AN ANALYSIS OF THE AMENDMENTS OF THE LAW

RELATING TO ARREST

A project submitted in partial fulfilment of the course

CRIMINAL LAW-II, 4th SEMESTER during the academic year
2017-2018

SUBMITTED BY:
SHREYA SINHA
ROLL NO. 1648
B.B.A. LL.B.

SUBMITTED TO:
Dr. PETER F. LADIS
FACULTY OF CRIMINAL LAW-II

APRIL, 2018
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA
NAGAR, MEETHAPUR, PATNA-800001
 An Analysis of the Amendments of the Law 2018
Relating to Arrest

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“AN ANALYSIS OF THE AMENDMENTS OF THE LAW RELATING TO ARREST”
submitted at Chanakya National Law University, Patna is an authentic record of my work
carried out under the supervision of Dr. Peter F. Ladis. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidates)

SHREYA SINHA
Chanakya National Law University, Patna

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 An Analysis of the Amendments of the Law 2018
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ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, ill above the level of simplicity and
into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered
Criminal Law II teacher Dr. Peter F. Ladis whose support and guidance was the driving force
to successfully complete this project. I express my heartfelt gratitude to him. Thanks are also
due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
Criminal Law II teacher for providing us with such a golden opportunity to showcase our
talents. Also this project was instrumental in making me know more about the amendments
of the law relating to arrest. This project played an important role in making me understand
more about the amendments of the law relating to arrest. It was truly an endeavour which
enabled me to embark on a journey which redefined my intelligentsia, induced my mind to
discover the intricacies involved in the competency of the people in the capital punishment
awarded to people.

Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

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 An Analysis of the Amendments of the Law 2018
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TABLE OF CONTENTS

Declaration…………………………………………………………………………………….i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………………………….iii

Aims and Objectives……………………………………………………………………….…iv

Hypothesis.................................................................................................................................iv

Research Methodology……………………………………………………………………….iv

Review of Literature………………………………………………………………………….iv

Sources of Data.........................................................................................................................iv

Style of Writing..........................................................................................................................v

Mode of Citation........................................................................................................................v

Method of Data Collection........................................................................................................v

Limitation of Research..............................................................................................................v

Scope of Research......................................................................................................................v

1. Introduction………………………………………………………………………….1-3

2. Laws Relating to Arrest Under CrPC…………………………………………….....4-9

3. Why the Need of Amendment to CrOC?………………………………….....….10-13

4. Amendments Relating to Laws of Arrest: An Overview………………………...14-18

5. Analysis of Amendments by Various Case Laws………………………………...19-20

6. Conclusion………………………………………………………………………..21-22

Bibliography……………………………………………………………………...……….…23

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 An Analysis of the Amendments of the Law 2018
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AIMS AND OBJECTIVES

With this project the researcher intends to:

1. To study the laws relating to arrest.
2. To study the amendments in the laws relating to arrest.
3. To study the rights of arrested persons before and after the arrest.

HYPOTHESIS

The Researcher has formulated the following hypothesis, the validity of which will be tested
in the course of Research work:
1. Law of Arrest under CrPC needs no amendment.
2. Arrest provisions are dynamic in nature.

RESEARCH METHODOLOGY

The researcher has used the doctrinal method of research in the completion of this project on
“AN ANALYSIS OF THE AMENDMENTS OF THE LAW RELATING TO ARREST.”
The sources are mentioned in the review of literature.

REVIEW OF LITERATURE

The researcher intends to examine the secondary sources in thus project. The secondary
sources include books, websites, photographs, articles, e-articles and reports in appropriate
form, essential for this study.

SOURCES OF DATA

The researcher will rely upon primary and secondary sources of data.
These include:-
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 An Analysis of the Amendments of the Law 2018
Relating to Arrest

i. Primary Sources- Code of Criminal Procedure, 1973, Constitution of India, 1950,

Indian Penal Code, 1860.
ii. Secondary Sources- Books, articles and cases.

STYLE OF WRITING

The researcher will be using both analytical and descriptive styles of writing.

MODE OF CITATION

The researcher will be using a uniform mode of citation throughout this paper.

METHOD OF DATA COLLECTION

The researcher will make use of doctrinal methods that includes within its ambit the library
work.

LIMITATION OF RESEARCH

The researcher has undergone time and monetary limitation.

SCOPE OF RESEARCH

This piece of study would be very helpful for the lawmakers as it would explicitly state about
its utility in the present context. If found of not much relevance there is an urgent need to
either amend or repeal it. Law exists to sub serve social needs and therefore it is desirable that
it should change with the changing needs of society and life otherwise its results would be
contrary to the general belief ‘Law Is Dynamic’.

