The Concept of Arrest under the Code of Criminal Procedure, 1973. Arrest means
'the deprivation of a person of his liberty by a legal authority or at least by
apparent legal authority'. Moreover, it has to be noted that 'every compulsion
or physical restraint is not arrested but when the restraint is total and
deprivation of liberty is complete, it amounts to arrest'.
For instance, when a
police officer apprehend a pick-pocket he is arresting the pick-pocket; but when
a dacoit apprehends a person with a view to extract ransom, the dacoit is not
arresting that person but wrongfully confining that person. Prevent a person
from making his movement and from moving according to his will amount to arrest
of such person. one point noted that, word arrest is not define in the code of
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 rights recognized by
general assembly of the united nation in its universal declaration of human
In India our constitution recognized it as a fundamental right. Article
No person shall be deprived of his life or personal liberty except according to
procedure established by law.
Criminal procedure provides some basic right of arrested persons for the
protection of the person be arrested, and also society at large. But before we
start on rights of arrested person we make ensure that why arrested is needed ?
Why is arrest of person is necessary?
The arrest of person is necessary if he/she committed any offence.
reason for arrest are as follow:
- For securing attendance at trial.
- To obtain correct name and address.
- Prevent Obstructing a Police Officer in Execution of his duty.
- For retaking a person escaped from custody.
- To prevent such person from committing any further offence.
- To prevent disappear or tampering with evidence used in trial.
- To prevent inducement, treat to any person acquainted with facts of
Rights of an arrested Person
Right to know the ground of arrest – according to section 50(1)Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest. Our constitution has also conferred
on this right the status of a fundamental right. Article 22(1) provides:
person who is arrested shall be detained in custody without being informed as
soon as may be, of the ground for such arrest nor shall be denied the right to
consult, and to be defended by a legal practitioner of his choice.
In one case
held that The right to inform is the precious right of arrested person.[i] it
appears reasonable to expect that the ground of arrest should be communicated to
the arrested person in the language understood by him; otherwise it would not
amount to sufficient compliance with the constitutional requirement.[ii]
The right to informed of the ground of arrest is recognised by section 50, 55
and 75 in case where the arrest is made in execution of a warrant of arrest or
where the arrest is made by a police officer without warrant. The rules
generated from decisions such as Joginder Kumar v. state of U.P.[iii] and
basu v. state of W.B.[iv] , referred to infra have been enacted in section 50-A
making it obligatory on the part of the police officer not only to inform the
friends or relative of the arrested person about his arrest etc. but also make
an entry in a register maintained by the police. The magistrate is also under an
obligation to satisfy himself about the compliance of the police in this regard.
Information regarding the right to be released on bail.-In code of criminal procedure,1973 section 50(2) provides: where the police
officer arrests without warrant any person other than a person accused of a non-bailable
offence, he shall inform the person arrested that he is entitled to be released
on bail and that he may arrange for sureties on his behalf.
Under section 436 in code of criminal procedure provide bail to person accused
of bailable offence. According to Webster's dictionary- 'the process by which a
person is released from custody' is called bail. And bail is the right of
Object to grant bail is to secure the attendance of the accused at the trial.
The accused person who enjoys freedom is in a much better position to look after
his case and to properly defend himself in, the trial than if he is in custody.
Effect is not to set the prisoner free from jail or custody, but to release him
from the custody of law and to entrust him to the custody of his sureties who
are bound to produce him to appear at his trial.
Right to be taken before a magistrate without delay-In both the situation whether the arrest is made without warrant or made under
the warrant by police officer or by any person, the person making the arrest
must bring the arrested person before a judicial magistrate or if judicial
magistrate is not available then bring arrested person before any executive
magistrate having such jurisdiction without unnecessary delay. It is also
provided that the arrested person should not be confined in any place other than
a police station before he is taken to the magistrate. These matters provides in
criminal procedure code,1973 under section 56 and 76 which are as follow-
Section 56 – Person arrested to be taken before magistrate or officer in charge
of police station- A police officer making an arrest without warrant shall,
without unnecessary delay and subject to provisions herein contained as to bail,
take or send the person arrested before a magistrate having jurisdiction in the
case, or before the officer of a police station.
