"Darkness of Cages shall allow you to Breathe, for Thou shall not be
killed of Inhumanity
Every person shall be treated as a human being irrespective of the fact that he
is in jail until the accused is proved guilty by a court of law. Our law is
quite strict about the personal liberty of an individual. The Indian
Constitution under Article 21 states that, there will be no person who shall be
deprived of his life or personal liberty except according to the procedure
established by court of law.
The procedure laid down in Article 21 must be followed in right, just and fair
manner and not in arbitrary, fanciful or oppressive manner. The rights of an
arrested person are recognized as fundamental right under the constitution of
India. And hence it can be stated that arrestee is provided with certain rights
under the law.
The term arrest has not been defined in the Criminal Procedure Code of 1973. It
basically means apprehension on a person by a legal authority and the result for
which cause deprivation of liberty. As defined under Legal Dictionary by Farlex,
"arrest means seizure or forcible restraint; an exercise of the power to deprive
a person of his/her liberty; taking or keeping of a person in custody by legal
authority in response to criminal charge."
In R.R. Chari v. State of U.P
., the Apex Court explained arrest as an act
of a person where he/she can be taken in custody on ground of criminal charge.
In constitutional sense, it's basically the seizure of a person. Whereas in
State of Punjab v. Ajaib Singh
, it was observed by the court that arrest is
putting restraint upon an abducted person. The result of which taking that
person in legal custody on the ground of allegation or suspicion of commission
of any criminal offence.
The Madras High Court in the case of Roshan Beevi v. Joint Secretary
down the elements of arrest.
The elements required to constitute arrest are as follow:
- Intention to arrest must be under legal authority.
- Seizure and detention of the person is must.
- The arrestee must be in lawful custody of the person arresting him/her.
- There must be physical restraint and mere oral declaration is not
It is also quite important to understand about the circumstances under which a
person can be arrested.
The circumstances are:
- for precautionary and preventive measures
- In order to secure attendance of accused at trial
- In order prevent obstruction caused to police
- In order to obtained correct name and address
- In order to take back the person in custody who has escaped.
After a brief discussion on meaning, elements and circumstances of arrest, the
question arises that: Who may arrest? It is basically the magistrate who takes
decision to arrest a person on ground of the information received from police or
the complainant. Such decision of the magistrate needs to just, fair and
reasonable with due regard to liberty of the individual and interest of the
It's the magistrate who decides to arrest and for the same arrest
warrant (non-cognizable offence) needs to be issued. On the other hand we cannot
deny the fact that it's not always possible for the police to approach the
magistrate. For instance, a person has committed heinous crime of rape
(cognizable offence) and it's suspected that the person may abscond unless
In such case any person other than judicial officer may
arrest but in such cases the code contemplates a judicial arrest soon after the
arrest. The power to arrest granted to police and any private person must be
exercised reasonably and not arbitrarily. The question as to who may arrest is
clear now that arrest can be made by police or magistrate and even by any
For this reason, arrest is mainly categorized under two heads in
the Indian criminal law. The two types are: An arrest either made in accordance
with the warrant issued by the magistrate or an arrest made without any warrant
but in accordance with some legal procedures as prescribed in the law.
Section 41 of Code of Criminal Procedure speaks about situation when police may
arrest without warrant. The very particular section states that any person who
commits cognizable offence or any person against whom complaint has been made
and reasonable suspicion exists that the person might has committed cognizable
offence can be arrested without warrant.
Arrest can be made in order to prevent
the further commission of crime, in order to do proper investigation, in order
to prevent hampering of the evidence, in order to prevent inducement to witness
and in order to present that person before court whenever required. The reason
needs to be mentioned as to why police is arresting or not arresting the person.
The person will also be arrested if he is a proclaimed offender, on the ground
of suspicion that is reasonable, if he obstructed police from investigating or
tried and managed to escape, if he has been deserted from armed force (armed
forces won't be arrested while discharging duty under the command of authority),
also on the ground of extradition or when he escaped from the place of actual
The section also makes it very clear that no person shall be
arrested without warrant in the case of non-cognizable offence except the
circumstances those mentioned in section 42 of Code of Criminal Procedure. It is
well established that a person cannot be called upon by the police to speak
against himself but under section 41A the police may call the person against
whom information or suspicion has be made out and the person is duty bound to
appear before police. If the fulfills all procedure then he won't be arrested
unless there is valid reasons to do so and if he fails to comply the result
shall be vice versa.
The procedure of arrest and duty of officer arresting is
well stated in Section 41B. It states that clear identity of the arresting
officer is required, proper memorandum of arrest shall be made and the accused
has right to inform about his arrest to his near and dear.