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INTRODUCTION

The term “Arrest” means apprehension of a person by legal authority so as to cause

deprivation of his liberty. Thus, after arrest, a person’s liberty is in control of the arrester.1 In
criminal law, arrest is an important tool for bringing an accused before the court and to prevent him
from absconding.
As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an
exercise of the power to deprive a person of his or her liberty; the taking or keeping of a
person in custody by legal authority, especially, in response to a criminal charge.”2
The purpose of an arrest is to bring the arrestee before a court or otherwise to secure the
administration of the law. An arrest also serves the function of notifying the community that
an individual has been accused of a crime and also may admonish and deter the arrested
individual from committing other crimes.3
Arrests can be made in both criminal and civil cases, although in civil matters, arrest is a
drastic measure which is not looked upon with favour by the courts.
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC), the chapter
V (Section 41 to 60) talk about Arrest of a person but it does not define arrest anywhere.
Arrest can be made by police officer, Magistrate or any private person, like you or me can
also arrest a person but that can made only in accordance with the legal provisions mentioned
in CrPC. CrPC exempts the members of Armed forces from being arrested for anything done
by them in discharge of their official duties except after obtaining the consent of the
government (section 45 CrPC).
Section 46 CrPC describes the way in which an arrest is actually made. As per Section
46(1), unless the person being arrested consents to the submission to custody by words or
actions, the arrester shall actually touch or confine the body of the person to be
arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the person
being arrested to either submit to custody or the arrester must touch and confine his body.
Mere oral declaration of arrest by the arrester without getting submission to custody or

1
http://hanumant.com/CrPC-Unit2-Arrest.html
2
https://lawlex.org/lex-bulletin/rights-of-arrested-person/4320
3
Ibid.

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physical touching to confine the body will not amount to arrest. The submission to custody
may be by express words or by action.
It was held in the case of Bharosa Ramdayal vs Emperor4, if a person makes a statement to
the police accusing himself of committing an offence, he would be considered to have
submitted to the custody of the police officer. Similarly, if the accused proceeds towards the
police station as directed by the police officer, he has submitted to the custody. In such cases,
physical contact is not required.
In case of Birendra Kumar Rai vs Union of India5, it was held that arrest need not be by
handcuffing the person, and it can also be complete by spoken words if the person submits to
custody.
Section 46(2) provides that if any 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. Thus, if the person tries to run away, the police officer can take actions to
prevent his escape and in doing so, he can use physical force to immobilize the
accused. However, as per Section 46(3), there is no right to cause the death of the person
who is not accused of an offence punishable with death or with imprisonment for life, while
arresting that person. Further, as per Section 49, an arrested person must not be subjected to
more restraint than is necessary to prevent him from escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section
46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional
circumstances, in which case the arrest can be done by a woman police officer after making a
written report and obtaining a prior permission from the concerned Judicial Magistrate of
First class.
In Kultej Singh vs Circle Inspector of Police6, it was held that keeping a person in the
police station or confining the movement of the person in the precincts of the police station
amounts to arrest of the person.
Section 41A deals with cases not covered under Section 41 (1), wherein a police officer is
directed to issue a notice and not to make an arrest unless the noticee after receiving notice
does not comply with the terms of notice or complies once and then flouts it subsequently. If

4
AIR 1941 Nag 86 (B)
5
AIR 1992 All 151, 1992 CriLJ 1436
6
ILR 1991 KAR 3198, 1991 (4) KarLJ 358

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the notice complies with terms of notice, he may only be arrested for the offence concerned
for reasons to be recorded in writing by the police officer.
Section 41B directs the conducts of Police officers while making and arrest. It directs them to
ensure that while making an arrest they bear an accurate, clear & visible identification of his
name for the purposes of easy identification, prepare an arrest memo attested by either a
family member of arrestee or a respectable member of society and countersigned by the
arrestee himself. The arrestee is also to be informed of his right to have a relative or a friend
of his informed of his arrest, if arrest memo is not attested by his family member.
The Code of Criminal Procedure (Amendment) Bill, 2005, to quote the Home Minister,
would make the law more humane, more scientific and more effective. However, after the
Act got the Presidential assent, the implementation of these amendments have been deferred
indefinitely by the Government amidst nationwide protests by lawyers and objections by the
Bar Council of India against some of the provisions, which according to them, adversely
affects the interests of the accused. The lawyers have protested against provisions like the
ones that provide for prompt arrest of an accused after rejection of his anticipatory bail,
confiscation of the property of an accused who has repeatedly evaded court process and the
powers of a Magistrate to recommend to the prosecution to file an appeal in a criminal case
even if the offence is not of a serious nature, even though in our country, jumping bails,
evading trial by not appearing before the court and ineffectual prosecution is the norm!

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LAWS RELATING TO ARREST UNDER CRPC

The word, ‘arrest’ has not been defined in an enactment dealing with the offences including
the Code of Criminal Procedure and the Indian Penal Code. It is a word derived from the
French word ‘Arreter’ which means to stop or stay. We can say that the arrest is physically
restraining a person by the person authorized by law or the Court of Law. The Constitution of
India guarantees every citizen the right of liberty. As such liberty is a fundamental right of
Human Being; it shall not be curtailed without the due procedures established by law.
Section 41 to 60 of CrPC deal with various provisions regarding the arrest. Section 41
provides for the situations when the police may arrest without warrant. This section gives
wide power to the police officer to make an arrest without an order from the magistrate and
without warrant only in circumstances limited by the provisions contained in the Section, and
it is necessary in exercising such large powers to be cautious and circumspect. What is a
reasonable complaint or suspicion must depend on the circumstances of each particular case,
but it must be at least founded or some definite fact tending to throw suspicion on the person
arrested, and not a mere vague surmise or information.
Arrest can be made by police officer, Magistrate or any private person, like you or me can
also arrest a person but that can made only in accordance with the legal provisions mentioned
in CrPC. CrPC exempts the members of Armed forces from being arrested for anything done
by them in discharge of their official duties except after obtaining the consent of the
government (section 45 CrPC).7
According to section 438of CrPC, Any private individual may arrest a person without
warrant only when the person is a proclaimed offender under section 82 CrPC and the person

