Arrest under Indian Criminal Law

Arrest is the act of taking a person into lawful custody on suspicion of committing an offence or on other legal grounds. Indian criminal law lays down when a person may be arrested, who can make an arrest, the procedure to be followed, and the rights of the arrested person. These rules aim to prevent unlawful arrest and protect personal liberty.

Meaning of Arrest

Arrest means taking a person into legal custody and restricting their freedom of movement under the authority of law.

An arrest may be made by the police, a Magistrate, or a private person in certain situations permitted by law.

Arrest may be necessary to investigate an offence, prevent further offences in legally permitted circumstances, or bring a person before a court. However, a person cannot be arrested merely because someone suspects them of wrongdoing. The arrest must satisfy the requirements of law.

Important terms

• Custody (being under the control or supervision of a lawful authority).
• Warrant (a written order issued by a court authorising a specified action, such as arrest).
• Cognizable offence (an offence for which the police may arrest without a warrant, subject to the law).
• Non-cognizable offence (an offence for which the police generally cannot arrest without a warrant).
• Reasonable suspicion (a genuine suspicion supported by facts or circumstances, rather than a mere guess).

Law Governing Arrest in India

The Code of Criminal Procedure, 1973 (CrPC) contained provisions dealing with arrest, including Sections 41 to 60A.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the CrPC from 1 July 2024, subject to applicable transitional provisions. Therefore, the BNSS generally governs current criminal procedure, while the CrPC may remain relevant to proceedings covered by the transitional rules.

The Constitution of India also protects a person against unlawful arrest and detention, particularly through Article 22.

Types and Modes of Arrest

Arrests may be classified according to who makes the arrest and whether a court warrant is required.

Arrest with a Warrant

An arrest with a warrant takes place when a court issues an order authorising the arrest of a person.

The warrant is generally executed by a police officer or another person legally authorised to do so. The person making the arrest must follow the applicable legal procedure.

A warrant is an official court order. It is not the same as a police officer's own decision to arrest without a warrant.

Arrest Without a Warrant

In certain circumstances, the police may arrest a person without first obtaining a warrant from a Magistrate.

Under Section 41 of the CrPC, a police officer could arrest without a warrant in specified situations, including certain cases involving cognizable offences, reasonable complaints, credible information, or reasonable suspicion.

However, the power to arrest without a warrant is subject to legal conditions. It does not mean that the police may arrest anyone at any time merely because they suspect that person.

Under the CrPC, Section 41(2) generally prohibited arrest without a warrant in a non-cognizable case, subject to the applicable legal provisions.

Arrest by a Private Person

A private person may arrest another person only in the situations permitted by law.

Under Section 43 of the CrPC, a private person could arrest someone who, in their presence, commits a non-bailable and cognizable offence, or a proclaimed offender.

• Non-bailable offence (an offence in which bail is not automatic and must be considered according to the law).
• Proclaimed offender (a person formally declared as such by a court under the applicable legal procedure).

The private person must hand over the arrested person to the police without unnecessary delay. If a police officer is not available, the person must be taken to the nearest police station.

A private person does not have a general power to arrest someone merely because they believe that the person has done something wrong.

Arrest by a Magistrate

Under Section 44 of the CrPC, a Magistrate could arrest a person or order another person to make the arrest when an offence was committed in the Magistrate's presence and within the Magistrate's local jurisdiction.

The Magistrate could also take the person into custody, subject to the applicable law relating to bail and further proceedings.

Arrest for Refusing to Give Name and Address

Section 42 of the CrPC dealt with situations in which a person accused of a non-cognizable offence refused to give their name and address, or gave a name or address that the police officer had reason to believe was false.

In such a situation, the officer could arrest the person to establish their correct name and address, subject to the legal conditions.

If the person's correct name and address were established, the person was generally to be released on the required bond or other legally permitted conditions. If they could not be established, the person had to be dealt with according to the procedure laid down by law.

Arrest Without a Warrant under Section 41 of the CrPC

Section 41 of the CrPC specified circumstances in which a police officer could arrest without a warrant.

