Arrest Without Warrant | Arrest | Bail


Project on

Arrest without warrant

Submitted to: Mr. D. P. Poonia

Submitted By: Akash Shrivastava B.A. LL.B V Semester

What is the definition of an Arrest?
There are four components involved: a) a seizure or touching of a person’s body b) followed by words such as "you are under arrest" c) the person’s submission to the compulsion and d) The police informing the person of the true grounds for his arrest.

To affect an arrest, a police must simply make clear to a person by what is said and done that he is no longer a free man. There is no fixed formula when it comes to arresting a person but the arresting officer may have to use different procedures with different persons, depending on their age, ethnic origin, knowledge of English, intellectual qualities and physical or mental disabilities.

For example: The arrest by a constable of a totally deaf person who could not
lip-read would be valid if the constable had done everything that a reasonable person would do in the circumstances. An arrest constitutes an absolute restriction on a person’s freedom of movement. Hence every citizen has a fundamental right to know when he is under arrest. Therefore, in order to avoid any doubt, as far as possible, the word "arrest" should be used by the arresting constable before he restricts your freedom. The Constitution and laws guarantee a number of rights to citizens, even when they are arrested in criminal cases. It is important for you to know the

circumstances under which you can be arrested and what your rights during and after arrest are.

Who can make an Arrest?
 A police officer may arrest a person either with or without a warrant depending on the nature and gravity of the offence.  Even a private person can arrest another person who in his presence commits a non-bailable, cognizable offence or is a proclaimed offender and then hand him over to the police. —(Sec 43, Cr.P.C.)

Who can be arrested without a warrant by the police? Any person who:
 has been involved in a cognizable offence or is suspected to be so involved or against whom a complaint has been received of such involvement;  possesses any implement of housebreaking without valid excuse;  has been declared a proclaimed offender under law;  is in possession of stolen property;  obstructs a police officer in carrying out his/her duty;  has escaped or attempts to escape from lawful custody;  is suspected of being a deserter from any of the Armed Forces; and  is a suspect or a habitual offender and needs to be bound down for good behaviour.

This period excludes the time taken in journey. 22 (1).49. abused or tortured while in custody during interrogation and investigation.Basu v. —(Art.P. —(Art. 50.C. S. Constitution. Constitution Sec. —(Sec.  not to be subjected to more restraint than what is necessary to prevent his escape.22(2). It is the duty of the police officer to inform him of his right to be released on bail. Cr.  —(Art. 57& 76.C.K.C.Your Rights and Police Duties Every arrested person has a right:  to be informed of the grounds of arrest by the police.)  to be released on bail when arrested for a bailable offence. Cr.Basu v.K. judgement D.C) . —(S. Constitution. P. It is the duty of the police to inform the arrested person of this right and also inform his relatives or friend about his arrest and detention. Cr.C)  to be produced before the nearest c o m p e t e n t m a g i s t r a t e within 24  hours from the time of his arrest. Cr. State of West Bengal)  not to be ill-treated.P.Arrest and Detention.C)  to inform his relative or friend about his arrest and the place of detention. judgement D.P. The arrested person can consult a lawyer during interrogation also but not throughout the interrogation period.22(1). Sec. 50.  —(Sec. The police should also inform the arrested person of this right.  State of West Bengal)  to meet and consult a lawyer of his choice.

Basu v. judgement D.C) Right to Medical Examination  Every accused person can demand a medical examination of his body by a registered medical practitioner to disprove the commission of the offence alleged against him. Cr.54. the injuries found on the body should be recorded. —(Sec.C. judgement D. A receipt of such articles must  be given to the arrested person. judgement D.C)  At the time of examination. visible and clear identification in the form of nametag with designation. State of West Bengal)  The police officer carrying out the arrest must bear accurate. Cr.K.P. —(S.51.K.Basu v.Basu v.C. It is necessary to prepare an Inspection Memo after the examination is over and this Memo should be signed by the arrested person and the police officer making the arrest. It is the duty of the Magistrate to inform him of this right. —(S.  The police must r ecord in a register the identity of all police officials who .P. State of West Bengal) Additional Duties of the Police  —(S.K. —(Sec. State of West Bengal)  Every arrested person has the right to be medically examined after every 48 hours during his detention in custody by a qualified and governmentapproved doctor.C. A police officer making an arrest is entitled to search the arrested person and place  in safe custody all the articles seized from him.