7
45. Protection of members of the Armed Forces from arrest.
(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), 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.
(2) 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” were
substituted.
8
43. Arrest by private person and procedure on such arrest.
(1) 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

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commits a non-bailable offence and cognizable offences in his presence; with warrant u/s 72
and 73, under order of a Police officer u/s 37 and under order of a magistrate u/s 37 and 44
Cr. P.C. and also 60 (1) CrPC.
According to section 449of CrPC, Any Magistrate, whether Executive or Judicial, may
arrest a person when any offence is committed in his presence then he may himself arrest or
order any person to arrest the offender and thereafter, subject to the provisions herein
contained as to bail, may commit the offender to custody.
A military officer may arrest under section 130 and 131 CrPC.
Arrest by Police Officer
A police officer may arrest without a warrant under Sections 41 (1) to 151 CrPC; under a
warrant under Sections 72 to 74 CrPC; under the written order of an officer in charge
under Sections 55 and 157; under the orders of magistrate under Section 44 and in non
cognizable offence under Section 42 CrPC. A superior officer may arrest under Section 36
CrPC. An Officer-in-Charge of a Police Station may arrest under Section 42 (2) and 157
CrPC.
Under Sections 41, 42, 151 CrPC, a Police officer may arrest without warrant in the
following conditions:
1. Who has been concerned in any cognizable offence or
2. Who has in possession, without, lawful excuse, of any house breaking weapon or
3. Who has been proclaimed as an offender either under CrPC or by order of the State
Govt. or
4. Who is in possession of any stolen property or

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 police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall
re- arrest him.
(3) 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.
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44. Arrest by Magistrate.
(1) 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.
(2) 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.

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5. Who obstructs a police officer while in the execution of his duty or who has escaped,
or attempts to escape, from lawful custody or
6. Who is reasonably suspected of being a deserter from any of the Armed forces of the
Union or
7. Who has been concerned in any law relating to extradition or
8. Who, being a released convict commits a breach of any rule made under sub-section
(5) of Section 356 CrPC or
9. For whose arrest any requisition has been received from another police officer
specifying the person to be arrested and the offence and other cause for which the
arrest is to be made.10
As held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi11, the
arrested person must be produced before another magistrate within 24 hours, otherwise his
detention will be illegal.
In the case of Joginder Kumar vs State of UP12, it was held that no arrest can be made
merely because it is lawful to do so. There must be a justifiable reason to arrest.
Further, in State vs Bhera13, it was held that the “reasonable suspicion” and “creditable
information” must relate to definite averments which must be considered by the Police
Officer himself before he arrests the person.
CrPC gives wide powers to the police for arresting a person. Such powers without
appropriate safeguards for the arrested person will be harmful for the society. To ensure that
this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can
be seen as recognition of the rights of a person being arrested. Further, once arrested, a
person is already at a disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of “fair trial”, several provisions
are given in CrPC, that give specific rights to an arrested person. These rights can be
described as follows –
1. Right to be informed of the grounds of arrest under Section 50 of CrPc and Article 22
of Indian Constitution, it is a fundamental right to be informed. It is the duty of the
police officer to inform you and also tell whether the offense is bailable or non-

10
http://www.caclubindia.com/forum/the-code-of-criminal-procedure-arrest-and-bail-185533.asp
11
1954 CriLJ 1317
12
1994 AIR 1349 1994 SCC (4) 260 JT 1994 (3) 423 1994 SCALE (2)662
13
1997 CriLJ 1237

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bailable. Normally, Bailable offenses are those where bailable can be granted and it is
right of the person to be granted bail and Non- bailable offenses are where bail can’t
be granted generally and it’s the discretion of the court. In Harikishan vs State of
Maharashtra14, SC held that the grounds of arrest must be communicated to the person
in the language that he understands otherwise it would not amount to sufficient
compliance of the constitutional requirement.
2. In non-cognizable cases, arrests are made with a warrant and the person going to be
arrested has a right to see the warrant under Section 75 of CrPC. Warrant of arrest
should fulfill certain requirements such as it should be in writing such as signed by
the presiding officer, should have the seal of the court, Name and address of the
accused and offense under which arrest is made. If any of these is missing, the
warrant is illegal.
3. Under Section 41, police have the power to arrest a person without a warrant for a
prompt and immediate arrest is needed, no time to approach magistrate and obtain a
warrant for example in a case where a serious crime has been perpetrated by a
dangerous person or where chances of that person absconding unless immediately
arrested. Not in all cases arrest in necessary, Notice of appearance before police
officer can be made if reasonable complaint has been made, credible information has
been received and suspicion exists of cognizable offence and if concerned person
continues to comply with such notice and appears, then arrest is not necessary but he
if he doesn’t, then arrest can be made.
4. The police officer must be wearing a clear, visible and clear identification of his name
which facilitates easy identification. A memo of arrest must be prepared at the time of
arrest – (i) attested by least one witness, it can be a family member or member of the
locality where an arrest is made (ii) countersigned by arrested person.
5. Right of arrested person to meet an advocate of his choice during interrogation under
Section 41D and Section 303 In Khatri (II) vs State of Bihar 15, Supreme Court has
also held that access to a legal practitioner is implicit in Article 21, which gives
fundamental right to life and liberty. The state is under constitutional mandate to
provide free legal aid to an indigent accused person and this constitutional obligation
arises not only when the trial is commenced but also when the person is first produced
14
(1962) 64 BOMLR 522
15
1981 SCR (2) 408 1981 SCC (1) 627

