In justice and law, House Arrest is a measure by which a person is confined
by the authorities to their residence. Travel is usually restricted, if allowed
at all. House arrest is an alternative to being in a prison while awaiting trial
or after sentencing. While house arrest can be applied to criminal cases when
prison does not seem an appropriate measure, the term is often applied to the
use of house confinement as a measure of repression by authoritarian governments
against political dissidents.
In these cases, the person under house arrest
often does not have access to any means of communication with people outside of
the home; if electronic communication is allowed, conversations may be
monitored. House Arrest, court - ordered confinement in one’s own home.
sentence is viewed as an important alternative to standard incarceration at
various stages of the criminal justice process. It is employed by criminal
justice systems around the world and often entails very diverse requirements.
There are several forms of house arrest, depending on the severity of the
requirements of the court order.
Home detention is an alternative to imprisonment; its goals are both to reduce
recidivism and to decrease the number of prisoners, thereby saving money for
states and other jurisdictions. It is a corrective to mandatory sentencing laws
that greatly increased the incarceration rates in the United States. It allows
eligible offenders to retain or seek employment, maintain family relationships
and responsibilities and attend rehabilitative programs that contribute towards
addressing the causes of their offending.
The terms of house arrest can differ, but most programs allow employed offenders
to continue to work, and confine them to their residence only during non-working
hours. Offenders are commonly allowed to leave their home for specific purposes;
examples can include visits to the probation officer or police station,
religious services, education, attorney visits, court appearances, and medical
Many programs also allow the convict to leave their residence
during regular, pre-approved times in order to carry out general household
errands, such as food shopping and laundry. Offenders may have to respond to
communications from a higher authority to verify that they are at home when
required to be. Exceptions are often made to allow visitors to visit the
The types of house arrest vary in severity according to the requirements of the
court order. A curfew may restrict an offender to their house at certain times,
usually during hours of darkness. Home confinement
or detention requires an
offender to remain at home at all times, apart from the above-mentioned
exceptions. The most serious level of house arrest is home incarceration
under which an offender is restricted to their residence 24 hours a day, 7 days
a week, except for court-approved treatment programs, court appearances, and
In some exceptional cases, it is possible for a person to be placed under house
arrest without trial or legal representation, and subject to restrictions on
their associates. In some countries this type of detention without trial has
been criticized for breaching the offender's human right to a fair trial. In
countries with authoritarian systems of government, the government may use such
measures to stifle dissent.
Curfew generally refers to restricting an offender to his home during specified
times, usually during the evening hours. Under home confinement or home
detention, the offender is confined to the home for most hours, with stated
exceptions for school, work, religious services, medical or drug treatment, or
These exceptions are generally specified in advance and strictly
enforced. Finally, home incarceration, perhaps the most severe form of house
arrest, generally refers to cases in which the offender is required to remain in
the home at all times, with rare exceptions such as medical treatment or
court-ordered correctional therapy such as drug-abuse counselling.
two forms of house arrest are often enforced through electronic surveillance via
a device placed on the offender’s ankle, thus enabling his or her presence or
absence from the home to be monitored very closely. Each of these forms of house
arrest can be imposed at almost any stage of the criminal justice system and is
used for various purposes.
As per the law, the criminal laws in India have no provision to place a person
under house arrest. According to the Code of Criminal Procedure, only two kinds
of custody are possible — police custody or judicial remand. When a person is
arrested, the police are required by law to produce the person before a
magistrate within 24 hours. The magistrate will then decide whether to place the
person under police custody — if further investigation is required — or under
judicial remand — usually in a jail until trial is completed.
In both cases, the person in custody can seek bail, as per the law.
What is arrest?Definition and meaning
Generally, a person who breaks the law is arrested. So, what is arrest? In
general term, ‘arrest’ would mean that when a person is arrested they lose some
of their freedom and liberty. They are put under restraint.
The Criminal Procedure Code of 1973, however that deals with the aspects of
arrests has not defined the ‘Arrest’. When a person is arrested, then the
arrested person is taken into custody of an authority empowered by the law for
detaining the person. The person is then asked to answer the charges against him
and he is detained so that no further crime is committed.
At times, there is restraint by the legal authority but sometimes the person on
his own submits to the custody of the person making the arrest.
As per Legal Dictionary by Farlex, Arrest
means a seizure or forcible
restraint; an exercise of the power to deprive a person of his or her liberty;
the taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge.
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as Cr.P.C),
chapter V (Section 41 to 60) talks about Arrest of a person but it does not
define arrest anywhere.
