Arrest

Chapter 5
Sections 41 to 60A
• The word “arrest” has been derived from the French word “Arreter”
which means to stop or stay. We can say that arrest is physically
restraining a person by a person authorized by law or Court of law.
• The word “arrest” has not been defined in any enactment dealing
with offences including the India Penal Code and Code of Criminal
Procedure.
• Sections 41 to 60A of the CrPC deal with various provisions regarding
arrest. Section 41 provides for the situation when arrest can be made
by police without warrant and it gives wide power to the police to
make an arrest without an order from the Magistrate and without
warrant only in circumstances limited by the provisions contained in
the section. Such limitations are necessary in exercising such large
powers to be cautious, circumspect and to avoid arbitrary use of
discretion.
State of Punjab v Ajaib Singh
Any physical restraint imposed upon a person must result in the loss of
his personal liberty and must accordingly amount to his arrest. It is
wholly immaterial why or with what purpose such arrest is made. The
mere imposition of physical restraint, irrespective of its reason, is arrest
and as such, attracts the application of the constitutional safeguards
guaranteed by Article 22 (1) and (2).
Protection against arrest and detention in certain cases guaranteed by
Article 22 of the Indian Constitution extends only to cases when arrest
is made without warrant.
R R Chari v State of Uttar Pradesh
The Court in this case clarified that issuance of arrest
warrant by a magistrate does not amount to taking
cognizance under Section 190 of the Code. Arrest in
non-cognizable cases can only be pursued after an
arrest warrant has been issued by a Magistrate.
Application of mind in a given case for issue warrants
for arrest, search, ordering investigation under Section
156(3), etc. does not amount to taking cognizance of a
case. For taking cognizance provisions starting from and
subsequent to Section 190 must be followed.
Roshan Beevi v State of Tamil Nadu
• The word ‘arrest’, when used in its ordinary and natural sense, means the
apprehension or restraint or the deprivation of one’s personal liberty.
• The question of whether the person is under arrest or not depends not on
the legality of the arrest, but on whether he has been deprived of his
personal liberty to go where he pleases.
• When used in the legal sense in the procedure connected with criminal
offences, an arrest consists in the taking into custody of another person
under authority empowered by law, for the purpose of holding or
detaining him to answer a criminal charge or of preventing the
commission of a criminal offence.
• The essential elements to constitute an arrest in the above sense are
that there must be an intent to arrest under the authority, accompanied
by a seizure or detention of the person in the manner known to the law,
which is so understood by the person arrested.
Roshan Beevi (contd.)
• Custody and arrest are not synonymous terms and observed that it is
true that in every arrest there is custody but not vice-versa. Custody
may amount to arrest in certain cases, but not in all cases.
• The modality of arrest as contemplated under section 46 is that while
making an arrest, a police officer or other person making the same
(arrester) –
(1) Should actually touch the body of the person to be arrested or
(2) Should actually confine the body of the person to be arrested.
These kinds of the modality of arrest are not necessary in case the
person intended to be arrested submits, either by word or by action, to
the authority of the arrester.
Classification of arrest
• Arrest without warrant from a magistrate
• Arrest with warrant from a Magistrate.

State v Behra- Reasonable and credible information must be there

before an arrest is carried out.
 Arrest without warrant
• An arrest may be made without warrant only for cognizable offences
and strictly according to the provisions of Section 41 and also under
circumstances provided in Section 42 of the Code of Criminal Procedure.
(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are
satisfied, namely:
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence
to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to the
police officer; or
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons
in writing:
Provided that a police officer shall, in all cases where the arrest of a person is
not required under the provisions of this sub-section, record the reasons in
writing for not making the arrest.
(ba) against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a term which
may extend to more than seven years whether with or without fine or with
death sentence and the police officer has reason to believe on the basis of that
information that such person has committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by order
of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected

to be stolen property and who may reasonably be suspected of having
committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces
of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed at any place out of
India which, if committed in India, would have been punishable as an offence, and
for which he is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-
section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has
been received from another police officer, provided that the
requisition specifies the person to be arrested and the offence or
other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
(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.
 General Notes on Section 41
• The language of Section 41 reflects that the police officers have
been conferred with wide powers in making an arrest without
warrant. However, the decision of the Courts in several cases
such as Neelabati Behra v state of Orissa, Joginder Kumar v State
of UP, State of M P v Shyamsundar Trivedi, D K Basu v State of
west Bengal indicate that these powers are not without
limitations.
• Joginder Kumar v State of UP -It was ruled that, an arrest cannot
be made on a mere allegation of offence against a person or in a
routine manner. Constitutional rights of a person mandate that
he not be arrested on simple suspicion of complicity in an
offence. It cannot be made without a reasonable satisfaction
reached after some investigation is made as to the genuineness
of the complaint.
• The Court in the case of Kajal Dey v State of Assam (1989 Cri LJ 1209
(Gau)), held that the words “reasonable”, “credible” and “reason to
believe” as used in Section 41 of the Code of Criminal Procedure do
not indicate the personal feelings of the police officer, but must be
deduced from an honest belief of the facts of the case.
