CHAPTER 6

ARREST

 MEANING OF ARREST AND CUSTODY

 The Code has not defined the term “arrest”. Every deprivation of liberty

or physical restraint is not arrest. Only the deprivation of liberty by legal

authority or at least by apparent legal authority, in a professionally

competent and adept manner amounts to arrest. Further, when the

restraint is total and deprivation of liberty is complete that would amount

to arrest. Thus, arrest means ‘apprehension of a person by legal authority

resulting in deprivation of his liberty’.

 An arrest consists of taking into custody of another person under

authority empowered by law, for the purpose of holding or detaining him

to answer a criminal charge and preventing the commission of a criminal

offence. It may be noted that ‘custody’ and ‘arrest’ are not synonymous

terms. Taking of a person into judicial custody is followed after the arrest

of the person by the Magistrate on appearance or surrender. In every

arrest, there is custody but not vice-versa [Directorate of Enforcement v

Deepak Mahajan AIR 1994 SC 1775].

 Custody in the context of Section 439 [Link] is physical contact or

at least physical presence of the accused in court coupled with

submission to the jurisdiction and order of the court. He can be in

custody not merely when the police arrest him, produce him before

a magistrate and geta remand to judicial or other custody. He can

be stated be in judicial custody when he surrenders before the court

and submits to its directions. [Niranjan Singh v. Prabhakar

(1980)]

 Unless the person accused of an offence is in custody, he cannot

move the court for a bail under Section 439 of the Code, which

provides for release on bail of any person accused of an offence

and in custody.[State of Haryana v. Dinesh Kumar (2008)]

 Arrest not a must in every cognizable case del Is it necessary that the

police may arrest a person in every cognizable case? The answer is

definitely no, as the police need not arrest a person in every cognizable

offence. If the attendance of the person can be ensured otherwise, there is

no need to arrest a person.

 The Code contemplates two types of arrests: (i) arrest made in pursuance

of a warrant issued by a Magistrate, and (ii) arrest made without such a

warrant but made in accordance with some legal provision permitting

such an arrest.

 While the first type of arrest is made by the police, the second type of

arrest could be made by the police, or a private person, or by the

Magistrate himself (Sec. 44).

 Any Magistrate (whether Executive or Judicial) may arrest a person

without a warrant. Sec. 44(1) lays down that when any offence is

committed in the presence of a Magistrate, within his local jurisdiction,

he may himself arrest or order any person to arrest the offender and also
to commit him to custody. Sec. 44(2) lays down that a Magistrate may at

any time arrest (or direct the arrest in his presence) a person for whom

arrest he is competent at the time and in the circumstances to issue a

warrant.

 In case there is forcible resistance to or attempt to evade arrest, the

person attempting to make arrest may use all necessary means for

the same. Whether the means used for arrest were necessary or not

would depend upon whether a reasonable person having no

intention to cause any serious injury to the other would have used

to effect his arrest. Further, resistance or obstruction to lawful

arrest has been made punishable by the Penal Code, 1860 (IPC)

 On the other hand sub-section (3) of Section 46 enjoins in clear

terms that though persons making arrests can use all necessary

means for the purpose, they have not been given any right to cause

the death of a person who is not accused of an offence punishable

with death or imprisonment for life.

 Again Section 49 provides that “the person arrested shall not be

subjected to more restraint than is necessary to prevent his escape”.

  The case law1 produced by the courts in response to the demand

for protecting women has made Parliament to enact sub-section (4)

to Section 46 laying down that 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 first class within whose jurisdiction the offence is

committed or arrest is to be made.

 Sec. 46 describes the mode in which arrests are to be made (whether with

or without a warrant). In making an arrest the police officer/ other person

making the same actually touches or confines the body of the person to

be arrested unless there be a submission to custody by word or action

[Sec. 46(1)]. Mere utterance of words or gesture or flickering of eyes

does not amount to arrest; actual seizure or touch of person’s body with a

view to arresting is necessary. It need not be by handcuffing a person, but

could be complete even by spoken words if a person submits to the

custody [Birendra K Rat v UOI, 1992].

1
Aeltemesh Rein v. Union of India, 1988 SCC (Cri) 900: (1988) 4 SCC 54 and the cases referred to therein. Also read, Citizens for Democracy v.
State of Assam, (1995) 3 SCC 743: 1995 SCC (Cri) 600; G.L. Gupta v. R.K. Sharma, 1999 SCC Cri 1150: AIR 2000 SC 3632.; Ins. by the Code of
Criminal Procedure (Amendment) Act, 2005. It came into force with effect from 23-6-2006.
 When the police arrests a person in execution of a warrant of arrest

obtained from a Magistrate the person so arrested shall not be handcuffed

unless the police have obtained orders from the Magistrate in this regard.

Sec. 49 lays down that the person arrested shall not be subjected to more

restraint than is necessary to prevent his escape. In other words,

unnecessary restraint and physical inconvenience, like tying of hands and

feet, is not to be resorted to, unless it is absolutely necessary to do so.

 The person making an arrest may use ‘all means’ necessary to make the

arrest if the person to be arrested resists or attempts to evade the arrest

[Sec. 46(2)].

 A police officer may, for the purpose of arresting without warrant any

person whom he is authorized to arrest, pursue such a person into any

place in India (Sec. 48). Hence the arrest of a person by the police

officer, investigating an offence, in pursuit of an offender is legal though

it is made outside his circle.

 Cases where a police officer may arrest a person without warrant are

specified in Schedule I of the Code. Sec. 41 (1) enumerates nine categories

of offences and cases relating thereto where a police officer may arrest any

person without an order from a Magistrate and without a warrant. This

section is a depositary of general powers of the police officer to arrest but

this power is subject to certain other provisions contained in the Code.

 Amendment of Sec. 41 (by 2008 Amendment) (Powers of arrest

conferred upon the police officer must be exercised after reasonable

care)

 In Sec. 41(1) of the Principal Act, for clauses (a) and (b), the

following clauses shall be substituted, namely—

“(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;

(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 ,

For Sec. 41(2), the following sub-section shall be substituted, namely-

“(2) Subject to the provisions of Sec. 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.”

 Section 41 relates to power of police to arrest without warrant. Clauses (a)

and (b) of sub-sec. (1) has been amended to provide that the powers of arrest

conferred upon the police officer must be exercised after reasonable care and

satisfaction and that such arrest is necessary and required the section.

Amendment is also made in Sec. 41 (2) so as to provide that subject to the

provisions of Sec. 42 (relating to arrest on refusal to give name and

 residence), no person shall be arrested in a non- cognizable offence except

under a warrant or order of a Magistrate.

