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Arrest

Meaning
The word arrest is derived from French
word Arrester meaning to stop or stay and
signifies a restraint of a person.

Reasons/purpose
For securing attendance of the accused
As a preventive or precautionary measure
For obtaining correct name and address
For removing obstruction to police
For retaking a person escaped from
custody.
Kinds of Arrest
Arrest with a warrant
Arrest with out a warrant
Arrest with a warrant
if in the opinion of magistrate if the case
appears to be a warrant case he may
issue a warrant.
Warrant is a written order signed, sealed
and issued by magistrate and addressed
to a police officer.
Sec.70 to 81 deals with process of arrest
warrant.
Arrest without warrant

When will wits & not kicks become the
police kit ?Justice V.R.Krishan Iyer
Powers to arrest without warrant are
mainly and widely conferred on the police,
but in some circumstances these are
conferred on Magistrates and Private
persons also.
Arrest without warrant by Police
officer Sec.41- 42
When police may arrest without warrant
Sec.41
who commits a cognizable offence in
presence of a police officer
But in case of a offence punishable with
imprisonment for a term less than 7 years,
police shall record his reasons in writing.
offence punishable more than 7 years
Proclaimed offender

Arrest by Police cont.
In whose possession anything is found
suspected to be stolen property
Who obstructs a police officer while
executing his duty
Deserter of armed forces
Requisition under any law relating to
extradition
Arrest by Police cont.
Amendment-2009
Notice of Appearance (Sec. 41A).

the Police Officer issue a notice directing the
person to appear before him, for offences
punishable less than 7 years.

If the person fails to comply with the terms of
the notice, police can arrest him.
Arrest by Police cont.
Arrest on refusal to give name and
address- Sec.42
Any person who in the presence of a
police officer, has committed or has been
committing a non-cognizable offence
refuses , on demand, to give his name
and address , may be arrested by such
officer in order to ascertain the name and
address.
Judicial Voice
Smt.Amarawathi v State of UP Cr.LJ 2005
(755) All FB (7 judges)
Held-
The arrest of accused is not must if
congnizable offence is disclosed in the FIR
or criminal complaint. The police should
rather be guided by the decision of the
S.C in Joginder kumar v state of UP before
deciding whether to make arrest or not.

Arrest by Private Person-Sec.43

Any private person may arrest any person
who
a) In his presence commits
b) a non-bailable and cognizable offence or
a proclaimed offender
By Private Person cont.
After arrest without any unnecessary
delay, shall handover the person to a
police officer.
Judicial Voice
K.P.Saleem v State of Kerala 2001 CrLJ
4364
Held
The action taken by residents of locality in
apprehending the accused who were
apparently found engaged in preparation
of brown sugar to injectable form is
certainly justified.

Judicial Voice Cont.
Radha sah v State of Jharkhand 2007
Cr.LJ 2805 Jharkhand
Held
Accused was not arrested at time of
commission of offence but much after
alleged occurrence. There was no eye
witness to occurrence. Therefore none of
the witnesses had authority to arrest
accused under sec.43.

Arrest by Magistrate-Sec.43
When any offence is committed in the
presence of a Magistrate (Executive or
Judicial)
Within his local jurisdiction
he may himself arrest or
Order any person to arrest the offender .
Arrest how made/Procedure
Procedure for arrestSec.41B
while making arrest every police officer
Shall bear the clear identification of his
name

Prepare the memorandum of arrest
attested by at least one witness and
countersigned by the person arrested.

Procedure cont.

Inform the person arrested , unless the
memorandum is attested by his family
member , that he has a right to have a
relative or friend named by him to be
informed of his arrest.

Procedure cont.
Control Room Sec.41 C
The State government shall establish a
police control room in every district.

Display on the notice board the names
and addresses of the persons arrested and
the name and designation of the police
officers who made the arrests.

Procedure cont.
Police cannot touch the person to be
arrested unless he be submitted .(Sec.46)
In case of arrest of women, only female
police officer can touch that too if
circumstances requires. Because her
submission to the custody on an oral
intimation shall be presumed.


Procedure cont.
No women is arrested after sunset and
before sunrise, except in exceptional
circumstances for which prior permission
of Magistrate is necessary.

Procedure cont.
If the person(male or female) forcibly
resists , police officer may use all means
necessary to effect the arrest.
This section does not gives right to cause
the death of a person who is not accused
of an offence punishable with death or
with imprisonment for life.


