THE CODE OF CRIMINAL PROCEDURE,1973

(ARREST)

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The principal responsibility of state is to protect the society and societal members
from crime and criminals. State to satisfy its responsibility has established police
organization and imposed responsibilities to maintain law and order, investigate the
criminal cases, arrest the offender and produce him before the court imposition of
punishment. Arrest is main measure provided to police to satisfy its all
responsibilities. Arrest is much controversial at the same time much debatable;
particularly allegations are made against police for misuse and abuse of arresting
powers. Arrest is not defined in any provision contained in Criminal Procedure Code
1973. The word ‘arrest’ is derived from the French Arreter meaning ‘to stop’ or ‘stay’.
This term is used in reference to a person therefore it signifies a restraint on the
person. In simple term arrest may be defined as deprivation of personal liberty of an
individual by legal authority or apparent legal authority. Important requirement for
arrest is that the deprivation of personal liberty of an individual should be either by
legal authority or apparent legal authority. Legal authority is established by law and
empowered by law to arrest viz. police, CBI, CBCID etc. Apparent legal authority is
not established by law but permitted to arrest a person in certain circumstances viz.
common man. Legal authority and apparent legal authority both are empowered by
law therefore one wider term for these authorities may be used that is ‘lawful
authority’.

When any person is deprived of his personal liberty by lawful authority, it may
be arrest but the same act done by any other person like kidnapper may not amount to
arrest. Another important requirement for arrest is complete deprivation of personal
liberty of an individual. Arrest is interference with personal liberty of an individual
which is very important, basic, fundamental and crucial right available to every
societal member. Without personal liberty one cannot imagine about proper human
life. Even after that in certain circumstances deprivation of personal liberty means
arrest of the person becomes necessary. In arrest the arrestee should be completely
deprived of his personal liberty. Deprivation of personal liberty should be of such
manner that the person cannot move beyond a circumscribed limit on the basis of his
own will. Restraint imposed on liberty is not partial but must be total restraint for
example traffic police stops traffic in a particular direction; traffic police is legal
authority but it will not be arrest as there is no imposition of total restraint resulting
into complete deprivation of liberty. When all these elements are taken into account

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arrest may be defined as imposition of total restraint upon personal liberty of an
individual by lawful authority resulting into complete deprivation of personal liberty
of that person. Definition of arrest is very crucial; it clears when a person’s arrest has
been completed. In the Bouvier’s Law Dictionary, 1914 Edition Vol. I, the meaning is
given:

“…… to deprive a person of his liberty by legal

authority. The taking, seizing or detaining the person of
another, touching or putting hands upon him in the
execution of process or any act indicating an intention to
arrest…….”

In the Dictionary of English Law (1959) by Earl Jowit, Vol. 1, the meaning
of the word arrest is given:

“The restraining of the liberty of a man's person in order

to compel obedience to the order of a Court of Justice, or
to prevent the commission of a crime, or to ensure that a
person charged or suspected of a crime may be
forthcoming to answer it. To arrest a person is to restrain
him of his liberty by some lawful authority”

Black's Law Dictionary, 5th Edition (1979), defines arrest:

“To deprive a person of his liberty by legal authority.

Taking, under real or assumed authority, custody of
another for the purpose of holding or detaining him to
answer a criminal charge or civil demand............... Arrest
involves the authority to arrest, the assertion of that
authority with the intent to effect an arrest, and the
restraint of the person to be arrested............. All that is
required for an 'arrest' is some act by officer indicating
his intention to detain or take person into custody and
thereby subject that person to the actual control and will
of the officer, as formal declaration of arrest is required.”

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The New Encyclopaedia Britannica, 15th Edition, Vol. 1, observes about
arrest:

“Arrest is placing of a person in custody or under

restraint, usually for the purpose of compelling obedience
to the law. If the arrest occurs in the course of criminal
procedure, the purpose of the restraint is to hold the
person for answer to a criminal charge or to prevent him
from committing an offence. In civil proceedings, the
purpose is to hold the person to a demand made against
him........”

Halsbury's Laws of England, Third Edition (1955), Vol. 10,

states:

“Arrest consists of the actual seizure or touching of

person‟s body with a view to his detention. The more
pronouncement of words of arrest is not an arrest, unless
the person sought to be arrested submits to the process
and goes with the arresting person.”

Criminal Procedure Code, 1973, does not define arrest but only enumerates
circumstances and manner (mode) of arrest. Circumstances in which a person
may be arrested are mainly given in ss. 41, 42, 43, 44, 70, 151, 204 and 105-
B etc. and manner of arrest is given in s. 46 of CrPC. When these provisions
are analysed, it becomes clear that only deprivation of personal liberty by
lawful authority is not sufficient to constitute arrest. Police officer may have
called a person in police station and asked to seat. In this case police officer is
lawful authority, he imposed restraint resulting into deprivation of personal
liberty but it may not be arrest in every case. Analysis of provisions relating
to circumstances and manner of arrest shows that for arrest there are some
essential requisites:

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INTENT TO ARREST

Whenever police officer deprives a person of his personal liberty, he

must have intention to arrest. Intention to arrest is most important
requisite for arrest. Observation in Black's Law Dictionary emphasizes
on intent to arrest – ‘All that is required for an ‘arrest’ is some act by
officer indicating his intention to detain.’ Manner of arrest given in s.
46 Cr.P.C. clears that whenever police officer arrest a person, his intent
to arrest is manifested.

Three manner of arrest are given in Section 46

The first manner of arrest is submission to custody of

police officer Police officer informs that he has come to
arrest and also informs about grounds of arrest. In
pursuance of intimation, person to be arrested submits
himself to the custody of police officer. Intimation by
police officer manifests that he has intention to arrest

Second manner of arrest prescribed in s. 46 is touching

the body of person to be arrested. Police officer is
permitted to use least force for arrest. Touching the body
shows that police officer has intention to arrest.