• The Court in the case of Emperor v Vimalabhai Deshpande ( AIR
1946 PC 123) held that when the arrest made by a police officer
without warrant is challenged before a Court of law, the burden
of proof lies on the police officer to show that he has reasonable
grounds of suspicion based on facts to make the arrest.
• The power granted to a police officer to make an arrest without
warrant has been misused on multiple occasions causing the
Courts to issue guidelines limiting such power and reducing the
arbitrariness of the arrests made under Section 41. One such is
the case of D K Basu v State of West Bengal(refer to the end of
slides).
Section 41 A- Notice of appearance before a police
officer
(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 officer 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.
 (

Section 41 B-Procedure of arrest and duties of officer

making arrest
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
(c) inform the person arrested, unless the memorandum is attested by a
member of his family, that he has a right to have a relative or a friend
named by him to be informed of his arrest.
41 C – Control room at Districts
(1) The State Government shall establish a police control room— (a) in
every district; and (b) at State level.
(2) The State Government shall cause to be displayed on the notice
board kept outside the control rooms at every district, the names
and addresses of the persons arrested and the name and
designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall
collect from time to time, details about the persons arrested,
nature of the offence with which they are charged and maintain a
database for the information of the general public.
Section 41 D- Right of an arrested person to meet
an advocate of his choice during interrogation
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.
Section 42- Arrest on refusal to give name and residence
(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.
 Section 43- Arrest by a private person and
procedure on such arrest
(1) Any private person may arrest or cause to be arrested any person who in his
presence commits a non-bailable and cognizable offence, or any proclaimed offender,
and, without unnecessary delay, shall make over or cause to be made over any person
so arrested to a police officer, or, in the absence of a police officer, take such person or
cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section
41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and
he refuses on the demand of a police officer to give his name and residence, or gives a
name or residence which such officer has reason to believe to be false, he shall be
dealt with under the provisions of section 42; but if there is no sufficient reason to
believe that he has committed any offence, he shall be at once released.
 Section 44 – Arrest by Magistrate
(1) When any offence is committed in the presence of a
Magistrate, whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to arrest the
offender, and may thereupon, subject to the provisions herein
contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time
arrest or direct the arrest, in his presence, within his local
jurisdiction, of any person for whose arrest he is competent at the
time and in the circumstances to issue a warrant.
Section 45- Protection of members of the Armed
Forces from arrest
(1) Notwithstanding anything contained in sections 41 to 44 (both
inclusive), no member of the Armed Forces of the Union shall be
arrested for anything done or purported to be done by him in the
discharge of his official duties except after obtaining the consent of
the Central Government.
(2) The State Government may, by notification, direct that the
provisions of sub-section (1) shall apply to such class or category of
the members of the Force charged with the maintenance of public
order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub-section shall apply as if
for the expression “Central Government” occurring therein, the
expression “State Government” were substituted.
Section 46- arrest how be made?
(1) In making an arrest the police officer or other person making the
same shall actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by word or
action
Provided that where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to 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 woman for making
her arrest.
(2) If such person forcibly resists the endeavor to arrest him, or
attempts to evade the arrest, such police officer or other person may
use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person
who is not accused of an offence punishable with death or with
imprisonment for life.
(4) Save in exceptional circumstances, no woman 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.
Case: Birendra Kumar Rai v Union of India-
(handcuffing not necessary)
• Section 46, Cr. P.C. provides how arrest is to be made. Under it, an arrest is
made either by a Police Officer or other person by actually touching or
confining the body of the person to be arrested, unless there be a submission
to the custody by word or action.
• Thus, arrest need not be by hand-cuffing a person, but could be complete
even by the spoken words, if a person submits to the custody.
• Section 46(2) provides in case a person resists arrests or attempts to evade
arrest then force may be used including all other means necessary to effect
the arrest. The arrest, therefore, is a legal confinement and therefore the
moment he submits to the authority of the person who has come to arrest
him after his spoken words amounts to his arrest. Thus, for arresting in such
a situation no further act is necessary. It is only when he tries to evade the
arrest any overt act is necessary.
State of Maharashtra v. Christian Community Welfare Council
of India- Procedure for arresting female
• Bombay High Court, to uphold the dignity of women, held that no female
persons shall be detained or arrested without the presence of lady
constable and in no case, after sunset and before sunrise.
• But apex court in appeal, whilst agreeing with the object behind the direction
issued by high court, opined that strict compliance of the said direction, in
the given circumstance, would cause practical difficulties to the investigating
agency and might give room for evading the process of law by unscrupulous
accused.
• Apex court further observed that while it is necessary to protect the female
sought to be arrested by the police from police misdeeds. But apex court
said that it may not be always possible and practical to have the presence
of a lady constable when the necessity for such arrest arises.
• Therefore apex court decided to modify the direction issued by
Bombay High Court without disturbing the object behind the
same and held that arresting authority, while arresting female
person, all efforts should be made to keep a lady constable
present but in circumstances where the arresting officers is
reasonably satisfied that presence of a lady constable is not
available or possible and / or the delay in arresting caused by
securing the presence of a lady constable would impede the
course of investigation such arresting officer for reasons to be
recorded either before the arrest or immediately after the arrest
be permitted to arrest a female person for lawful reasons at any
time of the day or night depending on the circumstances of the
case even without the presence of a lady constable.
