For decades across the globe, there has been a debate regarding the validity of
preventive arrest by law enforcement. The preventive arrest is simply done to
stop a person from committing a cognizable offence in future. Historically, the
preventive arrest was infamously be used in India during British rules under
the Bengal State Prisoners Regulation, 1818 which empowered the government to
detain or arrest anybody on mere suspicion.
The main object of criminal law is
to protect society from criminals and lawbreakers. The criminal law consists of
both procedural law and substantive law. In India, substantive law is the Indian
Penal Code, 1860 and procedural law is the Code of Criminal Procedure, 1973.
The procedural aspects of arrest are laid down in the Code of Criminal
Procedure, under this, the complete process is mentioned related to the arrest
of a person who has committed any offence. Chapter V of the Code of Criminal
Procedure, 1973 deals with the arrest of a person under Section 41 to 60.
The term arrest is not defined anywhere but it can be defined as:
A seizure or
forcible restraint, an exercise of power to deprive a person of his or her
The major purpose of arrest is to bring the person before a court and
secure administration of law. An arrest also serves the purpose of notifying the
society that a particular individual has committed an act which is against the
society and act as a remark to deter crime in future.
However, even if a person
against whom no accusation has been made can also be arrested for certain
purposes like removal in safe Custody from one place to another. Arrest should
not be confused with custody as judicial custody of a person is followed after
the arrest of a person by a magistrate on appearance. In every arrest there is
custody but not vice-versa.
Arrest means deprivation of person's liberty by legal authority.
There are four components involved:
- A seizure or touching of a person's body.
- Followed by words such as you are under arrest
- The person's submission to the compulsion.
- The police informing the person of the true grounds for his arrest.
Persons authorised to arrest:
Code of Criminal Procedure empowers three people to issue the process of arrest.
- A police officer with or without a warrant depending on the nature and
gravity of the offence,
- A magistrate,
- A private person can arrest another person who in his presence commits a
non-bailable offence, cognizable offence or is proclaimed offender.
Arrest without warrant
The police officers may arrest a person without warrant under certain
conditions. The condition to arrest a person without warrant mentioned under
Section 41 of the code are as follows, any person:
- Who has been involved in a cognizable offence such as murder, rape,
theft or is suspected to be so involved of having committed a cognizable
offence punishable with imprisonment of 7 years or more or against whom a
complaint has been received has been received of such involvement
- Who has been in possession of any housebreakingweapon without any
- Who has been proclaimed as an offender either under Criminal Procedure
Code or any other order by state government or any law in force.
- Who obstructs any police officer while performing his duty or who have
escaped or make attempts to escape from lawful custody.
- Who has been concerned in any law or against whom a reasonablecomplaint has
been made or credible information has been received, of his having committed
involved in an act committed at any place outside India, if committed in India
would be punishable of an offence and for which he is under law relating to
extradition or otherwise, liable to be apprehended or detained in custody of
- Who is reasonably suspected of being a deserter from any of the Armed
forces of the Union.
- Who being released as a convict, commits a breach of any rule mentioned
under subsection 5 pf section 356 i.e., the state government may be
notification make the rules to carry out the provisions of this section
relating to the notification of residence or change of residence.
For whose arrest requisition has been received from another police
officer, provided that the requisition must specify the person to be arrested
and the reason for which the arrest is to be made and it appears that the person
must be lawfully be arrested without a warrant.
The arrest by a constable of a totally deaf person who could not lip-read would
be valid if the constable had done everything that a reasonable person would do
in the circumstances. An arrest constitutes an absolute restrictions on a
person's freedom of movement.
DK Basu V State of West BengalFacts
DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a
non-political organisation on 26.08.86 addressed a letter to the Chief Justice
of India drawing his attention to certain news items published in the Telegraph
Newspaper regarding deaths in police lock up and custody. He requested that the
letter be treated as a Writ Petition with the Public Interest Litigation
category. Considering the importance of the issues raised in the letter, it was
treated as a writ petition and notice was served to the respondents. While the
Writ Petition was under consideration, one Mr Ashok Kumar Johri addressed a
letter to the Chief Justice drawing his attention to the death of one Mahesh
Bihari of Pilkhana, Aligarh in Police Custody.