 Clauses (a), (d) and (g) of Section 41(1) clearly show that the police have

very wide powers of making arrests without warrant in respect of cognizable

offences. However, these powers are not without limitations.

 The requirement of reasonability and credibility would hopefully prevent the

misuse of such powers. What is a reasonable complaint or suspicion or what

is credible information must depend upon the facts and  circumstances in

each case. Personal feelings of the police officer or vague surmise would not

be enough.

 The “new” arrest provisions are going some way towards balancing the

requirements of effective law enforcement with the necessity of protecting

people from injustice and police harassment.

 Before the amendment, Sec. 41 permitted the police to arrest without

warrant “any person who has been concerned with any cognizable offence”

even on the mere presence of “reasonable suspicion.” The new provisions

stipulate that arrests should be made only against the existence of “credible

information” or a “reasonable complaint” or a “reasonable suspicion.”.

The word “reasonable” brings in the requirement of honest belief based on

facts. The words “reasonable” and “credible” have reference to the mind of
 the police officer receiving information, and such information must afford

sufficient materials for the exercise of an independent judgment at the time

of making arrest.{ Subodh Chandra Roy v. Emperor, ILR (1925) 52 Cal

319; K.V. Mohammed v. C. Kannan, AIR 1943 Mad 218;}

 The police certainly have no power to arrest persons without warrant on the

chance of something being thereafter proved against such persons. When the

legality of an arrest without warrant is challenged in court, the burden is on

the police officer to satisfy the court that he had reasonable grounds of

suspicion.

 The police, moreover, are obliged to record in writing the reasons for

making such arrests, which are permitted only under certain conditions, for

example, to prevent the person from committing further crimes or tampering

with evidence. When arrest is not justified under these conditions, the police

may only issue a ‘notice of appearance” asking the presence of a person

suspected of the crime to appear before it or at any other specified place.

 Other safeguards against the vast discretionary power of the police are

stricter procedures during the making of an arrest, the introduction of regular

medical examination of those in police custody , and the establishment of

police control rooms in all districts that must display the names and

addresses of those arrested.

 The changes in ‘arrest provisions’ reflect the spirit of several Supreme Court

judgments on the power and procedure to make arrests. Two salutary and

bona fide elements are clearly discernible in the legislation - to ensure

safeguards against police excesses and to minimize the needless filling up of

jails by under-trials. In a free society like ours, law is quite jealous of the

personal liberty of every individual and does not tolerate the detention of

any person without legal sanction.

 The right of personal liberty is a basic human right recognized by the

General Assembly of the United Nations in its Universal Declaration of

Human Rights. This has also been prominently included in the convention

on Civil and Political Rights to which India is now a party. Our Constitution

recognizes it as a fundamental right. Article 21 provides: No person shall be

deprived of his life or personal liberty except according to procedure

established by law. Further, the procedure contemplated by this article must

be “right, just and fair” and not arbitrary, fanciful or oppressive; otherwise it

would be no procedure at all and the requirement of Article 21 would not be

satisfied.

 It may be noted that malicious and excessive exercise of the powers of arrest

under these sections would be punishable under Section 220 IPC.

 The word “may” in Section 41(1) suggests that a police officer has

discretion in making arrest without warrant. Question may arise as to

whether a police officer is entitled to obtain a warrant of arrest from a

Magistrate under the circumstances mentioned in Section 41. The Code

makes no express provision in this connection. A Magistrate can issue a

warrant of arrest only after taking cognizance of an offence.(S.209)

 However considering the import of Section 167 and Section 41 it might be

inferred that a Magistrate might issue a warrant even before taking

cognizance of an offence but in the circumstances in which a police officer

can arrest without warrant under Section 41. [L. Ram Narain Singh v. A.

Sen, AIR 1958 All 758.] Further, a view has been expressed that even if a

police officer has been empowered by Section 41 to arrest without warrant,

this power is to be exercised in circumstances where the obtaining of a

warrant from a Magistrate would involve unnecessary delay defeating the

arrest itself. This view, it appears, has not yet been universally adopted by

the court. [Bir Bhadra Pratap Singh v. District Magistrate, Azamgarh,

1959 Cri LJ 685: AIR 1959 All 384.]

 The circumstances under which a police officer can effect arrest without

warrant have now been elaborately spelt out in the amended Section 41(1).

The law certainly does not intend to give a license to every policeman
 moving about on the road to search any person at his sweet will merely upon

some suspicion of his own which may have no reasonable foundation at all.

The police officer acting on suspicion of person in possession of implement

for housebreaking should have at least definite information   that he is in

possession of an implement of housebreaking before putting that person

under arrest.

 Clause (i) of Section 41(1) as been designed to facilitate the arrest of a

person at a distance. A police officer may by sending a requisition to another

police officer can get wanted person arrested by such other police officer.

Such requisition can be made in writing or even through telephone or

wireless. The clause, however, requires that the requisition must specify the

person to be arrested and the offence or other cause for which the arrest is to

be made. The police officer receiving such requisition can arrest such person

without warrant only if it appears to him from the requisition that the person

might lawfully be arrested without warrant by the officer sending the

requisition. It is pertinent to note that the exhaustive list of circumstances

spelt out in Section 41(1) as amended makes it effective in preventing illegal

arrests by police officers.

 The new proviso makes it obligatory for the police officer to adduce reasons

if he decides not to arrest a person covered under this provision. Though

 Section 41(2) has been amended making no mention of persons covered

under Sections 109 and 110 of the Code, it appears that this does not

adversely affect the power of the police officer to effect arrest of such

persons inasmuch as they are covered under the provisions of Section 41(1).

 Police have vast powers to make arrest

The power of the police to make arrest has been restricted to some extent the

amendment of 2009 and 2010 by limiting their power to arrest in offences

which are punishable with imprisonment for a period less than 7 years.

However the police still carry vast powers to make arrest as there are no

explanations to certain clauses of section 41. For example, police can arrest

a person for having possession of implement used for house breaking.

However, there is no clarity as to what are included in these instruments.

Again police can arrest a person in possession of stolen property even if he

is an innocent buyer of that property. Further section 151 empowers a police

officer to arrest any person, without orders from a Magistrate and without

warrant,' if it appears to such officer that such person is designing to commit

a cognizable offence and that the commission of offence cannot be

prevented otherwise. Thus the powers of the police to make arrest are vast

even after the amendment of 2009 and 2010.