• But court of Criminal Procedure (Amendment) Act, 2005 seems
to be midway between absolute immunity invented by Bombay
High Court and practical approach adopted by Supreme Court,
as newly inserted (by amendment of 2005) sub-section 4 in
section 46 of Code of Criminal Procedure 1973 tells that in
exceptional circumstances woman can be arrested after sunset
but by woman officer with prior permission of judicial magistrate.
 Section 47- Search of place entered by person
sought be arrested
(1) If any person acting under 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 persons 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.
Notes on Section 47
• Section 47 of the CrPC confers power to search of places in
possession of third person for arrest of person, who appears
to have entered there.
• There are 2 kinds of persons who can make such an entry for
search:
- Any person(police or other persons) having warrant of arrest.
- Any police officer though having no warrant but authority to
arrest without warrant as per Section 41 of the Code.
Section 48- Pursuit of offenders into other
jurisdictions
A police officer may, for the purpose of arresting
without warrant any person whom he is authorized to
arrest, pursue such person into any place in India.
Section 49- No unnecessary restraint.
The person arrested shall not be subjected to more
restraint than is necessary to prevent his escape.
Section 50- Person arrested to be informed of
grounds of arrest and of right of bail
(1) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full
particulars of the offence for which he is arrested or other
grounds for such arrest.
(2) Where a police officer arrests without warrant any person
other than a person accused of a non-bailable offence, he
shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his
behalf.
Section 50 A- Obligation of person making arrest
to inform about the arrest, etc. to a nominated
person
(1) Every police officer or other person making any arrest under this Code
shall forthwith give the information regarding such arrest and place where
the arrested person is being held to any of his friends, relatives or such other
persons as may be disclosed or nominated by the arrested person for the
purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-
section (1) as soon as he is brought to the police station. (3) An entry of the
fact as to who has been informed of the arrest of such person shall be made
in a book to be kept in the police station in such form as may be prescribed
in this behalf by the State Government. (4) It shall be the duty of the
Magistrate before whom such arrested person is produced, to satisfy himself
that the requirements of sub-section (2) and sub-section (3) have been
complied with in respect of such arrested person.
(3) An entry of the fact as to who has been informed of the arrest of
such person shall be made in a book to be kept in the police station in
such form as may be prescribed in this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested
person is produced, to satisfy himself that the requirements of sub-
section (2) and sub-section (3) have been complied with in respect of
such arrested person.
Notes on Section 50 and 50A
• Section 50 is a mandatory provision.
• The non-compliance of this section will vitiate arrest.
• Section 50A is also a mandatory provision and it has been inserted
into the Code as rules emerging from the decisions of Joginder Kumar
v State of UP and D K Basu v State of West Bengal.
• This has been further strengthened by its incorporation into the
Constitution as a fundamental right under Article 22(1).
• Article 22. Protection against arrest and detention in certain cases-
(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest nor
shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
• As observed by the Supreme Court in the case of Madhu Limaye v
State, Article 22(1) embodies a rule which has been considered vital
and fundamental for providing personal liberty in all legal systems
where the rule of law prevails.
• Article 22(1) gives twofold protection :
- That an arrested person shall not be detained in custody without
being told the grounds of such an arrest, and
- That he shall be entitled to consult and to be defended by a legal
practitioner of his choice.
 Section 51- Search of arrested person
(1) Whenever a person is arrested by a police officer under a warrant
which does not provide for the taking of bail, or under a warrant
which provides for the taking of bail but the person arrested cannot
furnish bail, and whenever a person is arrested without warrant, or
by a private person under a warrant, and cannot legally be admitted
to bail, or is unable to furnish bail, the officer making the arrest or,
when the arrest is made by a private person, the police officer to
whom he makes over the person arrested, may search such person,
and place in safe custody all articles, other than necessary wearing-
apparel, found upon him and where any article is seized from the
arrested person, a receipt showing the articles taken in possession
by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched,
the search shall be made by another female with strict regard
to decency.

Section 52- Power to seize offensive weapons

The officer or other person making any arrest under this Code
may take from the person arrested any offensive weapons
which he has about his person, and shall deliver all weapons
so taken to the Court or officer before which or whom the
officer or person making the arrest is required by this Code to
produce the person arrested.
 Section 53- Examination of accused by medical
practitioner at the request of a police officer
(1) When a person is arrested on a charge of committing an
offence of such a nature and alleged to have been committed
under such circumstances that there are reasonable grounds for
believing that an examination of his person will afford evidence
as to the commission of an offence, it shall be lawful for a
registered medical practitioner, acting at the request of a police
officer not below the rank of sub-inspector, and for any person
acting in good faith in his aid and under his direction, to make
such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such
evidence, and to use such force as is reasonably necessary for
that purpose.
(2) Whenever the person of a female is to be examined under this
section, the examination shall be made only by, or under the
supervision of, a female registered medical practitioner. 1
Explanation.—In this section and in sections 53A and 54,—
(a) “examination” shall include the examination of blood, blood stains,
semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and
scientific techniques including DNA profiling and such other tests
which the registered medical practitioner thinks necessary in a
particular case;
(b) “registered medical practitioner” means a medical practitioner who
possesses any medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and
whose name has been entered in a State Medical Register.
