arrest and preventive arrest
TRANSCRIPT
Guided By: Dr. Asad Malik
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SUBMITTED BYMOHAMMAD ABID HUSSAIN ANSARI
B.A. LL.B. (HONS.) 8TH SEMESTER
ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the almighty
“ALLAH” for providing me with the authentic circumstances which were mandatory for the
completion of my project.
I feel myself highly delighted, as it gives me incredible pleasure to present an assignment
work on “Arrest and Preventive Arrest”.
I would like to enlighten my readers regarding this topic and I hope I have tried my best to
pave the way for bringing more luminosity to this topic.
I am grateful to Dr. Asad Malik who has helped me to venture this project as well as the
library of Faculty of Law, Jamia Millia Islamia.
I would like to thank all concern for their interest in providing me a good back up material.
Mohammad Abid Hussain Ansari
B.A.LL.B (Hons) 8th Semester
4th Year
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LIST OF CASES
1. Abdul Habib v. State…………………………………………………...1974 Cr LJ 248
2. Ajit Kumar v. State of Assam………………………………….(1976 Cr LJ 1303 Gau)
3. Anant Prasad……………………………………………………………..27 Cr LJ 1378
4. Anil A. Lokhande v State of Maharashtra…………………………..1981 CrLJ 125 SC
5. Baldev Singh Cheema v. State of Punjab and Ors…………………AIR 2012 SC 1515
6. Bharosa Ramdayal v. Empero………………………………………………..AIR 1941
7. Binoy Jacob v. CBI…………………………………………………..1993 Cri LJ 1293
8. Birendra Kumar Rai v. Union of India…………………………………….Cr.LJ, 1992
9. Brahm Prakash Gupta v. State………………………………………2008(106)DRJ199
10. Citizen for Democracy v. State of Assam……………………………..1995 3 SCC 743
11. D.K. Basu v. State Of West Bengal……………(1997) 1 SCC 416; 1997 SCC (Cri) 92
12. Delhi Judicial Service Association v. State of Gujarat……………AIR 1991 SC 2176
13. Dilip & Anr v. State Of M.P………………………………………24 November, 2006
14. Faish Mian v. Tripura Administration………………………………..(1962) Cr LJ 673
15. Goolab Rasul…………………………………………………….(1903) 5 Bom LR 597
16. Gopal Naidu………………………………………………………..(1922) 46 Mad 605
17. Hamidhbai Azambhai Malik v. State Of Gujarat……………………..12 January, 2009
18. Harikishan v. State of Maharashtra…………………………………………..AIR 1962
19. Hindustani Andolon v. State of Punjab………………………………(Cr.LJ 1984,299)
20. In re, Madhu Limaye……………………………………………A.I.R. 1969 S.C. 1014
21. Janardhan Reddy v. State of Hyderabad…………………………..A.I.R. 1951 SC 217
22. K. P. Saleem v. State of Kerala………………………………………..2001 CrLJ 4364
23. Kamla Bai v State of Maharashtra………………………………….AIR 1962 SC 1189
24. Karan Singh v Haradayal Singh……………………………….1979 Cr LJ 1211 (Punj)
25. Kasturi Lal v. State of U.P………………………………………….AIR 1965 SC 1039
26. Khatri (II) v. State of Bihar…………………………………………………..1981 SCC
27. Kultej Singh v. Circle Inspector of Police……………………..1992 CrLJ 1173 (Karn)
28. Mahadeo v State………………………………………………….1990 Cr LJ 858 (All)
29. Manbodh……………………………………………………………..AIR 1955 Nag 23
30. Mohan Singh v. State of Rajasthan………………………………...AIR 1978 SC 1511
31. Mukesh Kumar v. State………………………………………1990 Cr LJ 1923 (Delhi)
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32. Nazir……………………………………………………………..AIR 1951 All 3
(F.B.)
33. Poovan v. S.I. of Police……………………………………………….1993 Cr.LJ 2183
34. Powell v. Alabama………………………………………………………......287 US 45
35. Prem Shanker Shukla v. Delhi Administration………………………..1980 3 SCC 526
36. PUCL v. Union of India…………………………………………………1997 SC 1203
37. R. M. Wasawa v. State of Gujarat………………………………….AIR 1974 SC 1143
38. Rabindranath Prusty v State of Orissa…………………………..1984 Cr LJ 1392 (Ori)
39. Radha sah v. State of Jharkhand…………………………..2007 Cr.LJ 2805 Jharkhand
40. Raj Kumari v. S.H.O. Noida………………………………………(2004) Cri.L.J. 9 SC
41. Ram Chandra v. State……………………………………………1977 CrLJ 1783 (All)
42. Ramaswami Ayyar…………………………………………………AIR 1921 Mad 458
43. Roshan Beevi v. Jt. Secy. To Government of T.N……………….1984 Cri LJ 134 Mad
44. Saptawna v. State of Assam………………………………………...AIR 1971 SC 813
45. Satish Chandra Rai v. Jodu Nandan Singh……………………………..ILR 26 Cal 748
46. Satwant Singh v. State……………………………………………….AIR 1960 SC 266
47. Shahadat Khan……………………………………………………….AIR 1965 Trip 27
48. Sharifbai v. Abdul Razak…………………………………………………….AIR 1961
49. Sheela Barse v. State of Maharashtra………………………………1983 Cr.LJ 642 SC
50. Smt. Amarawathi v. State of UP…………………..Cr.LJ 2005 (755) All FB (7
judges)
51. State of Maharashtra v. C.C.W. Council of India………………..(2004) Cri.L.J. 14 SC
52. State of Maharashtra v. Dyanaba Bhikoba Dagade…………….1979 Cr L J 277(Bom)
53. State of Punjab v. Ajaib Singh…………………………...1953 AIR 10, 1953 SCR 254
54. State of U.P. v. Deoman……………………………………………AIR 1960 SC 1125
55. State v. Bhera……………………………………………………………….CrLJ, 1997
56. Suk Das v. Union Territory of Arunachal Pradesh…………………………...AIR 1986
57. Swami Hariharanand Saraswati v. Jailer I/C Dist. Varanasi…………………AIR 1954
58. Udaybhan Shuki v. State of UP……………………………………………...1999 CrLJ
59. Union of India v. Padam Narain Aggarwal & Ors…………………(2008) 13 SCC 305
60. V.J. Vaghela v. Kantibhai Jethabhai……………………………1985 Cr.L.J. 974 (Guj)
61. Vishakha v. State of Rajasthan………………………………………1997 (6) SCC 241
62. Nilabati Behera v. State of Orissa………………………………(1897) 24 IA 137 (PC)
63. Muhammad Yusuf v. Queen Empress……………………...……(1997 SCC (Cri) 434)
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64.
Table of Contents
1. Introduction Income Tax in brief……………………………………………………..3
2. Service Tax: Background…………………………………………………………….5
3. Justification for Levy of Service Tax………………………………………………...7
4. Constitutional Validity………………………………………………………………11
5. Negative List and its Analysis………………………………………………………15
6. Chargeability under the new approach……………………………………………...21
7. Bibliography………………………………………………………………………...23
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INTRODUCTION TO CRIMINAL PROCEDURE CODE, 19731
ANCIENT INDIA2
Prior to the conquest of India by Muslims, the Hindu Criminal Law was prevailing in India,
which was well established and well defined. Circumstantial evidence was sufficient to
punish or acquit a criminal. Accused was entitled to produce any witness in his defence. Trial
by ordeal was frequently used to determine the guilt of the person. Also trial by jury existed.
The Punishment was considered to be a sort of expiation which removed impurities from the
man.
After the conquest of India by the Muslims, the Mohammedan Criminal Law came into
existence. The courts while deciding the criminal cases were guided by this law. In 1773, the
Regulating Act was enacted under which a Supreme Court was established in Calcutta and
later on at Madras in Bombay. This introduced English law in India. The Supreme Court was
to apply British Procedural Law while deciding the cases of the Crowns subjects. In 1790,
Lord Cornwallis found the Mohammedan Criminal Law defective in many respects and
introduced reforms. After the Rebellion of 1857, the crown took over the administration in
India. The Criminal Procedure Code, 1861 was passed by the British parliament.
After the Mutiny in 1857, the British Government dissolved the East India Company and
direct responsibility of administration in India was taken by the Crown. Faced many
difficulties in controlling Judicial Administration in the absence of suitable substantive as
well as procedural legislation. With a view to provide criminal procedural law to the British
administrators in India, the British Parliament passed a Code of Criminal Procedure in 1861
which was amended in 1869 and finally replaced by Code of Criminal Procedure 1872.
1 ACT NO. 2 OF 1974 [25th January, 1974.]2http://www.powershow.com/view1/10ef2cZDc1Z/CRIMINAL_PROCEDURE_CODE_1973_powerpoint_ppt_presentation
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In 1898, the Code of Criminal Procedure was supplemented by a new Code vide Act V of
1898, which formed the basis of the present Code of Criminal Procedure. After
Independence, this Code was amended from time to time by various Central and State Acts.
In 1955, the amendments in this Code were made with intent to simplify procedures and
speed up trials. Finally, in 1973, major amendments were made in the Code of Criminal
Procedure, 1898 and the old Code was replaced by the Code of Criminal Procedure, 1973.
Criminal Procedure Code, 1973 is the main legislation on procedure for administration of
substantive criminal law in India. It was enacted in 1973 and came into force on 1 April,
1974. It provides the machinery for the investigation of crime, apprehension of suspected
criminals, collection of evidence, determination of guilt or innocence of the accused person
and the determination of punishment of the guilty. Additionally, it also deals with public
nuisance, prevention of offenses and maintenance of wife, child and parents.
IMPORTANT CHANGES
The preliminary enquiry which precedes the trial by Court of Sessions was abolished.
Provisions made to enable adoption of summons procedure for the trial of offences
punishable with imprisonment up to 2 years instead of up to 1 year. The scope of summary
trial has been widened by including offenses punishable with imprisonment up to 1 year
instead of 6 months. The powers of revision against interlocutory orders have been taken
away.
The provision for mandatory stoppage of proceedings by a subordinate court, on the mere
intimation from a party of his intention to move a higher court for transfer of case has been
omitted and a further provision has been made to the effect that the court hearing the transfer
application shall not stay the proceedings unless it is necessary to do so in the interest of
justice. When adjournments are granted at the instance of either party, the court has been
empowered to order costs to be paid by the party seeking adjournment to the other party.
Provisions have been made for the service of summons by registered post in certain cases. In
petty cases, the accused has an opportunity to plead guilty by post, and to remit the fine
specified in the summons.
If court of appeal or revision discovers that any error, omission or irregularity in respect of
charge has occasioned failure of justice, it need not necessarily order a retrial. The facility of
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part heard cases being continued by successor in office available in respect of Courts of
Magistrates has been extended to Courts of Session.
Judiciary has been completely separated from the executive. Provisions have been made for
legal aid to indigent accused in cases triable by Court of Session. The State government may
extend this facility to other categories of cases. The court has been empowered to order
payment of compensation by the accused to the victims of crime to a larger extent than was
provided in the old Code.
When a commission is issued for the examination of witnesses for the prosecution, the cost
incurred by the defence including pleaders fee, may be ordered to be paid by the prosecution.
An opportunity is given to the accused to make representation against the punishment before
it is imposed. And also in 2013 amendment act, important changes were brought in for the
well-being of the society.
This is the well-known and accepted fact that the Liberty is the most precious of all the
human rights. It has been the founding faith of the human race for more than 200 years. Both
the American Declaration of Independence, 1776 and the French Declaration of the Rights of
Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of
man. The Universal Declaration of Human Rights adopted by the General Assembly of the
United Nations on December 10, 1948, contains several articles designed to protect and
promote the liberty of individual. So does the International Covenant on Civil and Political
Rights, 1966. Above all, Article 21 of the Constitution of India proclaims that no one shall be
deprived of his liberty except in accordance with the procedure prescribed by law. Even
Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty.
As it is often said, one realizes the value of liberty only when he is deprived of it. Verily,
liberty along with equality is the most fundamental of human rights and the fundamental
freedoms guaranteed by our Constitution.
Of equal importance is the maintenance of peace and law and order in the society. Unless
there is peace, no real progress is possible. Societal peace lends stability and security to the
polity. It provides the necessary conditions for growth, whether it is in the economic sphere
or in scientific and technological spheres. Just as liberty is precious to an individual, so is the
society interested in peace and maintenance of law and order in the society. Both are equally
important. This fact was recognized about 2500 years ago by Heraclitus of Ephesus. He had
observed:-
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“A major problem of human society is to combine that degree of liberty
without which law is tyranny with that degree of law without which liberty
becomes license”.3
INTERNATIONAL COVENANTS
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
Article 9 - no one shall be subject to arbitrary arrest, detention or exile;
Article 12 provided that the privacy, reputation and honour of every individual shall
be protected by the State.
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS 1966
Article 9 (1) declares that “Everyone has the right to liberty and security of person
(and that) no one shall be subject to arbitrary arrest or detention”.
Article 9 (3) declares further that “any one arrested or detained on a criminal charge
shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to
release”.
Article 10 (1) of the Covenant declares that “all persons deprived of their liberty shall
be treated with humanity and with respect for the inherent dignity of the human
person”.
Article 17 says that the privacy, honour and reputation of an individual shall not be
interfered with unlawfully.
Article 2(2) of the Covenant creates an obligation upon the ratifying States to enact
domestic legislation to give effect to the rights guaranteed by the Covenant.
Article 3 creates a further obligation upon such States to ensure that the rights
guaranteed by the Covenant are made available to all their citizens.
3 Arthur T. Vanderbilt in his article “United We Stand”; http://lawcommissionofindia.nic.in/reports/177rptp1.pdf, Law commission report of India 177th report
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In case of Vishakha v. State of Rajasthan4, the court of law has observed that “any
international convention not inconsistent with the Fundamental Rights and in harmony with
its spirit must be read into these provisions to enlarge the meaning and content thereof, to
promote the object of the constitutional guarantee”
Also in case of PUCL v. Union of India5, the court has the same view as in case of Vishaka
that “for the present, it would suffice to state that the provisions of the covenant, which
elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can
certainly be relied upon by Courts as facets of those fundamental rights and hence,
enforceable as such”.
LAW COMMISSION OF INDIA IN ITS 177th REPORT
In Delhi, while the total number of persons arrested for substantive offence is 57,163, the
total number of persons arrested under preventive provisions is 39,824. 50% of the persons
arrested were arrested for bailable offences.
If we take U.P., the number of arrests under the preventive provisions is far above the total
number of arrests for substantive offences. While preventive arrests are 4, 79,404, the number
of arrests for substantive offences are 1, 73,634. The percentage of persons arrested in
bailable offences is 45.13.
The unduly large number of arrests under preventive provisions as well as for bailable
offences. An overwhelming percentage of those arrests were by the Police without a warrant.