Section 42 gives authority to a police officer to arrest a person for a
non-cognizable offence. The person may be arrested when he has committed or has
been accused of committing non-cognizable offence refuses to acknowledge his
name, residence, etc. It's also stated that if person fulfills the requirement
shall be release on bond with or without surety. If the procedure is incomplete
after 24hrs the same shall be forwarded to Magistrate having jurisdiction.
Section 43 gives right to a private person to arrest person, who in the presence
of him/her has committed an offence that falls within the purview of either
cognizable or a non-bailable or who is proclaimed offender. The private person
arresting is duty bound to take the arrestee to a police officer and in his
absence to the nearest police station without unnecessary delay. On the other
hand, Section 44 empowers magistrate (executive or judicial) to arrest an
individual who has committed offence in his presence and during custody.
The landmark case of D.K. Basu v. State of West Bengal
, the court issued eleven
guidelines in addition to constitutional and statutory safeguards that must be
followed in cases of arrest and detention.
It's mandatory that:
- Identification of arresting officer must be clearly visible and all
details must be recorded in register,
- a memorandum must be prepared containing all the details which must be
witnessed by near or dear of the detainee
- police must ensure that accused should avail right to be informed
- police need to inform him about legal aid organization within 8-12 hours
- the person arrested must be informed his right as an accused
- an entry must be made in the prescribed diary
- if the arrestee is injured he must be legally examined
- the medical examination should be done within 48 hours
- all details must be sent to magistrate in writing
- the arrestee must be allowed to meet attorney
- a room shall be provided to officers for communication.
The court held that state is vicariously
liable and the act resulted in violation of fundamental right to life. In the
case of Arnesh Kumar v. State of Bihar
, Section 498A of IPC was questioned. The
court came up with the view that in case of Section 498A no direct arrest will
be made unless Section 42 of CrPC is satisfied. The arrest will be made on the
ground of section 41(b) (ii) and all details must be forwarded to the
magistrate. Magistrate while authorizing the detention shall pursue the report.
It was also laid down that failure to compliance with guidelines might lead to
departmental actions and also charges of contempt of court might be put on. The
guidelines were laid down to ensure that the rights of wife and husband go hand
in hand and to ensure that 498A of IPC is not exercised arbitrarily.
In a very recent case of Ramadugu Omkar v. Sri Ashok Naik
, petitioner filed
against respondent for arresting him without any notice under section 41-A
thereby violating the guidelines of Arnesh Kumar case. The Supreme Court held
that in cases where arrest is not made under section 41(1), a notice must be
issued in order to ensure that the accused to appear when needed. Thus, it would
provide unnecessary arrest of any person.
Guidelines on arrest of woman: Section 46 lays down the procedure to make an
arrest. According to Section 46(1) the person making an arrest shall not touch
or confine the body of accused if he has surrendered on his own by way of words
or action. The arresting authority will have right to touch and confine when the
accused person has not surrendered. So, here we have three modes for arresting.
The modes are submission of body, by touching or confining the body.
of the section states that woman accused will be arrested by a female authority.
Under some circumstances male officer may also arrest but both the officers
shall not touch or confine her body. The female officer is empowered to touch or
confine if the accused fails to surrender. It is stated that no woman shall be
subjected to arrest after sunset and before sunrise.
But CrPC under Section
46(4) has provided immunity to arresting authority that in exceptional
circumstances a woman can be arrested after sunset and before sunrise by a
woman officer. For the same it is mandatory on the part of female officer to
make a written report and obtain the prior permission of Judicial Magistrate of
that jurisdiction is required. According to the National Human Rights
Commission, it is important that woman shall be arrested only be female officer
as far as possible.
The Apex Court of India in the case of Sheela Barse v. State of Maharashtra
down certain guidelines on the arrest of female accused. Firstly, it's the duty
of police officer to check and make sure that arrested women are kept away from
men in a female lockup. If there is no separate lockup than arrested woman will
be kept in a different room in association with female officer. Secondly, the
arrest of woman after sunrise and sunset must be avoided.
This was to ensure
protection of woman against sexual and physical offences. Thirdly, the woman
shall be questioned at her residence. It is duty to check that arrestee must not
be embarrassed during question hour. Fourthly, the arrested woman could avail
her right to be examined by medical practitioner only under female practitioner.
The arrestee shall be given pre and post natal care. At last, arrest of pregnant
woman must be avoided and other option should be opted if possible.
women must not be restrained. In the another landmark case of State of
Maharashtra v Christian Community Welfare Council of India
, wherein a lady went
to inquire about the arrest of her husband was locked up and molested jointly.
After investigation by CID officers and the police officers were found guilty.
The session court granted three years of punishment with fine but the Bombay
High Court upheld the dignity of woman and ruled that no woman shall be detained
or arrested without the presence of female officers and no case they shall be
arrested after sunset and before sunrise. The Apex Court understood the motive
behind the decision of Bombay High Court but it was in the opinion that the
presence of female arrest is not possible in practical.
