Arrest i. By Police officer in case of cognizable offence in his presence.
ii. By officer in-charge of Police Station
I. Introduction
Section 41 to 50 of the Code deals with provisions related to arrest of
persons and rights of such persons. A trial before a Magistrate initiates
when the accused person is brought before him. Attendance of accused
before Magistrate can be secured by his arrest. That is why arrest is the
first step in the process of investigation and trial. Arrest may be with or
without warrant.
According to Black's Law Dictionary arrest means "To keep a person in
lawful custody. A warrant, statute or crime can authorize this." Arrest
means taking a person in custody under legal authority. If a dacoit
wrongfully confines any person it will not amount to arrest.
II. Reasons for Arrest
a. Arrest may be made for securing attendance of accused at trial.
b. As a preventive or precautionary measure.
c. For obtaining correct name and address
d. for removing obstructions to police.
e. For capturing a person escaped from custody.
III. Types of Arrest
With Warant:
i. In all warrant cases.
ii. In summons cases if necessary, for bringing the accused in court.
iii. In case of breach of bond for appearance.
iv. Issued by Magistrate u/s 70-81 in case of cognizable or non
cognizable offences.
v. Reasons to believe that accused has absconded or will not obey the
summons.
When can be issued:
i. Upon receiving a complaint.
ii. Information provided by a person not a police officer.
iii. Knowledge of the Magistrate himself.
Without Warrant: S. 41
iii. By a magistrate
iv. By Private Persons
v. Complaint, reasonable suspicion, credible information that has
committed a cognizable offence.
vi. Proclaimed offender
vii. Deserter from the armed forces
viii. A released convict commits a breach of any rule made under sub-
section (5) of section 365
ix. Obstructing the duty of police or escaped from custody.
x. Possession of stolen property
xi. Concerned with any act outside India which is an offence in India
xi. Arrest for non disclosure of name and residence. S. 42
xii. Person for whose arrest requisition has been received
xiii. Any person designing to commit any cognizable offence
xiv. Any person whose suspension of sentence is cancelled by
Government.
xv. Any habitual Robber, house-breaker, thief, forger, receiver of stolen
property, protector of thieves or habitual offender.
xvi. Commits non-cognizable offence in presence of police.
Amendments after 2009, post D.K. Basu v. State of W.B.
Section 41 B:
Every police officer while making an arrest shall-
i. bear an accurate, visible and clear identification of his name which
will facilitate easy identification;
ii. prepare a memorandum of arrest which shall be-
a. 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;
b. countersigned by the person arrested; and
iii. 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.
Section 41 C:
The State Government shall establish a Police Control Room in every
District and State level.
Section 41 D:
Arrested person shall be entitled to meet an advocate of his choice
during interrogation, though not throughout interrogation.
Arrest by Private Persons: S. 43
A private person can arrest without warrant any person'
i. who commits a non-bailable and cognizable offence in his presence
ii. Who is a proclaimed offender
iii. When warrant to arrest any person is directed to him.
Arrest by Magistrate: S. 44
An Executive or Judicial Magistrate can arrest without warrant any
person,
i. Who has committed an offence in his presence
ii. For whose arrest he is competent to issue a warrant.
Arrest how made: S. 46
i. Police Officer 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.
ii. 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 me
ans necessary to effect the arrest.
iii. 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.
Arrest of Woman: S. 46(4)
Save in exceptional circumstances, no women shall be arrested after
sunset and before sunrise, and where such exceptional circumstances
exist, the woman 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.
Guidelines for arresting a Judicial Officer: Delhi Judicial Service Assn.
v. State of Gujarat
i. A judicial officer should be arrested for any offence under intimation
to the District Judge or the High Court.
ii. In case of necessity for immediate arrest only a technical or formal
arrest may be effected.
iii. Arrest should be immediately communicated to the District Judge
and Sessions Judge of the district concerned and the Chief Justice of the
High Court.
iv. Arrested Judicial Officer shall not be taken to a Police Station,
without the prior order or direction of the District and Sessions Judge of
the concerned district, if available.
v. Immediate facilities should be provided to the judicial officer for
communication with his family member, legal advisor and judicial
officer, 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
Advisor of the judicial officer concerned or another judicial officer of
equal or higher rank, if available.
vi. Ordinarily there should be no handcuffing of a judicial officer.