It is a matter of common knowledge that it is the poor who are at the receiving end of the
excesses by law enforcement authorities.
CONSTITUTION OF INDIA
Article 21 of the constitution of India declares that “no person shall be deprived of his
life or personal liberty except according to procedure established by law”.
The heading of the said Article is “Protection of life and personal liberty”.
Article 20 contains three guarantees, namely,
a. Not to be convicted of an offence which was not in force or punishable at the
time of the commission of the offence;
4 (1997 (6) SCC 241)5 (1997 SC 1203)
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b. Not to be prosecuted or punished for the same offence more than once; and
c. Not to be compelled to be a witness against himself.
Article 20
a. Clause (1) declares that “No person who is arrested shall be detained in
custody without being informed, as soon as maybe, of 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”;
b. Clause (2) is indeed more fundamental. It says “Every person who is arrested
and detained in custody shall be produced before the nearest magistrate
within a period of 24 hours of such arrest excluding the time necessary for the
journey from the place of arrest to court of the magistrate and no such person
shall be detained in custody beyond the said period without the authority of a
magistrate”.
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MEANING OF ARREST
“Arrest may be defined as the execution of the command of a Court of Law or of a
duly authorized officer.”6
“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.”7
Section 41 empowers the police to arrest any person without warrant from the Magistrate if
such person is concerned in any cognizable offence or against whom a reasonable complaint
has been made or credible information has been received or reasonable suspicion exits of
such person having been so concerned with the cognizable offence. Section 41 also
specifically refers to a cognizable complaint about commission of a cognizable offence.8
Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the
search in respect of offences punishable under Chapter IV of the Act etc.9 Under Section
41(2) only the empowered officer can give the authorization to his subordinate officer to
carry out the arrest of a person or search as mentioned therein. Although the use of the word
"May" in Section 41 Cr.P.C. indicates that, it is not obligatory for police to make arrest in
every case. But if arrest is made, it does not require any, much less strong, reasons to be
recorded or reported by the police. Thus so long as the information or suspicion of cognizable
offence is "reasonable" or "credible", the police officer is not accountable for the discretion of
arresting or no arresting. At best the arrested person can be granted bail, or maybe in extreme
cases remand can be refused under Section 167 Cr.PC.10
Under Section 42(1) the empowered officer if has a prior information given by any person,
that should necessarily be taken down in writing. But if he has reason to believe from
6 Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305.7 Legal Dictionary by Farlex8 Baldev Singh Cheema v. State of Punjab and Ors., AIR 2012 SC 15159 Dilip & Anr vs State Of M.P on 24 November, 2006, http://indiankanoon.org/docfragment/372947/?formInput=section%2041%20crpc, Hamidhbai Azambhai Malik v. State Of Gujarat on 12 January, 2009.10 Brahm Prakash Gupta v. State, 2008(106)DRJ199
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personal knowledge that offences under Chapter IV have been committed or materials which
may furnish evidence of commission of such offences are concealed in any building etc. he
may carry out the arrest or search without a warrant between sunrise and sunset and this
provision does not mandate that he should record his reasons of belief. But under the proviso
to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he
must record the grounds of his belief. To this extent these provisions are mandatory and
contravention of the same would affect the prosecution case and vitiate the trial. (3) Under
Section 42(2) such empowered officer who takes down authorised officer under Section 41(2)
of the Act carries out a search, he would be doing so under the provisions of Cr.P.C namely
Sections 100 and 165 Cr.P.C and if there is no strict compliance with the provisions of Cr.P.C
then such search would not per se be illegal and would not vitiate the trial. The effect of such
failure has to be borne in mind by the courts while appreciating the evidence in the facts and
circumstances of each case. When an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to the nearest Gazetted Officer
or Magistrate without the possibility of the person to be searched parting with possession of
any narcotic drug or psychotropic substance, or controlled substance or article or document,
he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed
to search the person as provided under section 100 of the Code of Criminal Procedure, 1973.
Under Section 41(2) only the empowered officer can give the authorization to his subordinate
officer to carry out the arrest of a person or search as mentioned therein.
RECORD REASON SECTION 41(PROVISO)
What it means is that if you are arresting, you must record reasons. If you are not arresting
also, you should record reasons. The lawyers were asking: Why do you record reasons for
arresting and not recording reasons for not arresting? There is merit in that submission.
Therefore, the main part of the Section says that if you are arresting you should record
reasons and if you are not arresting also you should record reasons.
Section 41 (A) - Pertaining to issue of notice of appearance is in line with the right to life and
liberty for every Indian citizen. This would help bring down the number of arrests which
would in turn decongest the crowded jails of India. Simultaneously, the innocents too can feel
secured in case they stand a chance of exposure to implication in false cases. This amendment
made the system more transparent.
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The word arrest is derived from French word Arrester meaning to stop or stay and signifies a
restraint of a person. The word ‘arrest’ has neither been defined in the code nor in the Indian
Penal Code nor in any other enactment dealing with criminal offences. Simply speaking,
Arrest means apprehension of a person by legal authority resulting in deprivation of his
liberty. Every confinement is not arrest, for arrest legal authority is essential. For instance,
when a police officer apprehends a thief he is arresting the thief; but when a dacoit
apprehends a person with a view to extract ransom, the dacoit is not arresting that person but
wrongfully confining him. Further, every compulsion or physical restraint is not arrest but
when the restraint is total and deprivation of liberty is complete, that would amount to arrest.
An arrest implies the actual seizure or touching of the person with a view to keep him in
detention.
Arrest of a person is made with a view to ensure his presence at trial in connection with any
offences in which he is directly or indirectly involved. In case of serious offences, arrests are
often made. But in ordinary cases, which are not of serious nature the accused person is
normally called to the police station through, summon to answer certain questions and
thereafter their presence is ensured at the trial of the case too.
In State of Punjab v. Ajaib Singh11, arrest is defined as “Arrest means a physical restraint
put on a person as a result of allegation of accusation that he has committed a crime or an
offence of quasi criminal nature.”
CREDIBLE INFORMATION AND A REASONABLE SUSPICION
As information upon which arrest may be made by a police officer must be based upon
definite facts. The police officer must consider over all materials placed before him in
support of arrest before taking final decision in this respect. Where a wrong arrest is made by
a police officer under a bona fide mistake he will be protected and an illegal arrest does not
affect the trial of the case. Similarly where an arrest is made on mere suspicion, it must be
reasonable and in such cases investigation should be carried out by the police without delay.
Magistrate must also be watchful, for this power is very likely to be abused by the police.12
Whether there are reasonable grounds for suspicion will depend upon the circumstances in
each case. If a person is suspected to be in possession of stolen clothes and he fails to answer
11 1953 AIR 10, 1953 SCR 25412Shahadat Khan, AIR 1965 Trip 27
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satisfactorily, it would be a reasonable ground for suspicion justifying his arrest.13 But mere
suspicion would not be enough, it must be reasonable.14
Also in case of State of Maharshtra v. C.C.W. Council of India15, the High Court by an
order prevented the police from arresting a lady without the presence of Lady Constable. And
also further prohibited the arrest of lady after sunset & before sunrise under any
circumstances.
DIFFERENCE BETWEEN ARREST AND CUSTODY
The word ‘Arrest’ and ‘Custody’ are not synonymous. In every arrest there is custody but
vice versa is not true. What amounts to arrest is laid down by the legislature in Section 46.
Whether the arrest to be made is with a warrant or without the warrant, it is necessary that in
making such an arrest the police officer or 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
word or action.16
Arrest is a mode of formally taking a person in police custody. Whereas 'custody' merely
denotes surveillance or restriction on the movement of the person concerned. A person may
be taken in custody completely or even partially. The concept of being in custody is,
therefore, different from that of a formal arrest. Thus, it would be seen that in every arrest
there is custody but the converse is not true and as such, arrest and custody are not
synonymous terms.
PURPOSE OF ARREST
Arrest of a person might be necessary under the following circumstances: -
1. To secure the attendance of an accused person at trial- When a person is to be
tried on the charge of some crime, his attendance at the time of trial becomes
necessary. If his attendance is not likely to be ensured by issuing a notice or summons
to him, probably his arrest and detention is the only effective method of securing his
presence at the trial.
13 Kasturi Lal v. State of U.P, AIR 1965 SC 103914Faish Mian v. Tripura Administration, (1962) Cr LJ 67315 (2004) Cri.L.J. 14 (S.C.)16 Roshan Beevi v. Jt. Secy. To Government of T.N., 1984 Cri LJ 134 Mad
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2. As a preventive or precautionary measure- If there is imminent danger of the
commission of a serious crime (cognizable offence), arrest of the person intending to
commit such a crime may become necessary as a preventive measure. There may be
other circumstances where it is necessary as a precautionary measure to arrest a
habitual offender or an ex-convict, or a person found under suspicious circumstances.
3. For obtaining correct name and address- Where a person, on being asked by a
police officer, refuses to give his name and address, then under certain circumstances,
it would be proper on the part of the police to arrest such a person with a view to
ascertain his correct name and address.
4. For removing obstruction to police- Whoever obstructs a police officer in the
execution of his duty would be and should be liable to be arrested then and there by
such a police officer. This is essential for the effective discharge of police duties.
5. For retaking a person escaped from custody- A person who has escaped from
lawful custody should be arrested forthwith by the police? It would be seen that the
Code contemplates two types of arrests:
a. Arrest made in pursuance of a warrant issued by a magistrate; and
b. Arrest made without such a Warrant but made in accordance with some legal
provision permitting such an arrest.
FOLLOWING FLOWCHART FOR ARREST
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ARREST WITH WARRANT
There are some circumstances in which arrest of a person is essential or at least desirable.
The determination as to the existence of such circumstances and the consequent decision to
arrest should be made fairly having due regard to the liberty of the individual and the interests
of the society. Ideally a judicial officer is best suited to decide such issues with a fair measure
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ARRESTSections: 41-60
Arrest with warrant
Sections: 70-81
Arrest without warrant
Sections: 41-45
Arrest How MadeSs. 46,47, 48, 49, 55, 60
After Arrest ProceduresSs. 51, 52, 53, 53A, 54A, 58, 59
Right of Arrested PersonSs. 50, 50A, 54, 55A, 56, 57
Consequences of non-compliance with Provisions relating to arrest
of reasonableness, impartiality and detachment. Therefore, basically it is for a magistrate to
make an arrest decision on the information generally obtained from the police or the
complainant. If the magistrate makes a decision to arrest he would issue a warrant of arrest.
Sections. 70 to 81 deals with the provisions of arrest with warrant. The provisions relating to
arrest with warrant will be discussed under Chapter ‘Processes to Compel Appearance’.
To ensure the presence of the accused in the trial, warrant is issued on various grounds:
Ordinarily in all warrant cases (Section 204)
Issue of process:
1. If in the opinion of a Magistrate taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be –
a. A summons-case, he shall issue his summons for the attendance of the
accused, or
b. A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to appear at a certain time before such
Magistrate or (if he has no jurisdiction himself) some other Magistrate having
jurisdiction.
2. No summons or warrant shall be issued against the accused under sub-section 1 until a
list of the prosecution witnesses has been filed.
3. In a proceeding instituted upon a complaint made in writing, every summons or
warrant issued under sub-section 1 shall be accompanied by a copy of such complaint.
4. When by any law for the time being in force any process-fees or other fees are
payable, no process shall be issued until the fees are paid, and if such fees are not paid
within a reasonable time, the Magistrate may dismiss the complaint.
5. Nothing in this section shall be deemed to affect the provisions of section 87.
Even in summons cases, if necessary (Section 87) Issue of warrant in lieu of, or in
addition to, summons:
A court may, in any case in which it is empowered by this Code to issue a summons for the
appearance of any person, issue, after recording its reasons in writing, a warrant of his arrest-
17 | P a g e
a. If, either before the issue of such summons, or after the issue of the same but before
the time fixed for his appearance, the Court sees reason to believe that he has
absconded or will not obey the summons; or
b. If at such time he fails to appear and the summons is proved to have been duly served
in time to admit of his appearing in accordance therewith and no reasonable excuse is
offered for such failure.
In case of breach of bond for (Section 89)
Arrest on breach of bond for appearance: When any person for whose appearance or arrest
the officer presiding in any Court is empowered to issue a summons of warrant, is present in
such Court, such officer may require such person to execute a bond, with or without sureties,
for his appearance in such Court, or any other Court to which the case may be transferred for
trial.
ARREST WITHOUT WARRANT
Sometimes, there might be circumstances where prompt and immediate arrest is necessary
and there is no time to approach a magistrate and obtain a warrant from him. For instance, in
a case where a person has perpetrated a serious crime and there is chance of the person
absconding unless immediately arrested, it would be certainly unwise to insist on the arrest
being made only after obtaining a warrant from a magistrate. There may be occasions where
preventive action may be necessary in order to avert the danger of sudden outbreak of crime.
In those cases, often the arrest ¬decision will have to be made by a person other than a
judicial magistrate. In such cases it is the investigating agency that has discretion to effect
arrests.
In all such cases arrests can be made by the investigating agency, however, the Code
contemplates a judicial scrutiny soon after such arrest. According to the Code, every person
arrested without a warrant is required to be produced before the judicial magistrate within 24
hours of his arrest (Sections 56 & 57 of Cr.P.C. and Art. 22(2) of the Constitution of India).
The police are reported to have been flouting this legal requirement quite often. In the case of
Poovan v. S.I. of Police17, the Kerala High Court ruled that whenever a complaint is received
17 1993 Cr.LJ 2183
18 | P a g e
by a magistrate that a person has been arrested within his jurisdiction but has not been
produced before him within 24 hours or a complaint is made to him that a person is being
detained within his jurisdiction beyond 24 hours of his arrest he can and should call upon the
police officer concerned to state, whether the allegations are true, and if so, on what and
under whose custody he is being so held. If the officer denies the arrest the magistrate can
make an inquiry and pass appropriate orders.
