UNIVERSITY INSTITUTE OF LEGAL STUDIES

PROCEDURE OF ARREST
UNDER CrPC.

SUBMITTED TO: SUBMITTED BY:

PROF. ANJU DIKSHA VOHRA

138/17, B.COM
LL.B(HONS.)

1
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

ACKNOWLEDGEMENT

I, Diksha Vohra, would like to take this opportunity to express my profound gratitude and
deepest regards to my professor of Code of Criminal Procedure Code, prof. Anju, for reposing
immense faith in me while assigning me this topic, and for her exemplary guidance, monitoring
and constant encouragement throughout the course of this project. The blessing, help and
guidance given by her shall carry me a long way in the journey of my life. I also take this
opportunity to express a deep sense of gratitude to the librarian staff, for their cordial support,
valuable information and guidance, which helped me in completing this task. During the course
of preparing this topic, I’ve found a greater clarity of all the concepts for which I’m highly glad.
I hope you’ll find the project at par with your expectations and would like to apologize
beforehand for any mistake.
Thank you, ma’am.

Diksha Vohra

2
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

TABLE OF CASES

Modan Singh v. State of Rajasthan,...............................................................................................16

State of Bombay v. Kathi Kalu,.....................................................................................................17

Msr. Bhagan v. State of Pepsu.......................................................................................................20

Ajit Kumar v. State of Assam........................................................................................................14

Amrik Singh v. State of Punjab.................................................................................................2, 21

Anil A. Lakhande v. State of Maharashtra....................................................................................16

ARNESH KUMAR V. STATE OF BIHAR..................................................................................23

Birendra Kumar Rai v. Union of India............................................................................................7

Birendra Kumar Rai v. Union of India,...........................................................................................7

D.J. Vaghela v. kanibhai Jethabhai...........................................................................................19

D.K. Basu v. State of West Bengal................................................................................................24

Delhi Judicial Service Assn. v. State of Gujarat.........................................................................8

Gopal Naidu v. King Emperor,........................................................................................................8

In re Madhu Limaye......................................................................................................................14

Joginder Kumar v. State of U.P.....................................................................................................12

Kamla Bai v. State of Maharashtra................................................................................................15

Kasturi Lal v. State of U.P.............................................................................................................15

P.C Kakar v. Director General of Police.......................................................................................21

Queen- Empress v. Engadu............................................................................................................21

Roshan Beebi v. joint Secretary to Government of Tamil Nadu.............................................10

Sheela Barse v. State of Maharashtra,...........................................................................................19

Thaniel Victor v. State.....................................................................................................................9

3
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

Contents
PROCEDURE OF ARREST UNDER CrPC..................................................................................1

ACKNOWLEDGEMENT.......................................................................................................2

INTRODUCTION...................................................................................................................4

PROCEDURE OF ARREST...................................................................................................4

ADDITIONAL POWERS FOR EFFECTING ARREST........................................................8

1. Search of Place.....................................................................................................................8

2. Pursuit of offenders: Section 48 provides that "A police officer for the purpose of
arresting without warrant any person whom he is authorized to arrest, pursue such person into
any place in India."......................................................................................................................9

3. Reasonable restraint: Section 49 provides that.....................................................................9

4. Power to obtain assistance..................................................................................................10

5. Power to require subordinate officer to arrest....................................................................10

6. Power to re-arrest escape-...................................................................................................11

AFTER- ARREST PROCEDURES......................................................................................11

1. Inform grounds of arrest and right to bail- Section 50 provides that where a person is
arrested without warrant, he should be immediately informed of the particulars of the offence
and grounds of his arrest and where the offence is bailable one, of his right to be released on
bail.............................................................................................................................................11

2. Search of arrested person- Whenever a person who is arrested cannot legally be admitted
to bail, or is unable to furnish bail,the police officer making the arrest may search such a
person, and place in safe custody all articles, other than necessary wearing apparel, found
upon him. A receipt showin the articles so seized shall be given to such a person...................12

3. Seizure of offensive weapons- Section 52 provides that the police officer or other person
making arrest may take from the person arrested any offensive weapons which he has about
his person, and shall deliver all weapons so taken to the court or officer before which or whom
the arrested person is to be produced.(S.52)..............................................................................13

4. Medical examination of accused- S.53 of the Code implies that if the offence with which
the arrested person is charged is of such nature and is alleged to have been committed under
such circumstances that the evidence as to the commission of the offence would be afforded
4
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

by the medical examination of such an arrested person, at the instance of a police officer not
below the rank of a sub- inspector, such examination could be made by a registered medical
practitioner in order to ascertain the facts that might afford such evidence. However, superior
officers of the police or the court are not barred from exercising the said power, if necessary
for doing justice.........................................................................................................................13

