A Procedural Note on Law of Arrest in India

Article 22 of the Constitution of India: The accused is rendered some fundamental right w.r.t. procedural law as well apart from substantive rights under Article 20. An arrestee can’t be detained in custody without being informed of the grounds of his arrest without delay. He/ she cannot be denied the right to consult and be defended by the lawyer of his choice.

Once arrested, he/ she shall be produced before nearest magistrate within 24 hours of his/ her arrest, though time necessary to travel from place of arrest to Court is to be excluded. Once in Magistrate’s Court, he/ she may not be detained in further custody without an order under his/ her authority.

Chapter V of the Code of Criminal Procedure, 1973 (Cr.P.C.) deals with arrest of persons, elaborated from Section 41 to 60. Section 41 mandates that a police officer may arrest without warrant or without a magisterial order, any person in a number of cases listed therein, but most prominently when that person is suspected to be involved in any cognizable offence. The Discretion is totally of the police officer here. 

Section 41A deals with cases not covered under Section 41 (1), wherein a police officer is directed to issue a notice and not to make an arrest unless the noticee after receiving notice does not comply with the terms of notice or complies once and then flouts it subsequently. If the notice complies with terms of notice, he may only be arrested for the offence concerned for reasons to be recorded in writing by the police officer.

Section 41B directs the conducts of Police officers while making and arrest. It directs them to ensure that while making an arrest they bear an accurate, clear & visible identification of his name for the purposes of easy identification, prepare an arrest memo attested by either a family member of arrestee or a respectable member of society and countersigned by the arrestee himself. The arrestee is also to be informed of his right to have a relative or a friend of his informed of his arrest, if arrest memo is not attested by his family member.

Another interesting provision is Section 42, where a person suspected of committing a non- cognizable offence in presence of a police officer can be arrested by police for merely refusing to give his/ her name and address. The arrest continues till his/ her actual name and address is ascertained.

Section 43 deals with arrest by private persons, who are empowered to arrest a person committing a non- bailable & cognizable offence or a proclaimed offender and shall hand him over to police/ nearest police station without delay.

The third person who has power to arrest is a Magistrate. Under Section 44, a Judicial/ Executive Magistrate either himself arrest or ask any other person to arrest anyone committing any offence in his presence.

Now shifting the focus to the persons being arrested, there are one class of persons immune from arrest under Chapter V, Cr.P.C. i.e. members of armed forces of the union discharging or purporting to discharge their duties, courtesy Section 45. They may only be arrested with the prior consent of Central Government. This is interesting since Law & order is a State Subject under Constitution, but the union through use of Armed forces supersedes states in these matters. Under second sub clause the State Government may make similar provision.

Section 46 explains how the arrest is to be made. The person making arrest shall actually touch or confine the body of the person to be arrested, unless the person to be arrested submits to the custody by word or action. Forcible resistance or attempt to evade is required to be met with all means necessary for arresting him/ her. However, the force used shall not cause death of the person being arrested unless he/ she is accused of an offence punishable with death or Imprisonment for life.

Section 47 obligates the owner of any place, suspected of being used by person to be arrested, to allow the person empowered to arrest, a free ingress into the property & all reasonable facilities for search. If needed, after due warning the arresting person is empowered to break open the door or window of the place in lieu of convenient ingress mentioned above. However, before breaking & entering, if a woman (such as a pardanashin woman) is also present in the house, the woman is to be given an additional notice to withdraw from that place and allow her to do the same reasonably. The power to break open doors or windows is also available to arresting person once he or a third person is detained inside the property.

Section 48 is akin to hot pursuit, wherein a police officer is deemed to be authorized to continue his pursuit of a person whom he is authorized to arrest, without warrant, into any place in India.

Section 49 mandates that the person once arrested should not be subjected to more restraint than would help prevent his escape. For example, once arrested, he/she should not be chained to a door or chair or a tree. Normally when an arrestee is confined in a cell, he may not be handcuffed. It means that power to arrest should not become an excuse to inhuman confinement.

Section 50 says that the arrestee should be informed about the grounds of his arrest i.e. full particulars of the offence and that he has a right to bail under law. In case of bailable offences, he should be informed that he is entitled to be released on bail/ personal bonds and may arrange sureties on his behalf.

Under Section 51, once the arrest is made, what follows is search of the accused person, if he is not immediately released on bail. In such cases, the police officer will search the arrestee and seize and place safely all articles, other than necessary clothes on his person and a receipt (seizure memo) indicating he seized articles is issued to the arrestee. A female is only to be searched by another female (not mandatorily a police officer as above), with strict regards to decency. While it is a welcome distinction drawn in law for search of a male & female, it does beg a compelling question as to why shouldn’t a male be searched with strict regards to decency and why is it not mandatory for only a male officer to search another male arrestee?

Under Section 52, any offensive weapons on the person of the arrestee is supposed to be seized by police officer or any other person making the arrest and deliver such weapon to the Court of the officer before whom the arrestee is to be produced under Cr.P.C.

Section 53 requires the police officer to get the accused medically examined by a registered medical practitioner. The request must, however, come from the rank of Sub- Inspector or above for the purposes of collecting evidence in relation to the crime committed. If accused is a female she must be examined only by a female medical practitioner or under her supervision.

Section 54 allows arrestee to request before magistrate during his custodial detention, the medical examination of his body for evidence favouring him, by a registered medical practitioner. The request is a matter of right, which could only be denied if the Magistrate considers the request to have been made for the purpose of vexation or delay or for defeating the ends of justice.

Another form of arrest is mentioned in Section 55, wherein a police officer deputes his subordinate police officer to arrest a person in his absence, which is to be done through a written order with details of arrestee, offence etc. The deputed officer will make the arrest by firstly notifying the substance of order and even showing the same to the person to be arrested, if needed. However, this form of arrest is in addition to Section 41. The difference lies in the ignorance of the deputed police officer to any other facts related to the case or arrestee except the written order.

As per Section 56, the arrested person is to be taken by the Police Officer to the magistrate having jurisdiction or before the Officer in charge of police station subject to provisions of bail, without unnecessary delay.

Section 57 is in line with the fundamental right guaranteed under Article 22 (2) of the Constitution of India, mandating that a person arrested without warrant must be produced before a Magistrate within 24 hours of his/ her arrest. The time necessary for the journey from place of arrest to Magistrate’s Court is excluded from this 24 hours limit. However it is worth mentioning that the 24 hours is the maximum permissible delay and ideally, a person should directly be taken to Magistrate’s Court after arrest. Once at Magistrate’s Court, the diktat of remand orders under Section 167 Cr.P.C. rules the fate of arrestee.

Under Section 58, Police Officer is required to regularly report all the arrests made without warrant (even if subsequently granted bail) to District magistrate or empowered Sub- Divisional Magistrates, in their local jurisdiction.

Under Section 59, once a person is arrested, he may not be released except on his own bond, or on bail or under special order of a Magistrate. The police has no power to just let off an arrestee.

Under Section 60, the person arresting is empowered to pursue and arrest an escaped or rescued arrestee throughout Indian Territory. Section 47 applies here and it is immaterial if subsequent arrest is made under a warrant or not, or made by Police officer with authority to arrest or not.