The same letter was also treated
as Writ Petition and was listed along with the writ petition of DK Basu. On
14.08.87, the court made the order issuing notices to all the state governments
and notice was also issued to the Law Commission of India requesting suitable
suggestions within a period of two months. In response to the notice, affidavits
were filed by several states including Assam, Haryana, Orissa, Manipur etc. Dr
A.M Singhvi, Senior Advocate was appointed to assist the court.
- The issue in the present case pertained to Custodial Torture and deaths
by the police?
- Are policemen arbitrary in arresting a person?
- Are there any prescribed guidelines while making a arrest?
- Policemen are not to act arbitrarily while arresting a person. There are
some guidelines that even a policeman has to follow.
- Yes, the court had laid down a number of guidelines while arresting a
The court in this case said that, the locks-up deaths are to be reduced. It will
directly take a toll on the belief of public in law and order. The Supreme court
directed all the High Courts to check on the details and punishment that are
being imposed on prisoners in the jails. They were asked to give the detailed
list of all the persons who were arrested and who ever were in lock-ups.
Guidelines prescribed the Court
- The arrested person has the right to meet his lawyer.
- He has the right to medical examination for every 48 hours.
- The arresting person has to inform the relatives regarding his arrest.
- He has to be produced before the magistrate within 24 hours and this is
also the fundamental right of an individual under Article 22 of the
- The arresting officer shall prepare the memo and has to be attested by
at least one witness.
- An entry must be made regarding his arrest in the diary.
- A police control room should be set up in all the districts and in all
the state headquarters and the information regarding the persons arrest has
to be communicated to all the districts.
- All the documents including the memo of the arrest has to be sent to the
- The arresting officer shall have the clear identification of his name,
- The time, place, arrest and the place of custody have to be notifies to
the interested person or the friend or the relative.
- The person arrested has to be made aware of his right to have someone
notified on his behalf.
- The police officer making arrest should not handcuff any person
routinely. The arrested person should not be handcuffed except where there
is a clear danger of his attempts to escape or when he is so violent that he
cannot be kept in custody unless his movement is stopped.
- The arrested person has a right to remain silent during police inquiry
provided by Article 20(3) of the Indian constitution so that the police cannot
extract any self-incriminating information against him.
Special Rights of women:
- Females can be searched by only another female with strict regard to
privacy and decency (Section 51 of Code)
- Female suspects must be kept in a separate lock-up in the police
station. They should not be kept where male suspects are detained
- When a female is arrested for a non-bailable offence, even if the
offence is very serious , the court can release her on bail Section 437 of code)
State of Maharashtra v Christian Community Welfare Council of India
The Supreme Court has also dealt with the issue of arrest of women between dusk
and dawn. Modifying the Bombay High Court order that no female person to be
arrested without the presence of a lady constable and in no case in the night,
the court held that all the efforts should be made to keep a lady constable
present but strict compliance can cause practical difficulties to investigating
agencies and create rom for evading the process of law by unscrupulous accused.
Therefore, the court ruled that while arresting a female person, all efforts
should be made to keep a lady constable, but in the circumstances where the
arresting officers are reasonably satisfied that such presence of a lady
constable is not available or possible and the delay in arresting accused by
securing the presence of a lady constable would impede the course of
investigation, such officer for reasons to be recorded, be permitted to arrest a
female person at any time of the day or night depending on the circumstances of
the case even without the presence of a lady constable.
This position has now
been incorporated in Section 46(4) under which in exceptional circumstances the
woman police is required to obtain prior permission of Judicial Magistrate of
First class within whose jurisdiction the offence is committed or arrest is
Nilabati Bahera v State of OrissaFacts
In the case, a letter was sent by Smt. Nilabati Behera to the Supreme Court
stating that her twenty two year old son, Suman Behera had died in police
custody after being inflicted with several injuries. The honourable court
took suo moto action and converted it into a writ petition under article 32 of
the Indian constitution. The petitioner claimed compensation for the violation
of her son's fundamental right to life guaranteed under Article 21. The Orissa
police had arrested Suman Behara for investigation involving the offence of
theft and he was detained at the police outpost. The very next day, his dead
body was found near the railway track. The lacerations on his body indicated
towards an unnatural death.