House Arrest refers to confining a person’s movements within his house or any
other place of choice. Apart from restricting communication, the person is also
under constant police surveillance. Constitutional courts in India have directed
police to hold persons under house arrests. This makeshift arrangement, however,
does not allow the person to seek bail since the ‘arrest’ is directed by a
The Apex court’s once gave an order which was based on Article 142 of the Indian
Constitution which grants the court power to pass any orders necessary for
doing complete justice in any cause or matter pending before it. While the
orders must not be contrary to existing laws, nothing prevents the court from
passing orders on issues where there are no laws. However, the apex court did
not justify its decision in the Bhima - Koregaon case. The court usually doesn’t
provide reasons for its interim orders.
The Delhi High Court was set to release Navlakha, one of the five arrested
activists, before the apex court passed the house arrest order. Navalakha had
earlier separately moved the high court challenging his arrest by the Pune
The Delhi HC wanted to release Navalakha but the apex court’s orders came in the
way. In fact, the HC’s methods were right, hear the case and decide right away.
What the top court has done is further violate the person’s liberty, said a
senior advocate, unrelated to the Bhima-Koregaon case, on condition of
The concept of ‘house arrest’ in India has until now been recognized only with
regard to preventive detention laws. Section 5 of the National Security Act (a
statute providing for preventive detention) contemplates detention of a person
in such place as the government deems fit.
As Article 22 of the Constitution (which deals with arrest and remand) does not
apply to preventive detention, the concept of ‘house arrest’ has not been
identified hitherto by the Supreme Court or High Courts in criminal cases. The
essence of remand in criminal law is for the magistrate to apply his mind and
determine if custodial interrogation of the arrestee is necessary to unearth the
truth in a given case. Could the concept of 'house arrest' fall within the ambit
The Supreme Court recently answered this question in the affirmative.
Arrest, remand and default bail:
Previous interpretation of the term custody
Police officers are empowered to arrest a person without warrant in a cognizable
case under Section 41 of the Code of Criminal Procedure (Cr.P.C). Thereafter,
the mandate of Section 57 of the Cr.P.C, which requires production of the
accused before the nearest magistrate within 24 hours of such arrest, has to be
followed. The magistrate can then authorize his custody under Section 167 of the
Section 167 of the Cr.P.C contemplates detention of accused to custody,
empowering a magistrate to authorise such detention of accused in such custody
as he thinks fit for a period not exceeding 15 days in total. If the magistrate
does not have jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction.
A magistrate shall, however, not authorize detention to custody for a total
- Ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less
than ten years;
- Sixty days, where the investigation relates to any other offence.
On the expiry of the said period, the accused person shall be released on bail
if he is prepared to and does furnish bail.
In offences under the Unlawful Activities Prevention Act, the term ‘15’ days
under Section 167 of the Cr.P.C has been modified to ‘30’ days.
The said provision has been elucidated upon by the Supreme Court in:
- Chaganti Satyanarayan v. State of Andhra Pradesh,
- Uday Mohanlal Acharya v. State of
- Bikramjit Singh v. State of Punjab
In which cases it was held
that if the investigation in a case is not completed within the prescribed
period mentioned in Section 167(2) of the Cr.P.C, an indefeasible right of bail
accrues in favor of the arrestee. The release on bail on account of default
committed by the investigating agency to complete investigation is widely known
In Central Bureau of Investigation v. Anupam J. Kulkarni, the Supreme Court has
identified the phrase ‘such custody as he thinks fit’ under 167 of Cr.P.C to
mean police custody and judicial custody. It was further held that the
magistrate acting under Section 167 of the Cr.P.C was authorized to grant police
custody only for the first 15 days and thereafter only judicial custody.
Basis Concept behind House Arrest
House Arrest can be useful as a form of pretrial confinement for defendants who
appear to be inappropriate candidates for being released on their own
recognizance or who are unable to post bond. The primary goals of pretrial house
arrest are to guarantee that the defendant shows up at trial, to ensure public
safety, to reduce jail overcrowding, and to reserve jail space for the most
dangerous or untrustworthy defendants.
One major advantage of the use of home
confinement at this stage is that people not yet found guilty are not subjected
to incarceration with other, possibly more-serious, offenders. Alternatively,
house arrest can be described as a form of punishment but one less punitive than
confinement in jail or prison. Because of this premise, house arrest should be
used only for offenders who would normally not be let out on bail or in cases
where a very high bail is set but is reduced on the condition of house arrest.
House arrest at this stage is particularly useful for juveniles, who are
commonly detained for long periods of time prior to adjudication for minor
offenses only to be released following adjudication and sentencing.