An arrest without warrant can be effected under the Code by
a. A Police Officer (Sections 41, & 42)
b. A Private Person (Section 43)
c. A Magistrate (Section 44)
d. A Custodian or Rescuer (Section 60)
A police officer may arrest without a warrant (Sec 41)
1. Any police officer may without an order from a Magistrate and without a warrant,
arrest any person-
a. who commits, in the presence of a police officer, a cognizable offence;
b. against whom a 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 than seven years or which may extend to seven years whether with or
without fine, if the following conditions are satisfied, namely:
i. the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said
offence;
ii. the police officer is satisfied that such arrest is necessary
a) to prevent such person from committing any further offence; or
b) for proper investigation of the offence; or
c) to prevent such person from causing the evidence of the offence
to disappear or tampering with such evidence in any manner; or
d) to prevent such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the court or to
the police officer; or
19 | P a g e
e) as unless such person is arrested, his presence in the court
whenever required cannot be ensured;
And the police officer shall record while making such arrest, his reasons in writing;
Provided that a police officer shall, in all cases where the arrest of a person is not
required under the provisions of this sub-section, record the reasons in writing for not
making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than seven years
whether with or without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed the said offence;
c. who has been proclaimed as an offender either under this Code or by order of
the State Government; or
d. in whose possession anything is found which may reasonably be suspected to
be stolen property and who may reasonably be suspected of having committed
an offence with reference to such thing; or
e. who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
f. who is reasonably suspected of being a deserter from any of the Armed Forces
of the Union; or
g. who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed at any place out of
India which, if committed in India, would have been punishable as an offence,
and for which he is, under any law relating to extradition, or otherwise, liable
to be apprehended or detained in custody in India; or
h. who, being a released convict, commits a breach of any rule made under sub¬-
section (5) of section 356; or
i. for whose arrest any requisition, whether written or oral, has been received
from another police officer, provided that the requisition specifies the person
to be arrested and the offence or other cause for which the arrest is to be made
and it appears therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
20 | P a g e
2. Subject to the provisions of Section 42, no person concerned in a non ¬cognizable
offence or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.
Thus, Section 41(1) enumerates ten categories of offences where a police officer may arrest
any person without an order from a Magistrate and without a warrant.
The word ‘May’ in Section 41 (1) suggests that a police officer has discretion in making
arrest without warrant. As in the case of Binoy Jacob v. CBI18, the Delhi High Court held
that in a country governed by rule of law the discretion of the investigating agency does not
mean whim, fancy or wholly arbitrary exercise of discretion. The Magistrate, therefore, has to
be watchful as the power of arrest without warrant under suspicion is liable to be abused.
Also in case of Smt. Amarawathi v. State of UP19, it was held that the arrest of accused is not
“must” if congnizable offence is disclosed in the FIR or criminal complaint. The police
should rather be guided by the decision of the S.C in Joginder kumar v. state of UP before
deciding whether to make arrest or not.
Further, in State v. Bhera20, it was held that the "reasonable suspicion" and "creditable
information" must relate to definite averments which must be considered by the Police
Officer himself before he arrests the person.
This section is a depositary of general powers of the police officer to arrest but this power is
subject to certain other provisions contained in the Code as well as in the special statute to
which the Code is made applicable. If Section 155(2) prohibits a police officer from
investigating a non-cognizable offence without an order of the Magistrate then in respect of
such an offence a police officer cannot exercise the powers contained in Sec. 4l(1)(d).21
Information upon which arrest may be made by a police officer must be based upon definite
facts. The police officer must consider over all materials placed before him in support of
arrest before taking final decision in this respect. Where a wrong arrest is made by a police
officer under a bona fide mistake he will be protected and an illegal arrest does not affect the
trial of the case. Similarly where an arrest is made on mere suspicion, it must be reasonable
18 1993 Cri LJ 129319 Cr.LJ 2005 (755) All FB (7 judges)20 CrLJ, 199721 Avinash v State, 1983 CrLJ 1833 (Bom.)
21 | P a g e
and in such cases investigation should be carried out by the police without delay. Magistrate
must also be watchful, for this power is very likely to be abused by the police22. Whether
there are reasonable grounds for suspicion will depend upon the circumstances in each case.
If a person is suspected to be in possession of stolen clothes and he fails to answer
satisfactorily, it would be a reasonable ground for suspicion justifying his arrest23. But mere
suspicion would not be enough, it must be reasonable.24
Important to Note: Section 41: - Section 41(1) of Cr. P. C. provides for ten clauses of
persons who may be arrested by the police without warrant. Cases where a police officer may
arrest a person without warrant are specified in Schedule I of the Code. Sec. 41 is not
exhaustive. There are various other Acts, e.g. Arms Act, Explosives Act, etc. which also
confers such powers on police officers.
Notice of appearance before police officer (Sec 41-A)
1. The police officer shall, in all cases where the arrest of a person is not required under
the provisions of sub-section (1) of Section 41, issue a notice directing the person
against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be specified in the notice.
2. Where such a notice is issued to any person, it shall be the duty of that person to
comply with the terms of the notice.
3. Where such person complies and continues to comply with the notice, he shall not be
arrested in respect of the offence referred to in the notice unless, for reasons to be
recorded, the police officers are of the opinion that he ought to be arrested.
4. Where such person, at any time, fails to comply with the terms of the notice or is
unwilling to identify himself, the police officer may, subject to such orders as may
have been passed by a competent court in this behalf, arrest him for the offence
mentioned in the notice.
Procedure of arrest and duties of officer making arrest (Sec 41-B)
Every police officer while making an arrest shall
22 Footnote number 623 Footnote number 724 Footnote number 8
22 | P a g e
a. bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
b. prepare a memorandum of arrest which shall be-
i. attested by at least one witness, who is a member of the family of the person
arrested or a respectable member of the locality where the arrest is made;
ii. countersigned by the person arrested; and
c. Inform the person arrested, unless the memorandum is attested by a member of his
family, that he has a right to have a relative or a friend named by him to be informed
of his arrest.
Control room at districts (Sec 41-C)
1. The State Government shall establish a police control room-
a. in every district;
b. and at State level.
2. 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.
3. The control room at the Police Headquarters at the State level shall collect from time
to time, details about the persons arrested, nature of the offence with which they are
charged and maintain a database for the information of the general public.
Right of arrested person to meet an advocate of his choice during interrogation. (Sec 41-
D)
When any person is arrested and interrogated by the police, he shall be entitled to meet an
advocate of his choice during interrogation, though not throughout interrogation.
New Sections 41-A, 41-B, 41-C, and 41-D have been inserted and amended by the Cr.P.C.
(Amendment) Act, 2008 (5 of 2009) and the Cr.P.C. (Amendment) Act, (41 of 2010)
respectively.
Arrest on refusal to give name and residence (Sec 42)
1. When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuses, on demand of such officer,
to give his name and residence or gives a name or residence which such officer has
23 | P a g e
reason to believe to be false, he may be arrested by such officer in order that his name
or residence may be ascertained.
2. When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a
Magistrate if so required:
Provided that, if such person is not resident in India, the bond shall be secured by a
surety or sureties resident in India.
3. Should the true name and residence of such person not be ascertained within twenty-
four hours from the time of arrest or should he fail to execute the bond, or, if so
required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest
Magistrate having jurisdiction.
Under this Section the arrest is to be made for the purpose of ascertaining the name or
residence; and after such ascertainment the arrestee must be released on executing a bond
(with or without sureties) before a Magistrate if so required.
In one case, a police constable asked a man not to create any disturbance on a public road.
When the man declined to do so, the constable demanded his name and address, which were
not furnished. Thereupon, the constable arrested the man. It has been held that, in the
circumstances, the constable had lawfully exercised his powers under this section25. However,
when two police officers arrested a man without a warrant, for being drunk and creating
disturbance on a public road, and confined him in the police station, although one of the
police officers knew his name and address, held that the police officers' action was not
justified.26
Important to Note: Section 42: - Section 42 provides for arrest of a person if he refuses to
disclose his identity & if he is suspected to be one of the offenders. But such person must be
released on bail after securing a bond if he is suspected to having committed a non-
cognizable offence.
Arrest by Private person and procedure on such arrest (Sec. 43)
1. Any private person may arrest or cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and,
25 Goolab Rasul (1903) 5 Bom LR 59726 Gopal Naidu (1922) 46 Mad 605
24 | P a g e
without unnecessary delay, shall make over or cause to be made over any 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.
2. If there is reason to believe that such person comes under the provisions of section 41,
a police officer shall re-arrest him.
3. If there is reason to believe that he has committed a non-cognizable offence, and he
refuses on the demand of a police officer to give his name and residence, or gives a
name or residence which such officer has reason to believe to be false, he shall be
dealt with under the provisions of section 42; but if there is no sufficient reason to
believe that he has committed any offence, he shall be at once released.
Under Section 43, a private person can arrest any person, who has in his presence, committed
a non-bailable and cognizable offence, or any person who is a proclaimed offender.
This right of arrest arises under the common law, which applies, to India. Thus, if a person is
drunk and disorderly and is assaulting others he can rightly be arrested by a private citizen
under this section27. It cannot be argued that this section applies only to those cases when the
offence committed in the presence of the private person is a substantive offence, and that this
power is not available when there is merely an attempt to commit an offence. Further, an
arrest is justified even if the private person is under a bona fide impression that a non-bailable
and cognizable offence, as for instance, abduction of a girl, is being committed in his
presence, although it may turn out subsequently that the case is not one of abduction.28
However, the words "in his presence" in Sec. 43(1) cannot be extended to mean "in his
opinion" or "on suspicion" or "on receipt of information". Where, therefore, an individual
seeing a person fleeing with a knife in his hand pursued by others, tries to arrest him, his
exercise of power of arrest cannot be brought under this section29. After making an arrest, the
person arresting must take the arrestee to the police, otherwise he would be guilty of the
offence of wrongful confinement.
In the case of K. P. Saleem v. State of Kerala30, the court held that the action taken by
residents of locality in apprehending the accused who were apparently found engaged in
preparation of brown sugar to injectable form is certainly justified.
27 Ramaswami Ayyar AIR 1921 Mad 45828 Anant Prasad, 27 Cr LJ 137829 Abdul Habib v. State, 1974 Cr LJ 24830 2001 CrLJ 4364
25 | P a g e
But in case of Radha sah v. State of Jharkhand31, the court has observed that the accused
was not arrested at time of commission of offence but much after alleged occurrence. There
was no eye witness to occurrence. Therefore none of the witnesses had authority to arrest
accused under section 43.
Important to Note: Section 43: - Any private individual may arrest a person only when: -
1. The person is a proclaimed offender, or
2. The person commits a non-bailable & Cognizable offence in his presence.
Arrest by Magistrate (Sec 44)
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.
Sub section (1) gives the magistrate the power to arrest a person who has committed an
offence in his presence and also to commit him to custody. Under sub section (2) the
magistrate has the power to arrest a person who is suspected of having committed an offence
but he has no power to commit him to custody in this case.
Thus, any Magistrate (whether Executive or Judicial) may arrest a person without a warrant.
Sec. 44(1) deals with the situation when any offence is committed in the presence of a
Magistrate, within his local jurisdiction. In such case he may himself arrest or order any
person to arrest the offender and also to commit him to custody (subject to the bail
provisions).
Under sec. 44 (2), the Magistrate has power to arrest a person who is suspected of having
committed on offence but has not been given any power to commit him to custody. The
omission of this power to commit such suspect to custody is not accidental but deliberate32. In
the latter case, committing to custody will have to be done in accordance with Ss. 57 and 167
of the Code.
31 2007 Cr.LJ 2805 Jharkhand32 Ram Chandra v. State, 1977 CrLJ 1783 (All)
26 | P a g e
Important thing to note here is that magistrates have wider power than private citizen. A
magistrate can arrest on the ground of any offence and not only on cognizable offence. As
held in the case of Swami Hariharanand Saraswati v. Jailer I/C Dist. Varanasi33, the
arrested person must be produced before another magistrate within 24 hours; otherwise his
detention will be illegal.
Protection of members of the Armed Forces from arrest (Sec. 45)
1. Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member
of the Armed Forces of the Union shall be arrested for anything done or purported to
be done by him in the discharge of his official duties except after obtaining the
consent of the Central Government.
2. The State Government may, by notification, direct that the provisions of sub-section
(1) shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be
serving, and thereupon the provisions of that sub-section shall apply as if for the
expression "Central Government" occurring therein, the expression "State
Government" were substituted.
It may be noted that the protection from arrest under this section is not absolute. A member of
the Force may be arrested after obtaining the consent of the Central/State Government.
Further, a member of the Force cannot make a pretended or fanciful claim under this
provision, that he did the act in performance of his duties. Thus, acts like cheating 'or taking a
bribe would fall outside the scope of the expression "discharge of official duties".34
Immunity of Members of Judicial Service
Though there is no provision in the Code of Criminal Procedure granting immunity or
protection from arrest to the members of judicial service, the leading decision of the Supreme
Court in Delhi Judicial Service Association v. State of Gujarat35, lays down certain
guidelines to be followed.
In that case, a Chief Judicial Magistrate of Nadiad in Gujarat was humiliated, arrested,
assaulted, handcuffed and tied with a thick rope around his arms and body on flimsy charges.
In that condition, he was taken to the public exhibiting to the members of public that the 33 AIR 195434 Satwant Singh v. State, AIR 1960 SC 26635 AIR 1991 SC 2176
27 | P a g e
police had the power and privilege to apprehend and deal with a Chief Judicial Magistrate to
its sweet will. Treating the assault on an individual judicial officer as an onslaught on judicial
institution, disapproving and strongly condemning it and punishing the erring police officers
under the Contempt of Courts Act, 1971, the Supreme Court considered it necessary to lay
down guidelines to be followed in the case of arrest and detention of a Judicial Officer.
Holding the guidelines as "minimum safeguards" and not treating them exhaustive, SINGH,
J. (as he then was) stated:
i. 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.
ii. If facts and circumstances necessitate the immediate arrest of a Judicial Officer of the
subordinate judiciary, technical or formal arrest may be effected.
iii. 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.
iv. The Judicial Officer so arrested shall not be taken to a police station, without the prior
order or directions of the District and Sessions Judge of the concerned District, if
available.
v. Immediate facilities shall be provided to the Judicial Officer for communication with
his family members, legal advisers and Judicial Officers, including the District and
Sessions Judge.
vi. No statement of a Judicial Officer who is under arrest be recorded nor any panchnama
be drawn up nor any medical tests be conducted except in the presence of the Legal
Adviser of the Judicial Officer concerned or another Judicial Officer of equal or
higher rank, if available.
vii. 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 overpowered and
handcuffed. In such case, immediate report shall be made to the District and 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
handcuffing of the Judicial Officer was unjustified, the Police Officers causing or
responsible for such arrest and handcuffing would be guilty of misconduct and would
28 | P a g e
also be personally liable for compensation and/or damages as may be summarily
determined by the High Court.
The Apex Court added: “The above guidelines are not exhaustive but these are minimum
safeguards which must be observed in case of arrest of judicial officer.”
Arrest how made (Sec. 46)
Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless
the person being arrested consents to the submission to custody by words or actions, the
arrester shall actually touch or confine the body of the person to be arrested. Since arrest is a
restraint on the liberty of the person, it is necessary for the person being arrested to either
submit to custody or the arrester must touch and confine his body. Mere oral declaration of
arrest by the arrester without getting submission to custody or physical touching to confine
the body will not amount to arrest. The submission to custody may be by express words or by
action. For example, as held in the case of Bharosa Ramdayal v. Emperor36, if a person
makes a statement to the police accusing himself of committing an offence, he would be
considered to have submitted to the custody of the police officer. Similarly, if the accused
proceeds towards the police station as directed by the police officer, he has submitted to the
custody. In such cases, physical contact is not required.