Hence, keeping in mind
the object it was laid down that all possible ways shall be opted to avail
female officer/constable for the arrest of female accused but under
circumstances where it's not possible to avail in prompt than male officer will
make the arrest to prevent difficulties in investigation. Section 46(4)
clarifies the exceptional situation during the arrest of woman after sunset and
But the proviso remained mute in context to day time arrest. In
the case of Bharati S. Khandar v. Maruti Govind Jadav
, a lady petitioner was
very well aware about Section 46(1) of the Code of Criminal Procedure and hence
she refused to go with male police officer. But the lady was unaware of Section
46(4) and she got arrested and was also mistreated by the police officers. Here
we see the importance of guidelines laid by the legislature in order to prevent
police officers from violating law.
In a very recent case of Kavita Manikikar v.
Central Bureau of Investigation BS & FC and Ors
., wherein section 46(4) was
violated and writ petition was filed by a lady before Bombay High Court. The
petition was filed against CBI officers. The High Court came up with the favor
of lady and held the CBI officers liable. A fine of Rs. 50,000 was imposed for
non-compliance with the guidelines.
Guidelines on arrest of judicial officers:
Judiciary is considered as one of the pillars of democratic system. It is
prestigious part where the hope of common man for justice lies. It also ensures
that No man is above law
judicial officers are considered to be the window and it is very important to
handle their cases with utmost case. The Supreme Court came up with the
guidelines on arrest of judicial officers in a landmark case of Delhi Judicial
Services Association v. State of Gujarat
In this the CJM of Nadiad found that
police officers were not cooperating on a particular case and he wrote a letter
to DSP and DGP against police officers. In return to this police officer
complained against CJM, where was called to check the documents. The CJM was
forcibly made to drink, was assaulted and arrested by Police Inspector. The
matter went to the Apex Court, wherein the court stated that arrest of judicial
officer was violative of Article 136 of Indian Constitution.
guidelines were laid down. Firstly, prior to the arrest of judicial officer an
intimation District judge or High Court must be done. Secondly, in case of
prompt arrest under certain fact and circumstances, formal arrest can be made.
Thirdly, communication shall be made to District and Session Judge of that
district and to the Chief Justice about the fact of arrest. Fourthly, in order
to take the arrested judicial officer prior permission of District and Session
Judge of that district is required.
Fifthly, all the rights of an accused person
shall be provided immediately. Sixthly, recording of statement and medical test
should be done only in presence of legal advisor or any judicial officer of
higher or equal rank. Lastly, unless the circumstances compels judicial officers
won't be handcuffed. If handcuffed, police is duty bound to give valid reasons
and immediate report will be made to judges mentioned above. In case the act of
police is held to be unjustified then police officer will be made guilty of
misconduct and will subject to compensation.
In landmark case, Anwor Hussain v.
Ajoy Kumar Mukerjee
, wherein the appellant was SDO and he also held post of SDM.
He was arrested respondent in riots, but no charge was put on him. The
respondent filed a suit against SDO and police claiming compensation for
imprisonment which was false. It was held that SDO acted under his capacity. The
court also held that no inquiry will be made even if act was erroneous, illegal
or irregular which was done within the jurisdiction.
The accused in India are empowered certain different rights. The most basic of
those rights are found in Indian Constitution. Article 21 of the Indian
Constitution gives rays of hope to person arrested, person under trial and also
to convicted person. Law ensures that the treatment of such people should be
humane and according to the laws prescribed. Hence, the accused has been
provided with certain rights and they are well discussed.
Right to be informed about the ground of arrest: In every case either the accused has been arrested with or without warrant,
it's the duty of person arresting to communicate him/her the grounds of
arrest without any delay. This is an important right of arrested person and
the same is recognized as one of the fundamental right under the Indian
The right can be of great importance for the arrested person. Once the
person knows about the grounds of arrest it becomes easy to apply for bail
or a writ of habeas corpus or to take appropriate measures for his defence.
The applicable sections are Section 50(1), 55, 75 of CrPC and Article 22(1)
of the Indian Constitution. The same could be found in decision of cases
such as Joginder Kumar v. State of U.P. and D.K. Basu v. State of
West Bengal, where under Section 50A it was made obligatory on the part
of police to inform about the ground of arrest.
Right to silence: If the arrested person remains silent during interrogation, it does not mean
that he is guilty. He cannot be forced to speak forcibly as it is the
violation of principle of Natural Justice. In the case of Nandini Sathpathy
v. P.L. Dani, it was clearly mentioned that no can forcibly get the
statement from the arrested person because he has right to remain silent as
per choice. The same could also be found under Article 20(3) of India
Right to be informed about bail and right to get released on bail: The police arresting a person is bound to inform him about the right of bail
and that he may arrange for sureties on his behalf. This is not applicable
in the cases of non-bailable offence. The same could be found in Section
50(2), 436 and 437 of CrPC.