Third manner of arrest is confining the body of person to

be arrested. Police officer is permitted to use utmost force
for arrest such force is used intentionally to arrest the
person.

Hereby manner of arrest permitted to be used that there should not only
be deprivation of clears personal liberty but it must be with intention to
arrest.

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ROSHAN BEEVI AND ORS. VS. JOINT SECRETARY TO
GOVERNMENT OF TAMIL NADU1

This judgment was delivered in the context of Sections 107 and 108 of the
Customs Act, 1962. These sections authorizes a Customs Officer empowered
in that behalf to require a person to attend before him and produce or deliver
documents relevant to the enquiry or to summon such person whose
attendance is considered necessary for giving evidence or production of a
document in connection with any enquiry being undertaken by such officer
under the Act. It was said that sections 107 and 108 are analogous to
section 160 of Cr.P.C. and any person comes in compliance of these
provisions, such custody will not come under the category arrest.

In the Present case Hon’ble Justice S R Pandian observed “The word

„arrest‟, when used in its ordinary and natural sense, means the
apprehension or restraint or the deprivation of one‟s personal liberty. The
question whether the person is under arrest or not, depends not on the legality
of the arrest, but on whether he has been deprived of his personal liberty to
go where he pleases. When used in the legal sense in the procedure
connected with criminal offences,

 an arrest consists in the taking into custody of another person

 under authority empowered by law,
 for the purpose of holding or detaining him to answer a
criminal charge or of preventing the commission of a
criminal offence.

The essential elements to constitute an arrest in the above sense are that
there must be an intent to arrest under the authority, accompanied by a
seizure or detention of the person in the manner known to law, which is so
understood by the person arrested.
There are following essential ingredient of arrest –

1. There must be custody,

2. by authorised person

1
1984 (15) ELT 289 Mad

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 3. There must be an intention to arrest under the authority,
4. There must be seizure or detention of the person in the manner known to
law.
5. Purpose of taking into custody and seizure is to answer a criminal
charge or of preventing the commission of a criminal offence.

Custody and arrest are not synonymous terms and observed that it is true that
in every arrest there is a custody but not vice-versa. Custody may amount to
arrest in certain cases, but not in all cases. It is in the aforesaid circumstances
that the Full Bench came to the conclusion that a person who is taken by the
Customs Officer either for the purpose of enquiry or interrogation or
investigation cannot be held to have come into the custody and detention of
the Customs Officer and he cannot be deemed to have been arrested from the
moment he was taken into custody.

REASONS OF ARREST:

When a person is arrested, he is deprived of his personal liberty which

is most important, crucial and fundamental right in Article 21 of the
constitution provisions are given for protection of personal liberty and
on the other hand Criminal Procedure Code, procedure of arrest,
thereby deprivation of personal liberty is provided. Normally in
ordinary situations such important right may not be interfered. There
must be some plausible reason for having provisions of arrest in the
procedural law.

1.FAIR TRIAL:

Criminal cases in india are based on the concept of fair trial. Fair trial in
wider sense includes fair trial to every party concerned with the case-
victim, state and accused but in stricter sense it relates to accused. Fair
trial to accused requires that he be provided with fair opportunity of
hearing and fair opportunity to defend himself. Therefore, it becomes
necessary that every proceeding relating to case should take place in

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presence accused. Thereby accused may know about allegation,
evidences and position of case. Fair trial is not discretion of accused but
responsibility of criminal justice system. When accused is not
appearing or appears that he may not appear before the court, his
appearance before court and participation in the case may be insured by
his arrest. Fair trial is main reason of having provisions relating to
arrest in Criminal Procedure Code.

2.PROPER INVESTIGATION:

Police officer generally makes arrests during investigation for doing

proper investigation in the case. Accused person is suspected for the
commission of crime; therefore, it is presumed either he has
information about evidences or evidences may be available with him.
Any person who may have complete knowledge about the fact and
circumstances of case, he is accused. Accused is needed to be
interrogated and medically examined, so that police may get clues in
the case and complete the investigation.

No person in normal situation assist the investigation

when he knows that evidences obtained may be used against him.
Criminal justice requires that such individual be arrested and compelled
to cooperate with investigating officer. Elaborate provisions are given
for this purpose in ss. 160, 161, 41(1) and 41-A of Criminal Procedure
Code.

3.PROTECTION OF WITNESSES AND EVIDENCES:

Criminals always try to temper with evidences and terrorize witnesses

and also attempts to obstruct investigation and influence investigation.
Criminal justice to ensure protection of witnesses and evidences
requires that the accused person may be arrested.

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4.PREVENTION OF CRIME:

Criminal law is based on premise prevention is better than cure. When

law enforcement agencies receive information about preparation to
commit serious crime affecting public at large, it is better to take
preventive measures to avoid commission of crime and for this purpose
the best measure is to arrest the suspect. In this connection police
officers are well empowered in ss. 129, 130, 131, 149, 151 and 41 of
Criminal Procedure Code.

5.IMPOSITION OF SENTENCE:

The main objective of criminal law is to save the society from crime
and criminality and to attain the objective criminal law instill fear of
punishment in the mind of criminals. It is needed that criminal should
be available for trial and in case of conviction for imposition of
punishment. Criminal never reads statutory law before commission of
crime but considers the fact what happened when he or other criminals
committed crimes. Imposition of punishment provides lesson to
criminals and potential criminals that the crimes should not be
committed. Therefore, it becomes necessary that the criminal should be
available before the trial court for trial and imposition of punishment.
For this purpose most appropriate method to ensure availability is to
arrest the accused and produce him before the court.

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