the court can release her on bail. They should not be kept where male suspects are detained.he is so violent that he cannot be kept in custody unless his movement is stopped.51. Cr. State of Maharashtra)  When a female is arrested for a non-bailable offence. —(Sec.C)  Female suspects must be kept in a separate lock-up in the police station. —(Sec.437. This information should be displayed clearly on the notice board of the Control Room. . even if the offence is very serious (punishable by death penalty even). Cr.  The police officer carrying out the arrest must prepare a Memo of Arrest that should be signed either by a relative or friend of the arrested person or a respectable person of the locality and be countersigned by the arrested person.  Details of every arrest and the place of detention of the arrested persons should be given to the State and District Police Control Room within 12 hours of the arrest.C) .C.there is a clear danger of his escape or attempt to escape. judgement Sheela Barse v. P. This Memo must have the date and time of arrest.P.  The police officer making the arrest should not hand cuff any person routinely. conduct the interrogation of the arrested person. The arrested person should not be handcuffed except where.  Copies of all the documents should be sent to the local area Magistrate for record. —(S. Special Rights of Women  Females can be searched by only another female with strict regard to privacy and decency. .

Cr.C. State of Maharashtra) Resistance to Arrest  Never resist arrest forcibly. including use of force. State of Bihar and others).P. —(Sec.P.  court. 46. Redress against arbitrary arrest and detention: If any person has been arrested and detained illegally or wishes to make a complaint against any wrongful act by the police. judgement Sheela Barse v.C). — (S. and .  It is the duty of the police to immediately inform the nearest legal aid committee about the arrest of an accused seeking legal aid. Cr.42.C.Right to Legal Aid and Advice  Every poor accused is entitled to be provided with free legal aid.C). —(S.  The police officer or other person making the arrest is empowered to use all means necessary to effect arrest. This right begins from the time of his arrest only. You can be arrested by the police officer for doing so. he can complain to the:  Superintendent of Police of that district and other senior police officers.  Do not refuse to give your name and address or give false name or address to the police. If he is not aware of this right it is the duty of the Magistrate to inform him about this right when he is first produced in court. —(Sec. judgement Khatri &Others v.

Force in Arrest Sometimes a person to be arrested may resist arrest. An arrest able offence means an offence punishable with imprisonment. with or without any other punishment. This is because of the statutory enlargements of the power to arrest without warrant. where there is an "all-points alert" or "all-points bulletin" for some identified major offender who is wanted for some offence committed locally or interstate 2. The common law provides that in a "confrontation" arrest situation. A private person may arrest a person who has committed treason or felony or whom he reasonably suspects of having committed treason or felony. There are however two instances in which arrest by warrant occurs : 1. Arrest without Warrant At Indian law. The force that can be lawfully used in effecting an arrest depends upon whether it is a "confrontation" arrest involving direct physical resistance. the arresting . where a police officer is not immediately under pressure to make an arrest and has time to obtain a warrant to ensure that the arrest will not be held to be unlawful. State Human Rights Commission/ National Human Rights Commission Arrest by Warrant Persons are seldom arrested by warrants these days. A police officer’s powers of arrest at common law are only slightly wider than those of a private person. or a "fugitive" arrest involving flight. a private person’s powers of arrest without warrant are extremely limited.

during questioning. the sooner it is disclosed to the arresting officer. the arresting officer may be justified in killing the fugitive if he cannot be arrested in any other way. the earlier the arresting officer will have the opportunity to make the necessary enquiries to verify it. a person may be searched.officer can use an amount of force reasonably necessary to effect the arrest. This right to silence cannot be adversely commented on by the prosecution lawyers during the trial. Of course. if for example. An arrested person has the right to remain silent when interviewed by the police. Hence. It may also include fingerprinting or photographing or DNA profiling. The common law applicable to "fugitive" arrest in cases of a person seeking to avoid an arrest for eg. the degree of force permissible will vary according to the degree of resistance to the arrest. the arrested person has an alibi. . The search may extend to a medical examination of an arrested person. After being arrested After the arrest. A police officer may lawfully cause grievous bodily harm to a person fleeing to avoid arrest where: a) the person to be arrested may be arrested without warrant b) the person to be arrested is reasonably suspected of having committed an offence punishable by death or life imprisonment c) the person to be arrested has been called upon to surrender. The crime of treason.

