Arrest involves restriction of liberty of a person arrested and therefore,
infringes the basic human rights of liberty. Nevertheless the Constitution of
India as well as International human rights law recognises the power of the
State to arrest any person as a part of its primary role of maintaining law and
Though not defined in any law in India; however, the term arrest is 'an
apprehension of a person by legal authority resulting in deprivation of his
liberty'. In English law, arrest consists of the actual 'seizure' or 'touching
of a person's body' with a view to his detention. Supreme Court has defined the
term arrest, in State of Punjab v. Ajaib Singh (1953)
, as it appears in
Article 22 of the Constitution of India- 'indicating physical restraint of a
person under the authority of the law in respect of an alleged accusation or
default or violation of the law.'
Arrest And Questioning Of Accused In India:
Arrest may be affected with warrant or without warrant. Arrest with warrant is
dealt with in chapter –VI under sections 70 to 81 of Cr.P.C. A warrant of arrest
issued by any Court may be directed to any Police officer to execute the warrant
and the police officer or any other person executing a warrant of arrest shall,
without unnecessary delay, bring the person arrested before the Court before
which he is required by law to produce such person. Provided that, such delay
shall not in any case, exceed 24 hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
Arrest without warrant is dealt with in Chapter V under sections 41 to 60A of
Cr.P.C. The following officers/personnel are empowered to arrest without
- Any Police officer:
Any Police Officer, of whatever rank, may without an Order from a Magistrate and
without a warrant, arrest a person on fulfilment of the conditions laid down
in section, 41, 41A, 41B and 42 of Cr. P. C.
Section 41 of Cr.P.C. provides that any police officer may without an order from
a Magistrate and without a warrant, arrest any person who commits, in the
presence of a police officer, a cognizable offence, or 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
punishable with imprisonment for a term which may be less than 7 years or which
may extend to 7 years whether with or without fine if the conditions as provided
in the section are satisfied.
Section 41A provides that where a person is not required to be arrested under
section 41 then the police officer may 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 and when such person fails to comply with the terms of
the notice then the police officer may arrest him for the offence mentioned in
Section 41B provides the procedure of arrest and duties of officer making
It provides that every police officer while making an arrest shall:
- bear an accurate, visible and clear identification of his name which
will facilitate easy identification;
- prepare a memorandum of arrest which shall be:
- 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
- countersigned by the person arrested; and
- 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 42 provides for arrest on refusal to give name and residence. 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 his name and residence or gives a name or residence which such
officer has reason to believe to be false, he may be arrested by such officer in
order that his name or residence may be ascertained.
- Private person
The provision for arrest by private person is provided in section 43 of Cr.P.C.
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
If there is reason to believe that such person comes under the provisions of
section 41, a police officer shall re- arrest him. 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.
The provision for arrest by Magistrate is provided in section 44 of Cr.P.C. 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. 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.
Arrest how made: (Section 46)
Section 46 provides that 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 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.
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. Except 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 made.
Moreover, section 49 provides that the person arrested shall not be subjected to
more restraint than is necessary to prevent his escape.
Inform the arrested person: (Section 50)
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 or other grounds for such arrest. Where a police officer arrests
without warrant any person other than a person accused of a non- bailable
offence, 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.
Person arrested to be taken before Magistrate:
Section 56 provides that a police officer making an arrest without warrant
shall, without unnecessary delay and subject to the provisions herein contained
as to bail, take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police station.
Section 57 provides that 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
In the case of Central Bureau of Investigation vs. Kishore Singh (2010) the Apex
Court held that when a person is brought to the police station and locked up
there, obviously he is under arrest.
Arrest And Questioning In UK:
There are three ways in which a person may be brought before a criminal court.
The three ways are:
- by summons
- by arrest on warrant
- by arrest without a warrant
The common law of this country, which is the oldest form of law, gave the power
of arrest 'to any person' for many offences. Later, with the creation of statute
law, which includes powers of arrest for certain offences, the common law powers
were largely replaced.