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before a magistrate and also when he is remanded from time to time. In Suk Das vs
Union Territory of Arunachal Pradesh16, SC has held that non-compliance of this
requirement or failure to inform the accused of this right would vitiate the trial
entailing setting aside of the conviction and sentence. The right of an accused person
to consult his lawyer begins from the moment of his arrest. The consultation with the
lawyer may be within the presence of a police officer but not within the police
officer’s hearing. SC also held that it is the duty on all courts and magistrates to
inform the indigent person about his right to get free legal aid.
6. An arrested person has a right to inform a family member, relative or friend about his
arrest under Section 50 of CrPC.
7. An arrested person have right not to be detained for more than 24hrs, without being
presented before a magistrate, it is to prevent unlawful and illegal arrests. This right is
a fundamental right under Article 22 of the Indian constitution and under Sections 57
and 72 of CrPC. In Khatri (II) vs State of Bihar17, SC has strongly urged upon the
State and its police to ensure that this constitutional and legal requirement of bringing
an arrested person before a judicial magistrate within 24 hours be scrupulously met.
This is a healthy provision that allows magistrates to keep a check on the police
investigation. It is necessary that the magistrates should try to enforce this
requirement and when they find it disobeyed, they should come heavily upon the
police. Further, in Sharifbai vs Abdul Razak,18, SC held that if a police officer fails to
produce an arrested person before a magistrate within 24 hours, he shall be held guilty
of wrongful detention.
8. An arrested person has the right to be medically examined (Sections 54,55A).
9. An arrested person has a right to remain silent under Article 20(3) of Indian
constitution so that police can’t extract self – incriminating statement from a person
without a will or without his consent.
As held in the case of State of Maharashtra vs. Christian Community Welfare Council of
India,19 the General rule is that females are not be arrested without the presence of a lady
constable and no female be arrested after sun-set but there are exceptions in some cases,

16
1986 SCC (2) 401 1986 SCALE (1)368
17
Supra 15
18
AIR 1961 Bom 42
19
(2003) 8 SCC 546

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where crime is very serious and arrest is important then the arrest can be made with special
orders and it depends on facts and circumstances of each case. Separate lock ups to be
provided for them.
In general, non-compliance does not void a trial. Just because any provision relating to arrest
was not complied with does not affect the liability of accused. However, the violation will be
material in case the accused is prosecuted on the charge of resistance to or escape from lawful
custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can
exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury
caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest
is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private
person who does not have an authority to arrest, arrests a person with full knowledge that the
arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit for damages for false
imprisonment.
Also, informal detention or restraint of any kind by the police is not authorized by law.20

20
Supra 1

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WHY THE NEED OF AMENDMENT TO CRPC?

The Code of Criminal Procedure (Amendment) Bill, 2008 was originally introduces as Code
of Criminal Procedure (Amendment) Bill, 2006. It was then referred to the Committee of
Home Affairs wherein the Committee recommended:
“The Committee recommends to the Government to have a relook at the entire Bill in
the light of its observations/recommendations made in the previous paragraphs. The
Committee in this context would like to reiterate its recommendations made in he One
Hundred and Eleventh Report that Government should attempt to bring forward a
comprehensive Bill for revamping the criminal justice system.”
Based on this recommendation, The Code of Criminal Procedure (Amendment) Bill, 2008
was introduced in Rajya Sabha on 18th December, 2008 and receied President’s assent on 7h
January, 2009. It was published in the Gazette of India on 9th January, 2009. And thenceforth
became The Code of Criminal Procedure (Amendment) Act, 2008.
The Code of Criminal Procedure (Amendment) Bill, 2005, to quote the Home Minister,
would make the law more humane, more scientific and more effective. 21 However, after the
Act got the Presidential assent, the implementation of these amendments have been deferred
indefinitely by the Government amidst nationwide protests by lawyers and objections by the
Bar Council of India against some of the provisions, which according to them, adversely
affects the interests of the accused.
The lawyers have protested against provisions like the ones that provide for prompt arrest of
an accused after rejection of his anticipatory bail, confiscation of the property of an accused
who has repeatedly evaded court process and the powers of a Magistrate to recommend to the
prosecution to file an appeal in a criminal case even if the offence is not of a serious nature,
even though in our country, jumping bails, evading trial by not appearing before the court and
ineffectual prosecution is the norm!
Some of the better provisions of this newly legislated Act have also been sought to be
highlighted here because there are no objections regarding these provisions.
For instance, the newly incorporated Section 51 provides that any person held in custody by
the police, shall be entitled to have one person of his choice informed of his arrest and place