5. Producing the arrested person before Magistrate, within 24 hours (S.56).- The object of
S.56 is that the arrested person should be brought before Magistrate having jurisdiction in the
case without any unnecessary delay..........................................................................................17

6. Person arrested not to be detained more than twenty-four hours(S.57)- When a person is
arrested under a warrant, S.76 becomes applicable. When he is arrested without a warrant, the
police officer can keep him in custody for a period not exceeding twenty four hours. ............18

8. Person arrested not to be discharged except on bond or bail.(S.59)- A person who has
been arrested by a police officer shall not be discharged except on his own bond or on bail or
under the special order of a magistrate.(S.59)...........................................................................19

9. Power on escape, to rescue and retake.(S.60)-...................................................................19

ARNESH KUMAR V. STATE OF BIHAR..........................................................................20

INTRODUCTION.................................................................................................................20

FACTS...................................................................................................................................20

RULING................................................................................................................................20

D.K. Basu v. State of West Bengal........................................................................................21

FACTS...................................................................................................................................21

ISSUE RAISED.....................................................................................................................22

GUIDELINES........................................................................................................................22

10.BIBLIOGRAPHY…………………………………………………………………………………………………………………….27

INTRODUCTION

5
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

Arrest means the deprivation of a person of his liberty by legal authority. Every compulsion or
physical restraint is not arrest but when the restraint is total and deprivation is complete, it
amounts to arrest.
It means taking into the custody of another person under authority of law, for the purpose of
holding or detaining him to answer a criminal charge and preventing the commission of an
offence. For example, when a police officer apprehends a pick pocket he is arresting the pick
pocket, but when a dacoit apprehends a person with a view to extract a ransom, he is not
arresting that person but wrongfully confining that person.
In every arrest there is a custody but in every custody there is not an arrest. An arrest of a person
consists of the actual seizure or touching of the body of a person with a view to his detention. It
could be complete even by the spoken words if a person submits to the custody1.

PROCEDURE OF ARREST

Section 41-B2 of Criminal Procedure Code,1973 provides and explain the procedure of arrest
and some duties of officer making arrest.

 A clear Identification of the police officer making arrest could be facilitated. He should
bear an accurate, clear and visible identification of his name.

 The police officer shall prepare a memorandum of arrest which shall be attested by atleast
one witness who may be a member of the family of the person arrested or any respectable
member of the locality where the arrest is made and be countersigned by the person
arrested.

1
Birendra Kumar Rai v. Union of India,1992 Cr. L.J. 3866.
2
Every police officer while making an arrest shall-
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be-

(i) 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 made;
(ii) countersigned by the person arrested; and

(c) 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.

6
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

 Also, before the memorandum of arrest is attested by any of the member of family, the
arrested person has a right to have a relative or friend named by him to be informed of his
arrest.

Section 423 of the Code explains that

 If a person commits a non-cognizable offence in the presence of a police officer and

refuses to give his name and address when demanded by such officer, he can be arrested
by such officer in order to ascertain his name and residence.

 However, if his name and address were previously known to the police officer, he cannot
be arrested and detained under this section.4

 The person arrested should be released on executing a bound to appear before a

Magistrate. In no case, the person be detained beyond twenty-four hours but should be
presented before a Magistrate.
Case: Delhi Judicial Service Assn. v. State of Gujarat,19915

The Supreme Court laid down the following guidelines for the police while arresting a
judicial officer:
1. A judicial officer should be arrested for any offence under intimation to District Judge or
the High Court.
2. In case of necessity for immediate arrest only a technival or formal arrest may be
effected.

3
42.Arrest on refusal to give name and residence.-

(1) 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.

(2) 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:

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident
in India.

(4) (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time
of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be
forwarded to the nearest Magistrate having jurisdiction.

4
Gopal Naidu v. King Emperor, ILR (1923) 46 Mad 605, 625.
5

7
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

3. The fact of such arrest should be immediately communicated to the District and Sessions
Judge of the district concerned and the Chief Justice of the High Court.
4. The Judicial officer so arrested shall not be taken to a police station, without the lrior
order or directions of the District and Sessions Judge of the concerned district, if
available.
5. Immediate facilities shall be provided to the judicial officer for communication with his
family members, legal advisors and judicial officers, including the District and Sessions
Judge.
6. No statement of a Judicial officer who is under arrest be recorded nor any panchnama be
drawn up nor any medical tests be conducted except in the presence of the Legal Adviser
of the judicial officer or another judicial officer of equal or higher rank.
7. There should be no handcuffing of a judicial officer.