 Insertion of new Secs. 41-A, 41-B, 41-C and 41-D (Arrest

provisions)

After Sec. 41 of the principal Act, the following new sections shall be

inserted, namely-

“41-A. Notice of appearance before police officer - (1) The police officer

may, in all cases where the arrest of a person is not required under the

provisions of Sec. 41(1), 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, it shall be lawful for the police officer to arrest him for the offence

mentioned in the notice, subject to such orders as may have been passed in

this behalf by a competent Court

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 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 a 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 officer who

made the arrests.

(3) The control room at the Police Headquarters at the State level shall

collect tom 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.

41-D. Right of arrested person to meet an advocate of his choice during

interrogation — When any person is arrested and interrogated by the police,

be shall be entided to meet an advocate of his choice during interrogation,

though not throughout interrogation.”

 The Supreme Court has had occasion to lay down the following guidelines

for the police while arresting a judicial officer in case of Delhi Judicial

Service Assn. v. State of Gujarat, (1991):-

(a) A judicial officer should be arrested for any offence under intimation to District

Judge or the High Court.

b) In case of necessity for immediate arrest only a technical or formal arrest may

be effected.

(c) The fact of such arrest should be immediately communicated to the District and

Sessions Judge of the district concerned and the Chief Justice of the High Court.

(d) The judicial officer so arrested shall not be taken to a police station, without the

prior order or directions of the District and Sessions Judge of the concerned

district, if available.

(e) Immediate facilities shall be provided to the judicial officer for communication

with his family members, legal advisers and judicial officers, including the District

and Sessions Judge.

(f) No statement of a judicial officer who is under arrest be recorded nor any

panchnama be drawn up nor any medical tests be conducted except in the presence

of the Legal Adviser of the judicial officer concerned or another judicial officer of

equal or higher rank, if available.

(g) Ordinarily there should be no handcuffing of a judicial officer.

These guidelines are not exhaustive. The Apex Court has added that if the arrest

and handcuffing are found to be unjustified the police officer would be guilty of

misconduct and personally liable for compensation or damages as may be

summarily determined by the High Court.

  The Supreme Court2 has also dealt with the issue of arrest of women

between dusk and dawn. Modifying the Bombay High Court’s order that no

“female person to be arrested without the presence of a lady constable  and

in no case in the night”, the court held that all efforts should be made to keep

a lady constable present but strict compliance can cause practical difficulties

to investigating agencies and create room for evading the process of law by

unscrupulous accused. Therefore, the court ruled that while arresting a

female person, all efforts should be made to keep a lady constable, but in the

circumstances where the arresting officers are reasonably satisfied that such

presence of a lady constable is not available or possible and the delay in

arresting caused by securing the presence of a lady constable would impede

the course of investigation, such officer for reasons to be recorded, be

permitted to arrest a female person at any time of the day or night depending

on the circumstances of the case even without the presence of a lady

constable.

 This position has now been incorporated in Section 46(4) under which in

exceptional circumstances the woman police is required to obtain prior

2
State of Maharashtra v. Christian Community Welfare Council of India, (2003) 8 SCC 546: 2004 SCC (Cri) 27, 30.
See also, Rajkumari v. SHO Noida, (2003) 11 SCC 500: 2004 SCC (Cri) where a plea for a general direction to stop
arrest of women between sunset and sunrise except in grave offences like murder was made. The court held that
the case was not a fit one where general directions may be issued, and such directions may be made in a more
appropriate case.
 permission of Judicial Magistrate of first class within whose jurisdiction the

offence is committed/arrest is made.

 Section 42 is clear in itself. If a person commits a non-cognizable

offence in the presence of a police officer and refuses to give his name

and address when demanded by such officer, he can be arrested by

such officer in order to ascertain his name and residence. However, if

his name and address were previously known to the police officer, he

cannot be arrested and detained under this section.

 Arrest by a private person without a warrant (S.43)

 It is in the general interest of the society that a person committing a very

serious offence should be immediately arrested and expeditiously dealt

with according to law. The powers of the police to arrest without warrant

are to an extent helpful for his purpose but they may not in themselves

prove adequate in all situations. When a serious offence has been

committed in the presence of several private citizens and no police

officer is anywhere near the scene of the offence, it would be totally

unreasonable to tell the private citizens witnessing the crime that they

cannot arrest the offender without first obtaining a warrant from a

Magistrate or that they should do nothing except to inform the police and

Magistrate and to wait for the police to take steps for arresting the culprit.
 The Code, therefore, empowers a private citizen to make arrest without

warrant under certain situations.

 The power of arrest without warrant given by this section can be

exercised only in respect of an offence which is both non-bailable and

cognizable.

 While Section 42 allows a police officer to arrest without warrant a

person committing or accused of committing a non-cognizable offence in

his presence, this section allows a private citizen to arrest without

warrant, only and only if a non-bailable and cognizable offence has been

committed in his presence.

 The right of arrest under Section 43 accrues to a private citizen on the

basis of his own personal knowledge derived from the use of his own

eyes in seeing a non-bailable and cognizable offence being committed.

 Where a private citizen seeing a person fleeing with a knife in hand being

pursued by many persons shouting for his apprehension, attempts to

arrest the fleeing person, the arrest is without any right contemplated by

Section 43.

 The right of arrest under this section must be exercised simultaneously

with the commission of the offence.

  If the private citizen making arrest under this section fails to follow the

after-arrest procedure as prescribed in the section, he can be prosecuted

for the offence of wrongful confinement under Section 342 IPC. {Supt.

& Remembrancer of Legal Affairs v. Bagirath Mahto, AIR 1934 Cal

610, 614–15.}

 If an arrest under this section is made for an offence which is in fact not

“cognizable and non-bailable” but because of a bona fide mistake

believed to be so by the person making arrest, he would be protected by

Section 79 IPC (Mistake as defence). Sub-section (3) appears to have

contemplated the cases of such type of mistakes on the part of private

persons making arrests under the section.{Anant Prasad Ray v.

Emperor, (1926) 27 Cri LJ 1378, 1380–81 (Pat).}

 Arrest By Magistrate(S.44)

 As the magistrates are relatively responsible executive and judicial

officers with detached outlook, they have been given wider powers of

arrest: 1) If any offence, irrespective of its nature and seriousness, is

committed in the presence of any Executive or Judicial Magistrate,

such Magistrate can himself or with the help of others arrest the

person committing the offence; 2) even if no such offence is

committed in the presence of such Magistrate, but if the Magistrate is

 competent to issue a warrant for the arrest of any person, and the

person is present before him, he can arrest such person. These powers

have been given by Section 44.