a person who is arrested is faced with the following questions: 1. the arrested person must be brought before a clerk of petty sessions. Where it is not practicable to do so within 24 hours. inspector or sub-inspector of police. it could be argued that if you are innocent.A person arrested without warrant must be brought before a justice as soon as practicable after he is taken into custody. Sometimes it can be said that if you make a statement . However. That will ensure that nothing incriminating (no matter how innocent) is given to the police. Different lawyers handle those questions differently. or a police officer in charge of a police station. That could sometimes save you time and legal fees. Practical Matters to Consider Very often. you get the police to prove their case against you and do not assist them to implicate yourself. there are some lawyers who believe that nothing should be stated to the police if you are arrested. the sooner they will see that you have not committed a crime and therefore release you or not proceed to charge you. For example. OR 2. except where the offence appears to be of a "serious" nature. the sooner you give the required information to the Police. By doing that. Should I make a statement to the police? Statements to the police are usually made by way of a video tape interview or a signed statement. No one can tell you which is the better stance to take. Should I maintain my right not to say anything. These persons must enquire into the case and grant bail.

immediately. Therefore the best course of action is to ask to see a solicitor immediately before making a statement to the police. you put your story across and it is more credible as it cannot be said that you have had time to fabricate a story to cover up. the down side is that you may say something that may implicate you in a crime. However. .

custodial death in perhaps one of the worst crime in a civilized society governed by the rule of law‖1 Speedy trial thus an integral and essential part of the fundamental right to life and personal liberty enshrined in Article 21 of the Constitution.K.Basu’s case) AIR SC 1675 (State of M. Since our Constitution envisaged the spirit of fundamental rights to its citizens the Right of life and personal liberty Article 21 of the Indian constitution read as ―No person shall be deprived of his life or personal except according to procedure established by law‖. 1 AIR 1997 SC 610 (D.H. Champalal) AIR 1981 SC 939 2 3 . The Supreme court commented ―it is a crying shame upon our adjudicatory system which keeps men in jail for years an end without a trial.2 In Kadra Pahadiya Vs. In this context it is obvious to know about arrest and its scope in the code of criminal procedure. Vs. growing incidents of torture and deaths in police custody has been a disturbing factor.The emerging trends in the criminal justice system emphasize the need to speedy trail. However in spite of the constitutional and statutory provisions are aimed at safe guarding the personal liberty and life of a citizen. state of Bihar3 it was held that several trials were languishing in jail for several years without their trial having made any progress. Experience shows that worst violations of human rights take place during the course of investigation….

Section. 4 Oxford Dictionary of Law (3rd Edtn) . Arrest by the private person (section 43) According to the provisions of the Criminal Procedure Code a person who is found to be committed an offence may be arrested as mentioned infra: 1. be arrested by the police officer and a Magistrate as according to the following provisos ARREST UNDER THE CRIMINAL PROCEDURE CODE: 1. within his local jurisdiction. Arrest by the magistrate (sections 44.c. in his presence. (2) Any Magistrate. whether Executive or Judicial. Arrest by police officer(sections 41.C or ant other law for the time being in force.319 and 187) of) cr.p. may at any time arrest or direct the arrest. 89. 42 and 151) 3.“Arrest” means the apprehension of a person suspected of criminal activities”4 When a person is found to be committed an offence under I. 44: (1) When any offence is committed in the presence of a Magistrate. commit the offender to custody. whether Executive or Judicial. subject to the provisions herein contained as to bail.P. within his local jurisdiction.204. 2. he may himself arrest or order any person to arrest the offender. Arrest by the magistrate: A Magistrate may arrest under the following circumstances. and may thereupon. 87. of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

the court sees reason to believe that he has absconded or will not obey the summons.Section. or after the issue of the same but before time fixed for his appearance. ―When any person who is bound by any bond taken under this Code to appear before a Court.‖ It s to be noted that under sections 87 and 89 the warrant issued by the Magistrate not only against the accused but also any person who disobey the order by the court. a warrant for his arrest(a) If either before the issue of summons. the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. 87: A Magistrate is empowered by this code to issue a warrant of arrest for appearance of any person after recording the reasons in writing. 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. issue. does not appear.‖ Section. in any case in which it is empowered by this Code to issue a summons for the appearance of any person. or (b) If. after recording its reasons in writing. ―A court may. . 89: A Magistrate is empowered to issue a warrant of arrest against who is bound by any bond taken under this code for his appearance.

