UPHJS Exam, 2019 (Pre)-Study Material on Arrest: Criminal Procedure Code, 1973

ARREST [Sections 41-60A]

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Chapter V (Sections 41-60A) deals with the arrest of person and the procedure thereto. The term arrest has neither been defined in the Cr.P.C. nor IPC. An arrest is the restraint of the personal liberty with object to bring a person before a court/ quasi-adjudicatory body/the officers of law.

Article 21 of the Constitution of India guarantees personal liberty and provides that no person shall be deprived of his life and personal liberty except according to the procedure established by law. In D. K. Basu’s case[1] the Hon’ble Supreme Court issued specific guidelines regarding arrest.

ARREST AND CUSTODY—

Arrest is the actual custody of the person arrested while custody may be actual or constructive. Thus, whenever there is an arrest there is a custody.

ARREST BY POLICE OFFICER—

A person may be arrested with or without warrant. A police officer can arrest a person without warrant under Sections 41, 42, 151, 356(5) and 432(3). (Sections 43 and 44 deal with the arrest by private person and the magistrate respectively).

Arrest by Whom u/s 41—

Under Section 41 arrest may be made by “any police officer” (MPAPO-2008) without warrant.(MPAPP-2010). The word “may” indicates that the Police Officer is not bound to arrest the person who has committed cognizable offence. However, in case of not making arrest in Cognizable Offence without Magistrate’s order, he shall record reasons therefor.

Section 41 provides that any police officer may without an order from a Magistrate and without a warrant, arrest following persons- [CIPSODERR]: (UKJ-2008)

A person who commits a cognizable offence in the presence of a police officer.
A who commits cognizable offence punishable upto 7 years imprisonment with or without fine. While making arrest the police officer shall record the reasons in writing. (Amendment, 2008). In case, an offence is punishable with more than 7 years or death sentence, the police shall record the reasons in writing for not making the arrest.

who has been proclaimed offender either under this Code or by order of the State Government. (MPJ-1986)

who has been in possession of stolen property and is reasonably suspected of having committed an offence with reference to such properties.
who obstructs a police officer in execution of his duty,
who has escaped, or attempts to escape, from lawful custody.

who is suspected of being a deserter from any of the Armed Forces of the Union.
who has committed an act outside India which, if committed in India, would have been punishable as an offence and is liable to be apprehended under law relating to extradition.

who, being a released convict, commits a breach of any rule under Section 356(5). (MPAPO-1997). Section 356 imposes a duty upon the previously convicted offender to notify change of his address upto five years from the date of his release.
for whose arrest any oral or written requisition has been received from another police officer. Such requisition must specify the person to be arrested and the offence for which he is to be arrested. It is also necessary that the person who has sent requisition must lawfully be authorised to arrest such person.

Arrest by Subordinate Police officer—An Officer-in-Charge of a police station may depute through written order any subordinate police officer to arrest a person without warrant. [S.55]
Although there is a general rule that the Police Officer may arrest without warrant in cognizable cases. However, despite of being cognizable offence u/s 376-B—376-D of IPC no arrest shall be made without warrant. A police officer while arresting without warrant may pursue the intended arrestee into any place in India. [S.48]. Thus, a private person is not authorized to act under Section 48. The arrestee shall not be subjected to unnecessary restraint while preventing his escape. [S.49]
Follow up of Pre and Post- arrest Procedure (Section 41-B)—While making arrest, the police officer shall follow the pre-arrest and post-arrest procedure as enshrined under Section 41-B.

SECTIONS 41-A, 41-B, 41-C & 41-D—

Sections 41-A to 41-D were inserted by Cr.P.C. Amendment Act, 2008.

Section 41-A—Notice of appearance before the police officer—Where the person has committed a cognizable offence and arrest of person is not made by the Police Officer, the police officer will direct the person to appear before him. If the accused does not comply with the notice, the police officer may arrest him.

Section 41-B—Procedure of arrest and duties of officer making arrest—

The police officer shall bear his name to facilitate easy identification.
A memorandum of arrest shall be prepared. The memo shall be attested by at least one witness. The witness may be member of the family or the respectable person of the locality. Such Memo to be countersigned by the arrested person.

If the memo is not attested by a family member, the arrested person to be informed that that he has right to inform of his arrest to his relative or his friend.