 If a person arrested by a Magistrate under the above section is

detained beyond 24 hours and is not produced before another

Magistrate for obtaining an order of remand to custody under Section

167(1), his detention would be illegal. [Swami Hariharanand

Saraswati v. Jailor I/C Distt. Jail, Banaras, AIR 1954 All 601, 604–

05]

 Considering the general principle embodied in Section 479 that a

judge or Magistrate personally interested in a case should not try it, a

Magistrate arresting a person under Section 44(1) should not try the

case himself.

 Protection of members of the Armed Forces from arrest(S.45)

 When a member of the armed forces of the Union or State is deputed

for the protection of public property in a State or for other such

purposes, it may happen that one or more persons may do or attempt

to do something in regard to which such member may be called upon

to take action in good faith. Such action may expose him to the

possibility of being arrested and prosecuted by the police. To meet

 such or similar situations, a qualified protection has been given to

such a member by Section 45 requiring the previous consent of the

Central Government or the State Government, as the case may be, for

the arrest of any such member.

 It may be noted here that sub-sections (2) and (3) of Section 197

prohibit taking cognizance of any offence alleged to have been

committed by any member of the armed forces while acting or

purporting to act in the discharge of his official duty except with the

previous consent of the Central Government or the State Government

as the case may be.

 ADDITIONAL POWERS FOR EFFECTING ARREST

(a) Search of place

According to Section 47 an occupier of a house is under a legal

duty to afford to the police all the facilities to search the house for

the purpose of making arrests. If such facilities are denied or

obstructions are put in the way of the police officer, the section

allows the officer to use force for getting entry or free ingress into

the house for search and also for the purpose of liberating himself

in case he is detained in the house. The section also puts

 reasonable restrictions on the police when the part of the house to

be searched is occupied by a pardanashin woman.

(b) Pursuit of offenders

Section 48 provides that “a police officer may, for the purpose of

arresting without warrant any person whom he is authorised to

arrest, pursue such person into any place in India”. A police

officer’s power to arrest is ordinarily limited to the police

[Link] power has been, to an extent, supplemented by

Section 48 of the Code. In case the arrest is to be made under a

warrant, Section 77 makes it clear that “a warrant of arrest may be

executed at any place in India”. However, when a warrant of arrest

is to be executed outside of the local jurisdiction of the court

issuing it, a special procedure, as prescribed by Sections 78 to 81,

will have to be followed.

(c) Deputing subordinate to arrest

If a senior police officer in his presence requires a subordinate

police officer (or even any other person) to arrest a person who

may be lawfully arrested without a warrant, such subordinate

officer is under a duty to arrest. If however the senior police

officer wants to send and depute a subordinate for arresting a

 person without a warrant, he can give an order in writing to the

subordinate specifying the person to be arrested and the cause for

which the arrest is to be made. This has been provided by Section

55.

(d) Power, on escape, to pursue and retake

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. [S. 60(1)] The person making

such re-arrest has the same powers and duties as mentioned in

Sections 46 and [Link], if a police officer is attempting to

re-arrest an escaped thief, he has no right to shoot the thief.

Provisions regarding search of place, discussed in (a) above, shall

apply in respect of re-arrest also, although “the person making any

such arrest is not acting under a warrant and is not a police officer

having authority to arrest”. [S. 60(2)]

 Post-arrest procedures

(a)Search of arrested person

 Section 51 empowers a police officer to make a search of the arrested person

under certain circumstances. Such search may prove useful for proper

investigation. If incriminating things or stolen articles are found in such

search, the police officer can seize them under Section 102 and produce

them in court.

 Though the section does not require the search to be conducted in the

presence of witnesses, the rules made under the Police Act, direct that the

search should be made in the presence of witnesses. The witnesses should be

independent and respectable. It will be seen that the power to search under

Section 51 is available only if the arrested person is not released on bail.

 After search all the articles other than necessary wearing apparel found upon

the arrested person are to be seized, and it has been made obligatory to give

to the arrested person a receipt showing the articles taken in possession by

the police. This would ensure that the articles seized are properly accounted

for. In case the arrested person is a woman the search can be made only by a

female with strict regard to decency.

 But simply because there was some irregularity in making such search that

in itself will not make the search-evidence inadmissible. {Kamalabai

Jethamal v. State of Maharashtra(1962)}

  For instance, the failure of the police to take out a recovery memo—an

irregularity was held not vitiating the trial.{Mahadeo v. State 1990}

(b)Seizure of offensive weapons by any person making arrest(S.52)

(c) Medical examination of accused after arrest

 To facilitate effective investigation, provision has been made authorising an

examination of the arrested person by a medical practitioner, if, from the

nature of the alleged offence or the circumstances under which it was

alleged to have been committed, there is reasonable ground for believing

that an examination of the person will afford evidence. Section 53

empowers senior police officers to compel the accused person in custody to

submit to medical examination.

 Supreme Court in the Kathi Kalu case it has been held that Section 53 is

not violative of Article 20(3) and that a person cannot be said to have been

compelled “to be a witness” against himself if he is merely required to

undergo a medical examination in accordance with the provisions of Section

53.

 The effect of confining the privilege under Article 20(3) to only testimony

written or oral.(Anil A. Lokhande v. State of Maharashtra)

 The power to compel the accused to submit to medical examination is

hedged in various conditions. The object obviously is to balance the

conflicting interests of the individuals and the society. The medical

examination contemplated by the section may take various forms.

 The expression “examination of the person” as used in Section 53 cannot be

restrictively confined only to the examination of the skin or what is visible

on the body itself. The examination of some organs inside the body for the

purpose of collecting evidence may become necessary and such an

examination cannot be held to be beyond the purview of this section.

Examination by a medical practitioner logically take in examination by

testing his blood, sputum, semen, urine, etc. It may include X-ray

examination or taking electrocardiograph depending upon the nature of the

case.(Neeraj Sharma v. State of U.P.)

 The section itself permits the use of force as is reasonably necessary for the

purpose of medical examination of the arrested person. Sometimes such a

medical examination may cause pain and hurt to the examinee. It may be

that some discomfort is caused to the person the samples of whose blood or

semen are taken for medical examination under this section; and if the

process of taking such samples is reasonable under the circumstances, then

 the causing of consequential discomfort to the person is justified by the

section.

 Though the section lays down a condition that the medical examination is to

be done at the instance of a police officer not below the rank of sub-

inspector, it does not debar other superior officers or the court concerned

from exercising the said power if it becomes necessary for doing justice in a

criminal case. It is, therefore, open to the court which is seized of the matter

to issue direction or to grant approval or permission to the police for

carrying out further investigation under Section 53.