House Arrest is also used as criminal sanction meted out by judges at
sentencing. The purposes of house arrest at sentencing are to administer a
reasonable punishment, protect public safety, reserve jail space for
more-serious offenders, reduce the potential criminogenic effects of
incarceration, and help rehabilitate the offender. The basic goal in this case
is to provide a cost-effective alternative to incarceration. House arrest may
cover the entire length of a sentence or only a part of it.
For instance, in
some jurisdictions a sentence is broken down into three parts: an offender is
incarcerated for a period of time, then allowed to participate in a work-release
program, and then graduated to home confinement. In general, there is agreement
among both criminal justice professionals and the general public that house
arrest is a reasonable sanction for certain low-risk offenders who seem likely
to profit from not being exposed to other criminals and from maintaining
employment and family ties. Research suggests that offenders experience the
sanction as a punishment, although one less punitive than incarceration.
House arrest is also used at the tail end of the criminal justice system, as a
form of early release and community reintegration. Again, the goals are to
reduce jail and prison crowding and to act as a mechanism to help the offender
readjust to life outside prison, with all the attendant pressures and
enticements to reoffend.
An important aspect of house arrest is deciding who should be eligible. In
general, violent offenders are not considered eligible for house arrest, and it
is inappropriate to use house arrest for offenders such as drug dealers
convicted for selling drugs out of their homes. With the exception of habitual
traffic offenders and people convicted of having driven under the influence of
alcohol, extensive prior records generally preclude the use of house arrest, at
least at the sentencing stage.
Other factors that are often taken into
consideration are employability, history of substance abuse, and unstable living
arrangements. The health status of the offender might also be taken into
account; house arrest is sometimes used for people with terminal illnesses who
pose minimal risks to the community and wish to die with dignity in their homes
or with their families. House arrest is not a good option, however, if there are
known offenders residing in or near the home or if the victim resides in the
home. Careful screening and follow-up are necessary for the effective use of
A major concern about house arrest is whether it is cost-effective. The
cost-effectiveness of house arrest is dependent on a number of conditions,
including where in the trial process it is being used, how it is implemented,
what types of offenders are deemed eligible, and whether they recidivate. The
cost-effectiveness of house-arrest programs is a controversial issue that is
At the front end of the system, for pretrial defendants, a limited use of house
arrest is likely to be cost-effective as long as it is used for people who
normally would not be released on their own recognizance or who cannot make
bail. Likewise, at the sentencing stage, house arrest is likely to be
cost-effective if used on lesser offenders who would normally be detained or on
those who may have gotten probation but who need the extra formal controls to
resist criminal temptations.
At the tail end of the criminal justice system,
house arrest is almost certainly cost-effective, because the costs of housing
offenders and building new prisons is immense in comparison with the costs of
monitoring offenders’ home confinement or curfew. Furthermore, the fact that
offenders often are allowed to work enables them to support families, pay
restitution, and even help pay for the equipment used to monitor them. One must
also consider rates of recidism and the safety of the public when determining
Rights of an arrested person in India
The accused in India are afforded certain rights, the most basic of which are
found in the Indian Constitution. Article 21 of Indian Constitution provides few
rays of hope to the lives of arrested, under trials and convicts. The treatment
of such people has to be humane and in the manner prescribed by law. Hence, the
accused has been provided with certain rights under the law.
The rights are as follows and have been discussed in the chapters that follow,
of this project in detail.
They are as follows and there is a brief mention of the legal provisions for
Grounds of Arrest: Right to be informed
This right has been given the status of a Fundamental right in the Indian
Constitution. Article 22(2) of the Indian Constitution says that no person who
is arrested shall be detained in custody without being informed as soon as may
not be, of the grounds of such arrest nor shall he be denied the right to
consult, and to be defended by a legal practitioner of his choice. This right
is very important for the person arrested as he may be innocent. If he gets to
know of the grounds of arrest then it enables him to apply for bail or in
appropriate circumstances for a writ of habeas corpus, or to make fast and
suitable s arrangement for his defence. Also, it gives the arrestee the right
that any one person close to him is informed about his arrest immediately.
Madhu Limaye Case
is an example here.
The legal provisions for the same can be found in:
Section 50(1). 55,75 of CrPC and Art 22(2) of the Constitution of India
Right to Silence
Just because the accused /arrested person chose to be silent under interrogation
doesn’t mean that he is guilty. There is much speculation if this right is to be
exercised in modern times as mentioned in Justice Malimath Committee’s report.
