPC also gives the authority to the police officer to arrest a person without
warrant, on the suspicion that such person may commit a cognizable offence. However, there
are certain condition, which need to present- first that the anticipated offence should be a
cognizable offence and second that the police officer should feel that the offence would be
prevented only by arresting the suspect.

Arrest without warrant also include arrest by a private person. According to Section 43 of
CRPC any private person may arrest or cause to be arrested any person who in his presence
has committed any cognizable offence, or a non-bailable offence, or is a proclaimed offender.
Then without any delay, take such person to the nearest police station. After that if the police
officer have reasonable ground to believe that he had committed any such offence which comes
under Section 41 and 42 of the CRPC then he can re-arrest him.

(B) Arrest by Warrant

When a person commits an offence which is non-cognizable in nature means less serious in
nature then a warrant or is issued to conduct such arrest. A warrant issued when the person has
committed an offence, which is punishable with imprisonment for life or death penalty or
imprisonment for time exceeding 2 years. The Judge or the magistrate has the power to issue a
warrant on behalf of the state. Section 70 to 81 of CRPC talks about the whole procedure of
arrest by warrant. First, the warrant is issued by the court in writing and signed by the presiding
officer of such court, then it is directed to one or more police officer. Any other police officer

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 534 InternationalJournalof Law) Management & Humanities [Vol. 4 Iss 3; 531]

whose name inscribed on the warrant may also execute a warrant directed to the police officer.
Then the police officer should notify the matter to the person arrested. Then the police officers
shall produce the person in front of the court without any unnecessary delay.

(C) Arrest How Made

Section 46 of CRPC deals with the aspect of arrest how made it explains the complete set of
rules while arresting any person, whether it is done with or without the warrant. Section 46(1)
of CRPC implies that a police officer or the person who is making an arrest should touch or
confine the body of the arrested person. However, if the arrested person is a female, then a
female police officer should make the arrest in same way. Except in exceptional cases, no male
police officer can touch or confine a female arrestee. According to Section 46(2) the policers
are authorise to apply reasonable force or means to conduct the arrest in such cases where the
person who is supposed to be arrested try to forcibly resist or attempt to evade arrest. Section
46(3) states that nothing in this section gives the right to the police officer to cause a death of
a person who is not accused of an offence, which is punishable with imprisonment for life or
death penalty. Section 46(4) states that except in exceptional circumstances a woman cannot
be arrested before sunrise and after sunset, and where there is any exceptional situation a female
police officer can make an arrest by writing a report to the Judicial Magistrate with local
jurisdiction to obtain prior permission to make an arrest.

IV. DUTIES OF THE POLICE OFFICER WHILE MAKING AN ARREST

Section 41(A) of CRPC states that in cases where the arrest is not made in accordance to section
41(1), shall issue a notice directing the person to appear before him or at any other place as
may be directed in the notice. If against such person, a reasonable complaint is made or a police
officer had received any credible information that he has committed a heinous offence or
against whom he is having reasonable suspicion that he might have committed a heinous
offence.

Section 41(B) of the CRPC includes the duties of the police officer while making an arrest.
Every police officer while making an arrest shall bear an accurate and clear identification of
his name, shall prepare a memorandum of arrest, which shall be attested by any one witness it
can be the member of his family or any other person from the locality where the arrest has been
made. The arrested person should also countersign the memorandum. This section also imposes
duty on the police officer to inform to the arrested person that he has the right to inform to his
family member or any relative or friend about his arrest.

© 2021. International Journal of Law Management & Humanities [ISSN 2581-53691

 535 InternationalJournalof Law) Management & Humanities [Vol. 4 Iss 3; 531]

In D.K.Basu vs State of West Bengal', the apex court of India mentioned certain guidelines,
which need to be followed by the police officer while arresting or detaining a person. And in
this case the Supreme Court, also imposed certain duties on the police officer so as to reduce
the custodial death of the persons who were under the police custody.

V. RIGHTS OF THE ARRESTED PERSON

The Constitution of India and the Code of Criminal Procedure, 1973 provides certain rights to
the arrested person. In law there is known as "presumption of innocence till he has proven
guilty" which means that it is required that an arrested person treated with humanity, dignity
and respectfully until he is proven guilty by the court of law.

The CRPC, 1973, provided certain provision, which provide certain rights to the arrested
person:-

(A) Right to Be Informed

Under Section 50(1) of CRPC it has been mentioned that the police officer who is arresting
without warrant shall inform to the person arrested, the grounds of his offence for which he
has been arrested. And if the offence which he has committed is bailable in nature then it is
also the duty of the police officer to inform to the arrested person that he is entitle to be released
on bail and he may arrange for sureties on his behalf. Article 22(2) of the Indian constitution
also states that the arrested person must be informed the grounds of his arrest. It also gives
right to the arrested person to inform to his family members, any relative, or his friend about
his arrest.

In Joginder Kumar vs State of U.P. 4 the Supreme Court held that a person arrested has the
right to inform any of his friend or relative or family member of his choice, about his
detainment. The police officer shall also inform the arrested person about his rights when he is
being brought to the police station.

