Arrest, Detention and Bail are important components of the process of criminal justice

administration and important tools for the investigation of an offence. Provisons related to arrest,
and bail in India are regulated by the Code of Criminal Procedure(CrPC) and interpretations of the
Constitution of India by the Supreme Court.

RREST
Arrest means an act of apprehending or restraining a person’s liberty by taking a person accused of
committing offence under the legal control. It should clearly be made by a legal authority in a
competent and prescribed manner. Sec 41-60 of the CrPC, 1973 highlights the provisions for the
same. After the person is arrested, the person remains under the custody of an authorized authority.

ARREST vs Custody
arrest means taking a person under the custody and restraining them from exercising personal
liberty as they have been accused of committing a crime.

custody according to the Indian Evidence Act, 1872, means an act of movement on the person
concerned for the purpose of making a formal arrest or even for the purpose of guarding and taking
care of a person.

all arrest require custody, but all custody does not account to Arrest.

WHO CAN ARREST

According to the Criminal Procedure code, Arrest can be made by Police, Magistrate or a
private person.

Arrest can be made by the Police in both, i.e. Cognizable and non-cognizable offences. as defined in
Sec 155 of CrPC, while the police require warrant for arrest in case of non-cognizable offences
from the competent Magistrate, they may arrest a person(s) without warrant from a magistrate
in cases on cognizable offence committed. Sec 45 of CrPC exempts the members
of Armed forces from being arrested for anything done by them in discharge of their
official duties except after obtaining the consent of the government

Arrest can also be made by a private person under Section 43 of CrPC, if any person
in the presence of the private person commits a Non-bailable and cognizable offence
or is a proclaimed offender. The private person can take such a person and hand over
its custody to the nearest police station.
Under Section 44 of CrPC, Arrest can also be made by the Magistrate if the offence
has been committed before the magistrate, whether Executive or Judicial, within his
local jurisdiction. The magistrate exercises the right to arrest the offender without a
warrant.

Procedure of Arrest
According to
Sec 46(1) of CrPC, in making an arrest the police officer or other person making the
arrest shall actually touch or confine the body of the person to be arrested, unless
there is a submission to the custody by word or action.

A person can also be arrested forcibly if the person resists or attempts to evade arrest.
The Police is authorized to use necessary means to give effect to such arrest. However
that does not give right to cause death of a person who is not accused of an offence
punishable by death sentence or life imprisonment.
Rights of the Arrested Person
The Indian Constitution, the Code of Criminal Procedure, judgments of the Supreme Court of
India and other Human Rights Covenants and Conventions award certain rights to the arrested
person.

Right to be informed regarding the grounds of arrest

According to Sec 50(1) of CrPC and Article 22(1)of the constitution, no person shall be arrested or
detained in custody unless theinformation about the reason of the Arrest is made available to the
person concerned. the police to inform relatives or friend or any
nominated person by the arrested person of the arrest made. The details about the arrest
are also maintained by the police in their register.

Right to apply for Bail – The person arrested by the police has to be informed regarding
their right to apply for bail. In case of Bailable offence the person should be informed
about their right to be released on bail after fulfilling the sureties as it may require. In
case of Non-Bailable offence, bail is not a right and can be applied only before the court.

Right to be presented before the magistrate within 24 hours of arrest - The Article 22
(2) of the Constitution prescribes that a person who has been arrested and detained in
custody for the commission of a crime should be produced before the nearest Magistrate
Magistrate’s Court.

Right to get Free legal Aid – the system ensures that the justice can be rendered to even
those who are poor to access any paid legal services. Under article 39 A, free legal aid is
a right of the accused who cannot afford legal services for their defense.

Right to be examined by Medical Practitioner – Under Section 54 of CrPC, the person

arrested have a right to get seek medical examination for the purpose of getting evidence
which could prove his/her innocence in the crime in which he is accused. The magistrate
can approve of medical examination of such person by a registered medic
l practitioner.

Specific Rights of Women and Children

ale police officer has no right to touch a women’s body,
even for the purpose of arrest. Also, arrest of a female between sunset and sunrise
should be avoided, if required can be made by the permission of the magistrate in
presence of lady police.

According to Sec 51(2) of CrPC, whenever it is necessary to cause a female to be

searched, the search shall be made by another female
examination of the arrested female, the examination of the body
shall be made only by or under the supervision of the female medical officer

she must be guarded by the female

police officer.
Women has right to get free legal aid and even can be granted bail in non-bailable
offences.
Police must avoid arresting a pregnant woman and if arrested, the female should be
provided with pre and post natal care.
When a juvenile or a child or person below the age 18 years is arrested, juvenile
should be placed under the charge of the special juvenile unit or the designated police
officer and such matters should be immediately reported to Juvenile Justice Board. parents/
guardians should be immediately informed of such arrest.juvenile is accused of a bailable or non-
bailable offence and is arrested, He/she
must be released on bail with or without surety.

A juvenile accused of a crime cannot be tried together with adults and should be
separated even if involved in the similar or same crime.

Bail

Bail means a provisional release of an arrested person from legal custody until the trial. The
release of the accused is conditional and is on the basis of the security or bail bond that the
accused person deposits in order to be released from the custody before the court arrives at
the final judgment. The objective of the bail is to ensure that the accused appears timely
before the court for the trial.

Types of Bail

1. Regular Bail – granted to the person who is already in the custody

after the arrest for commission of non-Bailable offences under section 437 and 439 of
Criminal Procedure code.
2. Interim Bail – temporary Bail which is granted for a short period of time or for
period till person applies regular or Anticipatory Bail.
3. Anticipatory Bail – It is a Bail which is like a pre-preparation by the person who
deciphers that he/she can be arrested under a non-bailable offence. The person can
apply for a bail to the sessions court or High court seeking a direction that in case of
his arrest, he may be released on Bail.

Conditions for Bail

The Bail can be granted by the Magistrate the accused under these conditions:


Is subject to some special conditions
Is subject to bond with or without sureties
In case of Special conditions for granting of the Bail, it is usually a condition that the accused
must comply with in order to remain outside of the custody.

These conditions can be that the

accused person must report to the police station at specified time or surrender his passport
etc. in order to ensure that the person remains available and does not escape before the trial
ends.
failure to comply w bail conditions can result in arrest of the
person

can also be challenge in a Court as unreasonable conditions

and the person may not accept them. But in such condition the accused will not be free from
custody till the accused either fulfils the special condition or either challenges the conditions
in further appeal for his/her favour.
Bail can also be granted on the basis of a bond, such as a personal bond, in which a person agrees to
be available until the trial is completed, or bail can also involve a sum of money that the police
officer or court deems sufficient for surety that the accused will appear at the time and place
specified in the bond.

Further, if application for bail is rejected by the Magistrate, the accused person can
appeal to a next court in hierarchy

Section 439 of the Indian Penal Code discusses the legislation governing bail cancellation (2). It
states that an accused's bail can be revoked, and that a High Court or a court of sessions can
exercise discretion in doing so, and that a person who was previously freed on bail can be put back
into jail.

Concl.