Police Control Room—

Section 41-C mandates that at every District and State level the State Government shall establish police control room. Such control rooms shall maintain a database of arrested person and the police officer who arrested for the information of the general public. There shall be a notice board kept outside the control room displaying the name and address of the arrested person and the name and designation of the police officers who made such arrests.

Advocate during Interrogation—

Section 41-D confers right upon the arrestee to meet an advocate of his choice during interrogation. However, presence of advocate shall not be required throughout the interrogation. In Joginder Kumar’s case[2] the SC issued detail guidelines regarding rights of the arrestee and the duties of the police and the Magistrate before whom the arrestee is produced.

ARREST ON REFUSAL TO DISCLOSE NAME AND RESIDENCE—

Section 42 deals with the arrest on refusal to give name and residence. Generally a person accused of NCO can not be arrested without warrant. But under Section 42, a person may be arrested in NCO, without warrant, when—

In the presence of a Police Officer, he has committed non-cognizable offence; and
He refuses to give his correct name and residence.

Release on bond/ sureties—After ascertaining name and residence, the accused shall be released on a bond, with or without sureties, to appear before a Magistrate if so required. NRI: However, if such person is NRI, the bond shall be secured by a surety/ies resident in India. [S.42(2)]

24 hours Deadline—If the true name and residence of such person is not ascertained within 24 hours from the time of arrest or he fails to execute the bond to furnish sufficient sureties, he shall be forwarded to the nearest Magistrate having jurisdiction.

ARREST BY PRIVATE PERSON AND PROCEDURE—

Section 43 deals with the arrest by private person and procedure on such arrest. (UPAPO-2009)

Any private person may arrest or cause to be arrested any person who:

in his presence commits a non-bailable and cognizable offence, or (MPAPP-08).
is a proclaimed offender.

Section 51 clearly provides that although private person may arrest the person who has committed a non-bailable and cognizance offence, but he can not search himself the arrested person. The private person will make over the arrested person to the police officer and only the police officer is entitled for search of arrested person. (UPAPO-2007) However, the private person may seize offensive weapons under Section 52.

After arrest the private person, without unnecessary delay, the private person shall make over any person so arrested to a police officer. In case of absence of a police officer, he shall take such person to the nearest police station.

If there is reason to believe that the arrested person comes under the provisions of Section 41 (i.e. accused of cognizable offence), a police officer shall re-arrest him.[S.43(2)] Further, if there is reason to believe that he has committed a non-cognizable offence, and he refuses to give his name and residence to the police officer, he shall be dealt with under Section 42. However, if there is no sufficient reason to believe that he has committed any offence, he shall be released at once.

ARREST BY MAGISTRATE—

Section 44 deals with the arrest by Executive or Judicial Magistrate.(BCJ-09). When any offence (i.e cognizable or non-cognizable) is committed in the presence of a Magistrate, within his local jurisdiction “for whose arrest he is competent to issue warrant”, he may himself arrest or order any person to arrest the offender, and commit the offender to custody. (JCJ-2008).

PROTECTION TO ARMED FORCES—

Section 45 deals with the protection from arrest of the members of armed forces. No member of the Armed Forces of the Union/State shall be arrested for anything done in discharge of his official duties without consent of the Central/ State Government.

MODE OF ARREST—

Section 46 of Cr.P.C. deals with modes/ procedure of arrest. Section 46 mandates that in making an arrest the police officer or other person shall actually touch or confine the person to be arrested, unless there be a submission to the custody by word or action.

However, in case of arrest of woman, only the female police officer can touch or confine the body of a woman. (Amendment, 2009). Section 46(4) provides that no woman shall be arrested after sunset and before sunrise except in exceptional circumstances. In such exceptional circumstances, a woman police officer by making a written report, obtain the prior permission of the JM-I class.[S.46(4)] (APPRPF-10). This amendment is based upon the judgment given under State of Maharashtra v. Christian Community Welfare of India.[3]

If the accused person forcibly resists or evade the arrest, the police officer or other person may use all means necessary to effect the arrest.[S.46(2)] However, it is to be noted that Section 46(3) says that death will not be caused while effecting arrest unless the person is an accused of offence punishable with death or life-imprisonment. (JCJ-2008)

An illegal arrest does not vitiate the trial. (UPAPO-07). A confession is not invalidated by the illegal arrest. (UPAPO-07). Mere keeping a person in police station or restricting his movements within the precinct of a police station amounts to arrest. (UPAPO-07). An arrest need not be by handcuffing a person, but could be complete by spoken words.