In case of Birendra Kumar Rai v. Union of India37, it was held that arrest need not be by
handcuffing the person, and it can also be complete by spoken words if the person submits to
custody. Section 46(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.
Thus, if the person tries to run away, the police officer can take actions to prevent his escape
and in doing so, he can use physical force to immobilize the accused. However, as per
Section 46(3), there is no right to cause the death of the person who is not accused of an
offence punishable with death or with imprisonment for life, while arresting that person.
Further, as per Section 49, an arrested person must not be subjected to more restraint than is
necessary to prevent him from escaping.
36 AIR 194137 CrLJ, 1992
29 | P a g e
Due to concerns of violation of the rights of women, a new provision was inserted in Section
46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional
circumstances, in which case the arrest can be done by a woman police officer after making a
written report and obtaining a prior permission from the concerned Judicial Magistrate of
First class.
As provided in Section 46 Cr. P. C., in making an arrest the Police Officer shall actually
touch or confine the body of the person to be arrested, unless there is submission to the
custody by word or action. If any person forcibly resists the endeavour to arrest him or
attempts to evade the arrest, all means necessary, including reasonable force may be used. It
must be remembered while using reasonable force that the law does not give a right to the
Police Officer to cause death of a person who is not accused of an offence punishable with
death or with imprisonment for life.
The use of handcuffs should be avoided as far as possible. In case, it is felt otherwise due to
any reason, the handcuffs may be used only in accordance with law mandated by the Hon’ble
Supreme Court in case of Prem Shanker Shukla v. Delhi Administration38 and Citizen for
Democracy v. State of Assam39.
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 women is to be arrested, unless the circumstances indicate to the
contrary, her submission to the 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 women for making her arrest.
2. If such person forcibly resists the endeavor 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 & before
sunrise, and where such exceptional circumstances exist, the women police officer
38 (1980 3 SCC 526)39 (1995 3 SCC 743)
30 | P a g e
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 word ‘Arrest’ and ‘Custody’ are not synonymous. In every arrest there is custody but
vice versa is not true. What amounts to arrest is laid down by the legislature in Section 46.
Whether the arrest to be made is with a warrant or without the warrant, it is necessary that in
making such an arrest the police officer or 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
word or action.40
Explaining the meaning of arrest, the Apex Court in State of U.P. v. Deoman41, observed.
"Arrest consists in the seizure or touching of a person's body with a view to his restraint.
Words may however, amount to an arrest if, in the circumstances of the case, they are
calculated to bring, and do bring, to a person's notice that he is under compulsion and he
thereafter submits to the compulsion."
However, Section 46 Cr. P.C. does not contemplate any formality before a person can be said
to be taken in custody, submission to custody by words of mouth or action by a person is
sufficient. A person directly giving a police officer by words of mouth information that may
be used as evidence against him may be deemed to have submitted himself to the custody of
police officer.
The person making an arrest may use 'all means' necessary to make the arrest if the person to
be arrested resists or attempts to evade the arrest [Sec. 46(2)]. The words "all means" are very
wide and include the taking of assistance from others in effecting the arrest.42
Sec. 46(3) lays down that the power to use necessary force for making an arrest shall not
extend to causing the death of a person who is not accused of an offence punishable with
death or imprisonment for life. Thus, where fire was opened to disperse an unlawful assembly
and death of an innocent person was caused, Sec. 46 could not be invoked for the protection
of the police officer.43
40 Roshan Beevi v. Jt. Secy. To Government of T.N., 1984 Cri LJ 134 Mad41 AIR 1960 SC 112542 In the case of Nazir, AIR 1951 All 3 (F.B.)43 Karan Singh v Haradayal Singh, 1979 Cr LJ 1211 (Punj)
31 | P a g e
In case of State of Maharashtra v. C.C.W. Council of India44, the High Court by an order
prevented the police from arresting a lady without the presence of Lady Constable. And
further prohibited the arrest of lady after sunset & before sunrise under any circumstances.
In case of Kultej Singh v. Circle Inspector of Police45, it was held that keeping a person in
the police station or confining the movement of the person in the precincts of the police
station amounts to arrest of the person.
Search of place entered by person sought to be arrested (Sec. 47)
1. If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is
within, any place, any person residing in, or being in charge of, such place shall, on
demand of such person acting as aforesaid or such police officer, allow him free
ingress thereto, and afford all reasonable facilities for a search therein.
44 (2004) Cri.L.J. 14 (S.C.)45 AIR 1992
32 | P a g e
2. If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in
any case for a person acting under a warrant and in any case in which a warrant may
issue, but cannot be obtained without affording the person to be arrested an
opportunity of escape, for a police officer to enter such place and search therein, and
in order to effect an entrance into such place, to break open any outer or inner door or
window of any house or place, whether that of the person to be arrested or of any
other person, if after notification of his authority and purpose, and demand of
admittance duly made, he cannot otherwise obtain admittance;
Provided that, if any such place is an apartment in the actual occupancy of a female (not
being the person to be arrested) who, according to custom, does not appear in public, such
person or police officer shall, before entering such apartment, give notice to such female that
she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing,
and may then break open the apartment and enter it.
3. Any police officer or other person authorized to make an arrest may break open any
outer or inner door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose of making an arrest, is
detained therein.
Pursuit of offenders into other jurisdictions (Sec. 48)
A police officer may, for the purpose of arresting without warrant any person whom he is
authorised to arrest, pursue such person into any place in India.
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. Hence the arrest of a person
by the police officer, investigating an offence, in pursuit of an offender is legal though it is
made outside his circle.46
In case of Hindustani Andolon v. State of Punjab47, the court held that it is impossible and
undesirable for any court to issue a general mandamus to the effect that whenever a criminal
is suspected to have taken shelter in a place of worship, the police must enter that place
regardless of the overall situation of law and order.
No unnecessary restraint (Sec. 49)
46Manbodh AIR 1955 Nag 2347 (Cr.LJ 1984,299)
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The Person arrested shall not be subjected to more restraint than is necessary to prevent his
escape.
Section 49 lays down that the person arrested shall not be subjected to more restraint than is
necessary to prevent his escape. In other words, unnecessary restraint and physical
inconvenience, like tying of hands and feet, is not to be resorted to, unless it is absolutely
necessary to do so. In case of Citizens for Democracy v. State of Assam48, it has been held
that where a person is arrested by the police without warrant, the police officer if he is
satisfied that it is necessary to handcuff such a person, he may do so till the time he is taken
to the police station and thereafter his production before the Magistrate. Further use of fetters
thereafter can only be under the orders of the Magistrate. 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. Similar
orders are required in respect of persons arrested by police for production before the
Magistrate for a remand.
Section 50: Person arrested to be informed of grounds of arrest and of right to bail
1. Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested
or other grounds for such arrest.
2. Where a police officer arrests without warrant any person other than a person accused
of a non-bailable offence, he shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his behalf.
Section 50 A: Obligation of person making arrest to inform about the arrest to inform
about the arrest, etc., to a nominated person
1. Every police officer or other person making any arrest under this Code shall forthwith
give the information regarding such arrest and place where the arrested person is
being held to any of his friends, relatives or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such information.
2. The police officer shall inform the arrested person of his rights under subsection (1) as
soon as he is brought to the police station.
48 (1995) 3 SCC 743
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3. An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as may be prescribed in
this behalf by the State Government.
4. It shall be the duty of the Magistrate before whom such arrested person is produced,
to satisfy himself that the requirements of Sub-Section (2) and Sub-Section (3) have
been complied with in respect of such arrested person.
Section 51: Search of arrested persons
1. Whenever a person is arrested by a police officer under a warrant which does not
provide for the taking of bail, or under a warrant which provides for the taking of bail
but the person Arrested cannot furnish bail, and whenever a person is arrested without
warrant, or by a private person under a warrant, and cannot legally be admitted to bail,
or is unable to furnish bail.
The officer making the arrests or, when the arrest is made by a private person, the
police officer to whom he makes over the person arrested, may search such person,
and place in safe custody all articles, other than necessary wearing-apparel, found
upon him and where any article is seized from the arrested person, a receipt showing
the articles taken in possession by the police officer shall be given to such person.
2. Whenever it is necessary to cause a female to be searched, the search shall be made
by another female with strict regard to decency.
Section 52 – Power to seize offensive weapons
The officer or other person making any arrest under this Code may taken from the person
arrested any offensive weapons which he has about his person, and shall deliver all weapons
so taken to the Court or officer before which or whom the officer or person making the arrest
is required by this Code to produce the person arrested.
Section 53 – Examination of accused by medical practitioner at the request of police
officer
1. When a person is arrested on a charge of committing an offence of such a nature and
alleged to have been committed under such circumstances that there are reasonable
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grounds for believing that an examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a registered medical practitioner,
acting at the request of a police officer not below the rank of sub-inspector, and for
any person acting in good faith in his aid and under his direction, to make such an
examination of the person arrested as is reasonable necessary in order to ascertain the
facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.
2. Whenever the person of a female is to be examined under this section, the
examination shall be made only by, or under the supervision of, a female registered
medical practitioner.
Explanation: In this section and in Sections 53A and 54:
a. “examination” shall include the examination of blood, blood stains, semen,
swabs in case of sexual offences, sputum and sweat, hair samples and finger
nail clippings by the use of modern and scientific techniques including DNA
profiling and such other tests which the registered medical practioner thinks
necessary in a particular case;
b. “registered medical practitioner” means a medical practitioner who possesses
any medical qualification as defined in clause (h) of Section 2 of the Indian
Medical Council Act, 1956 (102 of 1956) and whose name has been entered in
a State Medical Register.
Section 53A – Examination of person accused of rape by medical practitioner
1. When a person is arrested on a charge of committing an offence of rape or an attempt
to commit rape and there are reasonable grounds for believing that an examination of
his person will afford evidence as to the commission of such offence, it shall be
lawful for a registered medical practitioner employed in a hospital run by the
Government or by a local authority and in the absence of such a practitioner within
the radius of sixteen kilometres from the place where the offence has been committed
by any other registered medical practitioner, acting at the request of a police officer
not below the rank of a sub-inspector, and for any person acting in good faith in his
aid and under his direction, to make such an examination of the arrested person and to
use such force as is reasonably necessary for that purpose.
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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-
a. the name and address of the accused and of the person by whom he was
brought,
b. the age of the accused,
c. marks of injury, if any, on the person of the accused,
d. The description of material taken from the person of the accused for DNA
profiling, and”.
e. Other material particulars in reasonable detail.
3. The report shall state precisely the reasons for each conclusion arrived at.
4. The exact time of commencement and completion of the examination shall also be
noted in the report.
5. 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.
Section 54 – Examination of arrested person by medical officer
1. When any person is arrested, he shall be examined by a medical officer in the service
of Central or State Government, and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made;
Provided that where the arrested person is a female, the examination of the body shall be
made only by or under the supervision of a female medical officer, and in case the female
medical officer is not available, by a female registered medical practitioner.
2. The medical officer or a registered medical practitioner so examining the arrested
person shall prepare the record of such examination, mentioning therein any injuries
or marks of violence upon the person arrested, and the approximate time when such
injuries or marks may have been inflicted.
3. Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical
practitioner, as the case may be, to the arrested person or the person nominated by
such arrested person.
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Section 54A – Identification of person arrested
Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such
offence, the Court, having jurisdiction, may on the request of the officer in charge of a police
station, direct the person so arrested to subject himself to identification by any person or
persons in such manner as the Court may deem fit.
Provided that, if the person identifying the person arrested is mentally or physically disabled,
such process of identification shall take place under the supervision of a Judicial Magistrate
who shall take appropriate steps to ensure that such person identifies the person arrested
using methods that person is comfortable with;49
Provided further that if the person identifying the person arrested is mentally or physically
disabled, the identification process shall be video graphed.50
Procedure when police officer deputes subordinate to arrest without warrant (Sec. 55)
1. When any officer in charge of a police station or any police officer making an
investigation under Chapter XII requires any officer subordinate to him to arrest
without a warrant (otherwise than in his presence) any person who may lawfully be
arrested without a warrant, he shall deliver to the officer required to make the arrest
an order in writing, specifying the person to be arrested and the offence or other cause
for which the arrest is to be made and the officer so required shall, before making the
arrest, notify to the person to be arrested the substance of the order and, if so required
by such person, shall show him the order.
2. Nothing in sub-section (1) shall affect the power of a police officer to arrest a person
under section 41.
Section 56 – Person arrested to be taken before Magistrate or officer in charge of police
station
A police officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, lake or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
49 Criminal Law (Amendment) Act, 201350 Id
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Section 57 – Person arrested not to be detained more than twenty-four hours
No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s
Court.
Also an arrest report showing the time, date and place of arrest as well as the FIR number
with sections of law shall be prepared at the time of arrest by the Investigating Officer as
required under section 57 Cr.P.C. and sent to the Magistrate. At least one witness who may
either be a member of the family of the arrestee or a respectable resident of the locality may
countersign the arrest report. The arrestee shall also countersign it.
Section 58 – Police to report apprehensions
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs,
to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or
otherwise.
Section 59 – Discharge of person apprehended
No person who has been arrested by a police officer shall be discharged except on his own
bond, or on bail, or under the special order of a Magistrate.
Power, on escape, to pursue and retake (Sec. 60)
1. If a person in lawful custody escapes or is rescued, the person from whose custody he
escaped or was rescued may immediately pursue and arrest him in any place in India.
2. The provisions of section 47 shall apply to arrests under sub-section (1) although the
person making any such arrest is not acting under a warrant and is not a police officer
having authority to arrest.
This section applies not only to police officers but also to other persons or officials making
arrest under the Code.
Arrest to be made strictly according to the code (Sec. 60 A)
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No arrest shall be made except in accordance with the provisions of this code or any other
law for the time being in force providing for arrest.
After Arrest Procedures:
Search of arrested person (Sec. 51)
1. Whenever a person is arrested by a police officer under a warrant which does not
provide for the taking of bail, or under a warrant which provides for the taking of bail
but the person arrested cannot furnish bail, and
whenever a person is arrested without warrant, or by a private person under a warrant,
and cannot legally be admitted to bail, or is unable to furnish bail, the officer making
the arrest or, when the arrest is made by a private person, the police officer to whom
he makes over the person arrested, may search such person, and place in safe custody
all articles, other, than necessary wearing-apparel, found upon him and where any
article is seized from the arrested person, a receipt showing the articles taken in
possession by the police officer shall be given to such person.
2. Whenever it is necessary to cause a female to be searched, the search shall be made
by another female with strict regard to decency.
This section deals with the search of an arrested person & not the search of the place, which
is dealt with in section 100 of the Code.