Procedure cont.
No unnecessary restraint(sec.49)
The person arrested shall not be
subjected to more restraint .
Judicial Voice
Citizens for Democracy v State of Assam
(1995) 3 SCC 743.
Held
In all cases where a person arrested by
police is produced before the magistrate
shall not be handcuffed unless special
orders in this respect are obtained from
the magistrate.
Search of place entered by
person sought to be arrested
The person incharge of the place on
demand shall allow the police to enter the
place .

If he refuses , police can enter either by
break open any outer or inner door or
window .Sec.47

Any place in India
For the purpose of arrest police officer
may pursue such person into any place in
India.
Judicial Voice
Hindustani Andolon v State of Punjab
(Cr.LJ 1984,299)
Held
It is impossible and undesirable for any
court to issue a general mandamus to the
effect that whenever a criminal is suspected
to have taken shelter in a place of worship,
the police must enter that place regardless
of the overall situation of law and order.
Rights of Arrested Person
1. To meet an advocateSec.41D

During interrogation arrested person entitled
to meet an advocate of his choice though
not throughout interrogation.

Rights cont.
2. To be informed of grounds of arrest
and of right to bail- Sec.50

3. To inform to a nominated person(
friend or relative) about fact of arrest and
the place where he or she is being
detained.Sec.50 A and 41B

Rights cont.
4. If at the time of arrest, some injuries
are found on the person of the arrestee,
the same must be got medically
examined. Sec.53

5.Police official has to take the arrestee
for medical examination on his request.-
Sec.54
Rights cont.
6. It is the duty of the person having the
custody of an accused to take reasonable
care of the health and safety of the
accused. Sec.55A
7.The arrested person has to be produced
before the nearest Magistrate within 24
hours, excluding the time taken for
travelling from the place of arrest to the
magistrates Court. Sec.57
Judicial voice on rights of arrested
person
Sheela Barse v State of Maharastra

Held
The arrested person must be informed
about his right to be medically examined in
the terms of Sec.54.

Judicial voice on rights
Joginder Kumar v State of UP 1994 SCC-
526
Judges- Venkatachalaiah, S.Mohan, and
A.S.Anand
Held
i) Arrested person is entitle to have one
friend , relative or other person , told that
he has been arrested and where he is being
detained.(inserted in Sec.50A)

Judicial voice on rights
D K Basu v State of W.B 1997 Cr.L.J
743(SC)
Judges Kuldip singh , A.S.Anand
Held
i) Police should bear accurate, visible and
clear identification and name tags with their
designations. ( Inserted in Sec.41B)

Judicial Voice on rights Cont.
D.K.Basu-cont.

ii) Police shall prepare a memo of arrest at
the time and date of arrest and such memo
shall be attested at least one witness and
countersigned by arrestee.(inserted in
Sec.41B)
Judicial Voice on rights Cont.
D.K.Basu-cont.

iii) Arrested person is entitle to have one
friend , relative or other person , told that
he has been arrested and where he is being
detained.( guidelines given in Joginder
kumar case and inserted in Sec.50A )
Judicial Voice on rights Cont.
D.K.Basu-cont.
iv) if the relative or friend lives outside
district, information through legal aid
organization and police station of the area
concerned telegraphically within a period of
8 to 12 hours.
v) The person arrested must be made aware
of this right.

Judicial Voice on rights Cont.
D.K.Basu-cont.
vi) An entry must be made in the diary at
the place of detention regarding the arrest
which shall also disclose the name of the
next friend who has been informed.
vii) The arrestee should be examined major
and minor injuries, if any present on his/ her
body.

Judicial Voice on rights Cont.
D.K.Basu-cont.
viii) The arrestee should be subjected to
medical examination every 48 hours during
his detention. ( inserted in Sec.55A)
ix) Copies of all the documents including
memo should be sent to the Magistrate for
his record.

Judicial Voice on rights Cont.
D.K.Basu-cont.
x) The arrestee should be permitted to meet
his lawyer during interrogation, though not
throughout the interrogation.(inserted in
Sec. 41 D)
xi) A police control room should be provided
at all district and State
headquarters.(inserted in Sec. 41 C)
Consequences of non-compliance
with provisions relating to arrest
a) A trial will not be void merely because
the provisions relating to arrest have not
been fully complied with.
b) If the arrest is illegal , the person can
exercise the right of private defence
c) Police can be prosecuted for an offence
under Sec.220 IPC.
d) Police can be punishable under sec.342
of the IPC.(Wrongful Confinement)


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Process to compel appearance (issue of
process)
SummonsArrest Warrant Proclamation
Proclaimed offender Attachment.

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