21
Asish Agarwal, CrPC (Amendment) Bill passed in Lok Sabha, Political News, www. Onlypunjab.com, 5-10-2005

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of detention so that he can arrange for adequate assistance during investigation and trial. In
this way the legislature has given effect to the guidelines issued by the Supreme Court in
Joginder Kumar v. State of U.P.22 and in few of the recommendations made by the Law
Commission in its 152nd report on Custodial Crimes23 and some of the suggestions made
towards this end by the National Police Commission in its fourth report24 The National Police
Commission had even observed in its third report that the power of arrest is one of the
sources of police corruption.25 One of the main reasons for abuse of this power is the manner
in which the source of this power i.e. the Criminal Procedure Code is worded. Section 41(1)
of this Code provides that a police officer may arrest a person ?(a) who has been concerned in
any cognizable offence, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists, of his having been so
concerned?. The first part of the section regarding being concerned in a cognizable offence is
totally objective, but in the remaining portions of Section 41(1), one finds a combination of
objective facts coupled with a certain amount of subjective evaluation. The objective element
is highlighted by its repeated use of adjectives, such as, reasonable, or, credible. But it is not
necessary to establish objectively that the person proposed to be arrested has been concerned
in a cognizable offence. This leaves a lot of scope for misuse of power and this amendment
was the right opportunity to make the law governing arrest more clear and explicit in order to
do away with unjustified powers exercised by police officers to discreetly arrest innocent
people to earn a few extra bucks or undeserving favours.
The changes introduced in the Code to safeguard the interests of women are laudable. Section
46 of the Code now provides that no woman can be arrested after sunset and before sunrise,
except in exceptional circumstances where the woman police officer may do so after
obtaining written permission of the Judicial Magistrate concerned. The success of this
provision, however, depends on the checks put on the wide discretionary powers of arrest
vested with the police. The Law Commission of India in its 135th report on “Women in
Custody” (1989) had recommended the insertion of a separate chapter in the Code, containing
various detailed provisions to avoid harassment to women during arrest and in custody but
the amendment fails to take into account this recommendation.

22
(1994) 4 SCC 260 : 1994 SCC (Cri) 1172 : (1994) 2
23
152nd report on ?Custodial Crimes?, para 14.9, p. 172 (1994)
24
G.P. Joshi, Selected Recommendations of National Police Commission, Ribeiro Committee & Padmanabhaiah
Committee on Police Reforms, CHRI, (2001).
25
Third report of the National Police Commission, paras 22, 23, pp. 30-31 (1980).

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Section 164 of the Code now provides for compulsory medical check-up of rape victims
within twenty-four hours. This would ensure that substantial evidence against the accused is
not lost. However, the law still lacks a provision for psychiatric help to a rape victim and
reference to women help groups. Another addition in the Code could have been incorporation
of the Supreme Court guidelines issued in Delhi Domestic Working Women’s Forum v.
Union of India26 and the Malimath Committee recommendations. The guidelines include,
inter alia, the directive to police to maintain a list of lawyers capable of handling the case of
rape victims and to provide them help in rehabilitation. The Malimath Committee had
recommended that a suitable provision should be made in the Code whereby the investigating
officer should be bound to complete the investigation of cases of rape and other sexual
offences on priority basis and requiring the court to dispose of such cases expeditiously
within a fixed span of time27.
As per the recommendations of the National Police Commission in its fourth report, the
amendment to Section 176 now provides for mandatory judicial inquiries in all incidences of
custodial deaths and rapes. This would enable the victims to come forward and report their
unfortunate stories28. Earlier it was left to the police officers themselves to inquire into crimes
committed by their own colleagues, thereby leading to serious doubts about the efficacy of
such an inquiry.
One of the main changes introduced in bail laws is the right of the Public Prosecutor to show
cause as to why bail may not be granted in recognition of the right of a victim to participate
in the trial. Again, under Section 436, it is now mandatory for the court to release an indigent
person on bail without asking for any surety, thus providing great relief to millions of poor
languishing in jails. Another relevant amendment with respect to bail laws is the
incorporation of the new Section 441-A to ensure the genuineness of a surety.29 This section
provides that every person standing as a surety to an accused person for his release on bail,

26
(1995) 1 SCC 14 : 1995 SCC (Cri) 7
27
Malimath Committee on reforms of Criminal Justice System, Government of India, Ministry of Home Affairs
(March 2003) available at http://www.pucl.org/Topics/Law/2003/ malimathrecommendations.htm
28
The violence in police custody is at unprecedented rise and this amendment is capable of checking this
menace. It is alarming that the Home Ministry recently reported that, nationwide, deaths in custody had
increased from 1340 in 2002 to 1462 by the end of 2003. Further, it reported that in 2002, there were 147
policemen facing charges of custodial rape, of the 132 that were tried during the year, only four were
convicted. Of the 15 cases left pending for 2003, none were convicted. (Source: Shankar Raghuraman, Rape: A
Conspiracy of Silence, Times News Network, 8-5-2005).
29
See ‘Sureties for Sale’ Bail Racket Unearthed’, Statesman (Delhi Edn.) 28-5-1995, pp. 1, 9