Right to be taken before magistrate: The police officer is duty bound to take the accused person before
Magistrate without any unnecessary delay. It is applicable both to arrest
with or without warrant. The same could be found in Section 56 and 76 of
Rights in regard to detention: The police officer arresting the person is duty bound to produce the person
arrested before Magistrate within 24 hours excluding the time of travel. If
not produced within 24 hours then the detention will be illegal. This right
has been given to the arrestee so that he cannot be compelled to give
information, to protect him from the arbitrary use power by the police
authority and also to enable arrestee early recourse with judicial officer.
The court in the case of Mohammad Suleman v. King Emperor held that arrest
commences with restraint of personal liberty of the accused and not with the
time of arrest being recorded. The same could be found in Section 56, 76 of
CrPC and Article 22(2) of the Indian Constitution.
Right to fair and just trial: The constitution upholds about free and fair trial. The same can be seen in
the procedural law. It's necessary to protect the arrested person from
arbitrary use of power and is also based on the principle of natural
justice. The Indian Constitution ensures that every individual must be
treated equally and right to life includes fair trial. In the case of
Huissainara Khatoon v. Home Secretary, State of Bihar, the court
observed that the trial must be disposed of as soon as possible. The right
to speedy trial was upheld.
Right to consult a legal practitioner: The right to consult a legal practitioner has been declared as
constitutional right by the Supreme Court. The same could be found in
Article 21 and 22(1) of the constitution and Section 41(D) A, 50(3) and 303
Right to free legal aid and to be informed: This facility is provided to all poor accused in India, inspite of the
severity of the crime committed. The Supreme Court in the case of Khatri v.
State of Bihar held that the state is under a constitutional mandate to
provide free legal aid and the same is mentioned explicitly in Article 21.
It was laid down that legal aid does not arise only when the trial commences
but also when the accused is about to be produced before Magistrate. It is
an obligation on the Magistrates and courts to inform about free legal aid.
The same could be found in Section 304 of CrPC and Articles 21, 39(A) of
Right to be examined by medical practitioner: Every person who is arrested has right to be examined by a medical
practitioner of either state or central government. This provision was added
with the view to ensure if any torture was made investigation or during
custody. In case of Sheela Barse v. State of Maharashtra, the court
held that Magistrate is to inform the arrested person about his right to be
examined by medical practitioner. The same could be found in Sections 53 and
54 of the CrPC.
At the concluding remarks it is quite important to state that India faces a huge
problem of custodial deaths and the reason behind the same is illegal arrests.
This rising problem determines the essence of Article 21 enshrined in the Indian
Constitution and also the fundamental rights available to each and every
individual under Universal Declaration of Human Rights.
In the landmark case of D.K. Basu v. State of West Bengal
guidelines has been laid down as stated above but the same is not executed
The foremost duty of any police officer is to protect the rights of every
individual in the society including the arrested person. The police officers
should work according to the Procedure established by Law
and should act
The arbitrary use of powers often leads to violation of the 'Principle of
'. The police officers must ensure that they should convey
about the rights granted to accused person under Indian Judicial system. Arrest
has demoralizing effect on personality of a person. The hour demands proper
balance between security of the state as well as freedom of the individual.
As a law student we have clear cut understanding of the provisions. We could
take responsibility to inform at least to our near and dear ones. This small
step can contribute lot to the society. Spreading awareness would enable people
to know about the existing rights.
- The Indian Constitution, 1950
- AIR 1951 SC 207
- AIR 1953 SC 254
- 1984 Cri LJ 134 (Mad.) (FB)
- R.V. Kelkar and K.N. Chandrasekharan Pillai, Lectures on Criminal
Procedure 24 (Eastern Book Company
- Binoy Jacob v. CBI, 1993 Cri LJ 1293 (Del.)
- (1997) 1 SCC 416
- (2014) 8 SCC 273
- (1983) 2 SCC 96
- 1995 Cri LJ 4223 (Bom)
- 1995 Cri LJ 4223 (Bom)
- AIR 2013 (1) ABR 694
- AIR 1018 MH 114
- (1991) 4 SCC 406
- Article 136 of the Indian Constitution, 1950 deals with special leave to
appeal by the Supreme Court.
- AIR 1965 SC 165
- Habeas Corpus is a writ under article 32 which basically means to have
- (1994) 4 SCC 260
- (1978) 2 SCC 424
- Article 20(3) states that no person shall be a witness against himself.
- (1925-26) 30CWN 985 (FB)
- Article14 talks about equality before law.
- Article 21 talks about fair trial.
- (1980) 1 SCC 81
- (1981) 1 SCC 627
- Article 39 A talks about free legal aid to the poor and weaker sections
of the society.