Section 53 A- Examination of person accused of rape
by medical practitioner
(1) When a person is arrested on a charge of committing an offence of
rape or an attempt to commit rape and there are reasonable grounds for
believing that an examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical
practitioner employed in a hospital run by the Government or by a local
authority and in the absence of such a practitioner within the radius of
sixteen kilometers from the place where the offence has been
committed, by any other registered medical practitioner, acting at the
request of a police officer not below the rank of a sub-inspector, and for
any person acting in good faith in his aid and under his direction, to make
such an examination of the arrested person and to use such force as is
reasonably necessary for that purpose
(2) The registered medical practitioner conducting such examination
shall, without delay, examine such person and prepare a report of his
examination giving the following particulars, namely:—
(i) the name and address of the accused and of the person by whom
he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused
for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each
conclusion arrived at.
(4) The exact time of commencement and completion of the
examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay,
forward the report to the investigating officer, who shall
forward it to the Magistrate referred to in section 173 as part
of the documents referred to in clause (a) of subsection (5) of
that section.
Section 54- Examination of arrested person by
police officer
(1) When any person is arrested, he shall be examined by a
medical officer in the service of Central or State Government,
and in case the medical officer is not available, by a registered
medical practitioner soon after the arrest is made: Provided
that where the arrested person is a female, the examination of
the body shall be made only by or under the supervision of a
female medical officer, and in case the female medical officer
is not available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so
examining the arrested person shall prepare the record of
such examination, mentioning therein any injuries or marks of
violence upon the person arrested, and the approximate time
when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a
copy of the report of such examination shall be furnished by
the medical officer or registered medical practitioner, as the
case may be, to the arrested person or the person nominated
by such arrested person.
Notes on Section 54
• It lays down the right of the arrested person of medical examination.
• Accused has the right to get himself medically examined and it is the
duty of the Magistrate to inform him that he has such right of medical
examination, if he has complaint of torture and ill-treatment.
Case law: Shila Barse v State of Maharashtra-next slide
Shila Barse v State of Maharashtra
• This case was a result of a writ petition is based on a letter addressed
by Sheela Barse, a journalist, complaining of custodial violence to
women prisoners whilst confined in the police lock up in the city of
Bombay. The petitioner stated in her letter that she interviewed fifteen
women prisoners in the Bombay Central Jail with the permission of
the Inspector General of Prisons between 11 and 17th May, 1982 and
five out of them told her that they had been assaulted by the police in
the police lock up. Of these five who complained of having been
assaulted by the police, the petitioner particularly mentioned the cases
of two, namely, Devamma and Pushpa Paeen who were allegedly
assaulted and tortured whilst they were in the police lock up.
• The Court issued notice to the State of Maharashtra, Inspector
General of Prisons, Maharashtra, Superintendent, Bombay Central Jail
and the Inspector General of Police, Maharashtra calling upon them
to show cause why the writ petition should not be allowed.
• It is absolutely essential that legal assistance must be made available to
prisoners in jails whether they be under-trial or convicted prisoners.
• The Court gave directions in regard to the need to provide legal
assistance all prisoners lodged in the jails in the state of Maharashtra.
The Court pointed that this incident highlights the need for setting up a
machinery for providing legal assistance to prisoners in jails.
Directions with regard to legal aid assistance:
The Court issued directions to he Inspector General of Prisons in Maharashtra to
issue a circular to all Superintendents of Police in Maharashtra requiring them-
(1) to send a list of all under-trial prisoners to the Legal Aid Committee of the
district in which the jail is situate giving particulars of the date of entry of
the under-trial prisoners in the jail and to the extent possible, of the offences
with which they are charged and showing separately male prisoners and
female prisoners.
(2) to furnish to the concerned District Legal Aid Committee a list giving
particulars of the persons arrested on suspicion under section 41 of the Code
of Criminal Procedure who have been in jail beyond a period of 15 days.
(3) to provide facilities to the lawyers nominated by the concerned
District Legal Aid Committee to enter the jail and to interview the
prisoners who have expressed their desire to have their assistance.
(4) to furnish to the lawyers nominated by the concerned District Legal
Aid Committee whatever information is required by them in regard to
the prisoners in jail.
(5) to put up notices at prominent places in the jail that lawyers
nominated by the concerned District Legal Aid Committee would be
visiting the jail on particular days and that any prisoner who desires to
have their assistance can meet them and avail of their counselling
services; and
(6) to allow any prisoner who desires to meet the lawyers nominated by
the concerned District Legal Aid Committee to interview and meet such
lawyers regarding any matter for which he requires legal assistance and
such interview should be within sight but out of hearing of and jail
official.
The Court directed the Maharashtra State Board of Legal Aid and
Advice to instruct the District Legal Aid Committees of the districts in
which jails are situate to nominate a couple of selected lawyers
practicing in the district court to visit the jail or jails in the district at
least once in a fortnight with a view to ascertaining whether the law laid
down by the Supreme Court and the High Court of Maharashtra in
regard to the rights of prisoners including the right to apply for bail and
the right to legal aid is being properly and effectively implemented and
to interview the prisoners who have expressed their desire to obtain
legal assistance and to provide them such legal assistance as may be
necessary for the purpose of applying for release on bail or parole and
ensuring them adequate legal representation in courts, including filing
or preparation of appeals or revision applications against convictions
and legal aid and advice in regard to any other problems which may be
facing them or the members of their families.
