ARREST

ARREST
Introduction
The arrest is an important part of the Criminal Justice System as it serves as a
crucial tool for law enforcement agencies to restrict individuals suspected of
committing criminal offences. It is an act of taking an individual into custody or
control or legal protection because he/she is suspected of an offence. The dictionary
meaning of the word „arrest‟ is „to make inactive‟, „to bring to a stop‟, „to catch
suddenly and engagingly‟, or „the taking or detaining in custody by authority of law‟.
Overall, it can be said that arrest means to bring to stop any activity of a person.
There are 4 main elements of arrest, Arrest Authority, Intent to arrest, Detention or
seizure of the person, and understanding by the person arrested. In this article, we
will discuss certain provisions of arrest under the Code of Criminal Procedure, 1973.
Arrest under CrPC: Provisions deals with „Arrest of Persons‟. Let us illustrate
different categories of arrest and how an arrest is made.
Arrest in pursuance of a warrant

A police officer cannot arrest a person without a warrant in case the person commits
a crime or offence which is non-arrestable. An arrest warrant empowers an
individual's arrest or capture or seizure of a person‟s property. Every arrest warrant
is issued by a Judge or a Magistrate on behalf of the state. According to Section
70 of the CrPC, 1973, “Every warrant of arrest issued by a Court under this Code
shall be in writing, signed by the presiding officer of such Court and shall bear the
seal of the Court.” Moreover, such a warrant should remain in force until canceled by
the Court which issued it or until it is executed.
Arrest without warrant
As the name suggests „Arrest without warrant‟, a police officer can arrest a person
without a warrant for an arrestable offence. Section 41 of the CrPC illustrates certain
conditions where a police officer has the authority to arrest an individual without an
order from a Magistrate and without a warrant. According to this Section, a police
officer can arrest a person when he/she:
 commits a cognizable offence,

 has been proclaimed as an offender either by order of the State Government
or under CrPC,
 is in possession of the stolen property,
 obstructs a police officer from performing duty or escapes or attempts to
escape from lawful custody,
 is reasonably suspected of being a deserter from any of the Armed Forces of
India,
 being a released convict commits a breach of a rule,
 is involved in any offence committed outside India, and
 is the one whose arrest requisition has been received from another police
officer specifying the person to be arrested and the offence or other cause for
which the arrest is to be made.
Arrest on refusal to give name and residence

Section 42 of CrPC deals with another situation where a police officer can arrest a
person, „Arrest on refusal to give name and residence‟. As per this Section, if an
individual commits or has been accused of committing a non-cognizable offence,
refuses to give his name or address or provides a name or address that the officer
believes to be false then the police officer can arrest the person. It also illustrates
that “When the true name and residence of such person have been ascertained, he
shall be released on his executing a bond, with or without sureties, to appear before
a Magistrate if so required.” In case, a person‟s actual name and address cannot be
ascertained within 24 hours or fails to execute a bond or furnish sufficient sureties
then he/she should be forwarded to the nearest Magistrate.
Arrest by a private person

It means that a private person can arrest any person who commits a non-bailable
and cognizable offence in his presence. Section 43 of CrPC, 1973, deals with
„Arrest by private person and procedure on such arrest‟. A private person can arrest
another person if:
 he/she commits a non-bailable and cognizable offence, or

 the person is a proclaimed offender.
In case, there is a reason to believe that such a person comes under Section 41 of
CrPC then a police officer should re-arrest him. Section 43(3) states that “If there is
reason to believe that he has committed a non-cognizable offence, and he refuses
on the demand of a police officer to give his name and residence, or gives a name or
residence which such officer has reason to believe to be false, he shall be dealt with
under the provisions of section 42; but if there is no sufficient reason to believe that
he has committed any offence, he shall be at once released.”
Arrest by Magistrate
Section 44 of the Code of Criminal Procedure, 1973, deals with „Arrest by
Magistrate‟ whereas the term Magistrate here addresses both Judicial and Executive
Magistrate. Its Sub-section (1) illustrates that “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.”
Sub-section (2) states that any Magistrate can arrest or direct any person in his
presence within his local jurisdiction to arrest a person.
The Armed Forces of the Union are protected from arrest under Section 45 of CrPC,
stating that [Notwithstanding anything contained in sections 41 to 44 (both inclusive)]
no member of the Armed Forces of the Union should be arrested for anything done
or purported to be done by him in the discharge of his official duties except after
obtaining the consent of the Central Government.
Procedure of Arrest:
 The procedure for how arrest is to be made is provided under section 46 of the
Code.
Section 46 - Arrest How Made -

(4) Save in exceptional circumstances, no woman shall be arrested after sunset and
before sunrise, and where such exceptional circumstances exist, the woman police
officer shall, by making a written report, obtain the prior permission of the Judicial
Magistrate of the first class within whose local jurisdiction the offence is committed,
or the arrest is to be made. (1) In making an arrest the police officer or other person
making the same shall actually touch or confine the body of the person to be arrested, unless
there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the
contrary, her submission to custody on an oral intimation of arrest shall be presumed and,
unless the circumstances otherwise require or unless the police officer is a female, the police
officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of
an offence punishable with death or with imprisonment for life.
Requisites Regarding Arrest:

 Where arrest is not required, notice must be compulsorily issued before arresting.
 According to Section 41B of CrPC - Every police officer while making an arrest shall:
o Bear accurate, visible and clear identification of his name.
o Prepare memo of arrest, attested by at least one witness and countersigned by the arrested
person.
o Inform person arrested his right to have a relative informed.
 Police control rooms are to be established in every district and at the state level according
to Section 41C of CrPC.
 An arrested person is entitled to meet an advocate during interrogation, not throughout the
interrogation as per Section 41D of CrPC.
 A Police Officer may, in addition to arrest, exercise following powers:
o May search a place entered by person sought to be arrested.
o May pursue any person into any place in India.
o Shall not subject person to more restraint than necessary.
o Inform arrested person the grounds of arrest.
o Inform arrested person of right to bail.
o Has an obligation to inform about the arrest to a nominated person.
o Search for the arrested person.
o Seize offensive weapon.
o Medical examination of accused at the request of police officer.
o Medical examination of person accused of rape.
o Medical examination of arrested person.
 Duty of person having the custody to take reasonable care of health and safety of arrested
person.
 A person arrested must be taken before the magistrate within 24 hours of the arrest as
per Section 57 of CrPC.
 Officer in charge shall report to District Magistrate of all arrests without warrant.
 Person arrested to be discharged on his own bond/bail/special order of magistrate
 Power to pursue and retake in case of escape.
 Arrest to be made strictly according to the CrPC according to Section 60A.
o In Arnesh Kumar v. State of Bihar (2014), Supreme Court of India ordered to ensure that
police officers do not arrest the accused unnecessarily and magistrate do not authorize
detention in such cases.

ARREST

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ARREST

Arrest in pursuance of a warrant

Arrest without warrant

 commits a cognizable offence,

Arrest on refusal to give name and residence

Arrest by a private person

 he/she commits a non-bailable and cognizable offence, or

Section 46 - Arrest How Made -

Requisites Regarding Arrest:

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