BASIC CONTOURS OF ARREST UNDER CrPC
Arrest brings humiliation – Arrest curtails the freedom of individual – Arrest involves restriction of personal liberty of a person arrested and as such violates the basic human rights of liberty – Though the Constitution of India as well as international covenants recognize the power of the state to arrest any person as a part of its major role in maintaining the law and order problem, the Constitution of India mandates that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 22 (1) provides that “no person who is arrested shall be detained in custody without being informed, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. This essay deals with the “Basic concept of arrest under code of criminal procedure,1973. This essay is based upon the norms of the criminal law is that the “thousand accused can be punished but one innocent shouldn’t be punished”. The essay would like to explicit that one of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till he is found guilty at the end of a trial on legal evidence in a democratic society. Even the rights of accused are sacrosanct, the accused in India are afforded certain rights, the most basic of which are found in the Indian constitution.
“The power to arrest to deprive a citizen of liberty must be used fairly, responsibly, and without bias” – Loretta Lynch.
One of the most dangerous cocktails in a democracy is when those who are meant to enforce the law take the law into their own hands. The word “arrest” is Anglo-Norman in origin, derived from the French word arrest meaning ‘to stop or stay’ and signifies a restraint of a person. The term “Arrest” means apprehension of a person by legal authority so as to cause deprivation of his liberty. An arrest consists of taking into custody of another person’s authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of the criminal offense. Thus, after arrest, a person’s liberty is in control of the arrester. As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.” The purpose of an arrest is to bring the arrestee before a court or otherwise to secure the administration of the law.
Fair trial requires that the trial proceedings are conducted in the presence of the accused and that he is given a fair chance to defend himself. Further, in case the accused is found guilty at the conclusion of the trial, he must be available in person to receive the sentence passed on him. Simply arresting and detaining him during trial can well ensure the presence of the accused at the trial. It may be stated as a broad principle that the liberty of a person should not be taken away without just cause. If the presence of the accused at the trial cannot be procured except by arrest and detention, the accused should by all means be arrested and detained pending his trial. Moreover, the detention of the accused prior to or pending trial is likely to cause direct or indirect obstructions in the preparation of his defense and would not therefore be quite conducive to a fair trial. Consequently, the provisions regarding the issue of a summons, or of a warrant of arrest, and the provisions relating to arrest without warrant are all aimed at ensuring the presence of the accused at his trial without unreasonably depriving him of his liberty.
JURISPRUDENTIAL ESSENCE OF ARREST
The purpose of an arrest is to bring the arrestee before a court or otherwise to secure the administration of the law. An arrest also serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crime. When we arrest a person, we deprive him of his liberty; whereas if we allow a criminal to roam freely in the society, he may pose danger to the society. The accused may abscond; threat the witnesses which will affect the investigation. There must be balance between the liberty of individual and social interest.
Article 21 reads as: “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.
Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12 of the Constitution. Article 21 secures two rights: Right to life and Right to personal liberty. The Article prohibits the deprivation of the above rights except according to the procedure established by law. Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc. Right to life is fundamental to our very existence without which we cannot live as human being and includes all those aspects of life, which go to make a man’s life meaning. Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely punitive and preventive.
Punitive detention is to punish a person for an offense committed by him after a trial and conviction in a court. Preventive Detention means detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offense but to prevent him from committing an offense in the near future. The Article 22 has two parts: The first part deals with the cases of Ordinary Law and the second part deals with the cases of Preventive Detention. Article 22 (1) gives every citizen of India the Right to be informed of the grounds of arrest and the Right to consult and be defended by a legal practitioner. Article 22(2), gives every citizen of India the Right to be produced before a magistrate within 24 hours, excluding the journey time.
MEANING AND PURPOSE
Arrest means “the apprehension of a person by legal authority resulting in deprivation of his liberty”. Under Section 46, the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there is submission to the custody by word or action. In R.R. Cheri v. State of Uttar Pradesh, the apex court defined arrest as “the act of being taken into custody to be formally charged with a crime.” The court observed that in a Constitutional sense, it means the seizure of a person (body of a person).