These guidelines are not exhaustive.
D.K. Basu v. State of W.B. 1996
Keeping in view Article 21 of the Constitution, Rule of Law and hand
reality of custodial violence, physical torture by police, the Supreme
Court issued directions to be followed in all cases of arrest as preventive
measures. These direction were later implemented in the Code by
various Amendments.
Rights of accused:
i. Right to know grounds of arrest.
ii. Right to bail
iii. Right to be produced before Magistrate within 24 hours
iv. Right to inform relatives, friends
v. Right to consult lawyer
vi. Right to be examined by doctor
Rights and Duties of arresting persons:

i. All powers to effect arrest.
ii. Necessary force can be used adequately
iii. Power of search and seizure
iv. Medical examination of accused
Illegal Arrest Remedies:
i. Offence of wrongful confinement punishable under IPC.
ii. Right to private defence.
iii. Habeas Corpus
iv. Suit for damages and compensation
v. Offences affecting fundamental rights.
Immunity to certain persons from arrest:
i. To President of India and Governors of States
ii. To members of armed force for anything done in official duty with
approval
iii. To members of Judicial Services in most cases
Bail
I. Introduction
Sections 436-450 deal with provisions of bail and bond. There are two
types of offences bailable and non-bailable. The Code has not provided
a definition of 'bail' although the terms 'bailable offences and 'non-
bailable offences' have been defined.
The Law Lexicon defines bail as security for the appearance of the
accused person on giving which he is released pending trial or
investigation.
According to the Black's Law Dictionary bail is to procure the release of
a person from legal custody, by undertaking that he shall appear at the
time and place designated and submit himself to the jurisdiction and
judgement of the court.
Bail covers both release on one's own bond, with or without sureties.
[Moti Ram v. State of MP]
It is a process to set a person free who is under arrest or detention by
taking security for his appearance.
II. Bailable and Non-Bailable Offences
All offences are classified into bailable or non-bailable in the Code.
According to Section 2(a) bailable offence means an offence which is
shown as bailable as per the First Schedule or which is made bailable by
any other law for the time being in force. Non-bailable offences means
all other offences which are not bailable. The Code does not provide any
test or criterion to determine whether any particular offence is bailable
or non-bailable. The Schedule refers to all the offences under the IPC
and divides them into bailable or non-bailable offences.
III. When bail may be granted
A. Bail as of Right
i. In Bailable offences : In all bailable offences bail can be claimed as of
right. But if a person fails to comply with condition of bail bond, the
Court may refuse to release him on bail when on subsequent occassion
in the same case he appears.
ii. Where investigation is not over within prescribed period : Where the
person is in custody and the investigation is not over within 90 days
where the offence is punishable with death, life imprisonment or
imprisonment for 10 years or more and 60 in case of other offences,
then in such cases accused can claim bail as of right.
iii. If any person is arrested in any non bailable offence and if at any
stage of investigation it appears to the court that such offence is
bailable, in such case the person has to be released on bail.
iv. Maximum period of detention is over: According to Section 436A an
undertrial prisoner other than the one accused of an offence punishable
with death, shall be released on bail if he has been under detention for a
period of more than one half of the maximum sentence provided for
such alleged offence.
v. Where trial is not over within prescribed period : In a case triable by
Magistrate, trial of a person accused of any non-bailable offence is not
concluded within 60 days from the first date fixed for taking evidence in
the case, such person shall if he is in custody be released on bail unless
the Magistrate directs reason for not granting bail.
vi. When there are no reasonable grounds to believe accused is guilty: If
in non-bailable offence after concluding trial and before pronouncing
judgement if court is of opinion that the person is not guilty of such
offence, it may grant him bail.
B. Discretion to grant bail
i. Non-bailable offences S. 437 : Where any person accused of any non-
bailable offence is arrested by police without warrant and brought
before the court other than HC or Sessions Court he may be released on
bail after recording reasons, if such offence is not punishable with death
or imprisonment for life.
ii. Where accused is minor, woman, etc. : Where the person accused of
any non-bailable offence is arrested without warrant by police, he may
be released on bail if such person is minor, woman, sick person.
iii. Offences punishable with imprisonment for seven years or more, in
such cases court may impose conditions as required to grant bail.
iv. Anticipatory Bail only HC and and Sessions Court can grant
anticipatory bail.