Section 466 of the Code prescribes the mode of arrest. What amounts to arrest is laid down by
Legislature in Section 46.7

 Arrest being a restraint of the liberty of a person it can be effected by actually contacting
or touching the body of such person or by his submission to the custody of the person
making the arrest. An oral declaration of an arrest without actual contact or submission to
custody will not amount to an arrest. 8

 In case a woman is to be arrested, her submission to custody on an oral intimation of

arrest shall be presumed if arrested by a male police officer and unless the police officer
is female, the police officer shall not touch the woman for making her arrest.
Section 46(2) provides that

6
46.Arrest how 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.

(2) 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.

(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.

7
Thaniel Victor v. State,1991 Cr. L.J. 2416.

8
Harmohanlal v. Emperor, (1929) 30 Cri LJ i 28)
8
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

 In case there is forcible resistance to or attempt to evade arrest, the person attempting to
make arrest may use all necessary means for the same. Resistance or obstruction to
lawful arrest has been made punishable by the Penal Code, 1860(IPC).(sec- 224,225,225-
B IPC)
On the other hand, Section 46(3) states in clear terms

 that though persons making arrests can use all necessary means for the purpose, they
have not been given any right to cause death of a person who is not accused of an
offence punishable with death or imprisonment for life.9

Section 49 provides that "the person arrested shall not be subjected to more restraint than is
necessary to prevent his escape".10

Section 46(4) lays down that

 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 first class within whose jurisdiction the
offence is committed or arrest is to be made.(Ins. by the Code of Criminal Procedure
(Amendment) Act, 2005. w-e-f from 23-6-2006).

Case: Roshan Beebi v. joint Secretary to Government of Tamil Nadu11

In this case, it was held that if the method of arrest is not performed as prescribed by Section 46,
the arrest would be nugatory.

ADDITIONAL POWERS FOR EFFECTING ARREST

9
Karam Singh v. Hardayal Singh, 1979 Cri LJ 1211, 1215 (P&H).

10
Aeltemesh Rein v. Union of India, 1988 SCC (Cri) 900

11
1984 Cr. l.J. 134 (Mad).
9
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

1. Search of Place.- According to section 4712 of the Code, an occupier of a house is under
a legal duty to afford to the police all the facilities to search the house for the purpose of
making arrests. If such facilities are denied or obstructions are put in the way of the
police officer, the section allows the officer to use force for getting entry into the house
for search and also the police office can use the force for the purpose of liberating himself
in case he is detained in the house.

 47(2) provides that if ingress to such place cannot be obtained under sec(1), then it shall
ne lawful for a police officer to enter such place and search therein, and in order to effect
an entrance to such place may break open any door or window of any house or place.

 But, if such place or house is an apartment in the actual occupancy of a female, who a
according to custom does not appear in public, pardanashin woman then the police
officer before entering such place shall give a notice and reasonable facility to that
woman to withdraw.

 47(3) states that if any police officer or other person authorized to make an arrest has
been detained in any house or place, he may break open any door or window of such
house or place in order to liberate himself.

12
47.Search of place entered by person sought to be arrested.-

(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to
believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in
charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free
ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting
under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person
to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to
effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether
that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand
of admittance duly made, he cannot otherwise obtain admittance;

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be
arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering
such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable
facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorized to make an arrest may break open any outer or inner door or
window of any house or place in order to liberate himself or any other person who, having lawfully entered for the
purpose of making an arrest, is detained therein.

10
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

2. Pursuit of offenders: Section 48 provides that "A police officer for the purpose of
arresting without warrant any person whom he is authorized to arrest, pursue such
person into any place in India."
 A police officer's power ordinarily to arrest is limited to the police district.(S. 22, Police
Act,1861)

 This section extents the police officer's power to arrest the pursuit offender. In case arrest
is to be made under warrant, then section 77 provides that a warrant of arrest can be
executed at any place in India, a special procedure is to be applied when warrant of arrest
is executed outside the jurisdiction of local courts, prescribed by sec 78 to 81.

3. Reasonable restraint: Section 49 provides that

 Person arrested shall not be subject to more restraint than is necessary to prevent his
escape. Consistent with the fundamental rights of such person the restraint can be
imposed to a degree no greater than is necessary for preventing his escape.

 Handcuffing of prisoners is, not allowed until and unless when some circumstances
require to. No prisoner shall be handcuffed or fettered routinely or merely for the
convenience of the custodian or escort. There must be material, sufficiently stringent, to
satisfy a reasonable mind that there is clear and present danger of escape of the prisoner
who is being transported by breaking out of the police control and he cannot be kept
under control.