In State of Punjab v. Ajaib Singh, the court observed that arrest is the “physical restraint put upon an abducted person in the process of recovering and taking that person into legal custody with or without any allegation or accusation of any actual or suspected commission of the offence.”
The code has been not defined the term “arrest”. In the case State of Haryana v. Dinesh Kumar, the apex court observed that the expression arrest has neither been defined in the Cr.P.C nor in IPC or any other enactment dealing with criminal offences the only indication as to what would constitute arrest may perhaps be found in section 46 of the code which describes the mode in which arrest are to be made the world arrest when used in its ordinary sense means the apprehensive or restraint or the deprivation of one’s personal liberty.
An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. An arrest may occur by the consent of the person to be arrested. There is no arrest where there is no restraint and the restraint must be under real or pretended legal authority. However, the detention of a person need not be accompanied by formal words of arrest or a station house booking to constitute an arrest. The test used to determine whether an arrest took place in a particular case is objective and it turns on whether a reasonable person under these circumstances would believe he or she was restrained or free to go. A reasonable person is one who is not guilty of criminal conduct, overly apprehensive or insensitive to the seriousness of the circumstances.
Reasonableness is not determined in light of a defendant’s subjective knowledge or fears. The subjective intent of the police is also normally irrelevant to a court’s determination whether an arrest occurred, unless the officer makes that intent known. Thus, a defendant’s presence at a police station by consent does not become an arrest solely by virtue of an officer’s subjective view that the defendant is not free to leave. When an officer does seek an arrest warrant, the officer must present evidence to a neutral judge or magistrate sufficient to establish probable cause that a crime has been committed. The evidence upon which a warrant is based need not be ultimately admissible at trial but it cannot be based on knowingly or intentionally false statements or statements made in reckless disregard of the truth. An investigatory detention that lasts for too long automatically turns into a de facto arrest. In every arrest, there is custody but not vice versa and that both the words custody and arrest are not synonymous terms. Custody may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra-legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences. The meaning of the expression “custody” was succinctly stated by the Orissa High Court in the decision reported as Paramhansa Jadab v. State, stating that “It is now well settled that “police custody” for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance.” The “police custody” commences as soon as the movements of the accused get “restricted” whereas the formal arrest can take place only after the stage when there are sufficient evidence to make grounds of arrest and moreover, there is justification to make such arrest.
TYPES OF ARREST
This code proposes two types of arrests:
1. Arrest made in pursuance of a warrant issued by a magistrate
2. Arrest made without such a warrant but made in accidence with some legal provision permitting such arrest.
ARREST WITHOUT WARRANT
Powers to arrest without a warrant are mainly and widely conferred on the police; but in some circumstances these are conferred on others also as provided in section 41 of Cr.P.C.
Sub-section (1) corresponds to section 5 and sub-section (2) corresponds to section 55 of old Cr.P.C. In sub-section (1), clause (i), the words “whether written or oral” are new and did not appear in the old Cr.P.C. There was a sharp controversy as to whether the requisition included an oral requisition. To remove the doubt the aforesaid words have been inserted.
Cr.P.C Amendment Act, 2008 (5 of 2009), Section 5:
In section 41, in sub-section (1) for Clauses (a) and (b), new clauses (a), (b) and (ba) and for sub- section (2), new sub-section (2) has been substituted, by section 5 of the Cr.P.C (Amendment) Act, 2008 (5 of 2009). Section 41 relates to power of police to arrest without warrant. Clauses (a) and (b) of sub-section (1) have been amended to provide that the powers of arrest conferred upon the police officer must be exercised after reasonable care and justification and that such arrest is necessary and required under the section. Amendment in sub-section (2) of section 41 has been made to provide that subject to the provisions of section 42 relating to arrest on refusal to give name and residence, no person shall be arrested in non-cognizable offence except under warrant or order of a Magistrate.
The amendment of 2008 has broadened the meaning of arrest, by specifying the conditions under which an arrest is to be made. By bringing in clauses (a) to (e) of sub-section (ii) in this section, the Legislature has prescribed the parameters warranting arrest of a person, so that an arrest can be subjected to judicial scrutiny on objective parameters which has necessitated the infringement of a persons’ fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India.
