www.ijcrt.

org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

Provisions Relating to Arrest under Indian Law

Dr Renu
A. Meaning of Arrest

An arrest is the act of depriving people of their liberty, usually in relation to an investigation or prevention
of a crime, and thus detaining the arrested person in a procedure as part of the criminal justice system.In
State of Punjab vs. Ajaib Singh1, arrest is defined as “Arrest means a physical restraint put on a person as a
result of allegation of accusation that he has committed a crime or an offence of quasi criminal nature.The
word arrest, when used in its ordinary and natural sense it means the apprehension or restraint or the
deprivation of one’s personal liberty. The question whether the person is under arrest or not depends on the
legality of the arrest, on whether he has been deprived of his personal liberty to go where he pleases. When
used in the legal sense in the procedure connected with the criminal offences, an arrest consists in the taking
into custody of another person under authority empowered by law for the purpose of holding or detaining
him to answer a criminal charge or of preventing the commission of the criminal offence.
B. Need for Arrest

Arrest of a person is necessary for the following reasons2 ;

1. When a person is to be tried on the charge of some crime, his attendance at the time of trial becomes
necessary. If his attendance is not likely to be ensured by issuing a notice or summons to him, probably his
arrest and detention is the only effective method for securing his presence at the trial.

2. If there is imminent danger of the commission of a serious crime (conizable offence), arrest of the person
intending to commit such a crime may become necessary as a preventive measure.
3. Where a person, on being asked by a police officer, refuses to give his name and address, then under
certain circumstances, it would be proper on the part of police to arrest such a person with a view to
ascertain his correct name and address.
4. Whoever obstructs a police officer in the execution of his duty would be and should be liable to be
arrested then and there by such a police officer. This is essential for effective discharge of police duties.

5. A person who has escaped from lawful custody should be arrested forthwith by the police.

1
AIR 1981 SC 625.
2
www.legalservices.com visited on 24 Dec.,2017.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 161

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

C. Who can Arrest

Section 41 to 44 contain provisions that govern the arrest of a person by police and private
citizens, while section 46 describes how an arrest is a made.
There are situations when a person may be arrested by a police officer, a magistrate or even
private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows: -

1. Arrest by Police - Section 41. When police may arrest without warrant 3;
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any
person -

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of his having been so
concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such
person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and
who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to
escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India, would have been punishable as an
offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356;
or
(I) for whose arrest any requisition, whether written or oral, has been received from another police officer,
provided that the requisition specifies the person to be arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by
the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person,
belonging to one or more of the categories of persons specified in section 109 or section 110.

3
Ibid.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 162

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

In the case of Joginder Kumar v. State of UP,4, it was held that no arrest can be made merely because it is
lawful to do so. There must be a justifiable reason to arrest. Further, in State vsBhera,5, it was held that the
"reasonable suspicion" and "creditable information" must relate to definite averments which must be
considered by the Police Officer himself before he arrests the person.

2..Arrest by Private person

Even private persons are empowered to arrest a person for protection of peace in certain situations. This is
important because police cannot be present at every nook and corner and it is up to private citizens to
protect the society from disruptive elements or criminals. As per section 43(1), any private person may
arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable
offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made
over any person so arrested to a police officer, or, in the absence of a police officer, take such person or
cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is committing
assault on others, he may be rightly arrested by any citizen and taken to the nearest police station.

3. Arrest by Magistrate- As per Section 44(1), when any offence is committed in the presence of a
Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any
person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail,
commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may at any time
arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is
competent at the time and in the circumstances to issue a warrant. Important thing to note here is that
magistrates have wider power than private citizen. A magistrate can arrest on the ground of any offence and
not only on cognizable offence. As held in the case of Swami HariharanandSaraswati v. Jailer I/C Dist.
Varanasi, 6, the arrested person must be produced before another magistrate within 24 hours, otherwise his
detention will be illegal.

D. Guidelines by Judiciary - The Supreme Court over the last more than two decades has been to
circumscribe the vast discretionary power vested by law in Police by imposing several safeguards and to
regulate it by laying down numerous guidelines and by subjecting the said power to several conditional ties.
The effort throughout has been to prevent its abuse while leaving it free to discharge the functions entrusted
to the Police. In order to have transparency in the accused- police relations the Supreme Court held that
right of arrested person upon request, to have someone informed about his arrest and right to consult
privately with lawyers are inherent in Articles 21 and 22 of the Constitution. The Supreme Court observed

4
JoginderKumar v. State of UP, 1994 SCC 746.
5
Cr.L.J, 1997
6
Swami HariharanandSaraswati v. Jailer I/C Dist. Varanasi, AIR 1954

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 163

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

that no arrest can be made because it is lawful for the Police officer to do so. The existence of the power to
arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to
justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a person. No arrest should be made by Police Officer
without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect
arrest.7In the case of Joginderkumar v. State of U.P8,
the Supreme Court issued the following requirements:

1. An arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other
person who is known to him or likely to take an interest in his welfare told as far as practicable that he has
been arrested and where is being detained.