 The medical examination contemplated by the section is in respect of a

“person arrested on a charge of committing of an offence”. Even if an

accused person is released on bail, he is still “a person arrested on a charge

of committing an offence”. Moreover, such a person while released on bail

is notionally in the custody of the court (through the surety) and therefore

his medical examination can be carried out in terms of Section 53.

 It may be useful to mention here some of the provisions of the Identification

of the Prisoners Act, 1920, which, like the medical examination of the

accused under this section, are helpful for police-investigations. Section 4 of

the Act empowers a police officer to take measurements (including finger

impressions and footprint impressions) of a person arrested in connection

 with an offence punishable with imprisonment which may extend to one

year or more. Section 5 of the Act further provides that if in the opinion of a

Magistrate it is expedient to direct any person to allow his measurements or

photographs to be taken for the purpose of investigation or proceeding

under the Criminal Procedure Code, 1973, he may make an order to that

effect, provided that the person at some time or other has been arrested in

connection with such investigation or proceeding.

 By giving an elaborate explanation as to the meaning of “examination” and

“registered medical practitioner” the Code of Criminal Procedure

(Amendment) Act, 2005 has inserted Sections 53-A, 54(2) and 54-A laying

down the procedure for the conduct of medical examination.

 This newly inserted Section 53-A empowers investigating agency to compel

medical practitioners to help it to get the person accused of rape examined

promptly. The sub-section (2) spells out the particulars to be furnished in

the report thus:

(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, or the person of the accused;

 (iv) the description of material taken from the person of the accused for

DNA profiling;

(v) other material particulars in reasonable detail;

(vi) the reasons for each conclusion arrived at by the practitioner;

(vii) the exact time of commencement and completion of the examination.

The medical practitioner should send up the report to the Magistrate through the

Investigating Officer. A copy of the report should also be sent to the accused.

(d) Report of arrests to be sent to District Magistrate

(e) Person arrested not to be discharged except on bond or bail(S.59)

Once a person is arrested by police, he can be enlarged only after taking a bond or

bail for his appearance before a Magistrate; the police cannot discharge him on

their own responsibility without the order of a Magistrate. The special order of a

Magistrate contemplated in this section is a special order of a Magistrate under

Section 167 which prescribes procedure when investigation according to police

cannot be completed within 24 hours.

 Rights of an Arrested Person

[Link] to know the grounds of Arrest

1.1) As per Section 50(1) of [Link]., every person who is being arrested by any

police officer, without any warrant, is entitled to know the full particulars of

offence for which he is being arrested, and that the police officer is duty bound to

tell the accused such particulars and cannot deny it.

1.2) As per Section 55 of [Link]., when any person is being arrested by any police

officer, who is deputed by a senior police officer, then such subordinate officer

shall before making such arrest, notify the person to be arrested the substance of

the written order given by the senior police officer specifying the offence or other

cause for which the arrest is to be made. If this provision is not complied with, then

the arrest would be rendered illegal.

1.3) if the person is being arrested under a warrant, then as per Section 75 of

[Link], any person who is executing such warrant must notify the person to be

arrested, the particulars of such warrant, or even show such warrant if needed. If

the substance of the warrant is not notified, the arrest would be unlawful.

1.4) the Constitution of India also confers this right as one of the fundamental

rights. Article 22(2) of the constitution provides that “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.”

[Link] regarding the Right to be released on Bail

Any person who is to be arrested without a warrant and is not accused of a non-

bailable offense has to be informed by the police officer that he is entitled to be

released on bail on payment of the surety amount. This helps persons who are

arrested for bailable offenses and are not aware of their right to be released on bail.

[Link] to be taken before a Magistrate without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant,

the person who is making such arrest has to bring the arrested person before a

judicial officer without any unnecessary delay. Further, the arrested person has to

be confined in police station only and nowhere else, before taking him to the

Magistrate. These matters have been provided in Cr.P.C. under sections 56 and 76

which are as given below:

Section 56 of [Link]. states that “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 76 of [Link]. states that “Person arrested to be brought before Court

without delay- The police officer or other person executing a warrant of arrest
shall (subject to the provisions of section 71 as to security) without unnecessary

delay bring the person arrested before the Court before which he is required by

law to produce such person”.

Further, it has been mentioned in the proviso of Section 76 that such delay shall

not exceed 24 hours in any case. While calculating the time period of 24 hours, the

time necessary for the journey is to be excluded. The same has been enumerated in

the Constitution as a Fundamental Right under Article 22(2). This right has been

created with a view to eliminating the possibility of police officials from extracting

confessions or compelling a person to give information.

If the police officials fail to produce an arrested person before a magistrate within

24 hours of the arrest, the police officials shall be held guilty of wrongful

detention.

[Link] at Trial

4.1) Right to a Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law.

The Code of Criminal Procedure also provides that for a trial to be fair, it must be

an open court trial. This provision is designed to ensure that convictions are not

obtained in secret. In some exceptional cases, the trial may be held in camera.
4.2) Right to a Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however,

the SC in the Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 has made

it mandatory that the investigation in the trial must be conducted “as expeditiously

as possible.”

In cases, wherein the maximum punishment that can be imposed is 2 years, once

the accused is arrested, the investigation for the trial has to be completed within the

period of six months or stopped on receiving an order from the Magistrate, unless

the Magistrate receives and accepts, with his reasons in writing, that there is cause

to extend the investigation.

[Link] to Consult a Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own

choice. This has been enshrined as a fundamental right in Article 22(1) of the

Constitution of India, which cannot be denied in any case. Section 50(3) of the

Code also lays down that the person against whom proceedings are initiated has a

right to be defended by a pleader of his choice. This starts begins as soon as the
person is arrested.  The consultation with the lawyer may be in the presence of

police officer but not within his hearing.

[Link] of Free Legal Aid

The Supreme Court in the case of in Khatri(II) v. State of Bihar (1981) 1 SCC

627  has held that the state is under a constitutional obligation (implicit in Article

21) to provide free legal aid to an indigent accused person as is implicit in Article

21 of the Constitution. This right does not come into picture only at the time of

trial but exists at the time when the accused is produced the first time before the

magistrate, as also when remanded from time to time. The Supreme Court further

states that failure on the part of the state to inform the accused of this right will

vitiate the whole process of trial. Therefore, a duty is imposed on all magistrates

and courts to inform the indigent accused of his right to get free legal aid.

[Link] to be examined by a Medical Practitioner

Section 54 of [Link]. enumerates this right. It states that: “Examination of arrested

person by medical practitioner at the request of the arrested person- When a person

who is arrested, whether on a charge or otherwise, alleges, at the time when he is

produced before a Magistrate or at any time during the period of his detention in

custody that the examination of his body will afford evidence which will disprove
the commission by him of any offence or which will establish the commission by

any other person of any offence against his body, the Magistrate shall, if requested

by the arrested person so to do direct the examination of the body of such person

by a registered medical practitioner unless the Magistrate considers that the request

is made for the purpose of vexation or delay or for defeating the ends of justice.”