Supreme Court guidelines for arrests-

In order to strike balance between the needs of police on the one hand and the protection of
human rights of the citizen, SC has laid down guidelines in the case of Joginder Kumar v. State
of U.P13.( April 1994), governing arrest of a person during the investigation.
The three judge-bench comprising the Chief Justice Mr. M.N. Venkatachaliah, Mr. Justice S.
mohan and Mr. Justice A.S . Anand, laid down following guidelines:
1. An arrested person being held in custody is entitled, if he so requests to have one friend
or relative to be told about his arrest.
2. Police officer shall inform arrested person , when he is brought to police station about his
right.
3. An entry shall be required to be made in the polive diary as to who was informed of the
arrest.
The SC had held and directed the police that all over the country, handcuffing or uses of other
fetters would be permissible only under judicial supervision and police have to apply special
permission from the Magistrate for handcuffing of a prisoner.14

13

14
(Citizens for Democracy v. State of Assam and Others, 1995)
11
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

4. Power to obtain assistance

A police officer can reasonably ask any person to assist him in the taking of or preventing the
escape of any other person whom he (the officer) is authorized to arrest.(S.37.)15

The person asks to assist is under a legal obligation to give assistance and any intentional failure
on his part is punishable under section 187,IPC.

5. Power to require subordinate officer to arrest.

Under Section 55 of this code, Any officer in charge of a police station, or any police officer
making an investigation can require any subordinate officer to arrest without a warrant( other
than his presence) any person who may be lawfully arrested without a warrant, and shall deliver
to the officer so required an order in writing, specifying the person to be arrested and the offence
or other cause for which the arrest is to be made.(S.55)16

The special powers under this section cannot override the general powers of arrest without
warrant in the case provided for in Section 41 of the Code.

6. Power to re-arrest escape-

Section 60 empowers to immediately pursue and re-arrest, a person who was in lawful custody
escapes or is rescued, in any place in India. The person making such a re-arrest shall have the

15
37.Public when to assist Magistrates and police.-

Every person is bound to assist a Magistrate or police officer reasonably demanding his aid-

(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorized
to arrest; or

(b) in the prevention or suppression of a breach of the peace; or

(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.

16
55.Procedure when police officer deputes subordinate to arrest without warrant.-

(1) When any officer in charge of a police station or any police officer making an investigation under Chapter XII
requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who
may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in
writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the
officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and,
if so required by such person, shall show him the order.

(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 41.

12
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

same powers and duties in respect of using force for arrest, and search of place etc as mentioned
above.(S.60)17

AFTER- ARREST PROCEDURES

1. Inform grounds of arrest and right to bail- Section 5018 provides that where a person
is arrested without warrant, he should be immediately informed of the particulars of the
offence and grounds of his arrest and where the offence is bailable one, of his right to be
released on bail.19
 Making known to the accused grounds of his arrest is a constitutional requirement and
failure to comply with this requirement renders the arrest illegal.

 In the case of Ajit Kumar v. State of Assam20, it was held that when a person arrested
without warrant alleges by affidavit that he was not communicated with full particulars of
the offence leading to his arrest, even if such oral communication was made it is not clear
whether full particulars were communicated or mere section was communicated, the
arrest and detention of that person is illegal.

 The provisions of this section are mandatory. Also, S 50A21 requires the police to give
information about the arrest of the person as well as the place where he is being held to
anyone who may be nominated by him for sensing such information.
17
60.Power, on escape, to pursue and retake.-

(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued
may immediately pursue and arrest him in any place in India.

(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the person making any such
arrest is not acting under a warrant and is not a police officer having authority to arrest.

18
50.Person arrested to be informed of grounds of arrest and of right to bail.-

(1) 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.

(2) 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.

19
( In re Madhu Limaye, A.I.R. 1969 S.C. 1014)

20
(1976 Cr. L.J. 1303 (Gau).
13
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

2. Search of arrested person- Whenever a person who is arrested cannot legally be

admitted to bail, or is unable to furnish bail,the police officer making the arrest may
search such a person, and place in safe custody all articles, other than necessary wearing
apparel, found upon him. A receipt showin the articles so seized shall be given to such a
person.
 Before making a personal search of the accused, the searching officer and others assisting
him should give their personal search to the accused as it avoids possibility of implanting
an object to be shown in search.

 Where the arrested person is a woman the search shall be made by another woman with
strict regard to decency. However, it is not necessary that the witnesses also be female22In
Kasturi Lal v. State of U.P.23 it was held that where a person is arrested on suspicion
that he was carrying stolen property and the property found on search is seized, such
seizure shall be forthwith reported to a Magistrate, who shall make such order as he
thinks fit respecting the disposal or the delivery of such property to the person entitled to
the possession or if such person cannot be ascertained, respecting the custody and
production of the property.