Accordingly, a police officer can cause an arrest of a person if there exists any of the objective grounds:
1. For preventing the person arrested from committing any further offence; or
2. For the purposes of proper investigation of the offence; or
3. For preventing the person arrested from causing either disappearance of evidence or tampering with the evidence; or
4. For preventing the person arrested from giving any inducement, threat or promise to a witness for the purposes of either alluring such witness or dissuading the witness from giving his statement to the police officer or deposing before court;
5. For ensuring the purposes of court proceedings.
These parameters are also in consonance with the principles which guide a court of law in entertaining the prayer of an arrested person for bail.
SCOPE AND APPLICATION
This section enumerates nine categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. General provisions contained in Chapter IV and especially section 41(1)(d) of the Code will have to be read in conjunction contained in sections 155and 156. If section 155(2) prohibits a police officer from investigating non- cognizable offence without an order of the Magistrate then in respect of such an offence a police officer cannot exercise the powers contained in section 4(1)(d). Section 41 is a depositary of general power of the police officer to arrest but this power is subject to certain other provisions contained in the code as well as in the special statute to which the Code is made applicable.
The powers of the police to arrest a person without a warrant are only confined to such persons who are accused or concerned with the offences or are suspects’ thereof. A person, who is alleged to have been in possession of an illicit arm once upon a time, can neither be called presently an accused nor a suspect thereof. An arrest made by a Head Constable, where no power was delegated to him by the SHO, fell under section 41 and not under section 55. The arrest was held lawful. Language of section 41 clearly suggests that the Police Officer can arrest a person with an order from a Magistrate. Powers under section 41 Cr.P.C can be exercised without court’s intervention.
Where the Magistrate orders investigation under section 156(3) of the Code and police registers FIR the arrest should depend upon the facts and circumstances of the case and should not be resorted to invariably by the police in every such case. Where complaint has been filed on flimsy ground, the arrest of the accused may not be justified. The right of a person who has been arrested, to inform someone about his arrest and to consult his lawyer privately is a fundamental right inherit under Articles 21 and 22. An arrest is part of the investigation and cannot be stayed; normally the court should not interfere with the process investigation except in rarest of rare cases, and on proof of fact that the police would not act “reasonably and “honestly” and would act mala fide or in bad faith. Where the matter relating to arrest of the petitioner was subject matter of a writ petition pending before the High Court, and the respondent had given undertaking not to arrest the petitioner, arrest of the petitioner in violation of the undertaking was not proper. The section is not exhaustive.
There are various other Acts: Arms Act, Explosives Act, etc., which also confer such powers on police officers. The words “police officer” are not defined in the Code. If a police officer makes a wrong arrest under a bona fide mistake he is protected. The arrest even if illegal does not affect the trial of the case. This section is not controlled by section 55 which requires a written order when the arrest is made without a warrant. It is not incumbent upon a superior officer of the police to comply with the formalities mentioned in section 55. An accused cannot claim a right to notice/hearing before arrest is made.
CAUTION AND CIRCUMSPECTION IN ARREST
If information relating to a cognizable offence is brought to the notice of the police officer, though he has the power to arrest, he can still refrain from arresting persons, depending upon the nature of the offence and the circumstances unfurled not only in the complaint but also during the course of investigation. This section, of course, gives wide powers to Police Officer to make an arrest and, naturally it is necessary while exercising such large powers to be cautious and circumspect.
The power to arrest under this section shall not be exercised arbitrarily violating dignity and the liberty of an individual. An arrestee has the right to be informed about his arrest and to consult privately with lawyer. These rights are inherit are inherit under article 21 and 22 of the constitution and required to be recognized and scrupulously protected.
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 is practicable, that he has been arrested and where he is being detained
Arrest of a person even in case of cognizable offences is not mandatory where the offence is punishable with maximum sentence of 7 years imprisonment. The provisions of section 41A make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (u) of sub-section (1) of the amended section 41. But unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under section 41A could be a ground for his arrest. Legislation has laid down various parameters; warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty. The Supreme Court has held that in cases relating to dowry harassment, police officer should not automatically make arrests. The practice of mechanically reproducing in case dairy all or most of the reasons contained in section 41 of the Code for affecting arrest should be discouraged and discontinued. Where a case was registered against the accused for offences under section 120(B), 468, 471, 342 read with section 34 of the IPC, it was held that none of the offences carry punishment for more than 7 years and as such section 41 has to be complied with. Thus, arrest made by police without recording reasons violates not only section 41 but also the fundamental right guaranteed under Article 21 of Constitution. In the case of arrests made during election campaign, the Andhra Pradesh High Court has cautioned such that all political parties should have equal opportunity to participate in election campaigns and as such no one should be unnecessarily arrested and harassed, except, where his arrest is required bona-fide for the purpose of investigation.