Directions with regard to protection of female prisoners:
1. The Court directed that four or five police lock ups should be
selected in reasonably good localities where only female suspects
should be kept and they should be guarded by female constables.
Female suspects should not be kept in police lock up in which male
suspects are detained. The State of Maharashtra has intimated to us
that there are already three cells where female suspects are kept and
are guarded by female constables and has assured the Court that two
more cells with similar arrangements will be provided exclusively
for female suspects.
2. interrogation of females should be carried out only in the presence of
female police officers/constables.
3. Whenever a person is arrested by the police without warrant, he must
be immediately informed of the the grounds of his arrest and in case of
every arrest it must immediately be made known to the arrested person
that he is entitled to apply for bail. The Maharashtra State Board of
Legal Aid & Advice will forthwith get a pamphlet prepared setting out
the legal rights of an arrested person and the State of Maharashtra will
bring out sufficient number of printed copies of the pamphlet in Marathi
which is the language of the people in the State of Maharashtra as also
in Hindi and English and printed copies of the pamphlet in all the three
languages shall be affixed in each cell in every police lock up and shall
be read out to the arrested person in any of the three languages which he
understands as soon as he is brought to the police station.
4. The Court directed that whenever a person is arrested by the police
and taken to the police lock up, the police will immediately give an
intimation of the fact of such arrest to the nearest Legal Aid Committee
and such Legal Aid Committee will take immediate steps far the
purpose of providing legal assistance to the arrested person at State cost
provided he is willing to accept such legal assistance. The State
Government will provide necessary funds to the concerned Legal Aid
Committee for carrying out this direction.
5. The Court directed that in the city of Bombay, a City Sessions Judge, to be
nominated by the principal Judge of the City Civil Court, preferably a lady
Judge, if there is one, shall make surprise visits to police lock ups in the city
periodically with a view to providing the arrested persons an opportunity to
air their grievances and ascertaining what are the conditions in the police lock
ups and whether the requisite facilities are being provided and the provisions
of law are being observed and the directions given by us are being carried out.
If it is found as a result of inspection that there are any lapses on the part of
the police authorities, the City Sessions Judge shall bring them to the notice
of the Commissioner of Police and if necessary to the notice of the Home
Department and if even this approach fails, the City Sessions Judge may draw
the attention of the Chief Justice of the High Court of Maharashtra to such
lapses. This direction in regard to police lock ups at the districts head
quarters, shall be carried out by the Sessions Judge of the district concerned.
6. The Court directed that as soon as a person is arrested, the police
must immediately obtain from him the name of any relative or friend
whom he would like to be informed about his arrest and the police
should get in touch with such relative or friend and inform him about
the arrest;
7. The Court directed that the magistrate before whom an arrested
person is produced shall enquire from the arrested person whether he
has any complaint of torture or maltreatment in police custody and
inform him that he has right under section 54 of the Code of Criminal
Procedure 1973 to be medically examined. Section 54 of the Code of
Criminal Procedure 1973 undoubtedly provides for examination of an
arrested person by a medical practitioner at the request of the arrested
person and it is a right conferred on the arrested person.
But very often the arrested person is not aware of this right and on
account of his ignorance, he is unable to exercise this right even though
he may have been tortured or maltreated by the police in police lock up.
It is for this reason that the Court gave a specific direction requiring the
magistrate to inform the arrested person about this right of medical
examination in case he has any complaint of torture or mal-treatment in
police custody.
Section 54A- Identification of person arrested
Where a person is arrested on a charge of committing an offence and his
identification by any other person or persons is considered necessary for
the purpose of investigation of such offence, the Court, having jurisdiction
may, on the request of the officer in charge of a police station, direct the
person so arrested to subject himself to identification by any person or
persons in such manner as the Court may deem fit:
Provided that, if the person identifying the person arrested is mentally or
physically disabled, such process of identification shall take place under the
supervision of a Judicial Magistrate who shall take appropriate steps to
ensure that such person identifies the person arrested using methods that
person is comfortable with:
Provided further that if the person identifying the person arrested is
mentally or physically disabled, the identification process shall be video
graphed.
Section 55- Procedure when police officer deputes
sub-ordinate to arrest without warrant
(1) When any officer in charge of a police station or any police officer making an
investigation under Chapter XII requires any officer subordinate to him to
arrest without a warrant (otherwise than in his presence) any person who
may lawfully be arrested without a warrant, he shall deliver to the officer
required to make the arrest an order in writing, specifying the person to be
arrested and the offence or other cause for which the arrest is to be made
and the officer so required shall, before making the arrest, notify to the
person to be arrested the substance of the order and, if so required by such
person, shall show him the order.
(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a
person under section 41.
Section 55A- Health and safety of arrested person
It shall be the duty of the person having the custody of an accused to take
reasonable care of the health and safety of the accused.
Section 56-Person arrested to be taken before
Magistrate or officer in charge of police station
A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to
bail, take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police
station.
• Section 57- Person arrested not to be detained more than twenty-
four hours
No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the
case is reasonable, and such period shall not, in the absence of a
special order of a Magistrate under section 167, exceed twenty-four
hours exclusive of the time necessary for the journey from the place of
arrest to the Magistrate’s Court.