he may issue a warrant against the accused. 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. a summons. However it is to be noted that the discretion of Magistrate is essential in issuing warrant. if such fees are not paid within a reasonable time. 204: The Magistrate taking cognizance of an offence thinks fit that there is sufficient ground for proceedings and the case appears to be a warrant case. he may issue a warrant. 5) Nothing in this section shall be deemed to affect the provisions of section 87. 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. if he thinks fit. . 2) No summons or warrant shall be issued against the accused under subsection (1) until a list of the prosecution witnesses has been filed. 3) In a proceeding instituted upon a complaint made in writing. Section 204 -Issue of process1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding.Section. and the case appears to be a) a summons-case. the Magistrate may dismiss the complaint. he shall issue his summons for the attendance of the accused. or. every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. or b) a warrant-case.

b. 4) Where the Court proceeds against any person under sub-section (1). the proceedings in respect of such person shall be commenced afresh. he may be arrested or summoned.Section. Power to proceed against other persons appearing to be guilty of offence:1) Where. 319: As per section 319(2) the Magistrate is empowered to issue arrest warrant against a person appearing to be guilty of offence as the circumstances of the case may require him to do so. . and the witnesses reheard. although not under arrest or upon a summons. 2) Where such person is not attending the Court. as the circumstances of the case may require. may be detained by such Court for the purpose of the inquiry into. 3) Any person attending the Court. the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. in the course of any inquiry into. 319. it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused. thena. Subject to the provisions of clause (a). or trial of an offence. the offence which he appears to have committed. the Court may proceed against such person for the offence which he appears to have committed. or trial or. for the purpose aforesaid.

‖ Section 41(1) (b) : The police officer may arrest any person who commits any cognizable offence punishable with an imprisonment of a period more than 7 years. arrest any persona) who has been concerned in any cognizable offence. . arrest any person- 5 The code of Criminal Procedure (Amenment) act 2008. of his having been so concerned.P. “Section 41. former entitles him to arrest without acting under discretion and the latter puts him into the discretion in arresting the offender a per the amended proviso in the CR. Without warrant : (without using discretionary power) Section 41 (1) (a) : The police officer may arrest any person who commits in his presence a cognizable offence.1) Any police officer may without an order from a Magistrate and without a warrant.When police may arrest without warrant. or a reasonable suspicion exists. or against whom a reasonable complaint has been made. Arrest by police officer: The power of police officer to arrest is of two fold.1) Any police officer may without an order from a Magistrate and without a warrant.5 “Section 41.When police may arrest without warrant. or credible information has been received.C.2.

who. under any law relating to extradition. or f. liable to be apprehended or detained in custody in India.b. who has in his possession without lawful excuse. or g. would have been punishable as an offence. or attempts to escape. of his having been concerned in. being a released convict. 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. who has been proclaimed as an offender either under this Code or by order of the State Government. arrest any personc.When police may arrest without warrant. “Section 41. from lawful custody. who is reasonably suspected of being a deserter from any of the Armed Forces of the Union. any implement of housebreaking. or e. or who has escaped. or h.‖ Section 41(1)(c to i) : The police officer may arrest without warrant under the circumstances mention in sub clauses c to i. or credible information has been received. and for which he is. or a reasonable suspicion exists. if committed in India. commits a breach of any rule made under sub-section (5) of section 356. any act committed at any place out of India which. the burden of proving which excuse shall lie on such person. or .1) Any police officer may without an order from a Magistrate and without a warrant. who has been concerned in. or otherwise. or against whom a reasonable complaint has been made. or d. who obstructs a police officer while in the execution of his duty.

if such person is not resident in India.Arrest on refusal to give name and residence. to give his name and residence or gives a name or residence which such officer has reason to believe to be false. 42. 2) When the true name and residence of such person have been ascertained. 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. he may be arrested by such officer in order that his name or residence may be ascertained. to appear before a Magistrate if so required: Provided that. in the presence of a police officer. .1) When any person who. 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 there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition. on demand of such officer. the bond shall be secured by a surety or sureties resident in India. has been received from another police officer. with or without sureties. for whose arrest any requisition. he shall forthwith be forwarded to the nearest Magistrate having jurisdiction. to furnish sufficient sureties.‖ Section 42 : The police officer may arrest a person who commit in his presence a non cognizable offence and refuses to give his name and address. he shall be released on his executing a bond. has committed or has been accused of committing a non-cognizable offence refuses. whether written or oral. or.i. if so required.

