 ARREST OF PERSONS (Ss.

41-60)
 Section 41: When police may arrest without warrant
 The police have very wide powers of making arrests without warrant in respect of
cognizable offences.
 S. 41 is a sole depositary of general powers of the police officer to arrest but this power is
subject to certain other provisions contained in the Code as well as in the special statutes
to which the code is made applicable.
 Scope: this section is not exhaustive. Arms Act, Explosives Act, etc. also confer such
powers on police officers.
 This section enumerates the categories of cases in which a police officer may arrest a
person without an order from a Magistrate and without a warrant.
 If the police officer makes a wrong arrest under a bona fide mistake, he is protected. The
arrest, even if illegal, does not affect the trial of the case.
 Information or suspicion upon which an arrest can be made by a police officer must be
based upon definite facts and material placed before him.
 What is reasonable suspicion and what is credible information must depend upon the
facts and circumstances of each case. Personal feelings of the police officer or vague
surmise would not be enough. The word “reasonable” brings in the requirement of
honest belief based on facts.
 When the legality of an arrest without warrant is challenged then the burden is on the
police officer to satisfy the court that he had reasonable grounds for suspicion.
 For the arrest of a female person, the arresting authority should make all possible efforts
to assure the presence of a woman constable. But if such presence cannot be assured
and delay to the investigation cannot be afforded, the arresting officer himself can effect
the arrest for lawful reasons at any time of the day or night, even in the absence of a
woman constable. The reasons for doing so must be recorded.(State of Maharashtra v.
Christian Community Welfare Council of India, 2004, SC.)
 Malicious and excessive exercise of powers of arrest would be punishable under S. 220 of
IPC.
  The word ‘may’ in S. 41(1) suggests that a police officer has discretion in making arrest
without warrant.
 Under S. 41(1)(i), a police officer may by sending a requisition to another police officer
can get a wanted person arrested by such other police officer. The requisition can be
written, through telephone or even wireless and must specify the person to be arrested
and the offence or other cause for which arrest is to be made.
 Procedure when an officer deputes it to a subordinate officer: written order required in
his absence, oral order in his presence. Not order to a very superior officer. Oral order
will suffice.
 There cannot be any intervention on part of the court. But only in rarest of the rare
cases, where police hasn’t acted in good faith.
 It shall be depending upon the facts and circumstances of the case. He should verify the
grounds for making the arrest.
 There cannot be any stay on arrest as arrest is a part of investigation is an absolute
power with the police.
 Similar powers have been laid down in the Arms Act, Explosives Act.
 Meaning of arrest: to deprive a person of his own liberty. In legal sense: to take into
custody a person, to detain him and make him answerable to a criminal charge.
 Police officer has to justify making an arrest else he will be liable. Exception-prima facie
heinous offence.
 Section 41-A: Notice of appearance before police officer
 The police officer shall in all cases where he decides not to make the arrest, issue notice
to the persons complained against to appear before him and make necessary inquiries. If
he does not cooperate the police officer may get him arrested after obtaining orders of
the Magistrate.
 For Ss. 41-B, 41-C, 41-D, a mere reading of the provisions as given in the Bare Act will do.
 Section 41-B: Procedure of arrest and duties of officers making arrest
 Section 41-C: Control room at districts
 Section 41-D: Right of arrested person to meet advocate of his choice during interrogation.
 Can a judicial officer be subjected to criminal prosecution? Or is there immunity? They can
be subject to arrest. There is no immunity. The Supreme Court has laid down the guidelines
for such an arrest in the case of Delhi Judicial Service association v. State of Gujarat, 1991
(a) The judicial officer should be arrested under intimation to District or Sessions Judge,
or the High Court.
(b) If immediate arrest is required, a technical or formal arrest will suffice.
(c) The facts of such an arrest need to be immediately conveyed to the District and
Sessions Judge of the District and to the Chief Justice of the High Court.
(d) He shall not be taken to the police station without prior order or direction of the
District and Sessions Judge of the District.
(e) Immediate facilities should be given to communicate with family members, legal
advisors, district/ sessions judge.
(f) Medical tests, or statements, or punchnama, etc. to be done only in presence of legal
advisor or any other judicial officer of the same or higher rank.
(g) No handcuffing, only if violent resistance is shown. This violent resistance has to be
reported immediately. The burden of proof to show that there was a need to
handcuff the judicial officer lies on the police officer. If he fails to prove so then he
will be liable for misconduct and will be made to pay fine.