The search of an arrested person without communicating him the grounds of his arrest will be
illegal. Before making a personal search of the accused, the searching officer and others
assisting him should give their personal search to the accused before searching the person of
the accused. This rule is meant to avoid the possibility of implanting an object to be shown in
the search51. Though the section does not require the search to be conducted in the presence
of witnesses, the rules made under the Police Act, 1861 direct that the search should be made
in the presence of (independent and respectable) witnesses.
51 Rabindranath Prusty v State of Orissa, 1984 Cr LJ 1392 (Ori)
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This section does not require that the signature of the person searched shall be taken on the
memo of the recovery list. If recovery memo is not signed by the accused, the search is not
illegal52. Where the arrested person is a woman, the search shall be made by another woman
with strict regard to decency. It is not necessary that the witnesses also be female 53. This case
shows that some irregularity in making a search will not make the search-evidence
inadmissible.
Power to seize offensive weapons (Sec. 52)
The officer or other person making any arrest under this Code may take from the person
arrested any offensive weapons which he has about his person, and shall deliver all weapons
so taken to the Court or officer before which or whom the officer or person making the arrest
is required by this Code to produce the person arrested.
This section authorizes the seizure of the offensive weapon from the person arrested.
Where the evidence of the investigating officer is convincing, the evidence as to the recovery
of the offensive weapon need not be rejected on the mere ground that the seizure witnesses do
not support the prosecution story.54
Examination of accused by medical practitioner at the request of police officer (Sec. 53)
1. When a person is arrested on a charge of committing an offence of such a nature and
alleged to have been committed under such circumstances that there are reasonable
grounds for believing that an examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a registered medical practitioner,
acting at the request of a police officer not below the rank of sub-inspector, and for
any person acting in good faith in his aid and under his direction, to make such an
examination of the person arrested as is reasonably necessary in order to ascertain the
facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.
2. Whenever the person of a female is to be examined under this section, the
examination shall be made only by, or under the supervision of, a female registered
medical practitioner.
Explanation: - in this section and in sections 53A and 54,-52 Mahadeo v State, 1990 Cr LJ 858 (All)53 Kamla Bai v State of Maharashtra AIR 1962 SC 118954 Mohan Singh v. State of Rajasthan, AIR 1978 SC 1511
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a. "Examination" shall include the examination of blood, blood stains, semen, swabs in
case of sexual offences, sputum and sweat, hair samples and finger nail clippings by
the use of modern and scientific techniques including DNA profiling and such other
tests which the registered medical practitioner thinks necessary in a particular case;
b. "Registered medical practitioner" means a medical practitioner who possess any
medical qualification as defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical
Register.
This provision has been made to facilitate effective investigation. It comes into effect only
when there are reasonable grounds that a police officer bona fide entertains. It may be noted
that the section does not bar other superior officers or the court concerned from exercising the
said power if it is necessary for doing justice in a criminal case55. It was held that examination
of person of the accused cannot be confined only to external examination of his body but
many times it may become necessary to make examination of some organs inside the body
for the purpose of collecting evidence. In that case examination may include taking of blood
from the accused.
This section provides that a medical examination will be done at the request of a police
officer not below the rank of a Sub-inspector. However superior officers of the police or the
court are not barred from exercising the said power if it is necessary for doing justice.
If the conditions presented under sub-section (1) are fulfilled it shall be lawful for a registered
medical practitioner and for any person acting in good faith in his aid and under his directions
to make such examination. According to Andhra Pradesh High Court it is lawful to subject an
arrested person to medical examination. Thus we see that sub-section (1) protects a medical
practitioner for lawful medical examination, of the person accused of committing an offence,
made by him at the request of a police officer. As the medical examination, of the accused
under Section 53 is part and parcel of the process of investigation, the police could get the
accused medically examined even after the framing of the charge by the court by exercising
their powers of further investigation under Section 173 (8). It was held in the case of State of
Maharashtra v. Dyanaba Bhikoba Dagade56, that a Magistrate has no authority under
Section 53 to pass an order allowing a medical practitioner to extract blood of the accused.
Investigation is a task of the police and such functions must be performed by them alone.
55 Anil A. Lokhande v State of Maharashtra, 1981 CrLJ 125 (SC)56 1979 Cr L J 277(Bom)
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Examination of person accused of rape by medical practitioner (Sec. 53A)
1. When a person is arrested on a charge of committing an offence of rape or an attempt
to commit rape and there are reasonable grounds for believing that an examination of
this person will afford evidence as to the commission of such offence. It shall be
lawful for a registered medical practitioner employed in a hospital run by the
Government or by a local authority and in the absence of such a practitioner within
the radius of sixteen kilometers from the place where the offence has been committed
by any other registered medical practitioner, acting at the request of a police officer
not below the rank of a sub-inspector and for any person acting in good faith in his aid
and under his direction to make such an examination of the arrested person and to use
such force as is reasonably necessary for that purpose.
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:
a. The name and address of the accused and of the person by whom he was
brought.
b. The age of the accused.
c. Marks of injury if any on the person of the accused.
d. the description of material taken from the person of the accused for DNA
profiling and
e. Other material particulars in reasonable detail.
3. The report shall state precisely the reasons for each conclusion arrived at.
4. The exact time of commencement and completion of the examination shall also be
noted in the report.
5. 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.
Identification of person arrested (Sec. 54A)
Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such
offence the Court, having jurisdiction, may on the request of the officer in charge of a police
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station, direct the person so arrested to subject himself to identification by any person or
persons in such manner as the Court may deem fit.
Police to report apprehensions (Sec. 58)
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs,
to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or
otherwise.
The object of the report is to keep the D.M. informed of the situation regarding grave
offences. And the report would enable the D.M. to see whether the police are exercising their
powers properly or not.
Discharge of person apprehended (Sec. 59)
No person who has been arrested by a police officer shall be discharged except on his own
bond, or on bail, or under the special order of a Magistrate.
This section provides that a person who has been arrested by a police officer shall not be
discharged except-
1. on his own bond, or
2. on bail, or
3. Under the special order of a Magistrate under section 167 of the Code.
Once police arrests a person, 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. If the arrest is found to be illegal, there would arise no
question of releasing the accused on his own bond or bail and the only proper order would be
an order of discharge by the Magistrate.
MISUSE OF POWER OF ARREST
Notwithstanding the safeguards contained in the Code of Criminal Procedure and the
Constitution referred to above, the fact remains that the power of arrest is wrongly and
illegally exercised in a large number of cases all over the country. Very often this power is
utilized to extort monies and other valuable property or at the instance of an enemy of the
person arrested. Even in case of civil disputes, this power is being resorted to on the basis of a
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false allegation against a party to a civil dispute at the instance of his opponent. The vast
discretion given by the CrPC to arrest a person even in the case of a bailable offence (not
only where the bailable offence is cognizable but also where it is non-cognizable) and the
further power to make preventive arrests (e.g. under section 151 of the CrPC and the several
city police enactments), clothe the police with extraordinary power which can easily be
abused. Neither there is any in-house mechanism in the police department to check such
misuse or abuse nor does the complaint of such misuse or abuse to higher police officers bear
fruit except in some exceptional cases. We must repeat that we are not dealing with the vast
discretionary powers of a mere civil service simpliciter, we are dealing with the vast
discretionary powers of the members of a service which is provided with firearms, which are
becoming more and more sophisticated with each passing day (which is technically called a
civil service for the purposes of Service Jurisprudence) and whose acts touch upon the liberty
and freedom of the citizens of this country and not merely their entitlements and properties.
This is a civil service which is being increasingly militarized, no doubt, to meet the emerging
exigencies.
Rights of arrested Person:
1. Right to be informed of the grounds for arrest (Sec. 50(1))
2. Right to be informed of right to bail (Sec. 50(2))
3. Obligation of person making arrest to inform about the arrest, etc., to a nominated
person (Sec. 50A)
4. Right to be examined by a Medical Practitioner (Sec. 54)
5. Right to be produced before Magistrate without Delay (Sec. 56)
6. Person arrested not to be detained more than twenty-four hours (Sec. 57)
7. Right to consult a legal practitioner (Sec. 41D)
8. Right of an arrested indigent person to free legal aid and to be informed about it (Sec.
304)
9. Right to obtain compensation for illegal arrest (Sec. 358)
10. Right to Health and Safety (Sec. 55A)
The right of personal liberty is a basic human right recognized by the General Assembly of
the United Nations in its Universal Declaration of human rights. Our Constitution recognizes
it as a fundamental right. Although the police have been given various powers for facilitating
the making of arrests, the powers are subject to certain restraints. These restraints are
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primarily provided for the Protection of the interests of the person to be arrested and also of
the society at large. The arrest should not only be legal and justified but it should be effected
strictly according to the procedure established by law. 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. The Constitution of India also recognizes
the rights of arrested person under the 'Fundamental Rights'.
Article 21 of the 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.
Person arrested to be informed of grounds of arrest and of right to bail (Sec. 50)
1. Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested
or other grounds for such arrest.
2. Where a police officer arrests without warrant any person other than a person accused
of a non-bailable offence, he shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his behalf.
Making known to the accused grounds of his arrest is a constitutional requirement and failure
to comply with this requirement renders the arrest illegal. In case of Ajit Kumar v. State of
Assam57, the Gauhati High Court held that when a person arrested without warrant alleges by
affidavit that he was not communicated with full particulars of the offence leading to his
arrest, in the face of this affidavit the police diary cannot be perused to verify the police
officer's claim of oral communication of such particulars. No counter affidavit denying the
petitioner's allegation was filed. Therefore even if such oral communication was made it is
not clear whether full particulars were communicated or mere section was communicated.
Hence the arrest and detention of that person was illegal.
In re, Madhu Limaye58, Madhu Limaye, Member of the Lok Sabha and several other persons
were arrested. Madhu Limaye addressed a petition in the form of a letter to the Supreme
Court under Article 32 mentioning that he along with his companions had been arrested but
had not been communicated the reasons or the grounds for arrest. It was stated that the
57 (1976 Cr LJ 1303 Gau)58 A.I.R. 1969 S.C. 1014
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arrested persons had been merely told that the arrest had been made “under sections which
are bailable”. In the return filed by the State this assertion had neither been controverted nor
had anything been stated with reference to it.
One of the contentions raised by Madhu Limaye was that there was a violation of the
mandatory provisions of Article 22 (1) of the Constitution. In the present case, the return did
not contain any information as to when and by whom Madhu Limaye and other arrested
persons were informed of the grounds for their arrest. It had not been contended on behalf of
the state that the circumstances were such that the arrested persons must have known the
general nature of the alleged offences for which they had been arrested. Hence, the Court
held that Madhu Limaye and others were entitled to be released on this ground alone.
In Udaybhan Shuki v. State of UP59, All HC held that right to be notified of grounds of arrest
is a precious right of the arrested person. This allows him to move the proper court for bail,
make a writ petition for habeas corpus, or make appropriate arrangements for his defence.
This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No
person who is arrested shall be detained in custody without being informed, as soon as may
be, of 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.". It embodies two distinct rights - the right to
be told of the grounds of arrest and the right to consult a legal practitioner of his choice. The
second right of consulting a legal practitioner of his choice actually depends on the first right
of being told about the grounds of arrest. If the person doesn't know why he is being arrested,
he cannot consult a legal practitioner meaningfully. In Harikishan v. State of Maharashtra60,
SC held that the grounds of arrest must be communicated to the person in the language that
he understands otherwise it would not amount to sufficient compliance of the constitutional
requirement.
Secondly when a subordinate officer is deputed to arrest a person under section 55 such
subordinate officers must notify to the person to be arrested the written order or the other
cause for which the arrest is to be made.
Thirdly, in case of arrest to be made under a warrant Section 75 provides that the police
officer or other person executing the warrant must notify the substance thereof to the person
to be arrested and if required they must show him the warrant. Similarly, when a subordinate
59 1999 CrLJ60 AIR 1962
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officer is deputed by a senior police officer to arrest a person under Section 55, the
subordinate officer must notify the person to be arrested of the substance of the written order
given by the senior officer, which clearly specifies the offence for which he is being arrested.
The same provision exists in case of an arrest made under a warrant in Section 75. In this
case, the police officer or any person making arrest under warrant must notify the substance
of the warrant to the person being arrested and if required, must show the warrant. As held in
Satish Chandra Rai v. Jodu Nandan Singh61, if the substance of the warrant is not notified,
the arrest would be unlawful.
Apart from these provisions, our Constitution has also conferred on this right. Article 22(1) of
the Constitution provides: “No person who is arrested shall be detained in custody without
being informed as soon as may be, of the grounds for such arrest.” The right to be informed
of the grounds of arrest is an important right of the arrested person. Timely information of the
grounds of arrest helps him in many ways like
i. moving proper Court for bail, and
ii. To make expeditious arrangement for his defence.
Obligation of person making arrest to inform about the arrest, etc., to a nominated
person (Sec. 50A)
1. Every police officer or other person making any arrest under this Code shall
forthwith give the information regarding such arrest and place where the arrested
person is being held to any, of his friends, relatives or such other persons as may be
disclosed or nominated by the arrested person for the purpose of giving such
information.
2. The police officer shall inform the arrested person of his rights under sub section (1)
as soon as he is brought to the police station.
3. An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as may be prescribed in
this behalf by the State Government.
4. It shall be the duty of the Magistrate before whom such arrested person is produced,
to satisfy himself that the requirements of sub-section (2) and sub-section (3) have
been complied with in respect of such arrested person.
61 ILR 26 Cal 748
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The provisions of sections 50 and 50A are mandatory. Where a person is arrested without any
warrant, he should be immediately informed of the particulars of the offence and grounds of
his arrest and where the offence is a bailable one, of his right to be released on bail. That is an
arrest without warrant can be justified only if it is an arrest on a charge made known to the
person arrested. This section confers a valuable right and non-compliance with it amounts to
disregard of the procedure established by law. The allegation that the grounds of arrest or its
particulars as would be, enough to enable him to file a writ petition of habeas corpus were not
given, has to be proved by the person making such allegations. Making known to the accused
grounds of his arrest is a constitutional requirement and failure to comply with this
requirement renders the arrest illegal.
In case of Raj Kumari v. S.H.O. Noida62, the petitioner a leader of workers who had resorted
to strike and violence was arrested in night after F.LR. of incident was lodged. The arrest was
made by the police after investigation which showed that she had led the mob. The petitioner
complained that she was arrested in the night in violation of the Supreme Court's decision in
case of Joginder Kumar v. State of U.P., and D.K. Basu v. State of West Bengal, the
petitioner supported her allegation on affidavit but affidavit of her relatives were not filed.
She also complained that police officers who arrested her did not bear name plates and no
memo of arrest was prepared. The allegation that she was arrested in night was denied by
police by filing affidavit. It was held that the affidavit of the petitioner was the only
supportive evidence on record. There was no other corroborative material or affidavit of her
relatives. Therefore, the plea of petitioner that she was arrested at night was not tenable, more
so because the plea of violation of Supreme Court decision was not raised in her bail
application moved on same day and with legal assistance. Therefore, the allegation of
petitioner was not accepted and the petition to initiate action against police was held liable to
be set aside.