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shall make a declaration before the court as to the number of persons for whom he has stood
as surety before and shall also give all the relevant particulars.
Independent prosecuting and investigating agencies are a must for free trial. (Supreme Court
in S.B. Sahane v. State of Maharashtra30 and Malimath Committee Report.31) For this, the
newly added Section 25-A provides for setting up of a separate Directorate of Prosecution
which shall function under the Home Department of every State and will be headed by an
experienced advocate. There will be only practising advocates in the Directorate, since
including police officers in the prosecution agency as per the Malimath Committee
recommendations would vitiate the very purpose of setting up an independent prosecution
agency. However, conviction rates being low, there should have been some changes to ensure
accountability of the prosecuting officers. The Malimath Committee32 also made
recommendations that the Director of Prosecution must call for reports in all cases that end in
acquittal, from the Public Prosecutor who conducted the case and the Superintendent of
Police of the District. The new amendment to CrPC comes as a blessing to under trials who
have been suffering in jails since many years in direct violation of the fundamental principle
of criminal jurisprudence (innocent till proven guilty!) It provides that where a person has
already undergone detention amounting to one-half of the maximum period of imprisonment
specified for that offence, he shall be released by the court on his personal bond. However,
this provision does not apply to those charged of offences for which the punishment of death
has been specified as one of the punishments. Release, even without surety, would ensure that
this beneficial provision is extended to the poor also. This new law would play a vital role in
overcoming the problem of overcrowding of jails, which is one of the main reasons for the
abhorrent prison conditions in our country (besides the lax attitude and corrupt practices of
the jail authorities). The National Police Commission had recommended in it fourth report
that police officers be given the power to compound petty offences with the consent of both
the parties. Incorporation of this provision in the Code, with effective safeguards against
misuse, would have ensured speedy disposal of cases and provided some relief to
overcrowded courts. Thus we may say that all these changes would be of great help to a
layman confronted with the notorious Indian police and caught in the web of unfathomable
legal proceedings.

30
1995 Supp (3) SCC 37 : (1995) 30 ATC 519 : 1995 SCC (Cri) 787
31
Supra 27
32
Ibid.

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AMENDMENTS RELATING TO LAWS OF ARREST: AN OVERVIEW

Law must change with the needs of a changing society, and must in the process safeguard the
interest of innocent as well. With a view to protect the dignity and liberty of its citizens,
Indian Government has made some sweeping changes in the Powers conferred on Police to
arrest an accused. The amendment clearly lays down conditions which need to be met before
a person can be arrested. By doing so, the government has given credence to the most basic
Rights of its citizens.
The Code of Criminal Procedure (Amendment) Bill, 2008 was passed in both the Houses of
the parliament hurriedly without any meaningful debate and has been given nod by the
Hon’ble the President of India on 07/01/2009. However the Act is not notified yet and
pending gazette notification after which it would become law. The Code of Criminal
Procedure (Amendment) Bill, 2008 has been vociferously opposed by the legal fraternity and
some law enforcement officers on the ground that amendment to Section 41 Cr.P.C. is
unwarranted and uncalled for. The amendment to the Cr.PC. follows the 177th report of the
National Law Commission wherein it was suggested that certain changes in the provision
related to power of arrest be made to check sanctity of Fundamental rights of the citizens in
the country.33
Under Section 41 Cr.P.C., as it originally stood, a police officer is vested with the power to
arrest a person without warrant or without order from magistrate when a person has
committed a cognizable offence. However, the amendment to Section 41 Cr.P.C. has put
fetters on the power of police to arrest the accused persons involved in offences punishable
with imprisonment up to seven years. As per the amendment, the Police Officer is
empowered to arrest a person in all cases of cognizable offences only when it is committed in
his presence, in all other situations, if the offence is punishable with imprisonment less than 7
years, the amendment requires the police officer to record reasons in writing prior to effecting
arrest and the reasons may be:
1. The arrest of accused is necessary to prevent commission of further crime.
2. The arrest of accused is necessary for proper investigation
3. To prevent the tampering of evidence

33
Neeraj Arora, AICWA, LLB, PGD (Cyber Law). CFE (USA), http://www.neerajaarora.com/the-recent-
amendments-to-the-crpc-diluting-the-power-to-arrest-%E2%80%93cheers-to-criminals/

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4. To prevent the accused from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts
to the Court or to the police officer
5. To ensure the presence of the accused in court.34
If there are no such reasons mentioned above, the police officer can require the accused
person to appear before it for investigation through issuing a notice to him. It shall be
incumbent on the accused persons on whom the said notice has been issued to comply with
the terms of the notice. If the accused persons commits breach of the notice and doesn’t
appear before the police officer, it shall be lawful for the police officer to arrest him for the
offence mentioned in the notice, subject to such orders as may have been passed in this behalf
by a competent Court.35
Salient Features of the Act
1. The scope for the definition of victim has been amended so as to include the victim’s
guardian or legal heir in the definition itself.
2. Referring to amendment in Section 24, now the Court may permit the victim to
engage an advocate of his choice to assist the prosecution under this sub-section.
3. The proceedings for sexual offences are now required to be held, as far as practicable
by a court presided over by a woman.
4. Unrestricted and unlimited powers of arrest so far enjoyed and exercised by the Police
stand restricted and conditioned, both in case of cognizable as well as non-cognizable
offences.
5. New sections 41A, 41B, 41C have been introduced to provide for detailed mandatory
procedure in matters of arrest under various circumstances and also to provide for
control room in every district, state and police headquarters, etc. in order to display
the names and addresses of persons arrested along with the details of the person
making the arrest. Arrested person has also been given the Right to meet an advocate
of his choice during interrogation, though not throughout the interrogation.
6. A number of safeguards in matters of arrest of a woman have been incorporated in the
new proviso to Section 46.

