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A project on the Code of Criminal Procedure, 1973

Sectional Analysis of Arrest under the Code of Criminal

Procedure Code, 1973

Submitted by: Under the guidance of:

AAYUSH PANDEY Dr. Anjani Singh Tomar

Reg No. 20BAL004 Associate Professor of Law
Email: aayush20bal004@gnlu.ac.in Gujarat National Law University

AARYAN DWIVEDI
Reg No. 20BAL003
Email: aaryan20bal003@gnlu.ac.in

SATYAM AGARWAL
Reg No. 20BAL082
Email: agarwalsatyam001@gmail.com
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INTRODUCTION

In the first instance, everyone is regarded as a human being, regardless of whether

or not he or she is a criminal. Even a person suspected of a crime is presumed
innocent unless proven guilty in a court of law. Because of this, Indian law and
regulations do not allow for any detention or arrest without proper legal
justification. Article 21 of the Indian Constitution states that no one’s life or
liberty may be taken away from them unless and until the procedure is followed.
Corrupt practises and related malpractices in the daily actions of police officers
have grown over time.

Arresting someone who has committed a crime is one of the most essential
powers police officers have, and as a result, it has also become a valuable source
of corruption and extortion for police personnel. When a case has been filed
against a person suspected of committing a criminal offence, a police officer has
the authority to make an arrest. If they get reliable information on the commission
of any cognizable offence by any individual, they can also arrest them. Procedures
must be carried out in a “just, reasonable, and fair” way and not in a manner that
is “arbitrary,” “fanciful,” or “offensive.” As expected, the detention would have
legal justifications in addition to being well-founded. People’s right to self-
defense was recognised as a basic constitutional right.

MEANING AND DEFINITION OF ARREST

Arrest deprives a person of his or her freedom of movement and personal liberty.
Means holding someone for questioning, generally when they are accused of a
crime.

Even though arrest is discussed in the Criminal Procedure Code of 1973, the
appropriate definition of arrest is nowhere to be found. An arrest means that a
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person is placed into the custody of an official who has the legal right to hold
them; in other words, they are confined. As a last resort, the subject is requested
to explain why he was held in the first place.

According to the legal definition, arrest implies “to take or hold a suspected
criminal with legal authority, as by a law enforcement officer.” It is allowed for
an arrest to be undertaken on the basis of a warrant issued by a court following
sworn statements of reasonable cause to suspect there has been a crime committed
by this individual or for a possible criminal committed in the presence of the
arresting officer,”1

ARREST PROCEDURE
Arrest can be made in two ways, according to the 1973 Code of Criminal
Procedure, which specifies the procedure to follow.

(i) In this case, a person can be arrested without a warrant, provided that
the law permits it.
(ii) Arrest on the basis of a magistrate’s warrant.

(A) ARREST WITHOUT WARRANT

Officers of the law have the authority to detain a suspect in accordance

with Sections 41, 42, and 151 of the Code of Criminal Procedure
(CRPC), which remove the requirement that a warrant be issued by a
magistrate.

According to the Criminal Code, Section 41(1) states that any police
officer has the authority to arrest a suspect without a warrant if the officer
has reasonable grounds to believe that the suspect has committed any
cognizable offence, or that the suspect has been in possession of any
1
Legal Dictionary, https://dictionary.law.com/Default.aspx?typed=arrest&type=1
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stolen property, or that the suspect has been declared as a proclaimed

offender by the state, or that the suspect has obstructed a police officer in
the discharge of his duty, or that the suspect has attempted to abscond
from lawful arrest.
It is implied by Section 42 of the CRPC that a police officer is authorised
to arrest a person without a warrant even in the case of a non-cognizable
offence, if the arrested person refuses to give his name or address to the
police officer, or if he gives a name or residence that the officer has
reasonable grounds to believe is incorrect, even if the arrested person did
not commit a crime that is cognizable by the court.

A police officer has the right to arrest a suspect without a warrant under
the provisions of Section 151 of the Criminal Code of Canada (CRPC),
provided that the officer has reasonable grounds to suspect that the
suspect is about to conduct a criminal offence. However, in order for this
to happen, certain conditions need to be met: first, the crime that is
supposed to take place needs to be one that can be prosecuted, and
second, the officer in charge needs to have reasonable grounds for
believing that the only way to stop the crime is to arrest the suspect.