Examination of arrested person by medical officer (Sec. 54)
1. When any person is arrested, he shall be examined by a medical officer in the service
of Central or State Governments and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made:
62 (2004) Cri.L.J. 9 (S.C)
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Provided that where the arrested person is a female, the examination of the body shall be
made only by or under the supervision of a female medical officer, and in case the female
medical officer is not available, by a female registered medical practitioner.
2. The medical officer or a registered medical practitioner so examining the arrested
person shall prepare the record of such examination, mentioning therein any injuries
or marks of violence upon the person arrested, and the approximate time when such
injuries or marks may have been inflicted.
3. Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical
practitioner, as the case may be, to the arrested person or the person nominated by
such arrested person.
This section confers on the arrested person the right to have his medical examination done. It
was held in case of V.J. Vaghela v. Kantibhai Jethabhai63, that the Magistrate owes a duty to
inform the arrested person about his right to get himself examined in case he has complaints
of physical torture or maltreatment in police custody. The Supreme Court has cautioned the
lower Courts not to adapt a casual approach to custodial torture in Sheela Barse v. State of
Maharashtra64. In case the Magistrate considers the test of the accused to-be vexatious or for
defeating the ends of justice, he may refuse it. It has been held in case of Mukesh Kumar v.
State65, that the procedure adopted by the Magistrate to examine the body of the accused
himself and then dismissing the application with his observation that they were seen in
normal posture was wholly unwarranted and erroneous.
Health & Safety of arrested person (Sec 55A)
It shall be the duty of the person having the custody of an accused to take reasonable care of
the health & safety of the accused.
Person arrested to be taken before Magistrate or officer in charge of police station (Sec.
56)
Holding a person in custody without first proving that the person is guilty is a violation of
human rights and is completely unfair. At the same time, holding a person in custody is
necessary for the police to carry on their investigation of a crime. These two are contradictory 63 (1985 Cr.L.J. 974 (Guj)64 1983 Cr.LJ 642 SC65 (1990 Cr LJ 1923 (Delhi)
50 | P a g e
requirements and a balance must be found between them. Since police has arrested the
person, it cannot be the agency that determines whether person must be kept confined further.
This can only be decided by a competent judicial authority. This is exactly what is embodied
in Art 22(2) that gives a fundamental right to the arrested person that he must be produced
before a magistrate within 24 hours of arrest. It says, "Every person who is arrested and
detained in custody shall be produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary for the journey from the place
of arrest to the court of the magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate."
Section 57 of Cr. PC also contains a similar provision for a person arrested without a warrant.
It says, "No police officer shall detain in custody a person arrested without warrant for a
longer period than under all the circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty
four hours exclusive of the time necessary for the journey from the place of arrest to the
Magistrate's court." Section 76 contains a similar provision for a person arrested under a
warrant. It says, "The police officer or other person executing a warrant of arrest shall
(subject to the provisions of section 71 as to security) without unnecessary delay bring the
person arrested before the court before which he is required by law to produce such person.
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the
time necessary for the journey from the place of arrest to the Magistrate's court." Thus, it can
be see that it is a very important right that is meant to prevent abuse of police power and to
prevent the use of a police station as a prison. It prevents arrest merely for the purpose of
extracting confessions. The arrested person gets to be heard by a judicial authority that is
independent of the police.
A police officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, take or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
Further, in Sharifbai v. Abdul Razak66, SC held that if a police officer fails to produce an
arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful
detention. Also in In Khatri (II) v. State of Bihar67, SC has strongly urged upon the State and
its police to ensure that this constitutional and legal requirement of bringing an arrested
66 AIR 196167 1981 SCC
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person before a judicial magistrate within 24 hours be scrupulously met. This is a healthy
provision that allows magistrates to keep a check on the police investigation. It is necessary
that the magistrates should try to enforce this requirement and when they find it disobeyed,
they should come heavily upon the police.
Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be
applicable on arrests with or without warrants. However, in State of Punjab v. Ajiab Singh68,
observed that it applies only to cases of arrests without warrant because in case of an arrest
with warrant, the judicial mind has already been applied while issuing the warrant. So further
safeguard is not required. This decision has been widely criticized. In any case, the proviso to
Section 76 unmistakably provides that a person arrested under a warrant must be produced
before a magistrate within 24 hours.
Person arrested not to be detained more than twenty-four hours (Sec. 57)
No police officer shall detail in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's
Court.
A person arrested cannot to be detained more than twenty-four hours. It may also be noted
that the right has further been strengthened by its incorporation in the Constitution as a
fundamental right. Article 22(2) of the Constitution provides: “Every person who is arrested
and detained in custody shall be produced before the nearest Magistrate within a period of
24 hours of such arrest excluding the time necessary for the journey from the place of arrest
to the Court of the Magistrate and no such person shall be detained in custody beyond the
said period without the authority of a Magistrate."
The right of the arrested person to be brought before a magistrate within a period of not more
than 24 hours of arrest has been created with a view to prevent arrest and detention for the
purpose of extracting confession or as a means of compelling people to give information, to
prevent police stations being used as prisons or to afford an early recourse to a judicial officer
independent of the police on all questions of bail or discharge.
68 AIR 1953 SC
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It was held in case of Saptawna v. State of Assam69, that where an accused is illegally
detained, the detention becomes lawful when subsequently he is arrested and produced before
a Magistrate within twenty-four hours. Also in case of Kultej Singh v. Circle Inspector of
Police70, the accused was arrested in the morning of 27-9-1990 and produced before the
Magistrate on 29¬-9-1990. First information report revealed that the delay in producing the
accused before the Magistrate was caused since the respondent officials were immediately
required to go to other place in connection with communal rioting. They also tendered
unconditional apology for the delay. It was held that the detention or custody beyond twenty-
four hours was not illegal because there was reasonable explanation for the delay and the
conduct of the respondents was not lacking in bona fides.
Rights at Trial
1. Right To A Fair Trial
The Constitution under Article 14 guarantees the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.
This provision is designed to ensure that convictions are not obtained in secret. In some
exceptional cases the trial may be held in camera. Every accused is entitled to be informed by
the court before taking the evidence that he is entitled to have his case tried by another court
and if the accused subsequently moves such application for transfer of his case to another
court the same must be transferred. However, the accused has no right to select or determine
by which other court the case is to be tried.
2. Right To A Speedy Trial
The Constitution provides an accused the right to a speedy trial. Although this right is not
explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of
India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation
in trial should be held “as expeditiously as possible”. In all summons trials (cases where the
maximum punishment is two years imprisonment) once the accused has been arrested, the
investigation for the trial must be completed within six months or stopped on an order of the
Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there
is cause to extend the investigation.
69 AIR 1971 SC 81370 1992 CrLJ 1173 (Karn)
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Right of the Accused to Produce an Evidence
The accused even has right to produce witness in his defence in case of police report or
private defence. After the Examination and cross examination of all prosecution witness i.e.
after the completion of the prosecution case the accused shall be called upon to enter upon his
defence and any written statement put in shall be filled with the record. He may even call
further for cross examination. The judge shall go on recording the evidence of prosecution
witness till the prosecution closes its evidence.
The accused in order to test the veracity of the testimony of a prosecution witness has the
right to cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a
right to confront only witnesses. This right ensures that the accused has the opportunity for
cross-examination of the adverse witness. Section 33 of Indian Evidence Act tells when
witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by
issuing commission. The testimony at a formal trial is one example of prior testimonial
statements which can be used as documentary evidence in a subsequent trial.
When in the course of investigation an accused or any other person desiring to make any
statement is brought to a magistrate so that any confession or statement that he may be
deposed to make of his free will is record. Confession statements by accused to the police are
absolutely excluded under Section 25, Evidence Act.
Right to consult a legal practitioner
Both the Constitution & the Provisions of the Code recognize the right of every arrested
person to consult a legal Practitioner of his choice. The right begins from the moment of
arrest (Section 303 of the Code and Article 22(1) of the constitution of India).
Section 303 provides that any person accused of an offence before a Criminal Court, or
against whom proceedings are instituted under this Code, may of right be defended by a
pleader of his choice.
This section contemplates that the accused should not only be at liberty to be defended by a
lawyer but also implies that he should have a reasonable opportunity, if in custody, of getting
into communication with his legal adviser for the purpose of his defence. This section does
not confer a right on the accused person to be provided with a lawyer but it is a privilege
given to him to ask for a lawyer if he wants to engage one.
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Article 22(1) of the Constitution provides that no person who is arrested shall be denied the
right to consult and to be defended by a lawyer of his choice. The objective behind conferring
this right is that an accused person generally does not have the knowledge of law and the
professional skill to defend him before a Court of law.
In case of R. M. Wasawa v. State of Gujarat71, the Supreme Court has held that "the Sessions
Judge should view with sufficient seriousness the need to appoint State counsel for
undefended accused in grave cases. Indigence should never be a ground for denying fair trial
or equal justice. Therefore, advocates competent to handle cases should be appointed.
Sufficient time and complete papers should also be made available to them so that they may
prepare the case and the accused also may feel confident that the counsel chosen by the court
has had adequate time and material to defend him properly."
In Khatri (II) v. State of Bihar72, Supreme Court has also held that access to a legal
practitioner is implicit in Article 21, which gives fundamental right to life and liberty. The
state is under constitutional mandate to provide free legal aid to an indigent accused person
and this constitutional obligation arises not only when the trial is commenced but also when
the person is first produced before a magistrate and also when he is remanded from time to
time. In case of Suk Das v. Union Territory of Arunachal Pradesh73, SCC, SC has held that
non-compliance of this requirement or failure to inform the accused of this right would vitiate
the trial entailing setting aside of the conviction and sentence. The right of an accused person
to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer
may be within the presence of a police officer but not within the police officer's hearing. SC
also held that it is the duty on all courts and magistrates to inform the indigent person about
his right to get free legal aid.
In case of trial of a criminal case, which carry a sentence of imprisonment as and when the
accused is produced or brought before a magistrate, the Magistrate should make it known to
the accused that he has a 'right, a constitutional right of being represented by a counsel of his
choice and if he has no means to engage a lawyer, then arrangement may be made for his
defence.
71 AIR 1974 SC 114372 1981 SCC73 AIR 1986
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In Janardhan Reddy v. State of Hyderabad74. One of the main points urged on behalf of the
petitioners was that in criminal cases Nos. 17 & 18 of 1949, there was no fair trial, in as much
as the persons accused in those cases were not afforded any opportunity to instruct counsel
and they had remained undefended throughout the trial. So it was contended that the whole
trial in these cases was bad, because the accused were denied the right of being defended by a
pleader. Fourth para of the affidavit filed on behalf of the petitioners read as follows:
The Court never offered to facilitate my communication with my relations and friends
or to adjourn the case or to appoint counsel at state expense for my defence. In fact
they said they would not adjourn the case under any circumstances. Being ignorant, I
did not know that I had any right to ask for any of these things.
As to the circumstances under which the accused were not represented by a lawyer a counter-
affidavit filed by Mr. Hanumantha Naidu, a senior police officer, who investigated the case
stated:
Facilities were given to the accused to engage lawyers for their defence. In case in
which the accused had no means to engage pleaders for their defence and applied to
the Tribunal for appointment of pleaders at Government cost, this was done. In some
cases, the accused declined to accept the pleaders appointed by the Tribunal for their
defence. Some engaged pleaders of their choice at their cost. Some accused stated
that they did not want any lawyer to defend them.
Judges of the High Court had expressed the view that the contention that the Tribunal did not
give the accused an adequate opportunity to engage lawyers was not well-founded. The
Supreme Court observed in this connection that suggestion of the High Court that the curious
attitude adopted by the accused, to whatever cause it may have been due, to some extent
accounts for their not being represented by a lawyer cannot be ruled out.
However, the Supreme Court further added that the Special Tribunal should have taken some
positive steps to assign a lawyer to aid the accused in their defence. Advocate of the
petitioners relied on Powell v. Alabama75, in which the Supreme Court of America observed
as:
74 A.I.R. 1951 S.C. 21775 287 U.S. 45
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In a capital case where the defendant is unable to employ counsel and is incapable of
adequately making his own defence because of ignorance, feeblemindedness,
illiteracy or the like, it is the duty of the Court whether requested or not, to assign a
counsel for him as a necessary requisite of due process of law.
Right of an arrested indigent person to free legal aid and to be informed about it.
In case of Khatri (II) v. State of Bihar76, the Supreme Court has held that the State is under a
constitutional Mandate (implicit in Article 21) to provide free legal aid to an indigent accused
person. Section 304 of the Code provides for legal aid to accused at State expense in certain
cases.
The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh,
wherein it has been categorically laid down that this constitutional right cannot be denied if
the accused failed to apply for it. It’s clear that unless refused, failure to provide free legal aid
to an indigent accused would vitiate the trial entailing setting aside of the conviction and
sentence.
Apart from the above-mentioned rules the Supreme Court in D.K. Basu v. State Of West
Bengal77, issued the following instructions: -
1. The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of
the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one witness,
who may either be a member of the family of the arrestee or a respectable person of
the locality from where the arrest is made. It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being detained at the
76 (1981) 1 SCC 62777 (1997) 1 SCC 416; 1997 SCC (Cri) 92
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particular place, unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of
his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of the police officials in
whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest
and major and minor injuries, if any present on his/her body, must be recorded at that
time. The “Inspection Memo” must be signed both by the arrestee and the police
officer affecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the State or Union Territory concerned.
Director, Health Services should prepare such a panel for all tehsils and districts as
well.
9. Copies of all the documents including the memo of arrest, referred to above, should
be sent to the illaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
11. A police control room should be provided at all district and State headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest , within 12 hours of effecting the
arrest and at the police control room it should be displayed on a conspicuous notice
board.
Failure to comply with the requirements herein above-mentioned shall apart from rendering
the official concerned liable for departmental action, also render him liable to be punished for
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contempt of court and the proceedings for contempt of court may be instituted in any High
Court of the country having territorial jurisdiction over the matter.
The right to compensation for the victims of unlawful arrest and detention has been
recognised by the Supreme Court in case of Nilabati Behera v. State of Orissa.78
It is to be noted that these instructions are applicable to authorities like Directorate of
Revenue Intelligence, Directorate of Enforcement, C.B.I., C.LB., C.I.S.F., etc. which have
the power to effect arrest and detain persons for interrogation.
Consequences of non-compliance with the provisions relating to arrest:
1. A trial will not be void simply because the provisions relating to arrest have not been
fully complied with.
2. Though the illegality or irregularity in making an arrest would not vitiate the trial of
the arrested person, it would be quite material if such a person is prosecuted on a
charge of resistance to or escape from lawful custody.
