CRIMINAL PROCEDURE CODE-I

ARREST AND CUSTODY

Presented By:
AKASH NARAYAN
Roll no. - 06
8th SEMESTER
BA.LLB. (Hons.) (Self-Financed)

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 ACKNOWLEDGEMENT
To start off at the very outset, I would like to express my gratitude
towards Dr. Asad Malik for giving me the opportunity to make this
project. I would like to thank my parents and my seniors without who’s
help I wouldn’t have been able to complete this project.

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 INDEX

· MEANING OF ARREST
· DIFFERENCE BETWEEN ARREST AND CUSTODY
· TYPES OF CUSTODY UNDER THE CODE
· ARREST WITH WARRANT
· ARREST WITHOUT WARRANT
· RIGHTS OF ARRESTED PERSON
· SAFEGUARDS
· CONCLUSION
· REFERENCES

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I. MEANING OF ARREST
The word ‘arrest’ has neither been defined in the code nor in the IPC 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 there presence is ensured at the trial of the case too.

Credible information and a reasonable suspicion: -

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 police1. 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 arrest2. However, mere suspicion would not be enough, it must be
reasonable. 3In State of Maharshtra v. C.C.W. Council of India4, 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.

1 AIR 1965 Trip 27

2Kasturi Lal v. State of U.P, AIR 1965 SC 1039.
3Faish Mian v. Tripura Administration, (1962) Cr LJ 673. 4
4 (2004) Cri.L.J. 14 SC

II. 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 action5. 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.

III. TYPES OF CUSTODY UNDER THE CODE

A. POLICE CUSTODY

B. JUDICIAL CUSTODY

POLICE CUSTODY:-
When following to the receipt of an information/complaint/report by
police about a crime, an officer of police arrests the suspect involved in the crime
reported, to prevent him from committing the offensive acts further, such officer
brings that suspect to police station, it’s called Police Custody. The officer in charge of the
case is required to produce the suspect before the appropriate judge within 24 hours, these
24 hours exclude the time of necessary journey from the police station to the court.

JUDICIAL CUSTODY:-
Police Custody means that police has the physical custody of the accused while
Judicial Custody means an accused is in the custody of the concerned Magistrate. In
former, the accused is lodged in police station lockup while in latter, it is the jail. When
Police takes a person into custody, the Cr.P.C kicks-in and they were produced him/her
before a Magistrate within 24 hours of the arrest.

What happens after Judicial Custody:

A person may be held in the custody of the police or in judicial custody. The first thing
that happens to a suspect on arrest is that he is taken into police custody, following which
he is taken before a magistrate and he may either be remanded to judicial custody or be
sent back into police custody.
5

5Roshan Beevi v. Jt. Secy. To Government of T.N., 1984 Cri LJ 134 Mad

IV. 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.
(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.

V. 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 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’.

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6 1993 Cr.LJ 2183
VI. 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 Police6, the Kerala High Court ruled that
whenever a complaint is received 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.

Under following circumstances a person may be arrested without warrant :-

1. 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 7
(b) for proper investigation of the offence
(c) who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody; or
(d) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
(e) 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
(f) who, being a released convict, commits a breach of any rule made under sub-section
(5) of section 356; or
(g) 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.
(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.

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7 1993 Cri LJ 1293

2. 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 is 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.

3. Procedure of arrest and duties of officer making arrest (Sec 41-B)

Every police officer while making an arrest shall

(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 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.

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4. 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.

5. 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 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
section12. 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 justified13.

12(1903) 5 Bom LR 597 10

13(1922) 46 Mad 605].

 H O W A R R E S T IS M A D E (Sec. 46)

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.

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.

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.

Save in exceptional circumstances, no Women shall be arrested after sunset & before
sunrise, and where such exceptional circumstances exist, the women police officer 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 action19.
Explaining the meaning of arrest, the Apex Court in State of U.P. v. Deoman20],
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.

19 Roshan Beevi v. Joint Secy. To Government of T.N., 1984 Cri LJ 134 Mad 11
20 AIR 1960 SC 1125

 Search of place entered by person sought to be arrested (Sec. 47)

6) 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.

(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
ecognized 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 circle24.

21 AIR 1951 All 3 (F.B.) 13

22 Karan Singh v Haradayal Singh, 1979 Cr LJ 1211 (Punj)
23 (2004) Cri.L.J. 14 (S.C.)

VII. RIGHTS OF ARRESTED PERSON
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 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.
(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 Ajit Kumar v.
State of Assam 32 , 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.
Secondly when a subordinate officer is deputed to arrest a person under section 55
such subordinate officer 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.
Apart from these provisions, our Constitution has also conferred on this right.
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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)
(l) 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. .
6) 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.
6) 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.