[Link] to Silence

The ‘right to silence’ has been derived from common law principles. It means that

normally courts or tribunals should not conclude that the person is guilty of any

conduct merely because he has not responded to questions which were asked by

the police or by the court.  The breaking of silence by the accused can be before a

magistrate but should be voluntary and without any duress or inducement.

The Justice Malimath Committee writes about the origin of the right to silence that

“it was essentially the right to refuse to answer and incriminate oneself in the

absence of a proper charge. Not initially, the right to refuse to reply to a proper

charge.” The Justice Malimath Committee’s assumption is that the right to silence

is only needed in tyrannical societies, where anyone can be arbitrarily charged. It

assumes that whenever a charge is “proper”, there is no need for protection of the

accused. In this backdrop it becomes necessary to examine the right to silence and

its companion right against self-incrimination. These are the two aspects of fair
trial and therefore cannot be made a subject matter of legislation. Right to fair trial

is the basic premise of all procedural laws. The very prescription of procedure and

the evolution of procedural law have to be understood in the historical context of

the anxiety to substitute rule of men by rule of law.

As per Article 20(3) of Constitution of India guarantees every person has been

given a right against self-incrimination, it states that any person who has been

accused of any offense, shall not be compelled to be a witness against himself. The

same was again reiterated by a decision of Supreme Court in the case of Nandini

Sathpathy v. [Link] (1978) 2 SCC 424; wherein it was held that no one can

forcibly extract statements from the accused and that the accused has the right to

keep silent during the course of interrogation (investigation). The Supreme Court

again in the year 2010, held that narco-analysis, brain mapping, and lie detector

test are in violation of Article 20(3) of the Constitution of India.

9. Right of the Accused to Produce an Evidence

 The accused even has right to produce witness in his defense in case of

police report or private defense. After the Examination and cross

examination of all prosecution witness i.e. after the completion of the

prosecution case the accused shall be called upon to enter upon his defense
 and any written statement put in shall be filled with the record. He may even

call further for cross examination. The judge shall go on recording the

evidence of prosecution witness till the prosecution closes its evidence.

 The accused in order to test the veracity of the testimony of a prosecution

witness has the right to cross-examine him. Section 138 of Indian Evidence

Act, 1872 gives accused has a right to confront only witnesses. This right

ensures ensures that the accused has the opportunity for cross-examination

of the adverse witness. Section 33 of Indian Evidence Act tells when witness

is unavailable at trial, a testimonial statement of the witness maybe

dispensed by issuing commission. The testimony at a formal trial is one

example of prior testimonial statements which can be used as documentary

evidence in a subsequent trial. When in the course of investigation an

accused or any other person desiring to make any statement is brought to a

magistrate so that any confession or statement that he may be deposed to

make of his free will is record. Confession statements by accused to the

police are absolutely excluded under Section 25, Evidence Act.

 Consequences of non-compliance with the provisions relating to

arrest
 If a person who has an authority to arrest, arrests a person with full

knowledge that the arrest is illegal, he will be liable to be prosecuted

under Section 220 of IPC. Similarly, any private person who does not

have an authority to arrest, arrests a person with full knowledge that the

arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful

confinement.

A person making illegal arrest also exposes himself to civil suit for

damages for false imprisonment.

Also, informal detention or restraint of any kind by the police is not

authorized by law

 Important Judicial Pronouncements related to Arrest

 Joginder Kumar v. State of U.P(1994)

In order to have transparency in the accused- police relations the Supreme

Court held that right of arrested person upon request, to have someone
informed about his arrest and right to consult privately with lawyers are

inherent in Articles 21 and 22 of the Constitution. The Supreme Court

observed that no arrest can be made because it is lawful for the Police officer

to do so. The existence of the power to arrest is one thing. The justification

for the exercise of it is quite another. The Police Officer must be able to

justify the arrest apart from his power to do so. Arrest and detention in

police lock-up of a person can cause incalculable harm to the reputation and

self-esteem of a person. No arrest should be made by Police Officer without

a reasonable satisfaction reached after some investigation as to the

genuineness and bona fides of a complaint and a reasonable belief both as to

the person’s complicity and even so as to the need to effect arrest.

The Supreme Court issued the following requirements:

1. An arrested person being held in custody is entitled, if he so requests, to

have one friend, relative or other person who is known to him or likely to

take an interest in his welfare told as far as practicable that he has been

arrested and where is being detained.

2. The Police Officer shall inform the arrested person when he is brought to

the police station of this right.

3. An entry shall be required to be made in the Diary as to who was

informed of the arrest.

These protections from power must be held to flow from Articles 21 and 22

(1) and enforced strictly.

 D.K. Basu v. State of W.B(1996)

The frequent instances of police atrocities and custodial deaths have

promoted the Supreme Court to have a review of its decisions like Joginder

Kumar, Nilabati Behera etc. Therefore, the Supreme Court issued in the

following requirements to be followed in all cases of arrest or detention till

legal provisions are made in that behalf as preventive measures.

1. The police personnel carrying out the arrest and handling the interrogation

of the arrestee should bear accurate, visible and clear identification and

name tags with their designations. The particulars of all such police

personnel who handle interrogation of the arrestee must be recorded in a

register.
2. That the police officer carrying out the arrest of the arrestee shall prepare

a memo of arrest at the time of arrest and such memo shall be attested by at

least one witness, who may be either a member of the family of the arrestee

or a respectable person of the locality from where the arrest is made. It shall

also be countersigned by the arrestee and shall contain the time and date of

arrest.

3. A person who has been arrested or detained and is being held in custody

in a police station or interrogation centre or other lock-up shall be entitled to

have one friend or relative or other person known to him or having interest

in his welfare being informed, as soon as practicable, that he has been

arrested and is being detained at the particular place, unless the attesting

witness of the memo of arrest is himself such a friend or a relative of the

arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be

notified by the police where the next friend or relative of the arrestee lives

outside the district or town through the Legal Aid Organization in the
District and the police station of the area concerned telegraphically within a

period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone

informed of his arrest or detention as soon as he is put under arrest or is

detained.

6. An entry must be made in the diary at the place of detention regarding the

arrest of the person which shall also disclose the name of the next friend of

the person who has been informed of the arrest and the names and

particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of

his arrest and major and minor injuries, if any, present on his/her body, must

be recorded at that time. The “Inspection Memo” must be signed both by the

arrestee and the police officer effecting the arrest and its copy provided to

the arrestee.