Nandini Sathpathy vs P.L.Dani: In this case it was mentioned that no one can
forcibly extract statements from the accused, who has tevery right to keep
silent if he so chooses. The legal provisions for the same can be found in: Art
20(2) of the Constitution of India
Right to be released on Bail
Article 21 of the Indian Constitution says that every individual shall have a
right to liberty as per procedures established by law. However, an accused
cannot be given all these liberties till he is proven innocent. But he needs to
be informed that he has a right to apply for bail in bailabe offences and even
in non-bailable offences, bail is granted by the Court after taking into factors
such as nature or seriousness of the offence, the character of the evidence etc.
Case Law: Uday Mohanlal Acharya v. State of Maharashtra
The legal provisions for the same can be found in:
Sections 50(2), 436, 437, 438 of CrPC
Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC also
confer the right to grant bail to the accused but by the police under certain
Right to be taken before Magistrate without delay
Whether the arrest was made with or without warrant. The person making such an
arrest is duty bound to present the accused before the magistrate within 24
hours excluding the time taken for traveling from the place of arrest to the
Case Law: State of Punjab v Ajaib Singh
The legal provisions for the same can be found in:
Sections 56,71,76 of Cr.P.C
Rights regarding detention
If the arrested person is not produced before a magistrate within 24 hours of
the arrest, by the police officer then he shall be held guilty of wrongful
This right has been created with a view:
- That the arrestee is not compelled to give confessions, or as a means of
compelling people to give information
- So, the police stations don’t act like prisons for which they are
Case Law: Gunupati Keshavram v. Nafisul Hasan
The legal provisions for the same can be found in:
Section 57 of CrPC, Art 22(2) of the Constitution of India
Rights at trial
Keeping with the international system of law, our constitution upholds the fair
trial system and the same is also seen in our procedural law. Fair trial is
necessary to protect the accused individual’s basic rights from unlawful and
arbitrary deprivation and it is also based on the principle of natural justice.
The house arrest judgment: A step ahead
On May 12, a Division Bench of Justices UU Lalit and KM Joseph dismissed Gautam
Navlakha’s default bail plea in the Bhima Koregaon matter. It held that though
house arrest could be ordered for the purpose of custodial interrogation or
detention, Navlakha’s house arrest was not purported to be passed for this
purpose. In light of these observations, it was held that that the period during
which Navlakha was under house arrest could not be computed under Section 167(2)
of the Cr.P.C.
While parting with the judgment, the Court observed that the concept of house
arrest as custody under Section 167 of the CrPC had not engaged courts including
the Supreme Court. However, considering the issue and noticing its ingredients,
it would very much be part of custody
under Section 167 of the CrPC. In this
backdrop, it was held that it would be open to courts to order house arrest
under Section 167 of the CrPC considering factors like age, health conditions,
antecedents of the accused, the nature of crime, the need for other forms of
custody and the ability to enforce the terms of house arrest.
The Court in its judgment said that house arrest can be employed by courts
taking into account criteria like age, health condition and the antecedents of
the accused, the nature of the crime etc.
It will be open to courts to order house arrest of accused persons under Section
167 of the Code of Criminal Procedure in appropriate cases, the Supreme Court
ruled on Wednesday (Gautam Navlakha v. National Investigation Agency
The Supreme Court observed that in appropriate cases, courts can order house
arrest under Section 167 of Code of Criminal Procedure. The court said that, to
order house arrest, courts can consider criteria like age, health condition and
the antecedents of the accused, the nature of the crime, the need for other
forms of custody and the ability to enforce the terms of the house arrest.
Gautam Navlakha’s house arrest
Gautam Navlakha was arrested on August 28, 2018 from his residence in New Delhi.
Pursuant to his arrest, Navlakha moved a plea of Habeas Corpus before the Delhi
High Court seeking his release contending that his arrest was illegal. At the
same time, he was produced by the National Investigating Agency (NIA) before the
Chief Metropolitan Magistrate (CMM) at Saket, Delhi who permitted the NIA to
produce him before the Special Court in Maharashtra on August 30, as the cause
of action had arisen in Maharashtra.
However, the Delhi High Court stayed this order of the CMM and directed that
Navlakha would not be taken away and instead would be kept under house arrest
until further orders. On the next day, a writ petition was filed in the Supreme
Court alleging a high-handed approach by the Maharashtra Police concerning the
arrest of co-accused including Navlakha. By way of an interim order, the Supreme
Court extended the house arrest of Navlakha and others. On September 28, 2018
the Supreme Court dismissed the writ petition by a majority of 2:1.
However, the Delhi High Court thereafter allowed Mr. Navlakha’s plea and set
aside the CMM’s order of transit remand observing that the constitutional
mandates were not followed. Consequently, it was held that Navlakha’s house
arrest had come to an end.
