Introduction
Arrest is one of the most crucial and sensitive aspects of criminal law. It involves taking a person into custody by lawful authority so that he or she can be held to answer for an alleged offence. The Code of Criminal Procedure, 1973 (CrPC), provides detailed procedures, safeguards, and legal standards to be followed while making an arrest.
The arrest procedure is governed under Sections 41 to 60A of the CrPC. These provisions aim to balance the powers of law enforcement with the fundamental rights of the individual, particularly the right to life and liberty under Article 21 of the Constitution of India.
This essay explains the step-by-step process of arrest, types of arrests, legal procedures, and judicial safeguards.
Types of Arrest
- Arrest with Warrant:
Conducted under the authority of a Magistrate’s warrant (Sections 70–81 CrPC). - Arrest without Warrant:
Made by a police officer under Section 41 CrPC for cognizable offences. - Private Arrest:
Permitted under Section 43 CrPC in specific circumstances. - Arrest by Magistrate:
Under Section 44 CrPC, a Magistrate may arrest or order arrest in his presence.
Key Provisions of CrPC Governing Arrest
Section 41 – Arrest by Police without Warrant
A police officer may arrest a person without warrant:
- If the person has committed a cognizable offence
- If there is a reasonable complaint or suspicion
- To prevent further offence, proper investigation, or ensure presence in court
Amendments require the police to record reasons for arrest in non-heinous offences.
Section 41A – Notice of Appearance
Instead of immediate arrest, police may issue a notice of appearance to the accused for certain offences. If the person complies, arrest is not necessary.
This was introduced to prevent unnecessary arrests in minor offences.
Section 42 – Arrest for Non-Cognizable Offence
If a person refuses to give name and residence upon demand, or gives false details, the police may arrest him even for non-cognizable offences.
Section 43 – Arrest by Private Person
A private person may arrest:
- Someone committing a non-bailable and cognizable offence in their presence
- Or a proclaimed offender
They must hand over the person to police within 6 hours.
Section 44 – Arrest by Magistrate
A Magistrate can:
- Arrest or order arrest if an offence is committed in his presence
- Also direct arrest during court proceedings
Section 45 – Protection of Armed Forces Members
Members of armed forces cannot be arrested without Central Government sanction for acts done in the course of duty.
Section 46 – How Arrest Is Made
- Actual touching or confining the body is required unless there is submission to custody
- In case of resistance, reasonable force may be used
- Women can only be arrested by female officers
- Arrest of women between sunset and sunrise is generally prohibited except in exceptional cases with written permission from a Magistrate
Section 47 – Search of Place to Make Arrest
If the person to be arrested is believed to be inside any place:
- Police may enter and search the place
- If access is denied, they can break open the door
- Proper notice and witnesses are required
Section 48 – Pursuit Across Jurisdictions
Police have the authority to pursue and arrest across India, even outside their territorial jurisdiction.
Section 49 – No Unnecessary Restraint
The person arrested must not be subjected to more restraint than necessary for custody.
Section 50 – Rights of Arrested Person
The arrested person has the right to:
- Know the grounds of arrest
- Be informed about the right to bail in bailable offences
Section 50A – Right to Inform a Relative or Friend
The police must:
- Inform a relative or friend of the arrest
- Record the details in the case diary
Section 51 – Search of Arrested Person
- The police may search the arrested person and seize any item that may be used as evidence
- A receipt of seized items must be given
Section 54 – Medical Examination
- The arrested person may be medically examined, especially in cases involving bodily injuries, sexual assault, or use of force
- Only registered medical practitioners may conduct this exam
Section 56 & 57 – Production Before Magistrate
- The arrested person must be produced before a Magistrate within 24 hours
- Detention beyond 24 hours requires judicial authorization
Section 60A – Arrest Must Be Lawful
No arrest shall be made except in accordance with the CrPC provisions.
Rights of the Arrested Person (Constitutional & Statutory)
| Right | Provision |
|---|---|
| Right to know grounds of arrest | Article 22(1), Section 50 CrPC |
| Right to consult legal practitioner | Article 22(1), Section 41D CrPC |
| Right to be produced before Magistrate | Article 22(2), Sections 56 & 57 CrPC |
| Right to silence | Article 20(3) of the Constitution |
| Right to free legal aid | Article 39A, Section 304 CrPC |
| Right to inform a friend/relative | Section 50A CrPC |
Judicial Guidelines on Arrest
D.K. Basu v. State of West Bengal (AIR 1997 SC 610)
Laid down guidelines for arrest, including:
- Identification of arresting officer
- Preparation of arrest memo
- Right to inform relative or friend
- Medical examination every 48 hours
- Copy of memo to be sent to Magistrate
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
- Directed police to avoid unnecessary arrests
- Encouraged use of Section 41A notice in minor offences