INTRODUTION :

The procedure through which someone is detained after being accused of a crime or
infraction is known as an arrest.The criminal judicial system is in charge of it and conducts
investigations and questioning.Matters related to Arrest of a person are discussed under
various legal statutes . And arrest of a person is primarily dealt by criminal procedure code
1
,1973. Section 41 to 60 of criminal procedure code,1973 deals with arrest of a person .The
Criminal Procedure Code nor the Indian penal code explicitly defined the word "arrest."
Basically, it refers to a person being apprehended by legal authorities and having their
freedom subsequently deprived. Various rights are proved to an arrested person under various
statutes like criminal procedure code and constitution of India.
Various types of arrests
There are four types of arrests
1) An arrest carried out in response to a magistrate's warrant.
2) An arrest conducted in compliance with statutes authorising such an arrest but without
such a warrant.
3) An arrest done by a private person.
4) An arrest done by a magistrate.

Procedure that is to be followed for arrest

The process of issuing a notice of appearance before a police officer is described in Section
41A of the Criminal Procedure Code2. Considering this section:
Anyone who is the subject of a reasonable complaint, reliable information, or a reasonable
suspicion that they are committing a crime that is punishable by law is required to receive a
notification from a police officer. The notice mandates that the person show up at the
designated location or in front of the police officer.
Individuals are accountable for adhering to the notice's requirements.
If the person gets the notice and follows it, they won't be detained for the specified offence
unless the police feel that detention is required and document their reasoning.
However, the police officer may, at any time and subject to any court orders, conduct an
arrest for the designated offence if the person refuses to comply with the notification or to
identify themselves.

1
The Criminal Procedure Code 1973, Acts of Parliament, 1973 (India).
2
The Criminal Procedure Code 1973, §41A, Acts of Parliament, 1973 (India).
Section 41B of the Criminal procedure code 3states that every police officer who makes an
arrest is required to: Wear a name tag that is accurate, noticeable, and easy to read. Create an
arrest memo that is countersigned by the person who was arrested and attested by a minimum
of one witness. Inform the person who was detained of his right to notify a family member.
Section 57 of the Criminal procedure code4 states that an arrested person has to appear before
the magistrate within twenty-four hours of the arrest.
The Code of Criminal Procedure, 1973, Section 465, explains process for making an arrest.
Subsection 16 of this section states that the person making the arrest must be touched
physically or placed under physical restraint. Furthermore, vocal declarations or gestures
might also be used to convey surrender to custody.
According to subsection 27, the arresting authority may take all necessary steps to prevent an
escape if the subject of the arrest resists them forcefully and attempts to escape.
Subsection 38 states that this section does not grant anyone the authority to kill someone who
is not suspected of committing a crime that carries a death sentence or a life sentence.
According to subsection 49 , Except in extraordinary circumstances, no woman may be
arrested after sun set and before sun rise . If such circumstances occur, the female police
officer must obtain the prior consent of the First-Class Judicial Magistrate whose territorial
jurisdiction the offence is committed or the arrest is to occur through a documented report.

Rights of an arrested person

• Right to silence : In common law, the "right to silence" is an fundamental principle that
guarantees no one can be found guilty based only on their silence. Everyone has the right
not to incriminate oneself, as guaranteed by Article 20(3) of the Indian Constitution10,
which prohibits manipulation of witnesses against their will. The Malimath Committee on
Justice underscored the significance of the right to remain silent in societies where there is