House Arrest and Gautam Navlakha
The Supreme Court turned down social activist Gautam Navalakha’s plea for grant
of default bail in the alleged Elgar Parishad-Maoist link case even as it batted
for embracing the international practice of putting accused under house arrest
in deserving and suitable cases as means to decongest prisons.
approached the apex court after the Bombay high court rejected his plea for bail
in the case, had sought default bail on the ground that NIA had failed to file
its chargesheet within the prescribed time limit of 90 days. He pleaded that the
period for which he was under house arrest should be counted as part of judicial
custody while deciding the custody period. NIA, however, contended that the
period of 34 days of Navlakha’s house arrest between August 29 and October 1,
2018, cannot be included in the period of detention.
A bench of Justices UU Lalit and held that an accused under house arrest should
be treated as being under custody for estimating the duration of detention.
However, the Justices refused to treat Navlakha’s 34 days of house arrest as
part of judicial custody on the ground that the orders of the Delhi High Court
and Supreme Court pertaining to his house arrest were not passed under Section
167 of the Criminal Procedure Code.
But while turning down Navlakha’s plea, the bench made a strong pitch for
following the practice followed in many countries of putting the accused under
house arrest instead of sending them to jail in deserving and suitable cases. We observe that under Section 167 in appropriate cases, it will be open to
courts to order house arrest. As to its employment, without being exhaustive, we
may indicate criteria like age, health condition and antecedents of the accused,
nature of the crime, need for other forms of custody and the ability to enforce
the terms of house arrest.
The Court also stated by saying that we would also indicate under Section 309
that judicial custody being custody ordered, subject to following the criteria,
the courts will be free to employ it in deserving and suitable cases, the bench
said. In India, the concept of house arrest has its roots in laws providing for
preventive detention like Section 5 of the National Security Act. But there is
no mention of house arrest under Criminal Procedure Code. Referring to
advantages of the practice of accused being put under house arrest, the court
said it will lead to avoidance of overcrowding of prisons and also save cost of
running them. There is tremendous amount of overcrowding in jails in India.
Secondly, a very large sum (Rs 6818.1 crore) was the budget on prisons, the
Interim protection from arrest
On October 5, 2018, Navlakha moved the Bombay High Court for quashing of the
First Information Report (FIR). The High Court protected Navlakha from arrest
during pendency of the petition. In the meantime, a charge-sheet was filed. The
Bombay High Court thereafter dismissed the petition but granted interim
protection from arrest to Navlakha for three weeks.
He then approached the
Supreme Court, which granted interim protection from arrest but relegated him to
apply for anticipatory bail. Navlakha’s plea seeking anticipatory bail was
rejected in the Sessions Court, the High Court and the Supreme Court as well.
The Supreme Court permitted him to surrender on April 8, 2020 which was extended
to April 14, 2020. Thereafter, Navlakha surrendered to the NIA on April 14,
Plea of default bail
Navlakha was produced by the NIA before the Sessions Judge, New Delhi on April
15, 2020, and was initially remanded to 7 days police custody, which was later
extended by further 7 days. However, prior to its expiry, Navlakha was remanded
to judicial custody on April 25, 2020.
On June 11, 2020, he filed a plea seeking default bail under Section 167(2) of
the CrPC contending that an indefeasible right of bail had accrued in his favour
as the time prescribed for completing investigation had lapsed. Navlakha in his
plea included the period of 34 days of house arrest from August 28 – October 1,
11 days of custody with NIA from April 15 to April 25 and 48 days in judicial
custody. As per the Supreme Court, the period of house arrest could not be
considered to fall within the ambit of ‘custody’ as the Delhi High Court did not
permit custodial interrogation during that time.
View of Arrest under Indian Constitution
Every person has to be treated as a human being first, irrespective of the fact
that such person is a criminal. Even so the accused is considered innocent till
proven guilty by a court of law. It is a characteristic of our democratic
society that even the rights of the accused are deemed to be sacrosanct, even
though he is charged with an offence.
Our statute is quite careful towards anyone’s personal liberty and hence
doesn’t permit the detention of any person without proper legal sanction. It is
provided by the article 21 of our constitution that there will be no person who
shall be deprived of his life or personal liberty except according to procedure.
The scope for corruption and connected malpractices arises at several stages in
the day-to-day working of the Police. It can start at the time of registering a
case, for taking a call to arrest or not arrest or for extortion or collecting
‘hafta’ for interfering in civil disputes, for producing false evidence and so
The power of arrest is the most important source of corruption and extortion by
the police officers. From the moment, a case is registered by the Police on a
cognizable complaint, they get the power to arrest any person who may be
‘concerned in that offence’, either on the basis of the complaint itself or on
credible information otherwise received.