It was found that a doctor before the court deposed that the injury was caused
by a blunt object, which may have been lathiblows. All the injuries found on his
body could not have been caused by train accident. The court also drew the
distinction between the liabilities of the State in public law as opposed to
private law. It clearly mentioned that that a proceeding under Article 32 before
the Supreme Court or any High Court is a remedy available in public law and the
principle of sovereign immunity does not apply in case of public law. It is only
a defence in private law based on tort.
Hence, the court awarded a compensation of Rs.1,50,000 to the petitioner and a
sum of Rs.10,000 to be paid to the Supreme Court Legal Aid Committee. The
Supreme Court also ordered the State of Orissa to initiate criminal proceedings
against those who killed Suman Behara.
State of Madhya Pradesh v Shyamsunder Trivedi &OrsFacts
Nathu Banjara was tortured at police station, Rampura during the interrogation.
As a result of extensive injuries caused to him he died in police custody at the
police station. The defence set up by the respondent police officials at the
trial was that Nathu Banjara had been released from police custody at about
10:30 p.m after interrogation itself and about 7:00 a.m. a death report was
recorded at the police station, Rampura. One of the respondent said that he had
found one unknown person
near a tree by the side of the tank rigging with pain
in his chest and as soon he reached near him the said person died.
If a detained person runs from the custody and found dead, then who was to be
held responsible for the death?
The accused Trivedi Sub-Inspector is, was found guilty being a public servant
framing incorrect writing and record with intent to save persons responsible for
beating the deceased Nathu Banjara and causing his death in the Police Station,
Rampura and is also found guilty of giving false information to screen offenders
from legal punishment. As such, he is convicted of the offences punishable under
sections 218 and 201 of the Indian Penal Code. He is sentenced to two years'
rigorous imprisonment for each of the two offences. The sentences shall,
however, run concurrently.
Joginder Kumar v State of Uttar Pradesh and OrsFacts
This is a petition under Article 32 of the Constitution of India. The
petitioner, Joginder Kumar, a young lawyer was called to the office of the SSP,
Ghaziabad in connection with some inquiries. He was accompanied by friends and
his brother, who were told by the police that he would be released in the
evening. But Joginder kumar was taken to a police station with the assurance
that he would be released the next day. Next day, too he was not released as the
police wanted his help in making further inquiries.
When his family went to the
police station on third day, they found that he had been taken to an undisclosed
location. In effect, Joginder kumar was illegally detained over a period of five
days. His family had to file a habeas corpus writ petition with the Supreme
court to find out his whereabouts. The court issued notice to the state of Uttar
Pradesh and to the SSP to immediately produce Joginder Kumar and answer why he
was detained for five days without a valid reason and why his detention was not
recorded by the police in its diary and why he was not produced before a
- Can an individual be detained on grounds not clarified?
- Can an individual be taken to any unknown premises other than police station for
The court held 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 and the
justification for the exercise of its quite another. The police officer must be
able to justify the arrest apart from his power to do so. The recommendations of
the Police Commission merely reflect the constitutional concomitants of the
fundamental right to personal liberty and freedom. There must be some reasonable
justifications in the opinion of the officer effecting the arrest that such
arrest is necessary and justified.
Except in heinous crime, an arrest must be
avoided if a police officer issues notice to person to attend the station House
and not to leave the station without permission would do. There are inherent
rights under Article 21 and 22(1) of the constitution and require to be recognised and scrupulously protected and for effective enforcement of these
fundamental rights, the court issued guidelines.
It was ruled that, an arrest cannot be made on a mere allegation of offence
against a person or in a routine manner. Constitutional rights of a person
mandate that he shall not be arrested on simple suspicion of complicity in an
offence. It cannot be made without a reasonable justification reached after some
investigation is made as to the genuineness of the complaint. It was further
directed that, it shall be the duty of the Magistrate, before whom the arrested
person is produces, to satisfy himself that these requirements have been
Arrest on refusal to give name and residence (Section 42)
When any person who, in the presence of a police officer, has committed or has
been accused of committing a non-cognizable offence refuses, on demand of such
officer to give name and residence of such officer, and if given of which such
officer has a reason to believe to be false, he may be arrested by such officer
in order that his name or residence may be ascertained.