3
The Criminal Procedure Code 1973, §41B, Acts of Parliament, 1973 (India).
4
The Criminal Procedure Code 1973, §57, Acts of Parliament, 1973 (India).
5
The Criminal Procedure Code 1973, §46, Acts of Parliament, 1973 (India).
6
The Criminal Procedure Code 1973, §46(1), Acts of Parliament, 1973 (India).
7
The Criminal Procedure Code 1973, §46(2), Acts of Parliament, 1973 (India).
8
The Criminal Procedure Code 1973, §46(3), Acts of Parliament, 1973 (India).
9
The Criminal Procedure Code 1973, §46(4), Acts of Parliament, 1973 (India).
10
INDIA CONST. art. 20(3).
 a possibility of arbitrary convictions. The case of Nandini Sathpathy v. P.L. Dani11
established the right of accused parties to silence during questioning.
• The right to be brought immediately before a magistrate : Whether or not a warrant was
obtained, people who have been arrested are required by the Criminal Procedure Code to
appear before a magistrate or police station officer. When someone is arrested without a
warrant, they have to be taken before the magistrate or a designated police station official.
According to Section 76 of the Criminal procedure code12 and Articel 22(2)13 under the
fundamental right to be given, police officials executing arrest warrants are required to
bring the apprehended individual before the court as quickly as feasible, subject to security
considerations. This holds true for both non-law enforcement and law enforcement alike.
• Right to consult a legal practitioner of their choice : Individuals in custody have the right to
speak with their chosen legal representative, as guaranteed by Article 22(1) of the Indian
Constitution14. This right is also protected by Section 50(3) of the criminal procedure
Code15. The process begins when an individual is taken into custody, with a police officer
present during the lawyer's session but not during the hearing.
• Right to be Informed of the Reasons for Arrest : anybody detained without a warrant has
the right to discover the specifics of the offence for which they are being held, according to
Section 50(1) of the Criminal Procedure Code16. Police cannot conceal this information
from the accused; instead, they must give it to them. According to Section 5517, a
subordinate officer's written order from a superior officer detailing the offence or
justification for the arrest must be disclosed to the person under arrest. If someone is being
held according to a warrant, the person being held must be informed, given the warrant's
details, and the warrant itself must be shown if required. The Indian Constitution
guarantees that it is illegal to make an arrest without first alerting the person named in the
warrant.

11
1978 AIR 1025, Nandini Satpathy v. P.L. Dani.

12
The Criminal Procedure Code 1973, §76, Acts of Parliament, 1973 (India).
13
INDIA CONST. art. 22(2).
14
INDIA CONST. art. 22(1).
15
The Criminal Procedure Code 1973, §50(3), Acts of Parliament, 1973 (India).
16
The Criminal Procedure Code 1973, §50(1), Acts of Parliament, 1973 (India).
17
Procedure Code 1973, §55, Acts The Criminal of Parliament, 1973 (India).
• Rights at trail : Fair trail : Equality before the law is guaranteed by Article 14 of the
Constitution18. The Code of Criminal Procedure states that in order to avoid convictions
being made in secret, a fair trial must take place in public. Rarely, trials could take place in
front of cameras.
Speedy trail : the Supreme Court, in the Hussainara Khatoon case19, mandated that
investigations in trials must proceed "as quickly as possible.”
• Right to free legal India : As per Article 39A of the Indian constitution20, free legal aid
refers to the provision of legal services to those who are economically poor. This clause
guarantees that citizens' rights are upheld by making it simple for them to access the courts.
This was upheld in the Hussainara Khatoon v. State of Bihar case.
• Right to be released on bail : For offences that are subject to bail, police officials are
permitted to advise detained individuals of their right to bail under Section 50(2) of the
Criminal procedure code21. Article 2122 protects liberty until one is found guilty. Court
evaluating the nature of the offence, may grant the bail even for non-bailable offences. In
the event that the inquiry isn't finished within 60 or 90 days of incarceration, default bail
may be granted under Section 16723.Due to police officials' failure to get evidence within
the investigation time limit, the court in Uday Mohanlal Acharya Vs. State of Maharashtra 24
granted default bail to the accused.
• Right to be examined by a medical practitioner : If the magistrate gives authorization, the
accused may have a complete body medical examination under Section 54(1) of the
Criminal procedure code25, which may help prove their innocence or provide evidence of
the involvement of another person.

RECOMMENDATIONS :
Under certain conditions, a police officer may make an arrest without a warrant, according to
Section 41 of the Code of Criminal Procedure26. Section 41 has constantly been misused
because of the powers given by the provision related to arrest of a person .When a person is
18
INDIA CONST. art. 14.
19
Huissainara Khatoon v. Home Secretary ,1979 AIR 1369, 1979 SCR (3) 532.
20
INDIA CONST. art. 39A.
21
The Criminal Procedure Code 1973, §167, Acts The Criminal of Parliament, 1973 (India).