The procedure laid down by Article 21 must be followed in a ‘right, just and
fair’ and not in any arbitrary, fanciful or oppressive manner. It is expected
that the arrest should not only be legal but justified also. Even the
Constitution of India, recognizes the rights of arrested person under the
Fundamental Rights. Hence, the accused has been provided with certain rights
under the law.
Types of arrest
The term Arrest has been defined neither in the Cr.P.C (The Code of Criminal
Procedure, 1973) nor IPC (Indian Penal Code,1860). The definition has not been
provided even in any enactments dealing with Criminal Offences. The only
indication of what does an arrest constitute can be made out of Section 46 of
Cr.P.C which deals with ‘How an arrest is made’.
If broadly characterized arrest is of two types:
- Arrest made in pursuance with a warrant issued by the magistrate.
- Arrest made without any warrant but within the established legal
Another type of arrest is Private Arrest in which a person is arrested by
another person. But it is allowed only in case a person commits a non-bailable
offence in another person’s presence or is apprehended of committing a crime
against a person or his property and when he is not given the correct address of
his residence or it is unknown. But before arresting a person there should be
sufficient apprehension and justifiable cause to arrest that particular person.
Who can arrest?
The arrest can be made by police, magistrate and even a private person.
Section 41(1) Cr.P.C Says: Any police officer- may without an order from a
magistrate and without a warrant arrest any person who has committed a
cognizable offence, who is in possession of stolen property, or is a state
offender, who obstructs a police officer in discharge of his duty, who attempts
to escape from lawful custody, who is declared as a deserted from any of the
Armed Forces of the Union, who is a released convict and breaches his contract
of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which
is non-cognizable if the person to be arrested refuses to give his name and
Section 43 gives the right to a private person like you and me to carry out an
arrest of a person who in his presence commits a cognizable or a non-bailable
offence or who is a proclaimed offender. Section 44 arrests by magistrate as per
section 44(1) of Cr.P.C, the Magistrate has been given the power to arrest an
individual who has committed an offence in his presence and also commit him to
However, Cr.P.C exempts the members of Armed forces from being arrested for
anything done by them in discharge of their official duties except after
obtaining the consent of the government (section 45 Cr.P.C).
Section 46 of Cr.P.C explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids arrest of women after
sunset and before sunrise, except in exceptional circumstances in which case the
arrest can be done by a woman police officer after making a written report
obtaining a prior permission from the concerned judicial magistrate of first
class within whose local jurisdiction the offence is committed or the arrest is
to be made.
Arrest by warrant
If a person commits an offence which is non-arrestable then a warrant is
necessary to be issued. The police cannot make such kind of arrest without a
warrant. The warrant is issued by a Judge or a Magistrate on behalf of the
state. An arrest warrant authorizes the arrest or detention of the person or
capture or seizure of an individual’s property. Section 41(1) of Cr.P.C, 1973
explains when a person can be arrested without any warrant.
Section 41(2) of Cr.P.C, 1973 states that subject to the condition in Section 42, a person cannot
be arrested without a warrant and an order of the magistrate in case of
non-cognizable offence and where a complaint is made. The procedures to be
followed while arresting a person find its mention in Section 46 of the Code.
But this Code is not fully sufficient to provide all the procedures, for this
the guidelines given in different cases are followed.
Arrest without warrant
An arrest without a warrant means when a police officer is entitled to arrest a
person without any warrant. It can happen only in cases where a person is a
suspect of an arrestable offence. There are several grounds provided in Section
41(1) of Cr.P.C under which an arrest can be made without a warrant. It is
usually done in case of a cognizable offence, when a reasonable complaint is
made or when a piece of credible information has been received.
In the United States, an arrest without a warrant still requires a probable
cause, which must be promptly filed.
Arrest on refusal to give name and residence
Section 42 of CrP.C. states the course of action in case of arrest on refusal to
give name and residence.
Section 42(1) says that when a person has committed a non-cognizable offence
refuses to give his name or address or gives a false name and address on the
demand of the officer, he may be arrested by such officer to ascertain his
correct name or residence.
Section 42(2) says that the person so arrested may be released after
ascertaining the true name or residence but only after executing a bond, with or
without sureties, to appear before the magistrate if required. But if the person
is not a resident of India then the bond should be secured by a security or
securities resident of India.