- 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 required. Provided that if such person is not
resident in India, the bond shall be secured by a surety resident in India.
- When it is not ascertained within 24 hours from the time of arrest or
should he fail to execute the bond, or if so required, to furnish sufficient
sureties, he shall forwarded to the nearest Magistrate having jurisdiction.
Arrest by private person without a warrant (Section 43)
Any private person may arrest or cause to be arrested any person in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender and
without unnecessary delay, shall be made over any person cause to be arrested to
a police officer, or in the absence of a police officer, to take such person or
cause him to be taken in custody to the nearest police station. He can do on the
basis of his own knowledge and seen by his own eyes. If the private person
making arrest under this section fails to follow the after arrest procedure as
prescribed in this section, he can be prosecuted for the offence of wrongful
confinement under Section 342 of IPC.
Arrest by Magistrate ( Section 44)
When an 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 irrespective of the nature of offence. Even if no
such offence is committed in the presence of such Magistrate, but if the
Magistrate is competent to issue a warrant for the arrest of any person, and the
person is present before him, he can arrest such person. If a person arrested by
a Magistrate under this section is detained beyond 24 hours and is not produced
before another Magistrate for obtaining an order of remand to custody under
section 167(1), his detention would be illegal.
Protection of members of the Armed Forces from arrest. (Section 45)
This section was incorporated to save the members of armed forces. It says that
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.
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
Arrest how made. (Section 46)
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.
If such person forcibly resists the endeavor to arrest him, or attempts to evade
the arrest, such police officer or other person may use all means necessary to
effect the arrest.
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.
Arrest to prevent the commission of cognizable offences (Section 151)
A police officer knowing of a design to commit any cognizable offence may
arrest, without orders from a Magistrate and without a warrant, the person so
designing, if it appears to such officer that the commission of the offence
cannot be otherwise prevented.
No person arrested shall be detained in custody for a period exceeding 24 hours
from the time of his arrest unless his further detention is required or
authorised under any provisions of his code or any other law for the time being
Here we reach to the end of our study related to arrest
. As we go through the
sections, it can be fairly derived that arrest
lies as a power
to the police
officers who are being instructed to make it, or the magistrate who can just on
the basis of his views, can make it. However, there must be few issues lying
when it comes to an arrest made by a private person
. Because not many people
would be aware of the fact that Criminal Procedure Code under its code provides
an ordinary individual to arrest a person but, only when he witnesses him of
doing an act forbidden by the law.
But, in addition to that the arrested person is also given quite a few rights to
cope up with any unfairness that might happen to him while in detention.
We have discussed how person can be arrested without warrant. But by going
through the data of Commission on Law of arrest we realise that due to the
unawareness of people about their rights how this power to secure the peace in
the society is being misused.
The arrest of a person has a demoralising and
diminishing effect in on his personality. The person so arrested becomes
outrageous, alienated and hostile. So there should be a balance between the
security of a state and individual freedom.
Recommendations And Suggestions
The only thing that can be done firstly, would be to inform people more about
their rights and duties and to make them aware of the fact that they have the
power to stop wrongs in the society or the people doing wrong by handling them
to the authorities.
And also, notwithstanding the safeguards contained in the Code of Criminal
Procedure and the Constitution referred to above, the fact remains that the
power of arrest is wrongly and illegally exercised in a large number of cases
all over the country. Very often this power is utilized to extort monies and
other valuable property or at the instance of an enemy of the person arrested.
Even in case of civil disputes, this power is being resorted to on the basis of
a false allegation against a party to a civil dispute at the instance of his
opponent the person in detention should be also updated of the rights available
to him, just to cope with any sort of unfairness act being happen to him.
Hence, there is required to be a provision to apply a safeguards into that
- Code of criminal procedure- S.K. KAPOOR
- (1997) 6 SCC 642
- (2003) 8 SCC 546
- (1993) 2 SCC 746
- (1995(3) Scale, 343)
- (1994) 4 SCC 260
- Remembrancer of Legal Affairs v Bagirath Mahto, AIR 1934 Cal 610
- Swami Hariharanand Saraswati v Jailor, AIR 1954 AII 601