 Notes on Section 56 and 57
• Section 56 and 57 are meant for the protection of the interest of the
person arrested.
• These provisions regarding the right of not being detained for more
than 24 hours without judicial scrutiny has been strengthened by its
incorporation in the Constitution as a fundamental right under
Article 22.
• Article 22 (2)- Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of
twenty four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the said period
without the authority of a magistrate.
• The right to be brought before a magistrate within a period of not
more than 24 hours of arrest has been created with a view:
i. To prevent arrest and detention for the purpose of extracting
confessions, or as a means of compelling people to give
information
ii. To prevent police station being used as though they were prisons- a
purpose for which they are unsuitable.
iii. To afford an early recourse to a judicial officer independent of the
police on all questions of bail and discharge. (Mohd. Suleman v
King Emperor)
• Purpose of production before a magistrate cases:
1. Madhu Limaye v State
The two requirements of Article 22(1) are meant to afford the earliest
opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting
authority and, also, to know exactly what the accusation against him is
so that he can exercise the second right, namely, of consulting a legal
practitioner of his choice and to be defended by him.
Article 22(2) provides the next and most material safeguard that the
arrested person must be produced before a Magistrate within 24 hours of
such arrest so that an independent authority exercising judicial powers
may without delay apply is mind to his case.
2. State of Punjab v Ajaib Singh
The Court ascertained whether Article 22 protection extends to both
categories of arrests mentioned above, and, if not, then which one of
them comes within its protection. There can be no manner of doubt that
arrests without warrants issued by a court call for greater protection than
do arrests under such warrants.
The provision that the arrested person should within 24 hours be
produced before the nearest Magistrate is particularly desirable in the
case of arrest otherwise than under a warrant issued by the court, for it
ensures the immediate application of a judicial mind to the legal
authority of the person making the arrest and the regularity of the
procedure adopted by him.
• In the case of, arrest under a warrant issued by a court, the judicial
mind had already been applied to the case when the warrant was
issued and, therefore, there is less reason for making such production
in that case a matter of a substantive fundamental right.
• The language of Article 22(1) and (2) indicates that the fundamental
right conferred by it gives protection against such arrests as are
effected otherwise than under a warrant issued by a court on the
allegation or accusation that the arrested person has, or is suspected to
have, committed, or is about or likely to commit an act of a criminal or
quasi- criminal nature or some activity prejudicial to the public or the
State interest. In other words, there is indication in the language
of Article 22(1) and (2) that it was designed to give protection against
the act of the executive or other non-judicial authority.
Section 58- Police to report apprehensions
Officers in charge of police stations shall report to the District
Magistrate, or, if he so directs, to the Sub-divisional
Magistrate, the cases of all persons arrested without warrant,
within the limits of their respective stations, whether such
persons have been admitted to bail or otherwise.

Section 59- Discharge of person apprehended

No person who has been arrested by a police officer shall be
discharged except on his own bond, or on bail, or under the
special order of a Magistrate.
Section 60- Power, on escape, to pursue and retake
(1) If a person in lawful custody escapes or is rescued, the person
from whose custody he escaped or was rescued may immediately
pursue and arrest him in any place in India.
(2) The provisions of section 47 shall apply to arrests under sub-
section (1) although the person making any such arrest is not
acting under a warrant and is not a police officer having authority
to arrest.
Section 60A- Arrest to be made strictly according to the Code.
No arrest shall be made except in accordance with the provisions of
this Code or any other law for the time being in force providing for
arrest.
Case : Joginder Singh v State of UP
Introduction and Relevant Provision
• The case of Joginder Kumar v State of Uttar Pradesh provides
guidelines to be followed during arrest of persons in a manner to
prevent arbitrary use of discretion. It lays down the requirement
o be followed during arrest.
• Arrests are of two types where if it is a cognizable offence there
need not be a warrant and if it is a non-cognizable offence a
warrant is mandated.
• The judgement lays down mandatory procedures and guidelines
to be observed during and after arrest.
Facts (in brief):
This is a petition under Article 32 of the Constitution of India. The
petitioner, Joginder Kumar, a young lawyer aged 28 was called to the
office of the Senior Superintendent of Police [SSP], Ghaziabad in
connection with some inquiries. He was accompanied by friends and
his brother, who were told by the police that he would be released in
the evening.
But Joginder Kumar was taken to a police station with the assurance
that he would be released the next day. Next day, too he was not
released as the police wanted his help in making further inquiries.
When his family went to the police station on the third day, they found
that he had been taken to an undisclosed location.
• In effect, Joginder Kumar was illegally detained over a period of five
days. His family had to file a habeas corpus writ petition with the
Supreme Court to find out his whereabouts. The Court issued notices
to the State of Uttar Pradesh and to the SSP to immediately produce
Joginder Kumar and answer why he was detained for five days
without a valid reason; why his detention was not recorded by the
police in its diary; and why he was not produced before a magistrate.
Facts: (in detail)
The facts of this case are as follows –
• Respondent No. 4, who is the Senior Superintendent of Police in Ghaziabad,
had summoned the Petitioner, an attorney, to his office in order to inquire
about a specific event.