Section 42(3) says that if true name or address of the person is not found
within twenty-four hours or if he fails to execute the bond or required sureties
then he has to be presented before the magistrate falling within the
Procedure of arrest by a private person
The procedure of arrest by a private person is expressly provided in Section 43
of the Criminal Procedural Code.
Section 43(1) states that a private person can arrest another person who commits
a non-bailable offence or any proclaimed offender and without wasting any
unnecessary time can be taken to a police officer and in the absence of the
officer the accused has to be taken to the nearest police station.
Section 43(2) says that if the arrest of that person comes under Section 41, the
police officer shall re-arrest him.
Section 43(3) provides that if there is sufficient reason to believe that he has
committed a bailable offence and refuses to give his true name or address to the
police officer, he shall be dealt with according to the provisions of Section
42. But he shall be released if there is no sufficient reason to believe that he
has committed an offence.
Arrest by magistrate
Magistrate here includes both an executive or judicial Magistrate. According to
Section 44(1) of Cr.P.C when an offence is committed in the presence of a
magistrate within his local jurisdiction, he has the power to arrest that person
himself or order any person for arrest and subject to the conditions relating to
bail, commit the accused to custody.
Section 44(2) in addition to clause 1 also provides that the Magistrate can also
arrest or direct to any person in his presence, within his local jurisdiction of
whom who he is competent to arrest at that time and in the circumstances to
An exception of the Armed forces
The members of the Armed Forces are protected from arrest as provided in Section
45 of Cr.P.C.
Section 45(1) states that no member of the armed forces can be arrested for
anything have done while discharging the official duties except with the consent
of the Central Government. It is subject to the conditions mentioned in Section
41-44 of the Code.
Section 45(2) lays out that the State Government may through a notification be
able to direct that the sub-section (1) shall apply to any class or category of
members of Armed forces who are charged with the maintenance of public order as
may be specified thereupon, whenever they are serving. In other words, the State
government just like the Central Government is empowered to use the power
mentioned in sub-section (1).
Constitutionality of Section 107 and 151 of Cr.P.C
For the purpose of arresting without a warrant, a police officer may pursue such
an individual into any place in India as stated under Section 48. Section 49 of
the Code says that the arrested person shall not be subject to any unnecessary
restraint or physical inconvenience unless it is required to do so to prevent
Section 151 gives power to the police officials to arrest a person, without a
warrant, on the suspicion that he may commit a cognizable offence. However, this
comes with certain conditions: the anticipated offence should be cognizable and
the officer should feel that the offence would be prevented only by an arrest of
the suspect. Section 107 gives similar powers to the magistrate. However,
Numerous petitions have been filed questioning the constitutional validity of
these sections as it gives plenty of room for the misuse of powers under these
Procedure of arrest
There is no complete code which provides the procedure as a whole. Still,
Section 46 explains how arrest is made.
It is the only place that gives the meaning of arrest. Section 46(1) provides
that in an action of arrest the police officer or the person making the arrest
shall actually touch or confine the body of the person arrested. In the case of
women, her submission to the custody of an oral intimation of arrest shall be
presumed and unless the police officer is female, she shall not be touched by
the police officer at the time of time. But in exceptional situations, contrary
to what is mentioned can be done.
According to Section 46(2), the police are authorised to use reasonable amount
or means of force to affect the arrest in cases where the person being arrested
forcibly resists or attempts to evade arrest.
Recently what we saw in the Hyderabad Rape case (2019) can be a good example.
The police officer using the power under this provision used an amount of force
to prevent the accused from escaping. Whether the amount of force applied was
reasonable or not is a question which will be inquired by the court.
Section 46(3) does not give the right to cause the death of the person who is
not accused of an offence. The punishment in such cases is death or imprisonment
Section 46(4) says that except in certain conditions a woman cannot be arrested
after sunset and before sunrise and where such exceptional conditions exist, the
woman police officer by making a written report can obtain the prior permission
of the Judicial Magistrate with the local jurisdiction to make an arrest.
Additional powers for effecting arrest search of place
Section 47 of Cr.P.C provides for the search of place entered by place sought to
be entered. It further provides that the person having the warrant has the duty
to enter the premises of the person being arrested. If the person is not able to
easily ingress the premises or is not allowed to enter, then they have the
authority to break open the door. It is done to take the person by surprise.
But if there is any female occupying the premises then the person arrested has
to give notice to that female to withdraw and shall afford every reasonable
facility for withdrawing and they may break the apartment.
Any police officer or person making the arrest is authorised to break open the
door in order to liberate him if he is detained in that process.