21
Obligation of person making arrest to inform about the arrest to inform about the arrest, etc., to a
nominated person
1. Every police officer or other person making any arrest under this Code shall forthwith give the information
regarding such arrest and place where the arrested person is being held to any of his friends, relatives or
such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such
information.
2. The police officer shall inform the arrested person of his rights under subsection (1) as soon as he is
brought to the police station.

3. An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be
kept in the police station in such form as may be prescribed in this behalf by the State Government.

4. It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that
the requirements of Sub-Section (2) and Sub-Section (3) have been complied with in respect of such
arrested person.

22
Kamla Bai v. State of Maharashtra, A.I.R. 1962 S.C. 1189.

23
A.I.R. 1965 S.C. 1039
14
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

3. Seizure of offensive weapons- Section 5224 provides that the police officer or other
person making arrest may take from the person arrested any offensive weapons which he
has about his person, and shall deliver all weapons so taken to the court or officer before
which or whom the arrested person is to be produced.(S.52)
 If the evidence of the investigating officer who recovered the material objects is
convincing, the evidence as to recovery need not to be rejected on the ground that the
seizure witnesses do not support the prosecution version.25

4. Medical examination of accused- S.53 of the Code implies that if the offence with
which the arrested person is charged is of such nature and is alleged to have been
committed under such circumstances that the evidence as to the commission of the
offence would be afforded by the medical examination of such an arrested person, at the
instance of a police officer not below the rank of a sub- inspector, such examination
could be made by a registered medical practitioner in order to ascertain the facts that
might afford such evidence. However, superior officers of the police or the court are not
barred from exercising the said power, if necessary for doing justice.26
 For the purposes of such medical examination such force as is reasonably necessary
could also be used. If the person to be examined is a woman the examination shall be
made by, or under the supervision of, a registered lady medical practitioner.

 This section comes into effect only when

1. A request is made by a police officer not below rank of sub- inspector,
2. Upon reasonable grounds which such officer bona fide entertains,
3. That an examination of the arrested person by a medical practitioner will afford evidence
as to the commission of the offence.

 As the medical examination, of the accused under S.53 is part and parcel of the process of
investigation, the police could get the accused medically examined even after the framing
of charge by the court by exercising their powers of further investigation under
S.173(8).27

24
52.Power to seize offensive weapons.-

The officer or other person making any arrest under this Code may take from the person arrested any offensive
weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which
or whom the officer or person making the arrest is required by this Code to produce the person arrested.

25
( Modan Singh v. State of Rajasthan, A.I.R 1978 SC 1511.)

26
(Anil A. Lakhande v. State of Maharashtra, 1981 Cr. L.J. 125 (S.C.)

27
Anil A. Lokhande v. State of Maharashtra, 1981 Cr. L.J. 125 (Bom).
15
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

 Even if an accused is released on bail he is still ' a person arrested on a charge of

committing an offence' as contemplated by S.53, moreover such a person while released
on bail is nationally in the custody of the court ( through surety) and therefore his medical
examination can be carried out in terms of S.5328.(pg 29)

The new explanation to S.53 by the CrPC( Amendment Act, 2005 (25 of 2005) clarifies that
"examination" in this section and S.53A and 54 shall include the examination of blood, blood
stains, semen,swabs in the case of sexual offences, sputum and sweat, hair samples and finger
nail clippings by the use of modern and scientific techniques including DNA profiling and such
other tests which the registered medical practitioner thinks necessary in a particular case.
The obtaining of such evidence does not violate the constitutional protection provided by Article
20(3).29 Utility of DNA Test:

 The DNA evidence is now a predominant forensic technique for identifying criminsld
when biological tissues are left at scene of crime. DNA testing on samples such a saliva,
skin, blood,hair or semen not only helps to convict but also serves to exonerate. The
sophisticated technology makes it possible to obtain conclusive results in in which the
previous testing had been inconclusive30Taking of the blood of the accused for the
purpose of DNA test will not amount to compelling an accused to become a witness
against himself violate Art. 20(3) of the constitution.( Thogorani v.). On refusal by the
accused to give his blood sample for conducting DNA test, Court would draw adverse
inference against the accused. ( Thogorani v.)

S. 53A is new added by the CrPC( Amendment Act), 2005(25 of 2005).

 S. 53(A)31 virtually re-enacts S. 53, to be applicable specifically to rape cases. It is

enacted that in a rape case the accused could be sent for medical examination by the
28
53.Examination of accused by medical practitioner at the request of police officer.-

(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been
committed under such circumstances that there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical
practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in
good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or
under the supervision of, a female registered medical practitioner.