C. Hearing of Public Prosecutor
If the offence is punishable with death, imprisonment for life or for
more than 7 years, such person cannot be released on bail without
hearing the public prosecutor
D. Recording of reasons
When a person accused of a non bailable offence punishable with death
or imprisonment for life is released on bail, then such police officer or
Court must record reasons in writing for granting bail. If reasons are not
recorded order can be set aside by superior Court.
E. Special powers of HC and Sessions Court
HC and Sessions Court have powers to release any person on bail. They
also have powers to set aside or modify conditions imposed by
Magistrate before granting bail.
F. Conditions
By imposing conditions on bail, Court ensures that the accused shall
attend the Court in accordance with the conditions of bond executed by
him and he shall not commit the same offence while on bail.
Ex. of Conditions
i. He shall not leave the country
ii. He shall not enter specific area, village or town
iii. Shall report at intervals to the Police Station
iv. He shall not tamper evidence, hamper investigation, etc.
If some conditions are not expressed it does not mean the accused has
right to do such acts as some conditions are implied.
G. Successive applications :
If bail is rejected once, application can be made again on the grounds of
new facts and circumstances and development of material.
IV. Anticipatory Bail
Anticipatory bail means bail in anticipation of arrest. When Court grants
anticipatory bail, it makes an order that in the event of an arrest, a
person shall be released on bail.
S. 438: When any person has reasons to believe that he may be arrested
on an accusation of having committed a non-bailable offence, he may
apply to HC or Sessions Court, such court if it thinks fit direct that in
the event of such arrest he shall be released on bail.
Conditions:
HC and Sessions Court while granting such bail may impose conditions
as it thinks fit. Such as,
i. Person shall make himself available in police station for interrogation
when required.
ii. He shall not make any inducement, threat or promise to any person
acquainted with facts of the case.
iii. He shall not leave India without prior permission of the Court
iv. Any other condition as required.
After arrest such person shall be released on bail on presentation of such
bail.
Malimath Committee's report :Committe observed that provision of
Anticipatory bail is misused by rich and influential people. The
Committee suggested that the petition for anticipatory bail should be
heard only by court of competent jurisdiction.
Notice to Public Prosecutor : If the Court does not reject the application
for anticipatory bail and makes and interim order for bail, then it should
give notice to public prosecutor and superintendent of police for the
purpose of re-examining question of granting bail.
Presence of Applicant : The presence of person seeking anticipatory bail
in the court should be made mandatory at the time of hearing of the
application subject to certain exceptions.
V. Cancellation of Bail
Rejection of bail when bail is applied is one thing and cancellation of
bail already granted is different. Cancellation involves review of
decision already made and it can be permitted only if there is harm to
the trial from accused. [State (Delhi Administration) v. Sanjay Gandhi
1978]
Courts have power to cancel bail granted and to order arrest of person.
Bail cannot be cancelled without giving notice to accused an
opportunity of being heard.
FIR
I. Introduction
FIR i.e. First Information Report sets the criminal law in motion. It is
the first piece of information received by a police officer about a
cognizable offense. Section 154 of the code deals with FIR.
II. Meaning
FIR is not defined anywhere in the code. But the report under Section
154 is usually referred to as the First Information Report i.e. FIR. It is
the information given to the police relating to cognizable offence.
III. Object
The most important object of a FIR is to obtain early information of
alleged offence from the informant and to put into writing the statement
before his memory fails or before he gets time to decorate it. The
information is very important to the accused too as he comes to know
the facts stated about the occurrence of the incidence. It safeguards him
from subsequent variations and additions.
IV. Nature and Scope
It is not necessary that the information should be given by an
eyewitness. it may be hearsay in nature. it may come from an
anonymous source, it need not be in writing.
It cannot be given by a telephonic message. [Tapinder Singh v. State
1970]
IV. FIR distinguished from Complaint
FIR is given to a police officer and it should be related to cognizable
offences. An investigation is started by a Police Officer upon receiving
the information. FIR may be given by any person including a Police
Officer. If Magistrate does not choose to take any action, he need not
record reasons or pass any action.