A power of arrest, which is given in an Act of Parliament, is called a statutory
power of arrest. The Police and Criminal Evidence Act 1984 provides both the
police and any other person the power to arrest. These powers fall into two
- Indictable offences:
under the Police and Criminal Evidence Act (PACE) 1984 (offences triable at Crown Court).
- Powers contained in other Acts:
The powers of arrest which were contained in numerous Acts have mostly been
abolished, although they will still specify that it is an offence under that
Act. These are preserved powers of arrest and they are mostly contained
within Schedule 2 of PACE 1984.
Arrest by Police without warrant:
The lawful arrest of a person under Section 24 PACE requires two elements:
The Act states:
- A person's involvement or suspected involvement or attempted involvement
in the commission of a criminal offence and
- Reasonable grounds for believing that the person's arrest is necessary.
- A constable may arrest without warrant:
- Anyone who is about to commit an offence
- Anyone who is in the act of committing an offence
- Anyone whom he has reasonable grounds for suspecting to be about to
commit an offence
- Anyone whom he has reasonable grounds for suspecting to be committing an
- If a constable has reasonable grounds for suspecting that an offence has
been committed, he may arrest without warrant, anyone whom he has reasonable
grounds to suspect of being guilty of it.
- If an offence has been committed, a constable may arrest without a
- Anyone who is guilty of the offence
- Anyone whom he has reasonable grounds for suspecting to be guilty of it.
However, the power of arrest at 1, 2 or 3 above, is only exercisable if the
constable has reasonable grounds for believing that it is necessary to arrest
the person because one or more of the reasons supporting the need for arrest is
Similar to section 42 of Cr.P.C. in India, section 24(5)(a) and 24(5)(b) of PACE
1984 provides that the constable may arrest a person for ascertaining name and
address of any person.
Information to be given on arrest:
When a person is arrested they must be told:
- that they are under arrest
- the grounds for the arrest, i.e. the offence for which they have been
- the reason (s) for the arrest being necessary
Arrest by persons other than Constables:
Section 24A of PACE provides that a person other than a constable may arrest
- Anyone who is in the act of committing an indictable offence
- Anyone whom he or she has reasonable grounds for suspecting to be
committing an indictable offence.
Where an indictable offence has been committed, a person other than a constable
may arrest without warrant:
- Anyone who is guilty of the offence
- Anyone whom he or she has reasonable grounds for suspecting to be guilty
A constable can arrest for any offence, but a person other than a constable is
restricted to arresting for offences that are indictable. These are offences
that are triable at the Crown Court and include those that are triable either
way, i.e. at Magistrate's Court or at Crown Court.
When carrying out a lawful arrest, the constable is permitted to use force if
required by virtue of Section 117 of PACE.
Arrest on warrant:
The warrant to arrest is issued by the Court. If the warrant is to arrest a
person for either an offence (such as assault) or for failing to appear at court
or on a commitment warrant the constable does not need to have the warrant with
him when he makes the arrest. If the arresting officer has the warrant then he
is to ensure that the accused person fully understands both the fact that they
are being arrested and the grounds for the arrest.
Arrest In USA:
In the United States, there exists a distinction between an investigatory stop
or detention, and an arrest. The distinction tends to be whether or not the stop
is "brief and cursory" in nature, and whether or not a reasonable individual
would feel free to leave.
When a person is arrested for a serious crime, the defendant will have their
picture taken and be held in pre-trial prison. United States law recognizes
the common law arrest under various jurisdictions. If a police officer has
probable cause to believe that a crime has been committed, the officer may make
an arrest without an arrest warrant. When making a lawful arrest, an officer may
use force that is reasonable and necessary to overcome resistance. An officer
may not use excessive force if it is not warranted under the circumstances.
Based on the U.S. Supreme Court ruling in Miranda v. Arizona
, after making an
arrest, the police must inform the detainee of their Fifth Amendment and Sixth
Amendment rights in order for statements made during questioning to be
admissible as evidence against the detainee in court. A Miranda warning is
required only when a person has been taken into custody (i.e. is not free to
leave) and is being interrogated, and the results of this interrogation are to
be used in court.
Thus, the provisions as to arrest in India, UK and USA are almost similar so far
as the procedure of arrest is concerned.