The new sections brought drastic changes in arrest by the police officer by vesting the discretionary power. “151. the person so designing.(1) A police officer knowing of a design to commit any cognizable offence may arrest. if it appears to such officer that the commission of the offence cannot be otherwise prevented.” Without warrant (with discretionary power) Section 41 (1) (b): The police officer may arrest any person under this section like wise as in the old code section 41 (a) but after fulfilling the grounds mentioned in Clauses (i) and (ii) for arrest and recording in writing about the necessity of arrest in his case diary. Arrest to prevent the commission of cognizable offences. As per section 41 (1) (b) (i) for arresting a person it is very essential for police officer to satisfies about well establishment of guilt and under as per section 41(b) (ii) before arresting a person under this section the police officer has to well firmed about necessity of arrest as mentioned in the circumstances stated under sub clause (a) to (e) to clause (ii). without orders from a Magistrate and without a warrant. (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.Section 151 :A police officer knowing of a design to commit any cognizable offence may arrest without the orders/ warrant from a Magistrate as a preventive action to maintain law and order . .

With warrant by police officer : Section 41 (2) : The police officer is not entitled to arrest a person who commits a non cognizable offence or against whom a complaint has been made except with the warrant of the Magistrate.Basu (1997) and Joginder kumar (1994) and concentrates on the specific theme ―the police officer must be able to justify the arrest apart from his power to do so ― In Amarabati Vs. State of U.) The lordships held that Section 41 gives a discretion to the police officer from a magistrate and even without a warrant may arrest any person in the situation enumerated in that section’ .L. is why no arrest can be made in routine manner on minor allegation of commission of a crime In M. Jeevan reddy. The Code of Criminal Procedure (Amendment) Act. [2005 CR.Abraham Vs.This amendment brought as a result of recommendations made in the 177th Law Commission Report headed by j.J 755 ] it was held that arrest and detention in the police custody can cause ill-calculable harm to the reputation and self –esteemed of a person and.K.C.H. On perusing the above amendments it appears that the recognition of need of arrest in certain cases. The theme of the report is to maintain a balance between the liberty of citizens (the most precious of all fundamental rights) and the societal interest a difficult balance but it has to be attempted and achieved to the extent possible.R. State of M. that. 2008 which came in to force on 1st November 2010 vide Notification: S. (2003 SCC 628 Cri. The report taken in to the consideration of the judgments in the cases mainly D. B.O.P.2687 (E) OF MINISTRY OF HOME AFFAIRS DATED 30TH OCT 2010.

Section 50 CrPc. Every Police officer or other person arresting any person without warrant shall fortwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.Rights of Arrested person under the Criminal Procedure Code 1) The person arrested shall be informed of the grounds of arrest – Article 22 of the Constitution and Section 50 CrPc Section 50 of the Criminal Procedure code gives a mandatory right to the person arrested. the search should be done by the woman 6) If the arrested person is in possession of any offensive weapons. 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. 4) If he is not released on bail. they should be seized and delivered to the Court ( Section 52) 7) According to Section53. Where a police officer arrests without warrant any person other a person accused of a non-bailable offemce. 2) In case the person arrested wants that the information about his arrest may be conveyed to any relation or friend of his. he shall be informed that he is entitled for bail as a matter of right and may even be released on his personal bond . 3) In case the offence is bailable. he must be searched and all articles except wearing apparel must be placed in safe custody and a receipt should be issued ( section 51) 5) If the arrested person is a women. the accused may be required to undergo medical examination by two medical officers ( or two lady doctors in case the accused is a woman) . it shall be so conveyed.

journey period from the place of arrest to Magistrate’s Court is excluded for the purpose of computing this period of 24 hours. . the person having custody can pursue and arrest him any where in India ( Section 60) 9) No person arrested should be detained in police custody for more than 24 hours unless there is a sufficient reason for it ( Section 57). 10) When an officer in charge of police station instructs his subordinate to arrest a person without warrant. 11) Every officer incharge of a police station is required to report to the District Magistrate. shall give an order in writing stating the name and address of the person to be arrested and the offence charged. the cases of persons arrested with warrant and without warrant.8) If the person escapes from custody.