2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly.

The guidelines issued by the supreme court in the decisions of like Joginder Kumar, NilabatiBehera etc
were not sufficient to stop
the frequent instances of police atrocities and custodial deaths. Therefore, the Supreme Court in the case of
D.K . Basu v. State of W.B9issued in the following requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as preventive measures.

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their designations. The particulars of all such
police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of
arrest and such memo shall be attested by at least one witness, who may be either a member of the family of
the arrestee or a respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of arrest.

7
www.legalservices.com visited on 24 Dec.,2017.
8
Supra n.5.
9
D.K. Basu v. State of West Bengal,

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 164

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

3. A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up shall be entitled to have one friend or relative or other person known to
him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next
friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the
District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the
arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention
as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall
also disclose the name of the next friend of the person who has been informed of the arrest and the names
and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor
injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be
signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his
detention in custody, by a doctor in the panel of approved doctors appointed by Director, Health Services of
the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils
and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to illaqa
Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.

11. A police control room should be provided at all Districts and State headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be communicated by the Officer causing
the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 165

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

conspicuous notice board. lawyer

The Court emphasized that failure to comply with the said requirements shall apart from rendering the
concerned official liable for departmental action, also render him liable to be punished for contempt of
Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having
territorial jurisdiction over the matter. The requirements flow from Article 21 and Article 22 (1) of the
Constitution need to be strictly followed. The requirements are in addition to the constitutional and statutory
safeguards and do not detract from various other directions given by the Courts from time to time in
connection with the safeguarding of the rights and dignity of the arrestee.10
E. Incorporation of Guidelines of Supreme Court in Cr.P.C. by Amendment

The legislature incorporated the guidelines issued by the Supreme Court by inserting Sections 41-A 41-B
,41-C, 41-D,50-A etc.. Section 41-A provides that the police officer may, in all cases where the arrest of
person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists that he committed a cognizable offence to appear before him.

Section 41-A Notice of appearance before police officer11-:

(1) The police officer may, in all cases where the arrest of a person is not required under the provisions of
sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place as may be specified in the
notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms
of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect
of the offence referred to in the notice unless, for reasons to be recorded, the police officers are of the
opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the
police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been
passed in this behalf by a competent Court.

10
Supra n.3.
11
Section 41-A, Code of Criminal Procedure,1973.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 166

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

Section 41-B Procedure of Arrest and duties of officer making arrest-12: Every police officer while making
an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be—

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable
member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a
right to have a relative or a friend named by him to be informed of his arrest.

Section 41-C Control room at districts-13

(1) The State Government shall establish a police control room—(a)inevery district and(b)at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at
every district, the names and addresses of the persons arrested and the name and designation of the police
officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to time, details
about the persons arrested, nature of the offence with which they are charged and maintain a database for
the information of the general public.

Section 41-D Rights of arrested person to meet an advocate of his choice during interrogation-14

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his
choice during interrogation, though not throughout interrogation.

SECTION 50-A Section 50-A Obligation of person making arrest to inform about the arrest, etc., to a

12
Section 41-B, Code of Criminal Procedure,1973.
13
Section 41-C, Code of Criminal Procedure,1973.
15 Section 41-D, Code of Criminal Procedure,1973.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 167

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

nominated person-15

(1) Every police officer or other person making any under this Code shall forthwith give the information
regarding such arrest and place where the arrested person is being held to any of his friends, relatives or
such other persons as may as may be disclosed or nominated by the arrested person for the purpose of
giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is
brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to
be kept in the police station in such form as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of the magistrate before whom such arrestedrest means apprehension of a person by
legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person's liberty is in control of
the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime
or prevent a person suspected of doing crime from running away from the law. Cr P C contemplates two
types of arrests - an arrest that is made for the execution of a warrant issued by a magistrate and an arrest
that is made without any warrant b

F. Arrest how made - Section 46 describes the procedure to arrest a person. As per Section 46(1), unless the
person being arrested consents to the submission to custody by words or actions, the arrester shall actually
touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of the person,
it is necessary for the person being arrested to either submit to custody or the arrester must touch and
confine his body. Mere oral declaration of arrest by the arrester without getting submission to custody or
physical touching to confine the body will not amount to arrest. The submission to custody may be by
express words or by action. For example, as held in the case of BharosaRamdayal v. Emperor16, if a person
makes a statement to the police accusing himself of committing an offence, he would be considered to have
submitted to the custody of the police officer. Similarly, if the accused proceeds towards the police station
as directed by the police officer, he has submitted to the custody. In such cases, physical contact is not
17
required. In case of Birendra Kumar Rai v. Union of India, , it was held that arrest need not be by
handcuffing the person, and it can also be complete by spoken words if the person submits to custody.