An arrest made by a private individual is considered to be the same as an

unlawful arrest made by the police. According to Section 43 of the
CRPC, any private person has the ability to arrest or cause the arrest of
any person who in his presence has committed any cognizable offence, or
a non-bailable offence, or is a proclaimed offender. This authority
extends to the person’s immediate family members as well. Then,
without making any further delays, bring that individual to the nearest
police station. After then, the police officer has the ability to re-arrest the
suspect if he has good grounds to think that the suspect committed any
crime that falls under Section 41 or Section 42 of the Criminal Procedure
Code.
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(B) ARREST BY WARRANT

When a person commits an offence that isn’t immediately apparent, such

as a crime of domestic violence, a warrant isn’t necessary. A warrant is
issued when a person has committed an offence that carries a sentence of
life in prison, the death penalty, or a term of imprisonment greater than
two years in length. A warrant can be issued by a judge or magistrate on
behalf of the state. There is a lot to cover in Sections 70 to 81 of the
CRPC regarding arrests without warrant. The warrant is first granted by
the court in writing and signed by the presiding officer of such court, and
then it is sent to one or more police officers, as specified in the warrant
itself. It is also possible for the warrant to be executed by any other police
officer named on the warrant. The individual who was arrested should
then be informed of the situation by the police officer. The individual
must then be brought before the court as quickly as possible by the police
officers assigned to the case.

(C) HOW ARRESTS ARE MADE?

While arresting someone, Section 46 of CRPC describes the whole set of

requirements that must be followed, whether or not the warrant has been
issued. According to CRPC Section 46(1), anybody who makes an arrest
is required by law to touch or restrain the apprehended person’s body. A
female police officer should, however, be used if the individual being
arrested is a woman. A male police officer may not touch or restrain a
female arrestee, save in rare circumstances.
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When a person who is being detained tries to resist arrest or flee arrest,
authorities can use reasonable force or methods, according to Section
46(2) of the Criminal Code. Nothing in Section 46(3) provides the police
officer the power to kill a person who has not been charged with a crime
that is punishable by imprisonment for life or the death sentence. Female
police officers can make an arrest in exceptional circumstances only by
writing a report to the Judicial Magistrate with jurisdiction in the area in
order to obtain prior permission to make an arrest, as stated in Section
46(4).

SECTIONAL ANALYSIS

Section 412

Section 41 CrPC makes it clear that a person suspected of committing an offence

punishable by imprisonment for a term of less than or equal to seven years, as
well as a fine, cannot be arrested by a police officer unless the officer is certain
that the accused committed the offence. Before making an arrest, a police officer
must be certain that the arrest is necessary to prevent the accused from
committing any further crimes, or to ensure a thorough investigation of the case,
or to prevent the accused from destroying or altering any evidence related to the
crime, or to prevent the accused from making any inducement, threat, or promise
to a witness in order to discourage the witness from disclosing any information
about the crime. Based on the evidence, these are the conclusions that one may
draw.

Police officers are required by law to document their reasoning and facts that lead
them to make an arrest in accordance with any of these regulations. An additional
requirement of the statute mandates that police officers document their reasons for
not conducting an arrest.
2
The Code of Criminal Procedure Code, 1973, § 41
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Ideally, a police officer should ask oneself, "Why am I making this arrest?" before
making an arrest. Is it necessary? What will it be used for? What is the goal of this
endeavour? In order for the power of arrest to be used, these questions must be
answered and one or more of the aforementioned requirements met. To begin
with, police should have evidence to support their suspicions that the suspect is
guilty before he or she is taken into custody. In addition, the officer must be
convinced that the arrest is required for one or more of the objectives outlined in
Section 41 CrPC clause (1) subclauses (a) to (e).

Case Law: In the case of Hema Mishra vs State of U.P.3 the Hon’ble Supreme
Court held that arresting an accused for a cognizable offence with a potential
punishment of seven years is not to be done on a regular basis, and the constraints
set under Section 41(1)(b) must be observed before effecting such an arrest. It is
also established that under Section 41(1), the police must keep a record of both
why they arrested someone and why they did not. In the event that an arrest is not
made under Section 41(1), a notice of appearance must be issued to the suspected
offender under Section 41-A. The refusal of an alleged offender to identify
oneself in response to a notice issued under Section 41-A might be grounds for
arrest.