29
State of Bombay v. Kathi Kalu, A.I.R.1961 S.C. 1808
30
Thogorani v. State of Orissa, 2004 CrLJ 4003 (4005) (Ori-DB)

16
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

registered medical practitioner employed in a hospital run by the Government or by a

local authority and in the absence of such a practitioner within radius of sixteen
kilometres from the place where the offence has been committed by any other registered
medical practitioner.

S.5432, confers an important right on an arrested person. It is the right of an arrested person to
have his medical examination done. It provides for the examination of an arrested person by a
medical practitioner, at the request of the arrested person and it is a right conferred on the
arrested person. But many times, the arrested person is not aware of his right and is unable to
exercise this right and even though may be tortured or maltreated by the police in police lock-up.

31
53A. EXAMINATION OF PERSON ACCUSED OF RAPE BY MEDICAL PRACTITIONER.

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there
are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of
such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government
or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place
where the offence has been committed by any other registered medical practitioner, acting at the request of a police
officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for
that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and
prepare a report of his examination giving the following particulars, namely,
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and”
(v) other material particulars in reasonable detail.

32
53A. EXAMINATION OF PERSON ACCUSED OF RAPE BY MEDICAL PRACTITIONER.

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there
are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of
such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government
17
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

It is, therefore the duty of Magistrate to inforrn the arrested person about his right of medical
examination, in case he has any complaint of torture or maltreatment in police custody. 33

It was held in D.J. Vaghela v. kanibhai Jethabhai34, that the Magistrate owes a duty to inform
the arrested person about his right to get himself examined in case he has complaints of physical
torture or maltreatment in police custody.

Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble35

 S.54A36 is a new Section inserted by the CrPC Amendment Act, 2005(25 of 2005), which
empowers the Court to direct specifically the holding of the identification of the arrested

or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place
where the offence has been committed by any other registered medical practitioner, acting at the request of a police
officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for
that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and
prepare a report of his examination giving the following particulars, namely,
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and”
(v) other material particulars in reasonable detail.

33
Sheela Barse v. State of Maharashtra, A.I.R 1983 SC 378.

34
1985 Cr. L.J. 974 (Guj).

35
(2003, Cri.L.J. 4548 (S.C.)

36
54A. IDENTIFICATION OF PERSON ARRESTED.
18
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

person at the request of the prosecution. Court having jurisdiction can require an accused
to subject himself for identification by others if it is found necessary for the investigation
of the offence.( S.54A)

5. Producing the arrested person before Magistrate, within 24 hours (S.56).- The
object of S.56 is that the arrested person should be brought before Magistrate having
jurisdiction in the case without any unnecessary delay.37
 Such a person should not be detained for more than twenty-four hours in police custody
in absence of special order of a Magistrate.( S.54A inserted by the Cr.PC( Amendment)
Act, 2005, Sec.11.)

 The Constitution of India in Art.22(2), also provides for producing the arrested person
befire Magistrate, within 24 hours. Where a police officer arrests a person outside the
State, he must produce the person arrested before the Magistrate having jurisdiction with
refernce to the place where the offence took place.( Kura Rajaiah alias K. Rajanna v.
Govt. of Andhra Pradesh, 2007 CrLJ 2031)

Where a person is arrested on a charge of committing an offence and his identification by any other person or
persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may
on the request of the officer in charge of a police station, direct the person so arrested to subject himself to
identification by any person or persons in such manner as the Court may deem fit:
Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of
identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to
ensure that such person identifies the person arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically disabled, the
identification process shall be video graphed.

37
(Msr. Bhagan v. State of Pepsu, A.I.R. 1965 Pepsu 33.)
19
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

6. Person arrested not to be detained more than twenty-four hours(S.57)38- When a

person is arrested under a warrant, S.76 becomes applicable. When he is arrested
without a warrant, the police officer can keep him in custody for a period not exceeding
twenty four hours. Before the expiration of such a period, the arrested person has to be
produced before the nearest Magistrate, who can under S. 167, order his detention for a
term not exceeding fifteen days on the whole.( 39Or he can be taken to a Magistrate who
has jurisdiction to try the case, and such Magistrate can remand the person into custody
for a term which may exceed fifteen days but not more than 60 days.
S.57 is mandatory.40

Where an arrestee is detained in police lock ups beyond 24 hours, the detention clearly violates
the mandatory provisions of S.57 Cr.P.C and Art.22 of the Constitution of India and is illegal.417.
Duty of Police to report apprehensions.(S.58)-

7. S.5842 requires every officer in charge of a police station to report to the District
Magistrate the cases of all persons arrested without warrant, within the limits of his
station.(S.58)

 The provisions of S.58 Cr.P.C. are not consistent with S.57 of the NDPS Act. It was held
in Swarnaki v. State of Kerala43, that S.57 of Narcotic Drugs and Psychotropic
Substances Act, 1985 provides that the officer who makes any arresr or seizure shall
38
57.Person arrested not to be detained more than twenty-four hours.-

No police officer shall detail 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 Court.