The words may arrest show that the power of arrest is discretionary. The police officer is not always bound to arrest for a cognizable offence. Even if cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v State of UP, before deciding whether to make an arrest or not. These are the following guidelines:
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 is practicable that he has been arrested and where he is being detained.
It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The power of arrest under section 41 given to the police is not absolute and is not to be exercised in arbitrary manner, but judiciously, subject to the limitations specified und provisions of Cr.P.C.
No arrest is to be made because it is lawful for the Police Officer to do so. The Police Officer must be able to justify the arrest apart from his power to do so. Except in heinous offences, arrest would be avoided46. Arrest is not a must in every case and there must be sufficient reasons for exercising such powers by the police officer.
ARREST WITH A WARRANT
Where a person has been concerned in a non-cognizable offence, he cannot, except in a few cases, be arrested without a warrant. The Code, however, does not expressly empower a Magistrate to issue a warrant of arrest before taking cognizance of any such offence. In the absence of any restrictive provision, it is theoretically possible for a Magistrate to issue a warrant of arrest in case of a cognizable or non-cognizable offence even before taking cognizance of the offence; in practice, a warrant for arrest is hardly ever issued prior to taking cognizance of the offence.
A warrant for arrest may be issued by a Magistrate after taking cognizance of any offence, whether it is cognizable or non-cognizable. If the case in which the cognizance has been taken is a summons Case, a summons shall be issued to the accused person in the first instance for his attendance in court; and if the case is a warrant case, a warrant for the arrest of the accused may normally be issued for causing the accused to be brought before the court. The Code, however, gives discretion to the Magistrate to depart from this general rule if the circumstances so demand in a particular case. For instance, if, at any time, the Magistrate has reason to believe that the accused has absconded or would not obey the summons, he may issue a warrant for his arrest. In practice, however, the Magistrate has hardly any occasion to issue a warrant of arrest if he has taken cognizance of a cognizable offence on a police report, because the police report is submitted to the Magistrate after the police has completed the investigation into the offence; and during the investigation, the police has power to arrest, without warrant, a person involved in the commission of a cognizable offence. Further, the police are under a legal duty to apprehend every person whom it is legally authorized to apprehend.
WHO CANNOT BE ARRESTED
The code exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government as mentioned in Section 45 of Cr.P.C. This provision protects the armed Forces from arrest, where they do or purport to do something in the discharge of their official duties. They can, of course, be proceeded against after obtaining the consent of the Central Government.
This section provides for the protection of the Armed Forces from arrest. In a case, a Major of the Indian Army who was posted in Assam, along with other personnel and two or three person in civil dress, brutally assaulted a person resulting in his death. On a case being filed, the accused Major avoided the appearance in the court. Ultimately, charge sheet was submitted in the court showing him as an absconder. When the Chief Judicial Magistrate pursed the matter through his higher officers and issued a warrant of arrest against him, he approached the High Court questioning the legality of the criminal proceeding for want of previous sanction. He further claimed protection under this section. It was held by the High Court that the occasion for such protection has not arisen and the request for protection was premature.
 R.V. Kelkar, Criminal Procedure, Eastern Book Company, Lucknow, 2018.
 Rights of arrested person, available at: https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320, visited on 2 september,2019, at 4:30 pm
 The State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
 Kharak Singh v. State of Uttar Pradesh; AIR1963 AIR 1295, 1964 SCR (1) 332; By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
 R.R. Cheri v. State of Uttar Pradesh; AIR 1951 SC 207.
 State of Punjab v. Ajaib Singh; AIR 1953 SC 10.