These included situations where:

• A person was involved in a cognizable offence, or there was a reasonable complaint, credible information, or reasonable suspicion connecting the person with such an offence.
• A person possessed an instrument used for housebreaking without a lawful explanation.
• A person had been proclaimed as an offender under the applicable law.
• A person possessed property reasonably suspected to be stolen and was reasonably suspected of an offence connected with that property.
• A person obstructed a police officer performing official duties or escaped, or attempted to escape, from lawful custody.
• A person was reasonably suspected of deserting from the Armed Forces of the Union.
• A person was connected with certain acts committed outside India that would be offences if committed in India and for which the person could lawfully be apprehended or detained in India.
• A released convict breached a rule covered by Section 356(5) of the CrPC.
• A police officer received a lawful request from another police officer to make an arrest, provided the request identified the person and the reason for arrest and the legal requirements were satisfied.

These grounds did not give the police unlimited power to arrest. The officer had to follow the conditions and safeguards provided by law.

Procedure for Making an Arrest

Section 46 of the CrPC explained how an arrest was to be made.

Touching or Confining the Person

Generally, an arrest is made by actually touching or confining the person's body, unless the person submits to custody by words or actions.

In the case of a woman, her submission to custody may be presumed from the circumstances. Unless the circumstances require otherwise under the law, a male police officer should not touch her while making the arrest.

Use of Force

If a person forcibly resists arrest or attempts to escape, the person making the arrest may use the force permitted by law.

The force used must be lawful and must not exceed what is reasonably necessary in the circumstances.

Limits on the Use of Force

Section 46(3) of the CrPC prohibited causing the death of a person who was not accused of an offence punishable with death or imprisonment for life.

This provision does not give the police an unrestricted right to use deadly force against a person accused of a serious offence. The use of force must comply with the applicable law.

Arrest of Women at Night

Under Section 46(4) of the CrPC, a woman could not ordinarily be arrested after sunset and before sunrise.

In exceptional circumstances, a woman police officer had to submit a written report and obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence was committed or the arrest was to be made, as required by the provision.

The applicable current law and any relevant exceptions must also be considered.

Entry and Search of Premises to Make an Arrest

Section 47 of the CrPC dealt with entry into a place where the person to be arrested was believed to be present.

Where the person authorised to make the arrest had lawful authority to enter the premises, the person in charge was required to allow entry and provide reasonable facilities for the arrest.

If entry was refused despite the legal requirements being met, the person making the arrest could use the measures permitted by law to gain entry.

Where a room was occupied by a woman who, according to custom, did not appear in public, the required notice and a reasonable opportunity to withdraw had to be provided before entry, subject to the applicable legal provisions.

These powers were intended to enable a lawful arrest, not to permit an unrestricted search of private premises.

Pursuit of an Offender

Section 48 of the CrPC permitted a police officer to pursue a person into any place in India when the officer was authorised to arrest that person without a warrant under the applicable law.

This power enabled the police to continue a lawful pursuit even when the person moved outside the officer's immediate local area.

Power to Pursue and Retake a Person Who Escapes

Section 60 of the CrPC dealt with the pursuit and retaking of a person who escaped from lawful custody or was rescued from such custody.

A person authorised to make the arrest could pursue and retake the person in accordance with the law.

This provision did not authorise the police to arrest a person who was not lawfully in custody in the first place.

Duties of the Police After Arrest

Informing the Person of the Grounds of Arrest

Under Section 50(1) of the CrPC, a police officer or another person making an arrest without a warrant had to inform the arrested person of the full particulars of the offence or other grounds for the arrest.

Article 22(1) of the Constitution also requires that an arrested person be informed, as soon as possible, of the grounds of arrest.

Informing the Person About Bail

Under Section 50(2) of the CrPC, when a person was arrested without a warrant for an offence other than a non-bailable offence, the police had to inform the person that they were entitled to be released on bail and could arrange for sureties, where applicable.

• Bail (temporary release from custody, subject to the conditions set by law or the court).
• Surety (a person who undertakes legal responsibility to help ensure that an accused person follows the conditions of bail).

Informing the Person About a Warrant

When an arrest was made under a warrant, the person making the arrest had to communicate the substance of the warrant to the arrested person and, if required, show the warrant, as provided by Section 75 of the CrPC.