34
Ibid.
35
Newly inserted Section 41A

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7. Provisions have been incorporated in Section 54and new sections 55A and 60A of the
CrPC Act to provide further safeguards and mandatory provisions regarding
examination of arrested persons by Medical Officers, and taking care of their health
and safety and such allied matters.
8. A new proviso to Section 157 provides important safeguards to victims of rape.
9. Detention of the accused in custody and his production before the magistrate are now
regulated by new provisions and explanations under Section 167.
10. New Section 437A incorporates a very important provision to provide that before
conclusion of trial or disposal of the appeal the court shall require the accused to
execute bail bonds with surety to ensure his appearance before the higher court and
when required, and such bail bond may remain in force for 6 months.
The Sections 41, 41A, 41B were modified in amendment to CrPC (Criminal Procedure Code)
in 2010 to minimize abuse of powers of arrest by police, especially in cases like IPC 498a,
which being a cognizable offence didn’t need a warrant for arrest.
As per the aforesaid 2009-2010 amendments to Section 41(1) of the Cr.P.C., now, where a
cognizable offence is punishable with imprisonment for a term which may be less than seven
years or which may extend to seven years, a police officer can exercise the power to arrest the
person accused of such an offence, without an order from a Magistrate and without a warrant,
only if the following conditions are satisfied:36
1. the police officer has reason to believe that such person has committed such offence;
2. the police office is satisfied that such arrest is necessary—
a) to prevent such person from committing any further offence; or
b) for proper investigation of the offence; or
c) to prevent such person from causing the evidence of the offence to disappear
or tampering with such evidence in any manner; or
d) to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or
e) as unless such person is arrested, his presence in the Court whenever required
cannot be ensured,

36
Dr. Ashok Dhamija, http://tilakmarg.com/opinion/amended-power-of-police-to-arrest-a-person-where-
punishment-is-up-to-7-years/

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3. and, the police officer shall record his reasons in writing while making such arrest.
The amended provision also requires that in all such cases (i.e., where the imprisonment for
the offence is up to 7 years) where the arrest of a person is not required as mentioned above,
the police officer shall also record the reasons in writing for not making the arrest.
Further, as per the newly inserted Section 41-A in Cr.PC. (which also came into force with
effect from 1 November 2010), where the arrest of a person is not required under the above
provisions, the police officer shall issue a notice directing the person who is accused of such
offence to appear before him or at such other place as may be specified in the notice. Where
such a notice is issued to any such accused person, it shall be the duty of that person to
comply with the terms of the notice. Where such person complies and continues to comply
with such notice, he shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion that he ought to be
arrested. It is also provided that where such person, at any time, fails to comply with the
terms of such notice or is unwilling to identify himself, the police officer may, subject to such
orders as may have been passed by a competent Court in this behalf, arrest him for the
offence mentioned in the notice.37
Thus, it should now be clear that the police does not get the automatic power to make arrest
of the accused person in a case where the maximum punishment can be up to 7 years. Above
conditions have to be satisfied first before an arrest could be made by the police officer in
such a case without an order from the Magistrate and without warrant. Some common
examples of such offences, where the maximum punishment is up to 7 years, are as under in
which the power of arrest has been curtailed as above:
 Section 498-A IPC (subjecting a married woman to cruelty).
 Section 363, 365, 369 of IPC (kidnapping / abduction).
 Section 354, 354-A, 354-B, 354-C, 354-D of IPC (outraging the modesty of a woman,
sexual assault, voyeurism, stalking, etc.).
 Section 406 or 407 of IPC (criminal breach of trust).
 Section 420 IPC (cheating).
 Section 466 IPC (forgery).
 Section 379, or 380 or 381 of IPC (relating to theft of different types).

37
Ibid.

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 Section 384 or 387 IPC (extortion).

 Section 324 or 325 of IPC (causing hurt, etc.).
 Section 304-A IPC (causing death by rash or negligent act, such as by motor
accident).
The above list is only an illustrative list. There are several other similar offences. However, it
also needs to be kept in mind that more grievous form of some of the above offences, which
may be punishable under other different sections of IPC with maximum permissible
punishments of more than 7 years, would not be covered in this list.
Thus, it may be seen that in many of the common offences, such as those listed above, the
power of the police to make arrest has been drastically curtailed by the Parliament and has
been subjected to certain conditions.

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ANALYSIS OF THE AMENDMENTS BY VARIOUS CASE LAWS

In the case of Arnesh Kumar vs. State of Bihar38 the Supreme Court has observed that,
“Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so
also the police. There is a battle between the lawmakers and the police and it seems that the
police have not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come
out of its colonial image despite six decades of Independence; it is largely considered as a
tool of harassment, oppression and surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been emphasised time and again by the
courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance
so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of
the lucrative sources of police corruption. The attitude to arrest first and then proceed with
the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or
act with oblique motive.”
Referring to the amendments made to the CrPC with regards to the power of arrest the
Supreme Court further observed that:
“We are of the opinion that if the provisions of Section 41 CrPC which authorises the police
officer to arrest an accused without an order from a Magistrate and without a warrant are
scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant of anticipatory
bail will substantially reduce. We would like to emphasise that the practice of mechanically
reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for
effecting arrest be discouraged and discontinued.”
Thus, the Supreme Court has clearly observed that by merely reproducing in the case diary all
or most of the reasons required for the arrest as laid down in Cr.PC. now, the investigating
officer should not arrest an accused for such an offence. These directions contained in Cr.PC.
are required to be scrupulously enforced in letter and spirit.
In the case of Dr. Rini Johar vs. State of M.P.39, the Supreme Court directed a total
compensation of ₹ 10 lakh to two lady petitioners who had been wrongly arrested in case of
offences under Section 420 IPC for cheating and under some other provisions of law. The