39
Queen- Empress v. Engadu ( 1887) 11 Mad 98.)

40
P.C Kakar v. Director General of Police, 1986 (1) Crimes 620, 626 (AP)

41
Amrik Singh v. State of Punjab, 2000 CrLJ 4305 (P&H)

42
58.Police to report apprehensions.-

Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional
Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether
such persons have been admitted to bail or otherwise.

20
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

report the matter to his immediate superior officer, and no such statutory duty as under
S.58 of Cr.PC, is cast on the officer effecting arrest or seizure under NDPS Act to send a
report to the District Magistrate. Therefore, any such failure to send a report will not
make the search and seizure illegal or vitiate the trial.

8. Person arrested not to be discharged except on bond or bail.(S.59)- A person who

has been arrested by a police officer shall not be discharged except on his own bond
or on bail or under the special order of a magistrate.(S.59)
 It was held in S. Sant Singh v. Secretary, Home Department, Government of
Maharashtra, Mantralaya,44 that in the Indian judicial system normally a person would
be prisoner in the following cases:

 If he is a detenue;

 If he is a pretrial prisoner;

 After conviction.
1. Prisoners whose appeals are pending
2. Prisoners whose bail applications have been rejected by the HC;
3. Prisoners whose convictions have been confirmed by the HC.
Prison rules make it very clear that the competent authority can grant parole only to a convict.

9. Power on escape, to rescue and retake.(S.60)45-

43
( 2006 Cr. L.J. 65 (Kerala

44
(2006 Cr. L.J. 1515 (Bom.).

45
60.Power, on escape, to pursue and retake.-

(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued
may immediately pursue and arrest him in any place in India.

(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the person making any such
arrest is not acting under a warrant and is not a police officer having authority to arrest.

21
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

ARNESH KUMAR V. STATE OF BIHAR46

INTRODUCTION
The Supreme Court of India in its recent judgment of Arnesh Kumar v. State of Bihar47 and
Others 107 ruled on the principles for making arrest and detention under the Code of Criminal

Procedure, 1973. The Supreme Court, in its Ruling, has issued certain directions to be followed
by the police authorities and the Magistrates while making arrest and/or authorizing detention of
an accused.

FACTS
The Petitioner preferred a Special Leave Petition before the Supreme Court after having failed to
secure anticipatory bail before the Sessions Judge and thereafter, the High Court of Bihar in a
matrimonial dispute. The allegation levelled against the Petitioner involved making illicit
demands for dowry, an offence punishable under Section 498A of I.P.C.And Section 4 of the
Dowry Prohibition Act, 1961

RULING
The Supreme Court, in its Ruling, emphasized on the need for caution while exercising the
drastic power of arrest, which has for years, been treated as a tool for harassment and oppression
in the hands of the police authorities and has greatly contributed to police corruption in India.
Citing statistics to demonstrate the misuse of the power of arrest by the police authorities, the
Supreme Court proceeded to set out certain objective criteria to be applied before making arrest
under the Cr.P.C.
The Supreme Court held that no arrest should be made only because the offence is non -bailable
and cognizable. Neither should arrest be made in a routine, casual and cavalier manner or on a
mere allegation of commission of an offence made against a person. Arrest should only be made
after reasonable satisfaction reached after due investigation as to the genuineness of the
allegation. Dealing with Section 41 (1) of the Cr.PC., which provides for conditions precedent to
making arrest, the Supreme Court emphasized that for making arrest, the police must be
satisfied that all the conditions set out in the provision are met viz.