8. The arrestee should be subjected to medical examination by a trained

doctor every 48 hours during his detention in custody, by a doctor in the

panel of approved doctors appointed by Director, Health Services of the

concerned State or Union Territory. Director, Health Services should prepare

such a panel for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to

above, should be sent to illaqa Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation,

though not throughout the interrogation.

11. A police control room should be provided at all Districts and State

headquarters, where information regarding the arrest and the place of

custody of the arrestee shall be communicated by the Officer causing the

arrest, within 12 hours of effecting the arrest and at the police control room

it should be displayed on a conspicuous notice board.

The Court emphasized that failure to comply with the said requirements

shall apart from rendering the concerned official liable for departmental

action, also render him liable to be punished for contempt of Court and the

proceedings for contempt of Court may be instituted in any High Court of

the country, having territorial jurisdiction over the matter. The requirements
flow from Articles 21 and Article 22 (1) of the Constitution and need to be

strictly followed. The requirements are in addition to the constitutional and

statutory safeguards and do not detract from various other directions given

by the Courts from time to time in connection with the safeguarding of the

rights and dignity of the arrestee.

 Dr. Rini Johar v. State of M.P.(2016)

The police officials first of all should have reason to believe that on the basis

of the information received, the detenue has committed the offence and

further should have recorded, while making the arrest of the detenue, the

reasons in writing as to why the arrest was necessary. The reasons should

have been one as enumerated under (a),(b),(c), (d) and (e) of Section 41 (1)

(b)(ii) [Link] a person accused of an offence punishable with imprisonment

for a term which may be less than seven years or which may extend to seven

years with or without fine, cannot be arrested by the police officer only on

his satisfaction that such person had committed the offence. It has been

further held that a police officer before arrest, in such cases has to be further

satisfied that such arrest is necessary to prevent such person from

committing any further offence; or for proper Investigation of the case; or to

prevent the accused from causing the evidence of the offence to disappear;

or tampering with such evidence in any manner; or to prevent such person

from making any inducement, threat or promise to a witness so as to

dissuade him from disclosing such facts to the court or the police officer;

 Ratnakumari v. Unknown (2014)

Section 41 -A provides that where the police officer thinks that arrest of a

person is not required under the provisions of sub-section (l) of Section 41,

he has to issue notice against the person to appear before him or at such

other place as may be specified in the notice. On the basis of a reasonable

complaint/credible information/reasonable suspicion regarding commission

of cognizable offence where the punishment prescribed is 7 years or less

with or without fine, the police officer has not only to record the reason in

writing for not making the arrest but also to issue notice for the appearance

of the person concerned before him or at such other place as may be

specified in the notice. Thus issuance of the notice is mandatory in cases

where the police officer feels that the arrest of a person is not required and

the case is one which carries punishment up to 7 years or less with or

without fine.

 Jaga Arjan Dangar v. State of Gujarat (2018)

Section 53 authorities investigating machinery to get an arrested person examined

by a medical practitioner. Section 54 confers such a right upon the accused himself

This examination is contemplated under certain conditions. If the nature of the

offence alleged to have been committed by the accused coupled with

circumstances under which it is committed affords reasonable grounds for

believing that an examination of his person will afford evidence as to the

commission of the offence, then it has been made lawful for the registered medical

practitioner to act at the request of the Police Officer, not below the rank of Sub-

inspector and to carry out examination of the person arrested in order to ascertain

the facts which may afford evidence and for that purpose to use such force as may

be necessary.

 Arnesh Kumar v. State of Bihar(2014)

Rules about ‘arrest’ as laid down by the Supreme Court-

 The arrest brings humiliation, curtails freedom and cast scars forever. It has

not come out of its colonial image despite six decades of independence, it is

largely considered as a tool of harassment, oppression and surely not

considered a friend of public. The power of arrest is one of the lucrative

sources of police corruption.

 The Supreme Court said that no arrest should be made only because the

offense is non-bailable and cognizable and therefore, lawful for the police

officers to do so. The existence of the power to arrest is one thing, the

justification for the exercise of it is quite another. Apart from power to

arrest, the police officers must be able to justify the reasons thereof. No

arrest can be made in a routine manner on a mere allegation of commission

of an offense made against a person. It would be prudent and wise for a

police officer that no arrest is made without a reasonable satisfaction reached

after some investigation as to the genuineness of the allegation.

 Ultimately, the Parliament on the recommendation of the 177th Report of

the Law Commission submitted in the year 2001, enacted Section 41 of the

Code of Criminal Procedure (for short ‘[Link]).

 From a plain reading of the section 41, it is evident that a person accused of

offence punishable with imprisonment for a term which may be less than

seven years or which may extend to seven years with or without fine, cannot

be arrested by the police officer only on its satisfaction that such person had

committed the offence punishable as aforesaid. Police officer before arrest,

in such cases, has to be further satisfied that such arrest is necessary to

prevent such person from committing any further offence; or for proper

investigation of the case; or to prevent the accused from causing the

 evidence of the offence to disappear; or tampering with such evidence in any

manner; or to prevent such person from making any inducement, threat or

promise to a witness so as to dissuade him from disclosing such facts to the

Court or the police officer; or unless such accused person is arrested, his

presence in the court whenever required cannot be ensured. These are the

conclusions, which one may reach based on facts.

 The law mandates the police officer to state the facts and record the reasons

in writing which led him to come to a conclusion covered by any of the

provisions aforesaid while making such arrest. Law further requires the

police officers to record the reasons in writing for not making the arrest.

 In pith and core, the police officer before arrest must put a question to

himself, why arrest? Is it really required? What purpose will it serve? What

object will it achieve? It is only after these questions are addressed and one

or the other conditions as enumerated above is satisfied, the power of arrest

needs to be exercised.

 An accused arrested without warrant by the police has the constitutional

right under Article 22(2) of the Constitution of India and Section 57, [Link]

to be produced before the Magistrate without unnecessary delay and in no

circumstances beyond 24 hours excluding the time necessary for the journey.

During the course of the investigation of a case, an accused can be kept in

 detention beyond a period of 24 hours only when it is authorized by the

Magistrate in the exercise of power under Section 167 [Link].