38
(2014) 8 SCC 273
39
Writ Petition (Criminal) No. 30 of 2015

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Supreme Court also left it open to the State Government to proceed against erring police
officers in this regard who made the wrong arrests.
Therefore, it is desirable that all the State Governments and police officers should urgently
take notice of the amended provisions of Cr.P.C. with regard to arrest in offences where the
punishment is less than or up to 7 years, and implement them scrupulously.
In another case of Joginder Kumar vs. State of UP40 the dynamics of misuse of police
power of arrest and opined :
“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. The justification for the exercise of it is quite another …. No
arrest should be made without a reasonable satisfaction reached after some investigation as
to the genuineness and bona fides of a complaint and a reasonable belief both as the person’s
complicity and even so as to the need to effect arrest. Denying a person of his liberty is a
serious matter.”
Further in the case of D.K. Basu vs. State of West Bengal41 the Supreme Court laid down
certain guidelines regarding the procedure of arrest.

40
(1994) 4 SCC 260 : 1994 SCC (Cri) 1172
41
AIR 1997 SC 610

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CONCLUSION

This term “Arrest” is very common term that we pick up a lot in our day today life. Normally,
we see a person, who do or have done something against the law, get arrested. Generally, the
term “arrest” in its ordinary sense, means the apprehension or restraint or the deprivation of
one’s personal liberty. Let’s understand this term in Indian law, Criminal procedure Code,
1973 in its chapter V (section 41 to 60) deals with Arrest of a person. Ironically, Code has not
defined the term “Arrest”. Every deprivation of liberty or physical restraint is not arrest. Only
the deprivation of liberty by legal authority or at least by apparent legal authority, in a
professionally competent and adept manner amounts to arrest. Thus, we can say arrest means
‘apprehension of a person by legal authority resulting in deprivation of his liberty’. An arrest
consists of taking into custody of another person under authority empowered by law for the
purpose of holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence. However, a person against whom no accusation of crime
has been made may be arrested /detained under a statute for certain purposes like removal in
safe custody from one place to another, for example – removal of a minor girl from a brothel.
One thing to be noted that ‘custody’ and ‘arrest’ don’t have same meaning. Taking of a
person into judicial custody is followed after the arrest of the person by Magistrate on
appearance or surrender. In every arrest there is custody but not vice versa. Thus, mere taking
into custody of a person an authority empowered to arrest may not necessarily amount to
arrest. This code propose two types of arrests: (i) arrest made in pursuance of a warrant
issued by a magistrate (ii) arrest made without such a warrant but made in accidence with
some legal provision permitting such arrest.
Up to now we tried to understand the term “Arrest”, procedure of arrest, rights of the arrested
person and related case laws to the topics. Above mentioned each case has its own
significance. By going through Law Commission paper on Law of arrest, by we can read with
data’s that how power of arrest is being misused and more because of unawareness of people
about their right. We somehow console ourselves that these protectors of law and order must
be doing right but we have hundreds of cases where we witnessed of this power being
misused. These report shows high percentages of arrests are made even in bailable offences,
bails are not granted to those where getting bail is one’s right. Increasing percentage of no.
of under trial prisoners in jails, we can deal with the plight of this topic separately. Arrest has

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a diminishing and demoralizing effect on the personality. He is outraged, alienated and

becomes hostile. But there need to be balance between security of state on one hand and
individual freedom on other hand. There need to be some checks on this power and more
awareness need to be created among the peoples about their rights, so that balance system can
be form.

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BIBLIOGRAPHY

STATUTES
1. The Code of Criminal Procedure, 1973
2. The Indian Penal Code, 1860

BOOKS
1. Ratanlal and Dhirajlal’s the Code of Criminal Procedure - As amended by the
Criminal Law (Amendment) Act, 2013, Lexis Nexis; Twenty Second 2017 edition (9
May 2017)
2. Sudipto Sarkar and VR Manohar, The Code of Criminal Procedure, LexisNexis; 10th
edition (1 June 2013)
3. Rega Surya Rao, Lectures on Criminal Procedure Code, Asia Law house; 2nd edition
(2018)
4. RV Kelakar, RV Kelakar’s Criminal Procedures, Eastern Book Company; sixth
edition edition (2016)

WEBSITES
1. http://www.neerajaarora.com/the-recent-amendments-to-the-crpc-diluting-the-power-
to-arrest-%E2%80%93cheers-to-criminals/
2. http://lawcommissionofindia.nic.in/reports/Report268.pdf
3. https://www.lawctopus.com/academike/analysis-amendments-section-104-customs-
act-1962/
4. https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-
section-167-of-the-code-of-criminal-procedure/
5. http://shodhganga.inflibnet.ac.in/bitstream/10603/8652/12/12_chapter%204.pdf
6. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5188&co
ntext=jclc

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