Section 41A4

Section 41-A of the Criminal Procedure Code (CrPC), which aims to prevent the
accused from being arrested or threatened with arrest. When an arrest is not
necessary under Section 41(1) CrPC, a police officer must issue a summons to the
accused to appear before him at a certain location and time, according to this
provision. As a matter of law, if an accused complies with the conditions of
notice, the police officer must not arrest him, unless for reasons to be
documented, the officer believes that the arrest is required. Also at this point, the

3
Hema Mishra vs State of UP, (2014) 4 SCC 453
4
The Code of Criminal Procedure Code, 1973, § 41A
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Magistrate will do the same level of due diligence to ensure compliance with
Section 41 CrPC's condition precedent for arrest.

Case Law: The Supreme Court in Arnesh Kumar vs State of Bihar5 made an
excellent decision in the case of Arnesh Kumar, where it granted bail and issued
instructions to the state government and police officials on how to handle arrests
when a complaint or FIR under Section 498-A of the Indian Penal Code is filed.

Section 426

If a person refuses to provide his name and address, the police can legitimately
arrest him under Section 42 of the Code.

Clearly, sub-section (1) of this section provides for the arrest of a person who
refuses to provide his or her identity to a police officer, even if the officer has
reasonable cause to believe that the identity is false.

Section 42 (2), states that anybody who executes a bond, with or without sureties,
to appear before a Magistrate if needed and provides their authentic name and
address will be immediately freed.

A surety or sureties must be present in India in order for a non-Indian to be

bonded under this sub-section, according to the Proviso.

Sub-section (3) of this section clearly states that if the true name and residence of
such person cannot be established within 24 hours of his arrest, or if he fails to
execute the bond or provide sufficient solvent sureties, the person shall be
immediately sent to the nearest Magistrate with jurisdiction to try him.

Every individual is aware that if a police officer asks for a person's name and
address, or if he or she refuses to provide that information in full, or if the
information provided is discovered to be incorrect, the person will be detained. A
bond with or without sureties can be issued immediately if he provides accurate

5
Arnesh Kumar vs State of Bihar (2014) 8 SCC 273
6
The Code of Criminal Procedure Code, 1973, § 42
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information; if he fails to do so within 24 hours of his arrest, he will be sent to the

next Magistrate who has authority to consider the case against him.

Section 447

The aim of this section is to empower magistrates to arrest the offender and
commit such offender to custody. According to the provisions of sub-section (1)
of this Section, any Magistrate, whether Executive or Judicial, is empowered to
make arrest or order any person to arrest the offender when an offence is
committed in his presence, subject to the provisions herein contained regarding
bail, and commit such offender to custody.

Subsection (2) of this Section empowers those Magistrates to arrest or order the
arrest of such person (offender) in his presence, within their local jurisdiction, for
whom those Magistrates are authorised to issue a warrant of arrest at that time and
under those circumstances.

Case Law: In the case of Ram Chandra vs. State of Uttar Pradesh8, the
Allahabad High Court, while explaining the grounds for why the Magistrate has
been given the jurisdiction to send the criminal to jail under Section 44 (1) and
not under Section 44 (2), held as follows:

“It is not difficult to see why the Magistrate has been given the
authority to send the criminal to jail under Section 44(1) of the Criminal
Code but not under Section 44(2) of the Criminal Code. According to
subsection (1) of section 44, the offence is carried out in front of the
magistrate. Since he is certain that the individual who committed the
offence is guilty, the authority to order that person to be taken into
custody has been delegated to him.”

Section 469

7
The Code of Criminal Procedure Code, 1973, § 44
8
Ram Chandra vs. State of Uttar Pradesh, 1977 Cri. L. J. 1783
9
The Code of Criminal Procedure Code, 1973, § 46
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This section's subsection (1) expressly authorises the police officer or any other
person who makes an arrest to really touch and confine the body of the person to
be detained, subject to the person's acquiescence, either verbally or physically, for
such detention. This authorization is obvious.

New Proviso to sub-section (1) of this section mandates that the police officer
conducting an arrest of a woman must not touch her body while doing so; if she is
a woman, she must be given an oral indication of her arrest or if she is a woman,
the police officer must be a woman as well.

This subsection (2) of this section makes it abundantly clear that in the event that
any such person violently resists the efforts of the officer to arrest him or makes
attempts to evade his arrest, then that officer or any other person may use any and
all means necessary to effectuate such an arrest. This provision is clear and
unmistakable.

The third provision of this section makes it abundantly plain that nothing in this
section confers the power to cause the death of a person who is not suspected of
committing a crime that carries the possibility of either the death penalty or a
sentence of life in prison.