SEARCH OF PLACE—

Section 47 of the Cr.P.C. deals with the search of place entered by person sought to be arrested. Free ingress or outgress to be facilitated by the person residing or in-charge of such premises to the police/person authorised to arrest.

The police officer/other person while effecting arrest may break open any outer/inner door/window of any house in order to arrest the intended person or liberate himself or other persons. However, when the premises to be entered into is in occupancy of a Pardanashin lady, a notice shall be given for withdrawing the premises. In case no withdrawal is made, the police officer/ person executing the warrant may break open the entry to enter the premises.

INTIMATION OF GROUND OF ARREST—

(I) Arrested person—

In case of arrest without warrant, Section 50 imposes obligation upon the police officer or any other person to immediately inform to the arrested person the full particular of the offence or grounds of arrest and of right to bail.

Further, in case of bailable offence, the police officer shall inform the arrested person that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

In Joginder Kumar v. State of U.P.,[4] the Supreme Court issued guidelines regarding rights of arrested person. In the instant case it was held that an arrested person must be informed of the grounds of arrest and of right to bail. Non-compliance of these rights shall render the arrest illegal and the arrested person has right to move for habeas corpus.(UPAPO-07)

(II) Nominated person—

Section 50-A of the Cr.P.C. imposes obligations on every police officer or other person making such arrest shall immediately give the information regarding such arrest and the place of arrest to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person.

The police officer shall inform the arrested person of his rights under Section 50-A as soon as he is brought to the police station.

An entry shall be made in a book to be kept in the police station regarding the fact that who has been informed of the arrest of such person.

It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that all the requirement of section 50-A have been complied with.

SEARCH OF ARRESTED PERSON—

Section 51 provides that the arrested person may be searched by the police officer. The arrestee can not be searched by a private person. [S.51(1)]

In case of search of females the search shall be made by another female with strict regard to decency.[S.51(2)]

SEIZING OFFENCE WEAPONS—

Section 52 of Cr.P.C. deals with the seizure of offensive weapons. The officer/other person making any arrest shall take all the weapons and deliver all weapons to the court or officer to whom the arrestee is to be produced. Thus even a private person may seize offensive weapons under Section 52.

MEDICAL EXAMINATION OF ARRESTEE—

Sections 53 & 54 are relevant sections regarding medical examination of the arrested persons.

Section 53—The medical examination may be done at the request of the:
police officer—Section 53—Examination by Registered Medical Practitioner (RMP).
arrested person—Section 54—Examination by Medical Officer (MO)—In absence of MO by RMP.

Thus a Magistrate can not give order for medical-examination suo motu.

Section 53 of Cr.P.C. deals with the medical examination of accused by Registered Medical Practitioner (RMP) at the request of a police officer not below the rank of sub-inspector.(MPAPO-1995).

Medical examination of female arrestee—If the accused is female, she will be examined by or under the supervision of a female RMP. A”RMP” means a medical practitioner whose name has been entered in a State Medical Register.

Medical examination includes the examination of blood, blood stains, semen, swabs, sputum, sweat, hair samples, finger nail clipping, DNA test and such other test which the RMP thinks necessary in a particular case.

Section 54—Medical Examination of Arrestee at the request of the accused.

Section 54 was substituted by 2008, Amendment. Section 54 mandates compulsory medical examination by the MO/ RMP at the request of the accused.

The arrested person shall be examined by a Medical Officer (MO) in the service of Central or State Government soon after the arrest.

Where such MO is not available the examination shall be done by a RMP soon after the arrest. However, in case of female arrestee, examination shall be made by or under supervision of a female MO/ RMP.

A record of examination shall be prepared by the MO/ RMP mentioning:

injuries or marks of violence upon the person arrested.
approximate time of infliction of injuries.

Copy of such report shall be furnished by the MO/ RMP to the arrested or nominated person.

MEDICAL EXAMINATION OF RAPE ACCUSED—[5]

Section 53-A of the Cr.P.C deals with the examinations of accused of rape or attempt thereof at the request of the police officer by a RMP of Government Hospital within the radius of 16 kilometers. (Delhi APP-10)

In the absence of RMP of Government Hospital the examination shall be done by any RMP. Further, the self-explanatory medical report is prepared by RMP and is forwarded to the Magistrate through Investigating Officer (IO).