A Complaint is given to a Magistrate. It may relate to cognizable or
non-cognizable offences. Magistrate takes cognizance on complaint
made to him. A complaint does not include police report. On receiving a
complaint Magistrate has to decide whether to permit the complaint or
not. He may make inquiry or order an inquiry or dismiss complaint after
recording reasons.
V. Requirements of a FIR
FIR must fulfil the following conditions:
1. It must be given to officer in charge of the Police Station.
2. It must relate to commission of cognizable offence.
3. It must be the earliest report of commission of offence on which
investigation starts.
4. It must be in writing or reduced in writing (if oral) and must be
signed by informant.
5. The information reduced in writing must be read out to the informant
and the copy of it should be given to the informant free of cost.
6. The substance of the information must be entered in the book called
'station diary' or 'general diary'
FIR may or may not contain all details and particulars as to the incident.
It is sufficient if it indicates commission of crime so as to enable the
police to start investigation. Elaborate account of everything what
happened is not necessary.
VI. Delay in filing FIR
Neither CrPC nor the Limitation act prescribes any period of limitation
for filing an FIR. A mere delay in filing an FIR is not enough to reject
the case of the prosecution. But long and unexplained delay may create
doubt or raise suspicion as to how the incident had happened or were
accused person involved or not. in such a case there is a possibility of
false implications. Delay in forwarding the FIR to the Magistrate by the
officer in charge may be fatal.
VII. Evidentiary value of FIR
FIR is an important and valuable document but it is not a substantive or
primary piece of evidence of the facts stated therein.
It can be used for corroboration under Section 157, Evidence Act, 1872
or contradicting statements under Section 145 of the Act if the
informant is called as a witness at the time of trial.[Ravi Kumar v. State
of Punjab 2005] The evidentiary value depends on the facts and
circumstances of each case. FIR may become relevant under Section 8
of the Evidence Act.
First Information Report, it is well settled, need not be an encyclopedic
one. It need not contain all the details of the incident. [Bishna @
Bhiswadeb Mahato & Ors vs State Of West Bengal 2005]
FIR by Accused:
Sometimes it may happen that the person lodging FIR is charged with
the offence for which the report was lodged by him. Such contingencies
may arise in the following cases:
a. Where FIR is confessional in nature b. Where FIR is not confessional
one but the investigation on the basis of such report reveals involvement
of the person lodging the report in the crime.
The settled legal position is that if the report is confessional, it is not
admissible in evidence. But if it is not confessional then it is admissible
in evidence against the accused. A statement contained in FIR furnished
by one of the accused in the case cannot be used against another
accused.
VIII. First Information in other cases - Section 155
When information is given to officer in charge of a police station about
commission of non-cognizable offence, he should enter substance of
such information in prescribed book and refer the information to
Magistrate. He cannot investigate a non cognizable case without the
order of the Magistrate having authority to try any such case. But if case
is related to two or more offences one of which is cognizable offence, it
shall be deemed to be a cognizable case.
Confessional Statement
I. Meaning
A confession is an admission made by a person at any time charged
with an offence or suggesting an inference that he has committed the
offence. In order to constitute a confession it must relate to the
admission of the offence or substantially all the facts which constitute
the offence.
According to Section 25 of the Evidence Act, any confession made to
the police officer is inadmissible in evidence. Thus the code provides a
special procedure for recording confessions under Section 164.
II. Provisions related to confessions:
1. Who may record a confession?
A confession or a statement can be recorded only by a Judicial or
Metropolitan magistrate. [State of UP v. Singhara Singh]
No confession shall be recorded by a police officer. If any Executive
Magistrate or any other Magistrate not empowered to record a
confession does so, the record shall be inadmissible in evidence. [Ram
Prasad v. State of Maharashtra]
2. Stages at which confession may be recorded.
A confession or a statement can be recorded in the course of
investigation or at anytime afterwards, before the commencement of the
inquiry or trial
3. Steps to be taken by the Magistrate before recording confession -
S.164 (2)
Before recording the confession the Magistrate is required to explain to
the person making the confession that -
i. He is not bound to make such a statement
ii. If he does so it might be used as evidence against him.
4. Confession should be voluntary - S.164(3)
The magistrate shall not record a confession unless upon questioning the
person making it, he has a reason to believe that it is being made
voluntarily.