Section 76- Person arrested to be brought before court without delay- The police
officer or other person executing warrant of arrest shall (subject to the
provision 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: provided that such delay shall not, in any case, exceed 24 hours
exclusive of the time necessary for the journey from the place of arrest to the
No unnecessary restraint –Section 49 of Cr.PC provides that there should be
no more restraint than is justly necessary to prevent escape i.e. reasonable
force should be used for the purpose, if necessary; but before keeping a person
under any form of restraint there must be an arrest. Restraint or detention
without arrest is illegal.
Person arrested not to be detained more than 24 hour:The constitutional and legal requirements to produce an arrested person
before a Judicial Magistrate within 24 hours of the arrest must be
scrupulously observed Khatri v. State of Bihar [v] Section 57 is concerned
solely with the question of the period of detention. The intention is that
the accused should be brought before a magistrate competent to try or
commit, with the least delay. The right to be taken out of police custody by
being brought before a Magistrate is vital in order to prevent arrest and
detention, with a view to extract confession or as a means of compelling
people to give information.
It may also be noted that the right has been further strengthened by its
incorporation in the constitution as a fundamental right. Article 22(2):
every person who is arrested and detained
in custody shall be produced before the nearest magistrate with a period of
twenty four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a
The right to be brought before a magistrate within a period of not more than 24
hours of arrest has been created with a view. (1) to prevent and detention for
the purpose of extracting confession, or as a means of compelling people to give
information; (2) to prevent police stations being used as though they were
prison a purpose for which they are unsuitable; (3) to afford an early recourse
to a judicial officer independent of the police on all question of bail or
discharge. If a police officer fails to produce arrested person before
magistrate within 24 hours of the arrest, he shall be held guilty of wrongful
Right to consult a legal practitioner-article 22(1) of the
constitution provides that no person who is arrested shall be denied the
right to consult a legal practitioner of his choice. Further, as has been
held by the supreme court the state is under a constitutional mandate
article 21 to provide free-legal aid to an indigent accused person, and this
is constitutional obligation to provide legal aid does not arise only when
the trial commence but also attaches when the accused is for the first time
produce before the magistrate, as also when he is remanded from time to
time. Section 303 also provides that any person against whom proceedings are
instituted under the code may of right be defended by a pleader of his
choice. The right of an arrested person to consult his lawyer begins from
the moment of his arrest.
Article- 39 A The government in an effort
towards securing justice instituted Article- 39 A to provide free legal aid to
people in need.
- Right to be examined by a medical practitioner- section 54 this
section empower the court to get the arrested person medically examined. if
an arrested person claims that medical examination of his body would lead to
a detail which would dismiss the fact of commission of the crime by him, or
some detail that might lead to evidence towards commission of the crime by
some other person against his body.
CrPC provide if there are reasonable grounds for believing
that an examination of arrestee, on a charge of committing rape or other
offence, will afford evidence so as to the commission of such offence, it shall
be lawful to medically examine blood, blood stains, semen, hair samples, finger
nail clippings by use of modern & scientific techniques including DNA and such
other tests, which the medical officer thinks necessary in a particular case,
acting at the request of a police officer.
According to the honorable supreme
court, the arrested accused person must be informed by the magistrate about his
right to be medically examined. While section 53 enables a police officer to
compel an arrested person to undergo a medical examination with a view to
The salutary principle that the medical examination of a female should be made
by a female medical practitioner has been embodied in section 53(2).
In order to have transparency in the accused-police relations the supreme court
in joginder kumar v. state of U.P
- 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.
- The police officer shall inform the arrested person when he brought to
the police station of this right.
- An entry shall be required to be made in the diary as to who was
informed of the arrest.
I would like to Concluded my blog here that some right of arrested person is a
fundamental rights enshrined in the constitution of India. This is most
important rights that maintain a harmony relationship between police and person
arrested and is provides security for arrested person from any illegal arrest
and detention, every person have right to move freely everywhere; but if a
person is committed a crime which is harmful to society at large then arrest is
necessary, similarly there are many person false arrested by police so these
right given to arrested person play a vital role for preventing him or her from
such false arrest. Right is given to arrested person also make control over
illegal torture and false encounter, third degree torture of arrested person.
Rights also help accused to protect and defend him against the impose crime over
- Udaybhan shuki v. state of U.P. 1999. Cri LJ 274 (all).
- Harikisan v. state of maharashtra (1962).
- (1994) SCC 260: 1994 SCC (Cri) 1172.
- (1997) SCC 416:1997 SCC (Cri) 92.
- AIR 1983 SC 378).
(B.A.LL.B) 3rd year Dr. Harisingh Gour Vishwavidyalaya sagar.