3. If the arrest is illegal, the person who is being so arrested can exercise the right of
private defence in accordance with, and subject to, the provisions contained in
Sections 96 to 106 of the IPC.
4. If the public servant having authority to make arrests, knowingly exercises that
authority in contravention of law and effects an illegal arrest, he can be prosecuted for
an offence under Section 220 of the IPC. Apart from this special provision, any
person who illegally arrests another is punishable under Section 342 of the IPC for
wrongful confinement.
5. If the arrest is illegal, it is a tort of false imprisonment, and the arrested person is
entitled to claim damages from the person who made such an arrest.
In case of Muhammad Yusuf v. Queen Empress79, Halsbury L.C. observed, “it may well be
that the procedure taken was irregular and improper and brought a person wrongfully within
the jurisdiction. But if he is there and if he has committed an offence, whatever else may be
said about it, it is no answer to the offence committed within the jurisdiction that he has been
brought irregularly within the jurisdiction.”
78 (1997 SCC (Cri) 434)79 (1897) 24 IA 137 (PC)
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It has been categorically ruled by the Supreme Court in case of Nilabati Behera80 that
victims of unlawful arrest and detention have right to compensation. It may be mentioned
here that the provisions relating to arrest cannot be bypassed by alleging that there was no
arrest but only informal detention. Informal detention or restraint of any kind by the police is
not authorized by law.
Safeguards/Protections
Recently, in case of Siddharam v. State of Maharashtra81, the Supreme Court, by way of
illustrative cases made the following suggestions, which may be helpful before an accused is
arrested. In the given case, the State considers the following suggestions in proper
perspective then perhaps it may not be necessary to curtail the personal liberty of the accused
in a routine manner. These suggestions are only illustrative and not exhaustive.
1. Direct the accused to join the investigation and only when the accused does not
cooperate with the investigating agency, then only the accused be arrested.
2. Seize either the passport or such other related documents, such as, the title deeds of
properties or the fixed deposit receipts/share certificates of the accused.
3. Direct the accused to execute bonds.
4. The accused may be directed to furnish sureties of a number of persons which
according to the prosecution are necessary in view of the facts of the particular case.
5. The accused be directed to furnish undertaking that he would not visit the place where
the witnesses reside so that the possibility of tampering of evidence or otherwise
influencing the course of justice can be avoided.
6. Bank accounts are frozen for small duration during the investigation.
The Supreme Court in Smt. Nandini Satpathy v. P.L. Dani82, quoting Lewis Mayers, stated:
“To strike the balance between the needs of law enforcement on the one hand and the
protection of the citizen from oppression and injustice at the hands of the law-enforcement
machinery on the other is a perennial problem of statecraft.” The pendulum over the years has
swung to the right.
In India, Third Report of the National Police Commission at page 32 also suggested:
80 (1993) 2 SCC 74681 (2011) 1 SCC 694; Bharatbhai vs State on 11 May, 201282 AIR 1978 SC 1025 at page 1032
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“…An arrest during the investigation of a cognizable case may be considered justified in one
or other of the following circumstances:
1. The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is
necessary to arrest the accused and bring his movements under restraint to infuse
confidence among the terror stricken victims.
2. The accused is likely to abscond and evade the processes of law.
3. The accused is given to violent behaviour and is likely to commit further offences
unless his movements are brought under restraint.
4. The accused is a habitual offender and unless kept in custody he is likely to commit
similar offences again.
It would be desirable to insist through departmental instructions that a police officer making
an arrest should also record in the case diary the reasons for making the arrest, thereby
clarifying his conformity to the specified guidelines….”
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WHAT IS PREVENTIVE ARREST?
Section 151 in the Code of Criminal Procedure, 1973
Section 151 - Arrest to prevent the commission of cognizable offences.
1. A police officer knowing of a design to commit any cognizable offence may arrest,
without orders from a Magistrate and without a warrant, the person so designing, if it
appears to such officer that the commission of the offence cannot be otherwise
prevented.
2. No person arrested under sub- section (1) shall be detained in custody for a period
exceeding twenty- four hours from the time of his arrest unless his further detention is
required or authorised under any other provisions of this Code or of any other law for
the time being in force.
Police is empowered to arrest a person when it is satisfied that doing so is essential in order to
prevent occurrence of a cognizable offence. This is the most common situation in which
police effects a preventive arrest. Police can also make preventive arrests under special Laws
such as National Security Act, PITNDPS etc. against dreaded criminals, It is also done under
Section 151 of CrPC which states (1) A Police Officer knowing of a design to commit any
cognizable offence may arrest, without orders from a magistrate and without a warrant, the
person so designing, if it appears to such officer that the commission of the offence cannot be
otherwise prevented.
Section 151 of CrPC deal with an emergent situation and authorizes a police officer to
prevent an apprehended offence by arrest of a person designing to commit the same, without
a warrant or without waiting for the order of a Magistrate. The application of section 107
along with section 151 of CrPC would clearly indicate that the offence designed to be
committed related to the breach of public peace. Obviously, therefore, the procedure laid
down in Chapter VIII of CrPC must be followed to deal with the situation, which by
implication denies the power of immediate release to the police officer even on offering
sureties. In the circumstances, therefore, the omission in the second proviso of CrPC, which
does not deal with any particular offence, is wholly immaterial.
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Power of preventive arrest under Section 151 CrPC83 should not use randomly by the police
to pick people of the streets, especially those belonging to economically weaker sections of
society. Unjustified use of these sections can invite judicial scrutiny. Magistrates have a duty
to ensure that preventive sections are not being misused by police officers. It also empowers a
Police Officer to arrest without warrant any person designing to commit a cognizable offence,
if, in his opinion, the commission of the offence cannot otherwise be prevented. If, then,
action under section 107 is contemplated against the arrested person, he may be produced
before an Executive Magistrate for taking action.
Wider powers of arrest has been given under section 151, CrPC. Which added to these
provisions are the preventive provisions in the Code of Criminal Procedure which empower
the police to arrest persons. Section 151 empowers a police officer to arrest any person,
without orders from a Magistrate and without warrant, “if it appears to such officer” that
such person is designing to commit a cognizable offence and that the commission of offence
cannot be prevented otherwise. I do not think it necessary to emphasise the width of the
power. It may be true that the satisfaction of the police officer contemplated by the
expression “if it appears to such officer” is not subjective but is objective but in India, police
officers making a wrongful arrest whether under section 41 or 151, are seldom proceeded
against – much less punished. There are too many risks involved in doing so.
Quite often, the police arrests people under Section 151 Cr.P.C. (under this section, the police
officer can arrest without arrest warrant any person whom he knows is planning to commit a
cognizable offence, if there is no other way to prevent the commission of such offence). The
police for justifying its act of arrest take recourse to Sections 107 to 116 of Cr.P.C.
However, the arrested/detained person can still make out a case of false imprisonment. In the
case of State of Uttar Pradesh v. Tulsi Ram Patel84 it was held that if an officer wrongfully
orders arrest while acting in his official capacity, he would be liable for committing offence
of false imprisonment.
If it appears to the police officer that there is a likelihood of a cognizable offence taking
place, then the police officer can arrest the person planning to commit such offence like
kalandra, without warrant.
83 Section 151 CrPC authorises a police officer, knowing of a design to commit a cognizable offence, to arrest the person designing to commit the offence, if it appears that commission of the offence cannot otherwise be prevented. This section is often misused.84 (AIR 1971 SC)
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In the case of Ahemad Noormohamed Bhartii v. State of Gujrat85, the Hon'ble Supreme
Court has held that, “A mere perusal of section 151 of the Code of Criminal Procedure makes
it clear that the conditions under which a Police Officer may arrest a person without an
order from a Magistrate and without a warrant, have been laid down in S.151. He can do so
only if he has come to know of the design of the person concerned to convict any cognizable
offence. A further condition for the exercise of such power, which must also be fulfilled, is
that the arrest should be made only if it appears to the Police Officer concerned that the
commission of the offence cannot be otherwise prevented.”
In the case of Medha Patkar v. State of M.P.86, the Hon'ble MP High Court has held that
preconditions of section 151, Cr.P.C. did not exist, the arrest by police of the petitioner and
other agitators from the road where they were squatting and shouting was held to be in gross
violation of their fundamental rights under Article 19(1) (a) & 19(1) (b) of the Constitution.
MPHRC: REVIEW CASES UNDER SECTION 151 CRPC87
The Madhya Pradesh Human Rights Commission (MPHRC) has recommended to the State
Government that all the Inspector-Generals of Police (IGPs) should instruct all the
Superintendents of Police (SPs) that cases of the citizens arrested under Section 151 CrPC
should be reviewed minutely and seriously, so that it could not be misused for violating
human rights of the citizens.
The MPHRC further told the State Government that the police station in-charge should be
made responsible for the illegal works carried out in the police stations because until they are
not made responsible for the wrong doings in the police stations, the misdeeds would keep on
going. This is necessary because when the police station in-charge is responsible for every
work of the police station, then why not he be made responsible for any wrong doing in the
police station though might have done by his subordinate staff.
The MPHRC has sought report from the Shamshabad SP over complaint by Rajesh Ahirwar
and Mukesh Ahirwar. The SP did not submit the report then the Commission got the case
investigated through its team. The Additional Director General (ADG) of the commission
through its report informed that Assistant Sub Inspector (ASI) Irshad Ansari of Shamshabad
police station arrested seven persons including Lal Ahirwar and Ramkrishna Ahirwar in
85 AIR 2005 Supreme Court, 211586 2008 CRI.L.J. 47 (MP)87 Thursday, 16 April 2015 | Staff Reporter | Bhopal | in Bhopal
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section 510 of the IPC that is non-cognisable crime and the ASI by taking action in it, has
violated the human rights of freedom of these people.
Santosh Ahirwar and Bhura Ahirwar were arrested and put behind bars by Sub Inspector (SI)
Mangal Singh under section 151 of the CrPC; during investigation, it was found that the
arrest was uncalled for because both these persons were not going to commit any cognisable
crime.
The Commission sought clarification from the police personnel found guilty of violating
human rights and misuse of section 510 of the IPC and 151 of the CrPC. In that it was
informed that the head constable Dhanraj Meeda and ASI Ansari were punished with censure
in the case while SI GS Rajput was also punished with censure.
Even as the correctness of the preventive custody of social activist Anna Hazare under
Section 151 of the Criminal Procedure Code is being questioned, the Supreme Court has
cautioned the police to invoke this provision only when there is an imminent danger to the
peace or likelihood of breach of peace under Section 107 Cr.PC.
Such a preventive arrest could be made only if it “appears to the police officer concerned that
the commission of an offence cannot otherwise be prevented,” said a Bench of Justices P.
Sathasivam and B.S. Chauhan.
Writing the judgment, Justice Chauhan pointed out that Section 151 Cr.PC “lays down
conditions” and “expressly lays down the requirements for exercise of the power to arrest
without an order from a magistrate and without a warrant”. But, the Bench said, “if these
conditions are not fulfilled and a person is arrested under Section 151 Cr.PC, the arresting
authority may be exposed to proceedings under the law for violating the fundamental rights
inherent under Articles 21 and 21 of the Constitution”.
The object of Sections 107 and 151 is “preventive justice and not punitive. Section 151
should be invoked only when there is an imminent danger to peace or a likelihood of breach
of peace under Section 107. An arrest under Section 151 can be supported when the person
to be arrested designs to commit a cognisable offence. A further condition for the exercise of
such power, which must also be fulfilled, is that the arrest should be made only if it appears
to the police officer concerned that the commission of the offence cannot otherwise be
prevented.”
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The Bench said: “The jurisdiction vested in a magistrate to act under Section 107 is to be
exercised in an emergent situation.”
ORDER SET ASIDE
In the instant case, Virender Kumar and two other police officials were directed by the Delhi
High Court to pay a compensation of Rs.25, 000 each to Sanjeev Kumar Singh and Dalip
Gupta for having taken them into preventive custody under Section 151 Cr.PC after the CBI
submitted a report. The present appeal by Rajender Singh Pathanian, who conducted the
enquiry, is directed against this order.
The Bench set aside the impugned order on the grounds that the High Court had passed the
order merely on the basis of a status report from the CBI without hearing any of the persons
against whom the allegations of abuse of power had been made.
Students clash with VC, get detained under CRPC- Sec 15188
The Student President of Mohanlal Sukhadia University Himanshu Choudhary and student
leader Kuldeep Singh Charan were detained by Pratapnagar police on Tuesday for clashing
with the Vice Chancellor Prof I.V Trivedi and allegedly causing breakage of property.
Both the leaders have been detained under Section-151 CRPC for entering into a heated
argument with the VC and allegedly breaking the furniture, glass and other utilities of the
office.
The results of BCA were out after which due to difference in opinions, few students had filed
for an RTI to check the marks and result copies. When the students received the RTI results
they found various discrepancies in them. Rajkumar, a student informed that his mark sheet
said 20 marks but when he received his copy, marks mentioned were 8. There was another
instance in which his examination copy wasn’t even checked where he was increased with 10
marks after revaluation.
This matter took a rough turn when the students reached the VC’s office and demanded strict
actions to be taken against the concerned examiners and professors. The students appealed for
the suspension of them. The heated argument turned into a brawl after which the students
88 http://udaipurtimes.com/students-clash-vc-get-detained-crpc-sec-151/
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allegedly broke the furniture and glass panel. Upon receiving the information, the Additional
forces of the Pratapnagar police and Bhopalpura police with the SHOs reached the scene and
detained the students.
In order to be valid, the order of preventive detention should be in conformity with the
concerned preventive detention law as well as with the constitutional provisions especially
Article 22. The judge-made law in this regard also lays down some conditions of valid
detention. The Supreme Court of India has quashed the order of detention or continued
detention under various circumstances e.g. time-lag between the prejudicial activity and the
order of detention, delay in making arrest after the order of detention, delay in confirmation
of the detention order, preventive detention on the ground of law and order instead of public
order, non-application of the mind by the detaining authority, mala fide order of detention,
detention on the basis of grounds which are not relevant, filing of affidavit by an officer who
is not detaining authority etc. Preventive detention is a serious invasion of personal liberty.
Various decisions of the Apex Court reveal that it had left no stone unturned to protect the
personal liberty when its intervention was called for.
PREVENTIVE DETENTION AND CRIMINAL PROSECUTION:
Preventive detention and punitive detention:
There is a vital distinction between “preventive detention” and “punitive detention”. The
essential concept of preventive detention is that the detention of a person is not to punish him
for something he has done but to prevent him from doing it. The basis of detention is the
satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting
in a manner similar to his past acts and preventing him by detention from doing the same. A
criminal conviction, on the other hand is for an act already done, which can only be possible
by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a
detention order under the preventive detention law. One is a punitive action and the other is
preventive act. In one case a person is punished on proof of his guilt and the standard is proof
beyond reasonable doubt whereas in preventive detention a man is prevented from doing
something which it is necessary to prevent under a preventive detention law.