44 CWN 502.6 There can be no legal arrest if there is no information or reasonable suspicion that the person has been involved in a cognizable offence7 however the burden is on the police officer to satisfy the court before which the arrest is challenged that he has reaso nable ground of suspicion. Therefore. .RIGHTS OF ARRESTED PERSON. State of Maharashtra. the arrest and detention of persons without warrant of caprice but are governed by rules which are clearly laid down by law.According to section 50(1). as the recognition of the rights of the arrested person.‖ Apart from the provisions of the code 6 7 Avinash Madhukar Mukhedkar v. These restraints are primarily provided for the protection of the interest of the person to be arrested.PROVISIONS UNDER THE CODE OF CRIMINAL PROCEDURE Though the police have been given various powers for facilitating the making of the arrest.8 (b) Right to know the grounds of arrest. Some of the following are discussed below(a) When police may arrest without warrant: Under sections 41 very wide powers are conferred on the police in order for them to swiftly act for the prevention or detect ion of cognizable offences without the formality and delay of having to go to a Magistrate for the order of arrest. 1983 Cr LJ 1833. The imposition of the restraints can be considered. There are. 8 Emperor v. however some other provisions which have rather more expressly and directly created important rights to favour of the arrested person. Raju Mia. Vimlabai Deshpande. AIR 1946 PC 123. to an event. the powers are subject to certain restraints. and also the society at large. ―every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

. 10 11 (1997) 1 SCC 416. Article 22(1) provides. or confining the body.e. State of West Bengal10.‖ The rules emerging from decisions such as Joginder Singh v. who is not accused of an offence punishable with the death or with imprisonment for life13.According to section to be made. Accordingly. Unless there is submission to custody. it should be no more than which is justly required and this section does not give a right to cause death of a person. referred to. arrest must be made by actual contact. i. by words or by conduct. 14 Dakti.K Basu v. State. have been enacted in Section 50-A11 making in obligatory to on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest.e. The magistrate is also under an obligation to satisfy himself about the compliance of the police in this regard. etc but also to make an entry in the register maintained by the police. 13 Sec. ―No person who is arrested shall be detained in custody without being informed as soon as may be. of the ground of such arrest nor shall he be denied the right to consult. State of UP9 and D. and to be defended by a legal practitioner of this choice. i. Section 50-A enacted by Act 25 of 2005 12 Thaneil Victor v.14 (d) No unnecessary restraint.12 In case force is required. submission to Custody . reasonable force may be 9 (1994) 4 SCC 260. a police officer in an attempt to re-arrest an escaped person has no right to shoot. AIR 1955 All 379.recognizing the right to know the ground of arrest. 1991 Cr LJ 2416 (Mad). touching the body physically.Section 46 envisages three modes of arrest. (c) Arrest. there should be no more restraint than is justly necessary to prevent escape. our constitution has also conferred on this right the status of a fundamental right. Arrest is restraint on personal liberty. 46(3).

Restraint or detention without arrest is illegal. 79 CWN 474. 15 This provision carries out the mandate of Article 22(1) of the Constitution of India16. (f) Search of arrested person. but before keeping a person under any form of restraint there must be an arrest. it can be seized under process of law from the custody or person of the accused by the issue of a search warrant. The principle appears to be that though an accused cannot be compelled to produce any evidence against him.used for the purpose. 1975 Cr LJ 1249 (Cal . Govind Prasad v. but it comes into operation after the arrest and not before.Section 51 is the only provision which allows a police officer to make a personal search of arrested persons. if necessary. 15 16 Govinda. Arrest without compliance of this provision will be illegal and will made the officer or person making such illegal arrest liable to all such remedies as are available in case of an illegal arrest. Section 50 is mandatory and if its provisions are not complied with. State of West Bengal. Search should be made in the presence of a respectable and independent witness. the non-consideration of such non-conformance by the court when considering the question of bail operates to the prejudice of the arrested person and the order is liable to be set aside on this ground. With regard to the provisions of this section the reference may be made to article 20(3) of the Constitution which is a guarantee to the accused against testimonial compulsion. and if the arrest is made in a bailable case the person shall be informed of his right to be released on bail. (e) Person arrested to be informed of grounds of arrest and of the right to bailSection 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. but this provision under section 51 does not permit medical examination of the accused without his consent. Pd.