 The power to authorize detention is a very solemn function. It affects the

liberty and freedom of citizens and needs to be exercised with great care and

caution. Our experience tells us that it is not exercised with the seriousness it

deserves. In many of the cases, detention is authorized in a routine, casual

and cavalier manner. Before a Magistrate authorizes detention under Section

167, [Link], he has to be first satisfied that the arrest made is legal and in

accordance with law and all the constitutional rights of the person arrested is

satisfied. If the arrest effected by the police officer does not satisfy the

requirements of Section 41 of the Code, Magistrate is duty bound not to

authorize his further detention and release the accused. In other words, when

an accused is produced before the Magistrate, the police officer effecting the

arrest is required to furnish to the Magistrate, the facts, reasons and its

conclusions for arrest and the Magistrate, in turn, is to be satisfied that

condition precedent for arrest under Section 41 [Link] has been satisfied and

it is only thereafter that he will authorise the detention of an accused.

 The Magistrate before authorizing detention will record its own satisfaction,

may be in brief but the said satisfaction must reflect from its order. It shall

never be based upon the ipse dixit of the police officer, for example, in case
 the police officer considers the arrest necessary to prevent such person from

committing any further offence or for proper investigation of the case or for

preventing an accused from tampering with evidence or making inducement

etc., the police officer shall furnish to the Magistrate the facts, the reasons,

and materials on the basis of which the police officer had reached its

conclusion.

 Those shall be perused by the Magistrate while authorizing the detention and

only after recording its satisfaction in writing that the Magistrate will

authorize the detention of the accused. In fine, when a suspect is arrested and

produced before a Magistrate for authorising detention, the Magistrate has to

address the question whether specific reasons have been recorded for arrest

and if so, prima facie those reasons are relevant and secondly a reasonable

conclusion could at all be reached by the police officer that one or the other

conditions stated above are attracted.

 Section 41A makes it clear that in all cases where the arrest of a person is

not required under Section 41(1), [Link], the police officer is required to

issue a notice directing the accused to appear before him at a specified place

and time. Law obliges such an accused to appear before the police officer

and it further mandates that if such an accused complies with the terms of

notice he shall not be arrested, unless, for reasons to be recorded, the police
 officer is of the opinion that the arrest is necessary. At this stage also, the

condition precedent for arrest as envisaged under Section 41 [Link] has to

comply and shall be subject to the same scrutiny by the Magistrate as

aforesaid.

 The Supreme Court in the present case held that if the provisions of Section

41, [Link] which authorises the police officer to arrest an accused without an

order from a Magistrate and without a warrant are scrupulously enforced, the

wrong committed by the police officers intentionally or unwittingly would

be reversed and the number of cases which come to the Court for grant of

anticipatory bail will substantially reduced.

 The judges emphasized that the practice of mechanically reproducing in the

case diary all or most of the reasons contained in Section 41 [Link] for

effecting arrest be discouraged and discontinued.

 The court ordered the following directions:

 All the State Governments to instruct its police officers not to

automatically arrest when a case under Section 498-A of the IPC is

registered but to satisfy themselves about the necessity for arrest

under the parameters laid down above flowing from Section 41,

[Link];
 All police officers be provided with a checklist containing specified

sub- clauses under Section 41(1)(b)(ii);

 The police officer shall forward the checklist duly filed and furnish

the reasons and materials which necessitated the arrest while

forwarding/producing the accused before the Magistrate for further

detention;

 The Magistrate while authorizing detention of the accused shall

peruse the report furnished by the police officer in terms aforesaid and

only after recording its satisfaction, the Magistrate will authorize

detention;

 The decision not to arrest an accused, be forwarded to the Magistrate

within two weeks from the date of the institution of the case with a

copy to the Magistrate which may be extended by the Superintendent

of police of the district for the reasons to be recorded in writing;

 Notice of appearance in terms of Section 41A of [Link] be served on

the accused within two weeks from the date of institution of the case,

which may be extended by the Superintendent of Police of the District

for the reasons to be recorded in writing;

 Failure to comply with the directions aforesaid shall apart from

rendering the police officers concerned liable for departmental action,

 they shall also be liable to be punished for contempt of court to be

instituted before High Court having territorial jurisdiction.

 Authorizing detention without recording reasons as aforesaid by the

judicial Magistrate concerned shall be liable for departmental action

by the appropriate High Court.

 The court also added that the directions aforesaid shall not only apply

to the cases under Section 498-A of the I.P.C. or Section 4 of the

Dowry Prohibition Act, the case in hand, but also such cases where

offence is 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.

 Rajesh Kumar v. State of U.P.(2018): No arrest without preliminary

enquiry in offence under Section 498A IPC.

 Social Action Forum for Manav Adhikar v. Union of India(2018)

The directions issued in the judgment are as follows;

 A realistic approach should be made in this direction. 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; of deciding which comes first-the criminal

or society, the law violator or the law abider.

 The investigating officers be guided by the principles stated in

Joginder Kumar v. State of U.P and others, D.K Basu v. State of

W.B, Lalita Kumari and Arnesh Kumar v. State of Bihar and

another.

With regard to the directions given in Rajesh Sharma, the Court gave

out the following judgment:

1. The direction contained in 19(i), which contains the provision of

establishment of Family Welfare Committees, as a whole is not in

accordance with the statutory framework .

2. Court modified the direction No. 19(iii) stating that if a settlement is

arrived, the parties can approach the High Court under Sec 482 of the Code

of Criminal Procedure.

3. So far as direction No. 19(vi) (clubbing of all connected cases) and 19(vii)

(exemption from personal appearance) are concerned, an application has to

be filed either under Section 205 CrPC or Section 317 CrPC depending upon

the stage at which the exemption is sought.

 4. Director General of Police of each state should make sure that the

investigating officers who are in charge of investigation of cases of offences

under Sec 498-A be imparted rigorous training with regard to principles

stated by this court relating to arrest.

5. When an application for bail is entertained, proper conditions have to be

imposed but recovery of disputed dowry items may not by itself be a ground

while rejecting an application for grant of bail under Section 498-A IPC.

 Sheela Barse v. State of Maharashtra(1983): Accused person must be

informed by Magistrate about his right to be medically examined.

 Inder Mohan Goswami v. State of Uttranchal (2007)

When non-bailable warrants should be issued Non-bailable warrant should

be issued to bring a person to court when summons of bailable warrants

would be unlikely to have the desired result. This could be when:

* it is reasonable to believe that the person will not voluntarily appear in

court; or

* the police authorities are unable to find the person to serve him with a

summon;

or

* it is considered that the person could harm someone if not placed into

custody immediately.
As far as possible, if the court is of the opinion that a summon will suffice in

getting the appearance of the accused in the court, the summon or the

bailable warrants should be preferred. The warrants either bailable or non-

bailable should never be issued without proper scrutiny of facts and

complete application of mind, due to the extremely serious consequences

and ramifications which ensue on issuance of warrants.