(B) Right to Be Released on Bail

Section 50(2) of the CRPC states that if the accused has committed a bailable offence then the
police officer is entitle to inform the arrested person about his right to be released on bail.
Article 21 of the Indian Constitution ensures the right to liberty of every person until and unless
he proven guilty. And it is his right to know that even in a non-bailbale offences he may be
granted bail, if a bail is granted by the court after taking into consideration the nature or

3 D.K.Basu vs. State of West Bengal, (1997) 1 SCC 416, https://www.casemine.com/judgement/in/5790b33

ce561097e45a4e365
4 Joginder kumar vs. State of UP, (1994) 4 SCC 260, https://indiankanoon.org/doc/768175/

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536 InternationalJournalof Law) Management & Humanities [Vol. 4 Iss 3; 531]

heinousness of the offence. Section 167 also provide right to the accused to be released on bail
if investigation relating to his offence has not been completed within sixty days or ninety days
from the date of his detention. This is also known default bail.

In Uday Mohanlal Acharya Vs State of Maharashtra5 the court granted default bail to the
accused as the police officers fail to aquire evidence against him within the time limit of
investigation as mentioned in the Code of Criminal Procedure, Section 167.

(C) Right to Be Taken Before Magistrate without Delay

According to Section 56 of CRPC,

the police officer who is making such an arrest whether with or without warrant is bound to
produce the accused within 24 hours of his detention before magistrate excluding the time taken
for travelling from the place of arrest to the Magistrates court.

(D) Right to Consult a Legal Practitioner

Under Section 41D of CRPC gives the right to accused to consult to an advocate of his own
choice and he is also entitle to meet advocate of his own choice during interrogation, though
not through-out the interrogation. Article 22(2) also guarantees the right of the arrested person
to consult a lawyer of his own choice.

(E) Right to Free Legal Aid

Free legal aid means providing legal service to the economically backward people so that they
can conduct case or any legal proceedings in a court of law or before any judicial tribunal and
judicial authority. According to Article 39A, of the Indian constitution provides that it is the
duty of the state to provide justice on easily accessible terms so that every citizen can easily
approach the courts to enforce their rights.

In the case of Hussainara Khatoon vs State of Bihar,6 a PIL filed in the name of Hussainara
Khatoon, a prisoner in a jail in the Supreme Court. The Court held that if an accused is not able
to afford the legal services he has the right to free legal aid at the cost of the state.

(F) Right to be examined by a Medical Practitioner

According to Section 54(1) of CRPC accused have the right to have a full body medical
examination. This examination can help the accused to disprove the offence which he is said
to have been committed or can gather evidence that the offence has been committed by some

5 Uday Mohanlal Acharya Vs State of Maharashtra, (2001) 5 SCC 453, https://indiankanoon.org/search/?

formlnput=20010%205%20scc%20453
6 Hussainara Khatoonvs State of Bihar,1979 AIR 1369, https://indiankanoon.org/doc/1373215/

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other person. But it can happen only when magistrate give the permission to do so.

VI. CRITICISMS

Even though there are many safeguards and right provided in the Code of Criminal procedure
1973, of India but still the facts remains that the power of the arrest is being miss utilised and
illegally used in many cases all over India. The power of arrest often utilized to extort money
and other valuable property or the instance of the enemy of the person arrested. In civil
disputes, also, this power of arrest is misused and many false allegations were put on the
innocent persons. The vast discretion given by CRPC to arrest a person in cases of bail-able
offence and further power to make preventive arrest, which gives extraordinary power to the
police officer, which can easily be misused.

Another important criticism is regarding the increase of custodial death in India. Even though
the persons who were arrested had committed some offences but it does not give power to the
police officer to torture that person under his custody. Even while investigation the some police
officers uses third degree torture on the accused person to extract the information from the
accused.

In a landmark, case of D.KBasu Vs. State of West Bengal 7 the Supreme Court held that the
use of third degree method to extract information from the accused is illegal. In this case the
Supreme court also mentioned certain guidelines which include that- it is the duty of the police
officer not to use third degree torture for extracting any kind of information, the police officer
should let the arrested person know about his rights, there must be a memo made by the police
officer which must be attested by at least one family member of the accused. Also, the court
has given certain preventive measures that must be followed by the police officer in charge at
the time of the arrest of the accused.

VII. CONCLUSION

Lastly, it can be conclude that even though there are certain provisions regarding how the arrest
should be made and regarding the rights of the arrested person but this were somehow violated
and not been utilised accordingly. The police officers misuse there powers and also they failed
to do their duties properly. Moreover, the main reason behind it was the unawareness of the
people about their rights. We somehow console ourselves that these protectors of law and order
must be doing right but there are several number of cases were we witness that how they misuse

' D.K.Basu vs. State of West Bengal, (1997) 1 SCC 416, https://www.casemine.com/judgement/in/
5790b33ce561097e45a4e365

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there power.

VIII. REFERENCES

* Mariya Paliwala, Arrest of Persons Under CrPC, 1973, (December 12, 2019),
https://blog.ipleaders.in/arrest-of-a-person/

* Komal Srivastava, All under Code of Criminal Procedure,

https://www.latestlaws. com/articles/all-about-procedure-of-arrest-under-code-
ofcriminal-procedure-by-komal srivastava/#: :text=Any%20private%20person%
20may%20arrest,absence%20ofo20a %20police%20fficer%2C

* Arrest and Rights of arrested person, http://www.legalserviceindia.com/legal/

article 1747-arrest-and-rights-of-arrested-person.html.

© 2021. International Journal of Law Management & Humanities [ISSN 2581-53691