Pursuit of offenders
Pursuit is the action of pursuing someone or something. In this case, it
basically talks about the offenders. Section 48 authorizes the police officers
to pursue offenders in any place in India whom he is authorised to do so without
Deputing subordinate to arrest
When any police officer who is in charge of a police station or any police
officer making an investigation under Chapter XII requires any subordinate to
him arrest without warrant any person who is lawfully arrested has to give in
writing the reason specifying for which he is arrested. The subordinate before
making such arrest is required to notify the person being arrested the substance
of the order and if requires show him the order. This is given in Section 55 of
Power, on escape, to pursue and retake
Section 60 of Cr.P.C.– If there is a person who is in the lawful custody of the
police tries to escape or is rescued, may be immediately pursued and arrested in
any place in India.
Search of an arrested person
Section 51(1) provides that the person arrested can be searched for articles on
the body and the receipt of all those articles is to be provided to that person.
Section 51(1) says that in case of a search of female, it will happen only by a
female maintaining some amount of decency.
Seizure of offensive weapons
The officer or the person arresting has the power to seize any offensive weapon
which he possesses and deposit all weapons to the court or the officer before
whom the person making the arrest is required by the Code to produce the person
arrested (Section 52).
Medical examination of accused
Section 52(1) provides that when a person who is arrested for a charge of the
offence of such a nature that there are reasonable grounds for believing that
such examination will produce evidence related to the commission of the offence.
It is lawful for a registered medical practitioner under the request of the
police officer, not below the rank of sub-inspector to carry about an
examination with the use of reasonable force. But this force cannot be too much.
Section 52(2) says that when the examination is done of a female, it should only
be done by a female or under the supervision of a female registered medical
Section 53A discusses the method of medical examination of a person accused of
Article 20 of the Constitution provides that no person who is an accused can be
compelled to give evidence against him. This provision comes into play in
relation to this section.
Post arrest procedures
Firstly, according to Section 50(1) of Cr.P.C., it is the duty of the police
officer or any person arrested without warrant to inform the person arrested
about the grounds of the offence for the arrest.
Secondly, in the case where the arrest is made under a warrant, the police
officer under Section 75 Cr.P.C. is required to inform the person arrested about
the substance of arrest and if required to show the order. If it is not done the
arrest will become unlawful.
The Indian Constitution also supports this and had emphasised upon it in Article
22(1), a fundamental right. It prescribes certain rights that are present with
the accused at the time of arrest (fundamental in nature). It says that no
person who is arrested shall be detained in custody without being informed about
the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case
, the petitioner was not informed about the grounds of his
arrest along with his companions. He challenged this under Article 32 as it was
in violation of his fundamental right before the Supreme Court. The Supreme
Court observed that there was a violation of an essential and vital right of the
Thirdly, when an arrest is made without a warrant by a police officer, it is his
duty to show before the magistrate without unnecessary delay (usually within 24
hours). It is also mentioned that the person arrested cannot be taken to any
place other than the police station before presenting before the magistrate.
This is provided in Article 22 with Section 56 and Section 76 of the Cr.P.C.
Apart from this, the police officer always has to bear the clear, visible and
proper identification of his name which may facilitate his easy identification.
As soon as the arrest is made a memo should be prepared which is to be attested
by at least one witness and countersigned by the person arrested.
The arrested person also has the right to consult an advocate of his choice
during interrogation under section 41D and Section 303 of Cr.P.C. Apart from
these, there are many other rights and procedures mentioned in the further part
of the article.
This decision widens the scope of ‘custody,’ essentially manifesting that
custodial interrogation is now permissible even while under house arrest. Courts
are now empowered to exercise a new option (which is practically not police nor
judicial custody) in cases of remand.
The Supreme Court may further have to elucidate on
- The contemplated parameters for granting house arrest under Section 167
of the Cr.P.C. for lower courts to acclimatize to this concept;
- Whether the police would be entitled to enter such person’s house at any
time for the purpose of custodial interrogation;
- After interrogating the person, whether the person would have to be
physically produced before the court for extending his custody; etc.
The reason for elucidation is to avoid its misuse. Routine orders of house
arrests may not help the society in reducing crimes. At the same time, the
police must not be permitted to take undue advantage of the situation.
Nevertheless, positively adopting the concept may be of significance. The
Supreme Court recently ordered the release of certain class of prisoners on
interim bail, to avoid congestion and overcrowding in prisons which could help
prevent spreading of the corona virus. If house arrests are ordered in
appropriate cases, it would definitely aid in decongesting prisons, which is a
dire requirement at this stage.
Written By: Bhaswat Prakash
, Student at Ajeenkya DY Patil University, Pune