 State of Haryana v. Dinesh Kumar; Arising out of SLP(C) No.1840 of 2007, With Civil Appeal No. 85 of 2008.
 Section 46 of the Criminal Procedure Code deals with “Arrest how made”.
 Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu; 1984 Cri. L.J. 134 (Mad) (FB).
 Directorate of Enforcement v. Deepak Mahajan; (1994) 3 SCC 440.
 Directorate of Enforcement v. Deepak Mahajan; (1994) 3 SCC 440.
 Section 55 provides “Procedure when police officer deputes subordinate to arrest without warrant.”
 State v. Ram Chandra; AIR 1955 All 438, 440: 1955 Cr LJ 1120; Roshan Lal v. Supdt. of Central Jail, AIR 1950 MB 83.
 Law Commissions 41st Report, Code of Criminal Procedure, Volume 1, P 37.
 Section 42 provides “Arrest on refusal to give name and address.”
 Article 21 provides “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”
 Section 155 provides “Information as to non- cognizable cases and investigation of such cases.”
 Section 156 provides “Police officer’s power to investigate cognizable case.”
 Meenakshi Agarwal And Ors. v. State of U.P. And Ors.; 2001 Cr LJ 395.
 Sham Lal v. Ajit Singh; 1981 Cr LJ NOC 150 (P&H).
 Bhootati Konda Murugadu v. State of AP; 1996 Cr LJ 3310 (3313) (AP): 1996 (2) ALD 905.
 Laminarayan Vishwanath Arya v. State of Maharashtra; 2008 Cr LJ 1 (11) (FB): 2007 (5) Mah LJ 7 (BOM).
 Jagannath Singh v. Ajay Upadhyay; 2006 Cr LJ 4274 (4276): 2006 (2) Bom Cr (Cri) 827 (BOM).
 VS Krishnan v. State of UP; 2000 Cr LJ 4498: 2000 All LJ 2154 (2169) (All-DB).
 Sudhir M Vora v. Commissioner of Police of Greater Bombay; 2004 Cr LJ 2278 (2288) (BOM).
 Maharani of Nabha v. Province of Madras; (1942) Mad 696: (1942) 2 MLJ 14.
 Deenan v Jayalalitha; 1989 Mad LW (Crl) 395: 1990 (1) Crimes 552 (Mad).
 Kajal Dey v. State of Assam; 1989 Cr LJ 1209 (Gau).
 Hema Mishra v. State of UP; AIR 2014 SC 1066: (2014) 4 SCC 453: 2014 Cr LJ 1107 (SC).
 Arnesh Kumar v. State of Bihar; AIR 2014 SC 2756: (2014) 8 SCC 273: 2014 Cr LJ 3707 (SC).
 N Ratnakumari v. State of Odisha; 2014 Cr LJ 4433 (Ori) (DB): 2015 (1) Crimes 31 (Ori).
 Jagati Publication Ltd v. CBI, Hyderabad; 2013 Cr LJ 118 (AP): 2012 (2) ALT (Cri) 285.
 Amarawati v. State of UP; 2005 Cr LJ 755 (762) (FB) (All): 2005 Crimes 44 (All-FB).
 Joginder Kumar v State of UP; 1994 Cr LJ 1981.
 State of Rajasthan v. Bhera; 1997 Cr LJ 1237 (Raj-DB): 1997 (1) WLC 745.
 Laxmi Narayan v. State of Maharashtra; 2007 (5) Mah LJ 7 (Bom-FB).
 Dinkarro Rajarampaut Pole v. State of Maharashtra; 2004 (1) Crimes 1 (7) (Bom-DB).
 Ram Prapana v State of UP; 2007 Cr LJ (NOC) 439: 2007 (3) All LJ 97 (All).
 This is provided under sections 204 and 87 of Cr.P.C. Section 204 provides for Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or (b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.
(2) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.
 This is provided under section 23 of police act, 1861.
 Section 45 provides for “Protection of members of the Armed Forces from arrest.” (1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall 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. (2) The State Government may, by notification, direct that the provisions of Sub-Section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that Sub-Section shall apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
 Sowmithri v. State of Assam; 2012 Cr LJ 4278 (Gau): 2013 (1) GLD 295 (Gau).