According to the newly added sub-cause (4) to this Section, it explicitly ordains
that no women shall be detained after sunset and before daybreak, unless there are
extraordinary circumstances. If there are such exceptional circumstances, the
woman police officer must, by making a written report officially getting the prior
authorization of the Judicial Magistrate of the First-Class whin his local
jurisdiction the conduct of offence or made such arrest.

Case Law: The court made the following observation in the case of Roshan
Beebi v. State of Tamil Nadu10

"The mode of arrest as envisioned under section 46 is that when making

an arrest, a police officer or other person making the same (arrest) –

10
Roshan Beebi vs Joint Secretary to Government of Tamil Nadu 1984
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(1) Should physically make contact with the body of the individual to be arrested,
or

(2) Should physically restrain the individual who is to be arrested in order to

complete the arrest.

In the event if the person who is supposed to be arrested voluntarily submits,

either verbally or physically, to the authority of the person who is arresting them,
these various modes of arrest are not required. If the person who is going to be
arrested submits to the authority or control of the person who is going to make
the arrest, then the person who is going to make the arrest does not need to
actually touch or restrict the body of the person who is going to be arrested. If, on
the other hand, he does not thus submit himself to the authority of the person who
is arresting him, then either one of the two criteria specified above—namely, the
touching or detention of the body of the person who is to be arrested—should be
satisfied.”

Section 4711

A police officer or other person acting under an arrest warrant who has reason to
believe that the person to be arrested is entitled to be arrested may demand that
anyone residing in or in charge of that location allow him pre-entry by providing
all reasonable accommodations, as stipulated in subsection (1) of this section.

The provisions of subsection (2) of this section state that if the ingress to that
particular place cannot be obtained under subsection one, it is lawful for a police
officer to enter that particular place and conduct a search therein and in order to
avoid giving the person to be arrested an opportunity to escape.

If a female (who is not the person to be arrested), who is not allowed to appear in
public, happens to be in the actual occupancy of the apartment, the provisions of
Proviso to Subsection (2) of this section clearly envisage that such a person or
police officer shall invariably issue notice to such a female person before entering
that particular apartment in order to give her notice.
11
The Code of Criminal Procedure Code, 1973, § 47
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Sub-section (3) of this section states that a police officer or other person
authorized to conduct an arrest of any person may smash through any door or
window of any home or other location in order to free himself or any person who
has entered lawfully for the purpose of arrest.

The aim of this section is to legitimately seek search of place entered by person
sought to be arrested. For the purposes of making an arrest without first obtaining
a warrant, an officer of the law may legitimately seek the whereabouts of anybody
he or she suspects to be in the country of India by applying the provisions of this
section.

Section 4812

According to the provisions of this particular section, the police officer is

authorized for causing the arrest of any person without a warrant against whom
such police officer is having authorization for causing such arrest, such police
officer is lawfully entitled to pursue about such person's presence into any of the
places in India.

Section 5013

The aim of this section is to inform the accused person about the reason he or she
was arrested. As stated in subsection (1) of this section, any police officer or other
person who arrests a person without a warrant must tell that person right away
why he or she was arrested for.

According to subsection (2) of this section, if a police officer arrests a person

without a warrant who isn't accused of a crime that can't be released on bail, the
officer must tell the person that he has the right to be released on bail and that he
has the right for arrangements to be made for the production of sureties on his
behalf.

12
The Code of Criminal Procedure Code, 1973, § 48
13
The Code of Criminal Procedure Code, 1973, § 50
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Case Law: In the case of Govind Prasad vs State of West Bengal 14, the Supreme
Court made the correct ruling that the decision to release someone on bail is a
judicial one and not a governmental one. However, there have been instances
where the courts have neglected to utilize their legally mandated "judicial
discretion."

CONCLUSION
According to our observations and research, the Code of Criminal Procedure,
1973 provides certain limitations, but the police's authority to arrest people is still
being overused. It is often thought that the police continue to extort money from
those they have detained by threatening them with violence and by using their
position of authority against them. A number of arrestees claim that the police fail
to provide them with proper means of legal counsel or information about the
allegations brought against them. The police's first and primary duty is to defend
the rights of everyone in society, even those who have been detained.
Consequently, the police must also safeguard the rights of those accused and
ensure that they are treated properly in accordance with the legal process and are
not subjected to undue harassment.

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Govind Prasad vs State of West Bengal 1975, Cri. LJ 1249