• On 7th January, 1994, about 10 a.m., the Petitioner and his brother appeared
in person before Respondent No. 4, who then took the Petitioner in his
custody. When the Petitioner's brother asked about him, they were informed
that the Petitioner would be released later that evening after making some
inquiries about the case.
• Later that day, about 12.55 p.m., the Petitioner's brother, suspicious of
Respondent No. 4's motives, sent a telegram to the Chief Minister of Uttar
Pradesh, alleging the possibility of falsely implicating his brother's involvement
in a criminal case and also alleging that the Petitioner may be shot in a fake
encounter.
• Despite repeated inquiries, the Petitioner's location remained unknown. It was
discovered on the evening of 7th January, 1994, that Petitioner was being held
in the unlawful custody of 5th Respondent SHO, P.S. Mussoria.
• On 8th January, 1994, it was found that the 5th Respondent had detained the
Petitioner in order to conduct further investigations into the said event. The
5th Respondent also advised the Petitioner's relative to approach the S.S.P.
Ghaziabad for the Petitioner's release because the Petitioner had not been
produced before the concerned Magistrate.
• When the Petitioner's brother went to P.S. Mussorie on 9th January, 1994 to
inquire about his brother's well-being, it was revealed that the Petitioner had
been taken to an unnamed location.
• As a consequence, the petitioners applied to the Supreme Court for the
Petitioner's release under Article 32 of the Constitution of India.
Issues:
• The issues in this case are as follows –
-When arrest should be made?
-Whether the Petitioner’s arrest was legally valid?
-Whether any safeguards ought to be followed while an arrest
is being made?
Judgement:
• The Supreme court did not dismiss the petition of habeas corpus even
though the police claimed that he was not detained for five days but was
assisting in an investigation. The court took into account the rise in human
rights violations and said that it has seen a rise in unjustified arrests and is
worried about the way this subject is being handled.
• Justice M.N Venkatachaliah, the then Chief Justice on the case said that –
“The law of arrest is one of balancing individual rights, liberties and
privileges, on the one hand, and individual duties, obligations and
responsibilities on the other; of weighing and balancing the rights, liberties
and privileges of the single individual and those of individuals collectively; of
simply deciding what is wanted and where to put the weight and the
emphasis;”
• The Court held that an arrest cannot be made on mere allegations or
suspicion of commission of an offence, against a person. Arrest
cannot be made unless a reasonable satisfaction has been arrived at,
upon investigation into the matter to know the genuineness of the
complaint. An arrest made without conducting proper investigation
violates the Constitutional rights of a person. The exercise of the
Police Officer’s power to arrest ought to be justified.
• Unless the offence in question is a heinous one, an arrest must be
avoided if the Police Officer has issued a notice to the person to
attend the Station House and not leave without permission.
• The court also looked into Articles 21 and 22 of the Indian
Constitution to determine the rights which are available to a
person when he is detained, and to this effect, the Court
ruled that an accused person has the right to have someone
aware of his or her location and to meet privately with a
lawyer upon request. These rights are guaranteed by Articles
21 and 22 of the Constitution (1). The Court issued orders to
fully enforce these constitutional rights, requiring the
Magistrate to reassure himself that the conditions have been
met when the accused person is produced.
• It was ruled that, an arrest cannot be made on a mere
allegation of offence against a person or in a routine manner.
Constitutional rights of a person mandate that he not be
arrested on simple suspicion of complicity in an offence. It
cannot be made without a reasonable satisfaction reached
after some investigation is made as to the genuineness of
the complaint.
Guidelines:
• The Court laid down the following requirements for the effective
enforcement of the aforementioned fundamental rights –
1. When an accused person is being held in custody, he has the
right to have one friend, relative, or any other person who is familiar
with him or likely to be concerned about his health, informed of his
detention and where he is being held, as far as possible.
2. When the accused person is taken to the police station, the
officer must inform him of his rights.
3. It would be necessary to record who was told of the arrest in a diary.
Furthermore, Articles 21 and 22(1) is considered to be the source of these rights, and
they must be strictly adhered to.
4. The Magistrate, before whom the accused person is brought, must assure himself
that the aforementioned conditions have been complied with. The above requirements
must be followed in all cases of arrest before legal arrangements are made in this
regard.
All other rules and regulations under the police manual must be followed as well.
These protections from power must be held to flow from Articles 21 and 22(1) and
enforced strictly. It shall be the duty of the Magistrate, before whom the arrested
person is produced, to satisfy himself that these requirements have complied with the
above requirements shall be followed in all cases of arrest till legal provisions are made
in this behalf.
Analysis of the Judgement
• The Judgement pronounced by the Supreme Court, in the case of
Joginder Kumar v State of Uttar Pradesh was the need of the
hour. It rightly acknowledged the abuse of the power granted to
Police Officers to arrest accused persons.
• In order to satisfy the needs of a "fair trial," the Supreme Court's
judgement in this case, lays down a set of laws that safeguard the
accused persons by granting them some protections that can be
used when the power entrusted to police officers is being used
arbitrarily.
• As a precursor to the Constitutional Rights granted to every citizen of
India, the Indian Constitution grants those rights to an arrested
person too. Articles 21 and 22 guarantee an accused person the right
to defend himself from any wrongful action taken against him during
the arrest process.