and thirdly. Vol. imposing such conditions as the court thinks fit. 18 (h) Right to consult and to be defended by a counsel of his choice and to get free legal aid in case of economically disabled accused. AIR 1983 SC 378. 20 Gurbaksh Singh Sibbia v. The right to be taken out of police custody by being brought before a Magistrate is given.(g) Person arrested not to be detained more than 24 hours. Rankin. Suleman.The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed. with the least delay. 30 CWN 985 (987) (FB). 14th Report. I. in Md. firstly. to prevent arrest and detention with a view to extract confession. J. Special powers have been conferred only on the High Court and the Court of Session for directing a person on bail previous to his arrest. in particular a welfare state. or as a means of compelling people to give information. AIR 1980 SC 1632. if he is too poor to do so. State of Bihar. 19 Law Commission of India. The order of anticipatory bail shall take effect at the time of arrest. to prevent police stations being used as though they were prisons. secondly. which is commonly called anticipatory bail.20 Consequences and liability if the provisions of the right of arrested persons are violated17 18 Khatri v.17 Section 57 is concerned solely with the question of the period of detention. State of Punjab. The intention is that the accused should be brought before a magistrate competent to try or commit. Free legal aid to persons of limited means is a service which the modern State. 19 (i) Rights to Anticipatory Bail.Apart from ensuring a fair prosecution. .. owes to its citizens. a society under the Rule of law has also a duty to arrange for the defence of the accused.Section 438 deals with this right of the arrested. pp 587-600. to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge.

the person against whom such attempt is made has every right to protect himself and to exercise his right to private defence in accordance with the provisions contained in Section 96-106 IPC. 25 Sharifbai v. In re. does not affect the question whether the accused person was guilty or not guilty of the offence with which he is charged. AIR 1956 AP 156. then the right of private defence against such police officer or public servant will not be as wide as it is against a private person. 224. Subramania Chetty. 23 (3) If a private person attempts to make an arrest. for wrongful confinement. 23 Sec. (4) If a public servant having an authority to make arrests. 24 Kolavennu Venkayya. 22 (2) Though the illegality or irregularity in making an arrest would not vitiate the trial of the arrested person.25 21 22 Mobarak Ali Ahmed v.21 The question whether the police officer making the arrest was acting within or beyond his powers in effecting the arrest. If the Court has jurisdiction to try an offence. . AIR 1957 SC 857. Abdul Razak. AIR 1961 Bom 42. State of Bombay. any person who illegally arrests another is punishable under Section 342 IPC. and would be subject to the restrictions contained in Section 99 if the IPC. In re. Apart from this special provision. it would quite material if such person is prosecuted on the charge of resistance to or escape from lawful custody. 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. any illegality or irregularity in arrest will not oust the jurisdiction of the court to try the offence. 225.(1) A trial will not be void simply because the provisions relating to arrest have not been fully complied with. 225-B of IPC. AIR 1941 Mad 181.24 If the person making an illegal arrest is a police officer or a public servant.

The amendment clearly lays down conditions which need to be met before a person can be arrested.(5) If the arrest is illegal. Informal detention or restraint of any kind by the police is not authorized by law. AIR 1965 SC 1651. Indian Government has made some sweeping changes in the Powers conferred on Police to arrest an accused. and must in the process safeguard the interest of innocent as well. . By doing so. Ajoy Kumar Mukherjee. Basooram Dass. by defying all the provisions of the law for the protection of the liberty of the citizen under the colorable pretention that no actual arrest has been made when all intents and purposes. 26 It may be mentioned here that the provisions regarding arrest cannot be bypassed by alleging that there was no arrest but only informal detention. 1973 RELATING TO THE RIGHTS OF ARRESTED PERSONS Law must change with the needs of a changing society. 19 WR 36. Queen v. the government has given credence to the most basic Right of its citizens – Right to Live with Dignity. 26 27 26 Anowar Hussain v. ―It is intolerable that the police should persue the investigation of crime. it is a sort of false imprisonment. a person has been in their custody. With a view to protect the dignity and liberty of its citizens.‖27 THE RECENT SIGNIFICANT AMENDEMENTS IN THE CODE OF CRIMINAL PROCEDURE.  The scope for the definition of victim has been amended so as to include the victim‟s guardian or legal heir in the definition itself. and the person making such arrest exposes himself to a suit for damges in a civil court.