The arrest had to be carried out according to the warrant and the applicable legal procedure.

Preparing an Arrest Memo

An arrest memo records important details about the arrest.

The safeguards laid down in D.K. Basu v. State of West Bengal (1997) require an arrest memo to be prepared, with the time and date of arrest recorded and the memo attested by a witness and countersigned by the arrested person.

An arrest memo helps create a record of when and how the arrest took place.

Identification of Police Officers

Police officers making an arrest must follow the applicable requirements for clear identification. This helps the arrested person and others identify the officers involved.

Producing the Arrested Person Before a Magistrate

Article 22(2) of the Constitution provides that an arrested person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate's court.

The CrPC also contained related requirements under Sections 56 and 57.

A person cannot ordinarily be kept in police custody beyond this period without the authority of a Magistrate. Any further detention must be authorised according to law.

Right to Consult a Lawyer

Article 22(1) of the Constitution protects the right of an arrested person to consult and be defended by a lawyer of their choice.

Sections 41D and 303 of the CrPC also dealt with the right to legal assistance in the circumstances covered by those provisions.

Under Section 41D, an arrested person undergoing interrogation was entitled to meet an advocate of their choice during interrogation, though not throughout the entire interrogation.

Medical Examination of an Arrested Person

Medical examination may be required when it can provide evidence relevant to an offence or help establish the condition of the arrested person.

Medical Examination under Section 53 of the CrPC

Section 53 of the CrPC permitted a registered medical practitioner, acting at the request of a police officer of the required rank, to examine an arrested person when there were reasonable grounds to believe that the examination could provide evidence relating to the offence.

The examination had to be conducted using only the force reasonably necessary and in accordance with the law.

When the person to be examined was a woman, the examination had to be conducted by, or under the supervision of, a female registered medical practitioner, as required by the provision.

Medical Examination in Cases of Rape

Section 53A of the CrPC provided for the medical examination of a person accused of rape in the circumstances covered by that provision.

The examination had to be conducted by a registered medical practitioner and follow the procedure and safeguards laid down by law.

Important Case Laws

D.K. Basu v. State of West Bengal (1997)

The Supreme Court laid down important safeguards to be followed during arrest and detention. These included recording details of the arrest, preparing an arrest memo, informing a friend or relative of the arrested person, and maintaining appropriate records.

The judgment aimed to prevent unlawful detention and custodial abuse (mistreatment of a person in custody).

Joginder Kumar v. State of Uttar Pradesh (1994)

The Supreme Court explained that the power to arrest does not mean that the police must arrest a person in every case where arrest is legally possible.

The need for arrest must be justified by the circumstances. Arrest should not be made routinely or without proper reason.

Arnesh Kumar v. State of Bihar (2014)

The Supreme Court emphasised that the police must not make unnecessary arrests and must follow the legal conditions governing arrest. It also highlighted the duty of Magistrates to examine whether detention is legally justified.

The decision reinforced safeguards against automatic arrest, particularly in cases where the law prescribes a maximum punishment of up to seven years.

Distinction Between Arrest with and Without a Warrant

Practical Example

Suppose the police receive credible information and supporting facts connecting a person with a theft.

The police must determine whether the legal conditions for arrest without a warrant are satisfied. If they make an arrest, they must inform the person of the grounds of arrest, prepare the required records, respect the person's legal rights, and produce the person before a Magistrate within the legally required period.

The police cannot treat suspicion alone as proof of guilt. Whether the person committed the offence must be determined through the legal process.

Summary

• Arrest means taking a person into lawful custody and restricting their freedom of movement.
• An arrest may be made with a warrant or without a warrant when the law permits it.
• A private person and a Magistrate may make or direct an arrest only in specified situations.
• Section 46 of the CrPC dealt with the manner of making an arrest and the limits on the use of force.
• An arrested person has important rights, including the right to know the grounds of arrest, consult a lawyer, and be produced before a Magistrate within the constitutionally prescribed period.
• Police officers must follow legal safeguards and cannot make arrests arbitrarily (without proper legal reasons).
• The BNSS, 2023, replaced the CrPC from 1 July 2024, subject to applicable transitional provisions.