• Owing to the rise in crime rates and indiscriminate arrests over time,
the Hon'ble Supreme Court in the case of Joginder Kumar v. State of
Uttar Pradesh, sought to strike a balance between the Rights of
individuals v. Protection of society.
• This case established standard grounds for arresting anyone. Following
the trial of this case, the Supreme Court established rules for arrest. As a
result, this case is considered as the "Guidelines for Arrest Case." The
guidelines established in this case were made mandatory for the police
to obey in the event of an arrest in order to prevent dysfunctional
actions on the part of administrative authorities and add uniformity to
the criminal procedure.
Conclusion
• Thus, the judgement pronounced in this case has significantly
contributed to the development of criminal jurisprudence by leaving
behind a positive impact.
Case- D K Basu v State of West Bengal
Introduction:
• The guiding decision of the Supreme Court in this case is a result
of a writ petition filed before the Supreme Court of India to
address the growing concern surrounding custodial deaths in
India.
Facts of the case:
• Mr. D K Basu, the then Chairman of the West Bengal Legal Aid
Services took cognizance of various telegrams and newspaper
publications reporting custodial deaths of persons in lock-ups
and custody and addressed a letter to the Chief Justice of India
and requested the matter to be treated as a public interest
litigation. Further, the concept of awarding monetary
compensation in cases of custodial deaths to family members of
the victims was also raised.
Issues:
• Whether monetary compensation can be awarded in
cases of custodial deaths?
• Who is to be attributed responsibility in cases of
custodial deaths arising from torture?
• What are the conditions to be satisfied by the police
while making an arrest?
• What are the rights and remedies available to an
arrested person?
Decision of the Court:
The Court while stating that custodial torture attacks the bed rock of
human rights and the rule of law laid down 11 guidelines to be
followed by the police during arrest and detention. They are as follows:
➢Police officers must wear an accurate and visible name tag while
arresting a person and a list of police officers making interrogation of
the arrestee must be maintained.
➢The police officer must make a memo of arrest while arresting a
person and the same must be signed by a family member or a
respectable community member of the arrestee. The arrestee must
also sign the memo. The memo of arrest must contain the date and
time of the arrest.
➢The arrest has the right to inform any relative or friend of
the arrest and provisions for the same must be made at the
earliest. This procedure need not be followed if the person
whom the arrestee wished to contact is a witness to the
memo of arrest.
➢If the person whom the arrestee wants to inform is out of
the district where the arrest is made, he shall be given the
venue, date and time of arrest within 8 to 12 hours from the
time of arrest.
➢It is extremely important and indispensable for the police
officer to inform the person arrested that he has the right to
inform his relative or friend about the arrest.
➢The police officer so must maintain an entry of the details of arrest
which shall contain the name of the arrestee, the name of the officer
arrested, the vehicle used for transportation, the name of the person
who is informed of the arrest, the names of the police officers who are
conducting the interrogation and in whose custody the arrestee is
detained.
➢The arrestee can get himself medically examined to inspect minor and
major injuries which must be recorded in the Inspection Memo and has
to be signed by the arrestee and the police officer making the arrest.
➢The arrestee has a right to get himself examined every 48 hours when
is being detained and the same shall be done by a medical officer who
is a member of the panel of doctors approved by the District Health
Services.
➢The Area Magistrate shall be given a copy of all the arrest
related documents for the purposes of maintaining a record.
➢The arrestee is ensured a right to contact a lawyer but this
may not be allowed throughout the investigation.
➢A police control room must be established in every district
where the list of arrestees is displayed and to whom the
information relating to arrest shall be sent.
Significance of the Judgement
The judgement is one of its kind as it identifies custodial torture
as a violation of Fundamental Rights guaranteed under the
Constitution. The judgment also makes references to the UDHR
and other international documents. The Court further mandated
all the state governments to file an affidavit and the Law
Commission to submit a report on custodial deaths and instances
where it was reported to be hushed up. The Court not only
issued mandatory guidelines but also pushed for its
dissemination through radio, television and newspapers in order
to enable effective implementation.
Analysis of the Judgment and it impacts Criminal Jurisprudence
-The judgment lays down mandatory procedure to be followed by the
police officer during arrest and detention. These are not given a
detailed elaboration within the language of Section 41 of the Code of
Criminal Procedure.
-This acts as a limitation to reduce the arbitrariness in the arrests
made by the police without warrant as in every case, the reason for
arrest must be recorded and the arrestee has been ensured remedies
to fight wrongful arrest and detention.
-However, the new Section 41 of the Code lays down particular
situations when arrest may be made. This does not mean that the
new Section is free of lacunae, the guidelines laid down in the D K
Basu v State of West Bengal case are still of extreme relevance.
- The judgement influenced the addition of Section 50 A (Obligation of
person making arrest to inform about the arrest, etc. to a nominated
person).
- The other significant guidelines laid down in this judgement and that
of Joginder Kumar v State of UP led to the incorporation of Sections
41A(notice of appearance before police officer), 41B (procedure of
arrest and duties of officer making arrest) and 41C (control room at
districts) into the CrPC.
Conclusion
Thus, the power of the police officers to make an arrest
without warrant is limited and regulated and the law
grants various rights to the arrestee to fight situations
of wrongful detention.