After incorporation of Section 53-A, it is necessary for prosecution to go for DNA test. It be noted that DNA test before incorporation of Section 53-A was well in practice.[6]

IDENTIFICATION PARADE—

Section 54A of Cr.P.C. deals with the identification parade of arrested person. On the request of the OC of the police station, the court having jurisdiction may direct the arrested person to subject himself to identification by any person. However, as per 2013 Amendment Act, if the person identifying the arrested person is mentally or physically disabled person, the identification process shall take place under the supervision of Judicial Magistrate and such process shall be videographed.

HEALTHCARE—

Section 55-A imposes a duty upon the person having the custody of an accused to take reasonable care of the health and safety of the accused. This section was inserted by the Cr.P.C. (Amendment), Act, 2008. It is enabling provision of Article 21 of the Indian Constitution.

PRODUCTION OF ARRESTEE BEFORE MAGISTRATE—

Section 56 mandates that when a person is arrested without warrant, he shall be taken before Magistrate having jurisdiction or OC of police station without unnecessary delay.

Section 57 & 76 provide that the arrested person should not be detained for more than 24 hours excluding necessary journey time in police custody without special order of the Magistrate having jurisdiction under Section 167. (UKJ-2008).

Section 167 is supplementary to Sections 57 and 76. Under Section 167 if the investigation is not completed within 24 hours then the arrested person must be presented before the nearest Magistrate, having jurisdiction or not, the Magistrate can order his detention for a period of 15 / 60/ 90 days on the whole as the case may be. On the expiry of the ordered period the accused shall be released on bail.

Constitutional protection has also been given under Article 22(2) of the Indian Constitution which provides that the arrested person shall be produced before the nearest Magistrate within a period of 24 hours excluding journey time.

REPORTING OF ARREST—

Section 58 imposes a duty upon the OC to report to the DM or SDM the cases of all persons arrested without warrant whether such persons are on bail or not. (UPJ-2006) Section 59 provides that person arrested shall not be discharged without his own bond, or on bail, or under the special order of a Magistrate.

ON ESCAPE, POWER TO PURSUE AND RETAKE—

Section 60 confers power upon the person from whose custody arrested person has escaped/ rescued, to pursue immediately and arrest him in any place in India. (MPJ-2002/ CGJ-04).

Under Section 60, summons may be issued to an accused/ witness or a party to the proceedings under Section 125 of the Code. Section 47 (search of place where accused has hidden himself) will be applicable to arrest under this section.

ARREST BE MADE STRICTLY AS PER CODE—

Section 60A was inserted by Cr.P.C. (Amendment), Act, 2008. It provides that no arrest shall be made except in accordance with the provisions of the Code or any other law for the time being in force relating to arrest.

This section is enabling provision of Article 21 of the Constitution of India ensuring that no person is deprived of his life and liberty except by procedure established by law.

MISC.:

· Under which section a police officer in order to arrest may pursue such person into any place in India—Section 48 (MPJ-2002)

· Which section of Cr.P.C. provides that the person arrested shall not be subjected to unnecessary restraint to prevent his escape—Section 49.

· The medical examination of accused person under Section 53 was challenged in Anil Lokhande v. State of Maharashtra on the ground of violation of Article 20(3) of the Indian Constitution. But the Bombay High Court upheld the validity of Section 53.

· In Selvi vs. State of Karnataka,[7] the Supreme Court held that the narco-analysis, brain mapping etc violate the right against self-incrimination.

· In Sheela Varshe vs. State of Maharashtra[8] the SC has directed that the magistrate before whom the arrested person is brought, shall enquire from the arrested person that whether he was tortured in police custody and he has right to medical examination under Section 54.

· Which Section of the Code provides that the police officer may depute subordinate to arrest without warrant—Section 55.

Prepared by team LegalMines. Typographical error, if any, is inadvertant.

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[1] . D. K. Basu v. State of West Bengal, 1997(1) SCC 416.

[2] . Joginder Kumar v. State of U.P., AIR 1994 SC 1349.

[3] . (2003) 8SCC 546.

[4] . (1994) 2SCC 260.

[5] . Discuss the provisions of Cr.P.C. regarding medical examinations of accused of rape as inserted by the Amendment Act, 2005.

[6] . Krishna Kumar Malik vs. State of Haryana, AIR 2011 SC 2877.

[7] . AIR 2010 SC 1974.

[8] . 1983 AIR 378.

UPHJS Exam, 2019 (Pre)-Study Material on Arrest: Criminal Procedure Code, 1973