The Courts have formulated the following directions in order to ensure
the voluntary nature of confessions:
i. After warning the person making the confession the Magistrate shall
give the maker adequate time to think and reflect.
ii. The Magistrate must disclose his identity to the maker so as to assure
him that he is not under the influence of the police.
iii. The accused shall be assured of protection from any sort of
apprehend torture from the police.
iv. The accused should be asked the reasons for the making of such
statement which could be used against him during the trial.
v. The Magistrate must assure the accused that he would not be
remanded to the police lockup in case he refuses to make a confession.
Manner for recording confession - 164(4)
The confession shall be recorded in the manner provided in S. 281 of
the Code and shall be signed by the person making it.
Section 281 : Record of examination of accused
(1) Whenever the accused is examined by a Metropolitan Magistrate,
the Magistrate shall make a memorandum of the substance of the
examination of the accused in the language of the court and such
memorandum shall be signed by the Magistrate and shall form part of
the record.
(2) Whenever the accused is examined by any Magistrate other than a
Metropolitan Magistrate, or by a Court of Session, the whole of such
examination, including every question put to him and every answer
given by him, shall be recorded in full by the or other incapacity, under
his direction and superintendence by an officer of the court appointed by
him in this behalf.
(3) The record shall, if practicable, be in the language in which the
accused is examined or, if that is not practicable in the language of the
court.
(4) The record shall be shown or read to the accused, or, if he does not
understand the language in which it is written, shall be interpreted to
him in a language, which he understands, and he shall be at liberty to
explain or add to his answers.
(5) It shall thereafter be signed by the accused and by the Magistrate or
presiding Judge, who shall certify under his own hand that the
examination was taken in his presence and hearing and that the record
contains a full and true account of the statement made by the accused.
Non Compliance with S. 164/281 - S. 463
(1) If any Court before which a confession or other statement of an
accused person recorded, or purporting to be recorded under section 164
or section 281, is tendered, or has been received, in evidence finds that
any of the provisions of either of such sections have not been complied
with by the Magistrate recording the statement, it may, notwithstanding
anything contained in section 91 of the Indian Evidence Act, 1872 (1 of
1872 ), take evidence in regard to such non- compliance, and may, if
satisfied that such non- compliance has not injured the accused in his
defence on the merits and that he duly made the statement recorded,
admit such statement.
(2) The provisions of this section apply to Courts of appeal, reference
and revision.
Evidentiary value of Confession :
It is a well settled principle that a confession if voluntary and truthfully
made is an efficient proof of guilt and can be made the basis for
conviction. The double test for basing a conviction on a confession is :
i. Whether the confession was voluntary;
ii. If so whether it is true and trust worthy.
Once the first test is satisfied, the Court should evaluate the confession
and carefully examine it in order to satisfy himself of the veracity and
trust worthiness of the confession.
160. Police officer' s power to require attendance of witnesses.
(1) Any police officer, making an investigation under this Chapter may,
by order in writing, require the attendance before himself of any person
being within the limits of his own or any adjoining station who, from
the information given or otherwise, appears to be acquainted with the
facts and circumstances of the case; and such person shall attend as so
required: Provided that no male person under the age of fifteen years or
woman shall be required to attend at any place other than the place in
which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for
the payment by the police officer of the reasonable expenses of every
person, attending under sub-section (1) at any place other than his
residence.
161. Examination of witnesses by police.
(1) Any police officer making an investigation under this Chapter, or
any police officer not below such rank as the State Government may, by
general or special order, prescribe in this behalf, acting on the
requisition of such officer, may examine orally any person supposed to
be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to
such case put to him by such officer, other than questions the answers to
which would have a tendency to expose him to a criminal charge or to a
penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to
him in the course of an examination under this section; and if he does
so, he shall make a separate and true record of the statement of each
such person whose statement he records.
Statement may also be recorded by audio or video electronic mode.
Statement by woman affecting crimes of woman under IPC shall be
recorded by woman police officer or any woman officer.
Evidentiary value of statements : S. 162
1. Statement to police is not to be signed whether in a police diary or
otherwise.
2.Nothing in this section shall be deemed to apply to any statement
falling within the provisions of clause (1) of S. 32 of Evidence Act or
affect the provisions os S. 27 of the Act.
The Magistrate is not to record any such confession unless upon
questioning the person making it. it has reason to believe that it has been
made voluntarily. [Tulsi Singh v. State of Punjab]