22
INDIA CONST. art. 14.
23
The Criminal Procedure Code 1973, §167, Acts The Criminal of Parliament, 1973 (India).
24
Uday Mohanlal Acharya v. State of Maharashtra , 2001 (5) SCC 453.
25
The Criminal Procedure Code 1973, §54(1), Acts The Criminal of Parliament, 1973 (India).
26
The Criminal Procedure Code 1973, §41, Acts The Criminal of Parliament, 1973 (India).
given authority to arrest a person with out a warrant there are high chance that the arrest is
not made on a valid basis . Major issue can be lack of accountability because a provision
under section 41 of criminal procedure code gives the right to arrest a person based on
suspicion as it is completely based on the officer who is arresting. When an officer has
Biased attitude towards an individual because of the powers given to them it will lead to
unfair practice towards the individual by the officer. In the case of Joginder Kumar v. State of
Uttar Pradesh27, it was held by the Supreme court that the power of arrest was identified as
the main factor contributing to police corruption in the National Police Commission's Third
Report on police arrest quality. Conditions present under this provision will lead to officers
thinking that it is their power to arrest people .The Supreme Court decided in the case of
Arnesh Kumar vs. the State of Bihar and Others28 that police personnel are not allowed to
detain someone simply because they think they are authorised to do so. Arresting someone
should not happen just because they are accused of a major offence. Rather, arrests ought to
be undertaken only in absolutely necessary circumstances and in support of strong arguments
and proof. Due to this provision . In the case of D.K Basu v. State of W.B Guidelines for
preventing torture and abuse in detention were established by this case. While its main focus
is on the rights of prisoners, it also draws attention to issues with arbitrary arrests and other
abuses of police authority. And , as mentioned under 268th law commission report29 that in
order to prevent arbitrary arrests. under Section 41 Criminal procedure code., the
Investigating Officer is required to obtain written consent from the Officer in Charge of the
Police Station and record the reasons for the arrest in the Case Diary and Daily Diary
Register. The type of the offence and whether or not bail is required must also be disclosed
by the officer. This was recommended to reduce the misuse of section 41 of Criminal
procedure code. the same can be done by implementing :
• Appointing a senior officer : One of the major issue that is lack of accountability of officers
can be eliminated till some extent by appointing senior officer because until and unless they
have written permission from the officer in charge they can’t arrest a person.
• Maintaining a record : The reason behind the arrest and other information related to arrest
should be mentioned in the record as will make the whole process more transparent .

27
Joginder Kumar v. State of Uttar Pradesh, 1994 SCC(4) 260.
28
Arnesh Kumar v. the State of Bihar, AIR 2014 SUPREME COURT 2756.
29
Law Commission, Code of Criminal Procedure, (Law Com No 268, 2017).
Section 50 of Criminal procedure code30. states that as soon as the arrest is done the person
who has been arrested should be informed about the grounds and particular of the arrest . In
case of a person who committed a bailable offence then he should be informed that he is
eligible for bail . And the place where the arrested has been kept should be informed to
family or friends. But simply covering regarding the grounds and particular about the
information is not sufficient because language of a person might be different and the the
person might not understand the information so it should not be about just conveying it
should be about making the arrested person understand the information . As per 268th law
commission report It is suggested that the clause be changed to mandate that the arrestee
receive this information in writing and in a language they can comprehend in order to
guarantee the meaningful use of this provision.

CONLUSION :
Police officers are there for the protection of the society and people living in the society . But
because of some arbitrary arrests people living in society are suffering because of the police
officers . So , there are Some changes which should me made to the existing arrest policy
while will help in betterment of arrest policies and reduce arbitrary arrests . What ever
provision that are there in the current arrest policy are made for the betterment of the society
and it might not be possible to make changes to the current policy that easily but as the
society changes the policies should also change according to change in the society . Primary
agenda behind the need for change in current arrest policy is because not Not even one
innocent person ought to be hurt.

30
The Criminal Procedure Code 1973, §50, Acts The Criminal of Parliament, 1973 (India).