46
Arnesh Kumar v. State of Bihar and Others; (2014) 8 SCC 273

47
Ibid.
22
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

Arrest is necessary:
1. To prevent such person from committing any further offence; or
2. For proper investigation of the case; or
3. To prevent destruction or tampering with evidence by the accused; or
4. To prevent such person from influencing the witnesses; or
5. To ensure presence of the accused in the court.
6. Police must, in any case, record reasons for making, or not making the arrest in a particular
case.
Further, the Supreme Court laid down the circumstances in which the Magistrate might authorize
detention of the accused. As per Article 22(2) of the Constitution of India And Section 57 of the
Cr.P.C, an accused must be produced before the Magistrate without unnecessary delay and in no
circumstance beyond 24 hours,excluding the time necessary for the journey. An accused may be
kept in detention beyond 24 hours of his arrest, only when authorized by the Magistrate.
The Supreme Court held that when an accused is produced before the Magistrate, the police
officer effecting the arrest must furnish the facts,the reasons and the conclusions for arrest and
the Magistrate,only upon being satisfied that the conditions of Section 41of Cr.P.C. are met and
after recording its satisfaction in writing, may proceed to authorize the detention of an
accused.The Supreme Court, further, clarified that even in terms of Section 41 A of the
Cr.P.C.where arrest of an accused is not required, the conditions precedent to arrest as envisaged
under Section 41 of Cr.P.C.must be complied with and shall be subject to the same scrutiny by
the Magistrate. The Supreme Court, in its Ruling, further condemned the practice of police
mechanically reproducing reasons contained in Section 41 Cr.P.C.for effecting arrest in case
diaries being maintained by the police officers.

In light of the above, The Supreme Court has issued the following directions to all the State
Governments:
1. To instruct the police officers to not mechanically arrest the accused under Section 498 A
of I.P.C.without satisfying themselves that the conditions of arrest are met;
2. All police officers to be provided with the check-list of conditions precedent prescribed
under Section 41 of Cr.P.C. This checklist is to be duly filed and forwarded to the
Magistrate while producing the accused for further detention;
3. The Magistrate shall then peruse the report provided by the police officer and only after
recording its satisfaction in writing, may authorize detention;
4. The decision to not arrest the accused should be forwarded to the Magistrate within two
weeks from the date of institution of the case. The period may be extended by the
Superintendent of police for reasons to be recorded in writing;
5. The notice of appearance in terms of Section 41A Cr.P.C.should be served on the accused
within two weeks from the date of institution of the case. The same may be extended by
the Superintendent of police for reasons to be recorded in writing.
6. Failure to comply with the directives set out above may render police officers/Magistrates
liable for departmental action and proceedings for contempt of court to be instituted
before the High Court having territorial jurisdiction.

23
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

D.K. Basu v. State of West Bengal48

FACTS

D.K.Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non-Political
organisation on 26.08.1986 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 within 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 tothe 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 a Writ Petition and was listed along with the Writ Petition of D.K.Basu.
On 14.08.1987, 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 West
Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra and
Manipur. Further, Dr. A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to assist
the Court. All the Advocates appearing rendered useful assistance to the Court

ISSUE RAISED
The Issue involved in the present case pertained to Custodial Torture and Deaths by the Police.

GUIDELINES
The Hon'ble Supreme Court, in D.K. Basu v. State of West Bengal49, has laid down specific
guidelines required to be followed while making arrests:
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their
designations. The particulars of all such police personnel who handle interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with their
designation. The particular of all such personnel who handle interrogation of the arrestee
must be recorded in a register.
2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of
arrest and such memo shall be attested by at least one witness, who may be either a
member of the family of the arrestee or a respectable person of the locality from where
the arrest is made. It shall also be counter signed by the arrestee and shall contain the
time and date of arrest.

48
D.K. Basu v. State of West Bengal; AIR 1997SC 416

49
Ibid.
24
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

3. A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being informed, as
soon as practicable, that he has been arrested and is being detained at the particular place,
unless the attesting witness of the memo of arrest is himself such a friend or a relative of
the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aids Organization in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclosed the name of the next friend of the person who has been
informed of the arrest and the names land particulars of the police officials in whose
custody the arrestee is.
7. The arrestee should, where he so request, be also examines at the time of his arrest and
major and minor injuries, if any present on his /her body, must be recorded at that time.
The Inspector Memo' must be signed both by the arrestee and the police officer effecting
the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by the trained doctor every 48
hours during his detention In custody by a doctor on the panel of approved doctor
appointed by Director, Health Services of the concerned State or Union Territory,
Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be
sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.
11. .A police control room should be provided at all district and State headquarters where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest
and at the police control room it should be displayed on a conspicuous notice board.

25
 UNIVERSITY INSTITUTE OF LEGAL STUDIES

Bibliography

 Rattan lal&Dhirajlal, The Code of Criminal Procedure, Lexis Nexis Butterworths

Wadhwa,Nagpur, 19th edition 2010

 Kelkar , R.V. , Criminal Procedure ,Eastern Book Company, Lucknow, Sixth Edition
,reprinted 2018

Statute
The Code of Criminal Procedure, 1973

Websites
http://egyankosh.ac.in/bitstream/123456789/38902/1/Unit-2.pdf

http://lawtimesjournal.in/search-and-seizure/?m4dc=1

https://www.scribd.com/document/324107033/CrPC-Search-and-Seizure-docx

26