Section 46(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,

15
Section 50-A, Code of Criminal Procedure,1973
16
BharosaRamdayal v. Emperor,AIR 1941.
17
Birendrakumarrai v. Union of India, Cr.L.J.1992.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 168

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

such police officer or other person may use all means necessary to effect the arrest. Thus, if the person tries
to runaway, the police officer can take actions to prevent his escape and in doing so, he can use physical
force to immobilize the accused. However, as per Section 46(3), there is no right to cause the death of the
person who is not accused of an offence punishable with death or with imprisonment for life, while arresting
that person. Further, as per Section 49, an arrested person must not be subjected to more restraint than is
necessary to prevent him from escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that
forbids the 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 and obtaining a prior
permission from the concerned Judicial Magistrate of First class. In Kultej Singh v. Circle Inspector of
Police, 18, it was held that keeping a person in the police station or confining the movement of the person in
the precincts of the police station amounts to arrest of the person.

G. Rights of an Arrested person -Cr P C gives wide powers to the police for arresting a person. Such
powers without appropriate safeguards for the arrested person will be harmful for the society. To ensure that
this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as
recognition of the rights of a person being arrested. Further, once arrested, a person is already at a
disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend himself.
Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that give specific rights to an
arrested person. These rights can be described follows:19 -

1. Right to know the grounds of arrest - Section 50(1) - According this provision, every police officer or
other person arresting any person without warrant shall forthwith communicate to him full particulars of the
offence for which he is arrested .
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section
55, the subordinate officer must notify the person to be arrested of the substance of the written order given
by the senior officer, which clearly specifies the offence for which he is being arrested. The police officer
or any person making arrest under warrant in Section 75 must notify the substance of the warrant to the
person being arrested and if required, must show the warrant. As held in Satish Chandra Rai v.JoduNandan
20
Singh, , if the substance of the warrant is not notified, the arrest would be unlawful.

This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No person who is
arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such

18
Kultej Singh v. Circle Inspector of Police ,Cr.L.J. ,1992.
19
www.legalsrvices.com visited on 25 Dec. 2017.
20
ILR 26 Cal 748.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 169

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.". It
embodies two distinc rights - the right to be told of the grounds of arrest and the right to consult a legal
practioner of his choice. The second right of consulting a legal practitioner of his choice actually depends on
the first right of being told about the grounds of arrest. If the person doesn't know why he is being arrested,
he cannot consult a legal practioner meaningfully. In Harikishan v. State of Maharashtra 21, SC held that the
grounds of arrest must be communicated to the person in the language that he understands otherwise it
would not amount to sufficient compliance of the constitutionalprovisions.

2. Right to be informed of the provision for bail - Section 50(2) - Inbailable offences, Cr P C allows the
offender to ask for bail as a matter of right. However, every person does notknow about Cr P C and so they
are not aware about their rights. Thus, Section 50(2) provides that where a police officer arrests any person
other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested
that he is entitled to be released on bail and that he may arrange for sureties on his behalf.
3. Right to be taken to magistrate without delay

Art 22(2) gives a fundamental right to the arrested person that he must be produced before a magistrate
within 24 hours of arrest. It says, "Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate."

Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No
police officer shall detain in custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a
Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey
from the place of arrest to the Magistrate's court." Section 76 contains a similar provision for a person
arrested under a warrant. Thus, it can be see that it is a very important right that is meant to prevent abuse
of police power and to prevent the use of a police station as a prison. It prevents arrest merely for the
purpose of extracting confessions. The arrested person gets to be heard by a judicial authority that is
22
independent of the police. In Khatri (II) v. State of Bihar , SC has strongly urged upon the State and its
police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial
magistrate within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a
check on the police investigation. It is necessary that the magistrates should try to enforce this requirement
and when they find it disobeyed, they should come heavily upon the police. Further, in Sharifbai v. Abdul

21
Harikisan v. State of Mharashtra, AIR 1962 SC 911,914
22
Khatri (II) vs State of Bihar 1981 SCC 627

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 170

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

Razak, 23, SC held that if a police officer fails to produce an arrested person before a magistrate within 24
hours, he shall be held guilty of wrongful detention.

4. Right to consult Legal Practitioner - Art 22 (1) - For conducting a fair trial it is absolutely necessary that
the accused person is able to consult with a legal practitioner whom he trusts. It says that no person who is
arrested shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. The
same right is also provide by CrPC under Section 303, which says, "Any person accused of offence before a
Criminal Court or against whom proceedings are instituted under this Code, may have right be defended by
a pleader of his choice."