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Preventive detention invariably runs from the date specified in the detention order. In the case
of punitive detention, no date is ordinarily specified from which the detention will
commence, and all that is mentioned is the period of detention. In case of preventive
detention the detaining authority applies its subjective judgement to the material before it an
determines what should be the period for which the detenu should be detained, that is to say,
the period during which he should be denied his liberty in order to prevent him from
engaging in mischief.89
Order of detention against person in custody:
Preventive detention is resorted to, to thwart future action. If the detenu is already in jail
charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to
the security of the State. May be, in a given case there yet may be the need to order
preventive detention of a person already in jail. But in such a situation the detaining authority
must disclose awareness of the fact that the person against whom an order of preventive
detention is being made is to the knowledge of the authority already in jail and yet for
compelling reasons a preventive detention order needs to be made.90
Where the detenus were already in jail custody pending criminal case on the date of passing
order of detention and the detaining authority was aware of this fact and was also satisfied
that if they were enlarged on bail of which there was likelihood, there was apprehension of
breach of public order or other prejudicial activities from them, it was held that the detention
order was valid.91
When the detenu was already in custody in connection with a criminal case and there was
nothing on the record that the District Magistrate was aware of this fact, the non-application
of the mind by District Magistrate to question whether his detention was necessary despite
that fact rendered the detention invalid.92
The Supreme Court held in Ramesh Yadav v. District Magistrate, Etah93 that where the
order of detention was passed because the detaining authority was apprehensive that in case
the detenu was released on bail he would again carry on his criminal activities in the area, the
89 Sunil Fulchand Shah v. Union of India, A.I.R. 1989 S.C. 152990 Vijay Kumar v. State of J. & K., A.I.R. 1982 S.C. 1023; Vijay Kumar v. Union of India, A.I.R. 1988 S.C. 934.91 Alijan Mian v. District Magistrate, Dhanbad, A.I..R. 1983 S.C. 1130; Poonam Lata v. M.L.Wadhawan, A.I.R. 1987 S.C. 2098; Bal Chand Bansal v. Union of India, A.I.R. 1988 S.C. 1175; Sanjeev Kumar Aggarwal v. Union of India, A.I.R. 1990 S.C. 1202.92 Jai Singh v. State of J. & K., A.I.R. 1985 S.C. 76493 A.I.R. 1986 S.C. 315
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same was not proper. If the apprehension of the detaining authority was true, the bail
application had to be opposed and in case bail was granted, challenge against that order in the
higher forum had to be raised. Merely on the ground that an accused in detention as an under-
trial prisoner was likely to get bail, an order of detention under National Security Act, 1980
should not ordinarily be passed. But the Supreme Court struck a different note in Suraj Pal
Sahu v. State of Maharashtra94 where it held that the principle that merely on the ground
that an accused in detention as an under-trial prisoner was likely to get bail, an order of
detention under the Act should not ordinarily be passed and if the apprehension of the
detaining authority is true, the bail application has to be opposed and in case bail was granted,
challenge against that order in the higher forum has to be raised will have to be judged and
applied in the facts and circumstances of each case. Similar view was taken by the Court in
Kamarunnisa v. Union of India.95 where it held that if the authority passes an order after
recording his satisfaction in this behalf, such an order cannot be struck down on the ground
that the proper course for the authority was to oppose the bail and if bail is granted
notwithstanding such opposition, to question it before a higher court. Abdul Sathar Ibrahim
Manik v. Union of India96 echoes this view.
Illegal Arrest
''The wrongdoer is accountable and the State is responsible if the person in custody of the
police is deprived of his life except according to the procedure established by law.''97
94 A.I.R. 1986 S.C. 217795 A.I.R. 1991 S.C. 164096 A.I.R. 1991 S.C. 226197 Smt. Nilabati Behera Alias Lalit Behera (THROUGH THE Vs. STATE OF ORISSA AND ORS., 1993 AIR 1960, 1993 SCR (2) 581
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It is solemn duty of the court to protect and uphold the basic human rights of the weaker
section of the society. Arrest can be made on not only in Criminal cases but also in civil
cases. In order to bring arrestee before a Court of Law or otherwise secure of the
administration of the law, an arrest will usually be made. Arrest notifies a person who has
been accused of a crime and can deter and admonish such persons from committing some
more other crimes. It is already discussed by me in my previous Article titled '' Guidelines on
arrest of women and Judicial Officers''98, that Chapter V of Criminal Procedure Code, 1973
deals with ''Arrest of persons''. To know about guidelines to be followed before arrest, it is
essential to refer the ruling Joginder Kumar v. State of Uttar Pradesh99. To know more as to
guidelines during arrest, it is necessary to refer the decision D. K. Basu v. State of West
Bengal100. Further, to know about guidelines after arrest, it is essential to refer the ruling
Sunil Batra v. Delhi Administration101, Prem Shankar Shukla v. Delhi Administration102
and also the D. K. Basu's case. A fortiori, it is also necessary to see Article 20(3) of Indian
Constitution, the provisions of Criminal Procedure Code, 1973 relating to arrest, Article 7 of
International Covenant on Civil and Political Rights, 1966 and National Human Rights
Commission guidelines on arrest and National Police Commission: Third report103 etc.
FALSE ARREST
''A tort (a civil wrong) that consists of an unlawful restraint of an individual's personal
liberty or freedom of movement by another purporting to act according to the law”104 An
action can be instituted for the damages ensuing from false arrest, such as loss of salary while
imprisoned, or injury to reputation that results in a pecuniary loss to the victim. Ill will and
malice are not elements of the tort, but if these factors are proven, Punitive Damages can be
awarded in addition to Compensatory Damages or nominal damages105. In view of this, it is
clearly known that if illegal arrest is made, punitive damages in addition to compensatory or
nominal damages can be awarded. In this context, it is very essential to go through the
following case-law to know the consequences of illegal arrest.
98 Article ' Guidelines On Arrest of Women and Judicial Officers'' published in LAW SUMMARY 2010 (1) L.S, 15-04-2010, Part-7; and also published in online www.airwebworld.com99 1994 (4) SCC 260100 AIR 1997 SC 610101 (1978) 4 SCC 494102 (1980) Cr L J 930103 (1979-1981), Page 32, PARA 15, 48104 http://legal-dictionary.thefreedictionary.com/arrest. West's Encyclopaedia of American Law, edition 2.105 http://legal-dictionary.thefreedictionary.com/arrest. West's Encyclopaedia of American Law, edition 2.
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In case of Boya Nallabothula Venkateswarlu and Ors v. The Circle Inspector of Police,
Nandikotkur PS and Ors106, the Hon'ble Andhra Pradesh High Court Held. ''Despite having
sufficient material to reach a finding that the arrest and detention caused by the police are
illegal, if we direct further enquiry to be made into the allegations levelled against the
investigation agency, it is nothing but diluting the issue and it may also afford an opportunity
to the police to harass the witnesses to speak on their behalf. Therefore, we think it just and
proper to record a finding since the material available on record in the facts and
circumstances of the case, enables us to record a finding that the investigation conducted by
the police is false to their own knowledge and that the arrest and detention of the appellants
caused by the police are illegal.107''
In case of Maneka Gandhi v. Union of India108, it was held that Article 21 is controlled by
Article 19, that is it must satisfy the requirement of Article 19 also; Mal-treatment of
Woman prisoners in Lock-up in case of Sheila Barse v. Union of India109; Bar against
solitary confinement in case of Sunil Batra v. Delhi Administration110; Bar against
Handcuffing and fetters in case of Prema shankar v. Delhi Administration111; Illegal
arrest in case of Joginder Singh v. State of UP112 and in case of Arvind Singh Bagga v. St.
of UP113.
In the case of Nilabati Bahera, it was held by the court that the adverting to the grant of relief
to the heirs of a victim of custodial death for the infraction or invasion of his rights
guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate
him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as
that remedy in private law indeed is available to the aggrieved party. The citizen complaining
of the infringement of the indefeasible right under Article 21 of the Constitution cannot be
told that for the established violation of the fundamental right to life, he cannot get any relief
under the public law by the courts exercising writ jurisdiction. The primary source of the
106 (2010 (3) U.P.L.J 19 (HC)107 It was further held that the “Basing on the above material, we arrive at a definite and positive conclusion that the investigation conducted by the police is false to their own knowledge and to somehow close the case file, they gave their own conclusion to the case by involving the appellants in a false charge of murder and the alleged deceased was in fact found to be very much alive. The police personnel concerned are, therefore, guilty of illegal arrest and wrongful detention of the appellants and also liable for the offence of wrongful confinement, which is punishable under Section 342 of Indian Penal Code.''108 AIR 1978 SC 597109 AIR 1986 SC 1773110 AIR 1978 SC 1675111 AIR 1980 SC 1535112 (1994) 4 SCC 280113 AIR 1985 SC 117
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public law proceedings stems from the prerogative writs and the courts have, therefore, to
evolve 'new tools' to give relief in public law by moulding it according to the situation with a
view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in
1949 under the title "Freedom under the Law" Lord Denying in his own style warned:-
"No one can suppose that the executive will never be guilty of the sins that are
common to all of us. You may be sure that they will sometimes do thing which they
ought not to do: and will not do things that they ought to do. But if and when wrongs
are thereby suffered by any of us what is the remedy? Our procedure for securing our
personal freedom is efficient; our procedure for preventing the abuse of power is not.
Just as the pick and shovel is no longer suitable for the winning of coal, so also the
procedure of mandamus, certiorari, and actions on the case are not suitable for the
winning of freedom in the new age. They must be replaced by new and up-to date
machinery, by declarations, injunctions and actions for negligence... This is not the
tasks of Parliament.... the courts must do this. Of all the great tasks that lie ahead this
is the greatest. Properly exercised the new powers of the executive lead to the welfare
state; but abused they lead to a totalitarian state. None such must even be allowed in
this country".
The informative and educative observations of O’ Dalaigh CJ in The State (at the
Prosecution of Quinn) v. Ryn114, deserve special notice. The Learned Chief Justice said:
"It was not the intention of the Constitution in guaranteeing the fundamental rights of
the citizen that these rights should be set at bought or circumvented. The intention
was that rights of substance were being assured to the individual and that the Courts
were the custodians of those rights. As a necessary corollary, it follows that no one
can with impunity set these rights at bought or circumvents them, and that the Court's
powers in this regard are as ample as the defence of the Constitution requires."
In case of Byrne v. Ireland115, Walsh J opines at p264: '' In several parts in the constitution
duties to make certain provisions for the benefit of the citizens are imposed on the State in
terms which bestow rights upon the citizen and, unless some contrary provision appears in
the Constitution, the Constitution must be deemed to have created a remedy for the
enforcement of these rights. It follows that, where the right is one guaranteed by the State, it
114 [1965] IR 70 (122)115 (1972) IR 241
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is against the State that the remedy must be sought if there has been a failure to discharge the
constitutional obligation imposed.''
In case of Bhim Singh, MLA v. State of J&K And others116, the Hon'ble Supreme Court held
that '' the police officers should have greatest regard for personal liberty of citizens, their
mala fide, high handed and authoritarian conduct in depriving the personal liberty of person
has to be strongly condemned.'' In this case, the Hon'ble Supreme Court directed the
Respondent no.1, the State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs.
50,000/- within two months.
In case of Lucknow Development Authority v. M. K. Gupta117, it was held that '' when public
servant by mala fide, oppressive and capricious acts in performance of official duty causes,
injustice, harassment and agony to common man and renders the State or its instrumentality
liable to pay damages to the person aggrieved from public fund, State or its instrumentality is
duty bound to later recover the amount of compensation so paid from the public servant
concerned.''
In case of Sanganagouda A. Veeranagouda and others v. State of Karnataka118, in this case,
'' one ''V'' was arrested in a murder case on the direction of Office-in-charge of the police
station and subsequently died by hanging himself in the police station, the Hon'ble Supreme
Court considering the undisputed facts viz that at the relevant time A.1 was in charge of the
police station, A2 to A5 were working as police constables in the said police station, the
injuries sustained by the deceased Guddappa to his death was caused in the said police
station, the fact that the Investigation Officer did not produce ''V'' before the nearest
Magistrate within 24 hours by his arrest as required under Code of Criminal Procedure, held
that the death of the deceased has since occurred beyond 24 hours it would amount to
wrongful confinement as contemplated under Section 348 of Indian Penal Code and
accordingly upheld the order passed by the Hon'ble High Court.''
In case of Hindustan Transmission Products Ltd v. State of Kerala119, a petition filed under
Article 32 of the Constitution of India for issuance of a writ of Habeas Corpus to produce two
persons, the Hon'ble Supreme Court directed the Hon'ble District Judge, Ludhiana to conduct
an enquiry into the allegations made in the affidavit and counter affidavits and submit a
116 (1985) 4 SCC 677117 (1994) 1 SCC 243118 (2005) 12 SCC 468119 (1997) 11 SCC 623
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report as to the veracity of the statements made by either of the parties particularly in relation
to the illegal detention of the aforementioned two persons. Thereafter on receiving the report
of the District Judge, the Hon'ble Apex Court held that the two persons were wrongfully
deprived of their right to personal liberty by the police authorities of the State of Punjab
during the period from 09-08-1993 to 02-10-1993 and directed the State of Punjab to pay
each of them a sum of Rs 10,000/- by way of compensation within a period of one month.
The Hon'ble Supreme Court further made it clear that the payment of this amount by way of
compensation would not preclude Dalit Saini and Om prakash from pursuing the remedy;
civil as well as criminal that is available to them in law in respect of their wrongful
confinement during this period.
Bibliography
http://www.powershow.com/view1/10ef2cZDc1Z/
CRIMINAL_PROCEDURE_CODE_1973_powerpoint_ppt_presentation
http://lawcommissionofindia.nic.in/reports/177rptp1.pdf
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An Overview
ARREST (Section 41)
CAN BE MADE BY:
Police officer (Section 41(1), 42)
Magistrate (Section 44)
Private Person (Section 43)
Important to Note – Article 361(3) gives immunity to the President & the Governor.
Sections 45 -Members of Armed force are immune from arrest for anything purported
to be done in discharge of his official duties
PROCEDURE OF ARREST
Duties Of The Person By Whom Arrest Made(Section 41(C), 41B (A), (B), (C),
46(2), (3), 47, 48, 49, 50, 50A,51, 52, 53,54,55,56,57, 58, 59,60)
Right Of The Person Arrested (Article 22(1),(2) Section 50(1), 50(2) 55,56,57, 75, 76)
Arrest Of Female (Section 46(1),(4), 51(2), 151, Proviso To Section 54(1), 53(2) )
RESTRICTION TO LAWFUL ARREST ITSELF AN OFFENCE
(I.P.C SECTION – 224, 225, 225B)
REMEDY TO ILLEGAL ARREST (I.P.C SECTION 96-106, 358)
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