though not throughout the interrogation. as far as practicable by a court presided over by a woman. etc.  The proceedings for sexual offences are now required to be held. state and police headquarters.  New sections 41A. Arrested person has also been given the Right to meet an Advocate of his choice during interrogation. . 41B.24. both in case of cognizable as well as non-cognizable offences.  A number of safeguards in matters of arrest of a woman have been incorporated in the new proviso to Sec.  Unrestricted and unlimited powers of Arrest so far enjoyed and exercised by the Police stand restricted and conditioned.54.  Provisions have been incorporated in Sec. now the court may permit the victim to engage an advocate of his choice to assist the prosecution under this subsection. and taking care of their health and safety and such allied matters. and new Sections 55A and 60A of the CrPC Act to provide further safeguards and mandatory provisions regarding examination of arrested persons by Medical Officers.46. Referring to amendment in Sec. in order to display the names and addresses of persons arrested along with the details of the person making the arrest. 41C have been introduced to provide for detailed mandatory procedure in matters of arrest under various circumstances and also to provide for control room in every district.

376A.376. the police officer has also to mention in the case papers whether the report of medical examination of the woman has been attached.173 wherein its is provided that the investigation in relation to rape of a child may be completed within 3 months from the date on which the information was recorded by the Officer incharge of the police station. 157 provides important safeguards to victims of rape.  Detention of the accused in custody and his production before the Magistrate are now regulated by new provisions and explanations inserted under Sec.275(1).  Provisions have been incorporated in Sec. . 376B. A new proviso to Sec.  Newly inserted Sec. 376C and 376D of the IPC.167. Analogous provisions have been incorporated in the new proviso added under Sec.  Maintenance of the Case Diary by the Police Officer will now be regulated by the new subsections 1A and 1B to Section 172.195A of the Indian Penal Code.195A entitles a witness or any other person to file a complaint in relation to an offence under Sec.  A very important provision has been made in newly inserted sub-section 1A of Sec.161 and 164 about use of audiovideo electronic means while recording the statements of the accused. If the offence relates to Sec.

.242 of the CrPC.  Provisions have been incorporated under Sec.  Substituted new sub-section 3 of Sec. 313(5) states that the court may take the help of prosecutor and defense counsel in preparing relevant questions.149 of IPC.320.309 to regulate adjournment of proceedings on the request of either party for one reason or other. may be compounded in like manner. the Magistrate is now required to supply in advance to the accused.  Newly inserted Sec. Simultaneously a time limit of 2 months from the date of commencement of examination of witnesses has been provided for completion of trial of offences under Sec.376 – 376D.  The provisions relating to compounding of offences under various sections of the Indian Penal Code have been rationalized in the newly substituted tables given under Sec.34 or Sec.313 by the accused as sufficient compliance of the section. While conducting proceedings under Sec.320 CrPC now provides that when an offence is compoundable under this section the abetment or attempt to commit such offence or where the accused is liable under Sec. the statement of witnesses recorded by the police during investigation. which are to be put to the accused and the court may permit filing of written statement under Sec.

327(2).  Newly inserted section 357A incorporates a newly introduced Victim Compenstion Scheme in order to alleviate the sufferings of the victim and to provide important safeguards to their Right.328.  Amendment to Sec.  New Section 437A incorporates a very important provision to provide that before conclusion of trial or disposal of the appeal the court shall require the accused to execute bail bonds with surety to ensure his appearance before the higher court as and when required.330. Relating to camera trial under Sec.  Criminal proceedings against persons of unsound mind and lunatics are now regulated by amended Sec. a new proviso has been added to state that Camera trial shall be conducted as far as practicable by a woman judge or magistrate. These give detailed procedures and safeguard proceedings against lunatics and persons of unsound mind.372 provides that the victim shall have a Right to Appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. and such bail bond may remain in force for 6 months . 329 and newly substituted Sec.

CONCLUSION: It is there fore the concept of arrest has an important role in the criminal justice system and it is inevitable the new changes in the concept of arrest in view of contemporaneous societal changes which recognizes the fundamental rights of citizens. .

pdf   .

Sign up to vote on this title
UsefulNot useful