5. Right to free legal aid - Art 21 and Section 304 - A person who does not have the means to appoint a
legal practitioner is unable to defend himself appropriately. This affects the fairness of the trial. Therefore,
Section 304 provides that where, in a trial before the Court of Session, the accused is not represented by a
pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the
Court shall assign a pleader for his defense at the expense of the State. In Khatri (II) v. State of Bihar
, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives
fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an
indigent accused person and this constitutional obligation arises not only when the trial is commenced but
also when the person is first produced before a magistrate and also when he is remanded from time to time.

6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder
Kumar v State of UP ,24 formulated the rules that make it mandatory on the police officer to inform one
friend, relative, or any other person of the accused person's choice, about his arrest. These rules were later
incorporated in CrPC under section 50 A in 2005.
Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer
must inform a relative or a friend, or any other person of the arrested person's choice, about his arrest. He
must also tell the place where the arrested person has been kept. This is a very important step in ensuring
justice with the arrested person because this allows the arrested person and his well wishers to take
appropriate legal steps to secure his release. Thus, Section 50 A (2) provides that the police officer must
inform the arrested person of this right. Further, as per Section 50 A (3) he must note down the name and
address of the person who was informed about the arrest. To make sure that there is no violation of this
right, section 50 A (4) makes it a duty of the magistrate to verify that the provisions of this section were
complied with.

23
Sharifbai v. Abdul Razak, AIR 1961 Bom 42.
24
1994) 4 SCC 746.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 171

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the
accused examined by a registered medical practitioner,Section 54(1) gives the accused a right to get himself
examined by a registered medical practitioner. Section 54 (1) says thus, "When a person who is arrested,
whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any
time during, the period of his detention in custody that the examination of his body will afford evidence
which will disprove the commission by him of any offence or which Magistrate shall, if requested by the
arrested person so to do direct the examination of' the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or
for defeating the ends of Justice". While Section 53 is meant to aid the police in investigation, Section 54(1)
is meant for the accused to prove his innocence. This right can also be used by the accused to prove that he
was subjected to physical injury.
8.Right to Silence- In SheelaBarse v State of Maharashtra25, SC held that the arrested accused person must
be informed by the magistrate about his right to be medically examined in terms of Section 54. The
constitution of India guarantees every person right against self incrimination under Article 20 (3) “No
person accused of any offense shall be compelled to be a witness against himself”. It is well established that
the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of
NandiniSathpathyvsP.L.Dani26, no one can forcibly extract statements from the accused, who has the right
to keep silent during the course of interrogation (investigation). By 0 the administration of these tests,
forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the
Right to Silence. In 2010 The Supreme court made narco-analysis, brain mapping and lie detector test as a
violation ofArticle 20(3).

9. Rights at Trial-The Constitution under Article 14 guarantee the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. The
Constitution provides an accused the right to a speedy trial. Although this right is not explicitly stated in the
constitution, it has been interpreted by the Hon'ble Supreme Court of India in the judgment of
HussainaraKhatoon27. This judgment mandates that an investigation in trial should be held “as expeditiously
as possible”.

10. Right of The Accused To Produce An Evidence-

The accused even has right to produce witness in his defence in case of police report or private defence.

SheelaBarse v State of Maharashtra25 1983 SCC

25
26

27
HussainaraKhatoon and Ors. v. Home Secretary, Bihar, Patna, (1980) 1 SCC 98.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 172

www.ijcrt.org © 2018 IJCRT | Volume 6, Issue 1 January 2018 | ISSN: 2320-2882

After the Examination and cross examination of all prosecution witness i.e. after the completion of the
prosecution case the accused shall be called upon to enter upon his defence and any written statement put in
shall be filled with the record. He may even call further for cross examination. The judge shall go on
recording the evidence of prosecution witness till the prosecution closes its evidence.

H. Consequences of non-compliance with the provisions relating to arrest -

In general, non-compliance does not void a trial. Just because any provision relating to arrest was not
complied with does not affect whether the accused is guilty or not. However, the violation will be material
in case the accused is prosecuted on the charge of resistance to or escape from lawful custody.Further,
everybody has a right to defend himself against unlawful arrest and a person can exercise this right under
Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is
making an illegal arrest is guilty of wrongful confinement and also exposes himself to damages in a civil
suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he
will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an
authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under
Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.

It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no
arrest but only an informal detention. Informal detention or restraint of any

kind by the police is not authorized by law28.

28
Supra n.3.

IJCRT1801306 International Journal of Creative Research Thoughts (IJCRT) www.ijcrt.org 173