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 Raj Kumari v. S.H.O. Noid 33,. 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 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
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the petitioner was the only supportive evidence on record.
32 (1976 Cr LJ 1303 Gau)
Examination of arrested person by medical officer (Sec. 54)

l) 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:
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 V.J. Vaghela v. Kantibhai Jethabhai34, 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 torture35. 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 Mukesh Kumar
v. State 36 , 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)
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.

33(2004) Cri.L.J. 9 SC


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 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.
It was held in Saptawna v. State of Assam37, , 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. In Kultej Singh v. Circle Inspector of
Police38, , 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

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.

19
34 1985 Cr.L.J. 974 (Guj)
35 Sheela Barse v. state of Maharashtra, 1983 Cr.LJ 642 SC
36 1990 Cr LJ 1923 (Del)
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 (S 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.
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 himself before a Court of law.
In R.M. Wasawa v. State of Gujarat 39 , 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 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.

38 1992 CrLJ 1173 (Karn) 20

39 AIR 1974 SC 1143

37 AIR 1971 SC 813
 Right of an arrested indigent person to free legal aid and to be informed about it. –
In Khatri (II) v. State of Bihar40, 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.
Apart from the above-mentioned rules the Supreme Court in D.K. Basu V. State Of West
Bengal (1997) 1 SCC 416 : 1997 SCC (Cri) 92, 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) 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.
(4) 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.
(5) 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 the Director, Health Services of the State or Union Territory concerned. The
Director, Health Services should prepare such a panel for all Tehsils and districts as well.
(6) Copies of all the documents including the memo of arrest referred to above should be
sent to the Illaqa Magistrate for his record.
(7) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout interrogation.
(8) A Police Control Room should be provided at all districts and State Headquarters,
where information regarding the arrest and the place of custody of the arrestee shall be

40 (1981) 1 SCC 627 21

 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 Muhammad Yusuf v. Queen Empress42,. 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.
It has been categorically ruled by the Supreme Court in Nilabati Behera43 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.

41 (1997 SCC (Cri.) 434

42 (1897) 24 IA 137 (PC) Halsbury L.C
VIII. SAFEGUARDS
Recently, in Siddharam v. State of Maharashtra (2011) 1 SCC 694 the Supreme Court,
by way of illustrative cases made the following suggestions, which may be helpful
before an accused is arrested.
1) Direct the accused to joint 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 be frozen for small duration during the investigation.

In the case of Indira Jaisingh v Supreme Court of India the apex court observed that the
law of arrest is of balancing individual rights, liberties and privileges, duties, obligations
and responsibilities and therefore any decision thereof should be taken keeping in mind
PART III of the constitution of India44
In Arnesh Kumar versus State of Bihar 45 , this Court observed that arrest brings
humiliation, curtails freedom and casts scars forever. It is considered a tool for
harassment and oppression and henceforth, drastic power is to be exercised with
caution.

In Rini Johar and Ors. v State of M.P.46 this Court considered the issue of wrongful
arrest and payment of compensation. It was observed that wrongful arrest
violates Article 21 of the Constitution and thus the victim of arrest was entitled to
compensation.

In the recent judgment of Dr. Subhash Kashinath Mahajan v State of Maharastra47 the
apex court relying on various judgments observed that there is need to safeguard
innocent citizens against false implication and unnecessary arrest for which there is no
sanction under the law which is against the constitutional guarantee and law of arrest
laid down by this Court.

44 (2017) 9 SCC 766 34

45 (2014) 8 SCC 273 23
46 (2016) 11 SCC 703
47 2018 SCC OnLine SC 323

 CONCLUSION
Although, the Code of Criminal Procedure provides exhaustive provisions with
respect to procedure of arrest still the Police Authorities ignore the underlying
principle of Rule of Law however the judiciary has time and again curtailed the police
authorities from exceeding their powers but still there are lot of loop holes in the Code
which the Police Authorities have continuously exploited and the same needs to be
checked with immediate effect.

24
 REFERENCES
· B.B MITRA: Code of Criminal Procedure, Kamal Law House
· Durga Das Basu:Criminal Procedure Code, 1973, LexisNexis Indi, Gurgaon.
· M.P. Tondon: Code of Criminal Procedur, Allahabad Law Agency, Faridabad
· N. V. Pranjape: Code of Criminal Procedure, Central Law Agency, Allahabad
· Ratan Lal & Dhiraj Lal, Code of Criminal Procedure, LexisNexis India
· indiankanoon.com
· livelaw.com
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