These guidelines are not exhaustive.

 Section 42: arrest on refusal to give name and residence.

 Four conditions:
1. A non- cognizable offence is committed in presence of a police officer
2. A person against whom an accusation is filed in a police station for a non- cognizable
offence
3. The person must refuse to give the information, or
4. Give wrong name and residence when asked
  A person can be released once his correct name and address is revealed and ascertained
and after execution of a bond( in order to assure his presence before the Magistrate
whenever required)
 If the person is not a resident of India then sureties for bond will be taken from people
who are close to him and are residents of India.
 If an offence is committed under the Motor Vehicles Act in the presence of a police
officer then an arrest under S. 42 can be made.
 This section applies only to non-cognizable offences.
 Section 43: Arrest by a private person and procedure on such arrest.
 This section allows a private person to arrest without warrant, only and only if a non-
bailable and cognizable offence has been committed in his presence.
 Procedure- the private person needs to take the person to a police officer at the nearest
police station
 He can make an arrest only when the offence is committed in his presence and the arrest
should be effected immediately thereafter
 Provisions of the Narcotics and Drugs Prohibition Act, 1985 are supplementary to the
provisions of CrPC. People of a locality can arrest a person preparing/ possessing brown
sugar in an injectable form, under S. 43 of the CrPC.
 If the offence falls under S. 41 of the CrPC then it is the duty of a police officer to re-
arrest that person otherwise there will be no arrest in the eyes of law.
 Provisions of S. 43 are extraordinary in nature and need to be construed strictly.
 The words ‘in his presence’ must not be construed as ‘in his sight’, arrest can be made
even by a blind person if offence is committed in his presence.
 Limitations:
1. It should be effected immediately or while chasing the person, and not when the
person has escaped or absconded.
2. It cannot be effected on mere suspicion
 Section 44: Arrest by a Magistrate.
 Only two circumstances:
 1. Offence is committed in his presence
2. Offence is committed in his local jurisdiction, then he can issue the warrant and the
arrest can be effected.
 If the accused is not present, then the Magistrate can go or issue the process and the
arrest can be effected.
 No provision in the CrPC wherein a person can be directly sent to custody, but the police
should inform him that he can be released on furnishing bail (if the offence is bailable).
 When an offence is committed under S. 171D of the IPC in presence of a Magistrate, then
also an arrest can be made under S. 44.
 If the case is a warrant case then the arrest can be effected at the first instance.
 If it is a summons case then arrest can be effected only once the process has been issued.
 A Magistrate can issue a warrant only once he has taken cognizance (applying judicial
mind to the facts of a case) of an offence under S. 190 of the Code.
 Whether an arrest can be made under a Court building?
- If it is a civil case then no arrest can be effected
- In any of the criminal cases, arrest can be effected in the building of a court by a
Magistrate. This is the case with only criminal cases because if this is not the case
then criminals will have safe haven/ immunity in courts.
 This power is executive/ administrative in nature, and not judicial.
 The provisions of Ss. 55 and 56, and Art. 22 apply to a person arrested by a Magistrate.
The arrested person should be placed before some other Magistrate as soon as possible
and not before the one who made his arrest.
 Section 45: Protection of members of the Armed Forces from arrest.
 Immune from being arrested without a warrant.
 Can be arrested with the prior consent or permission of the State or Central Govt.
 Duty of the State Govt. to make a notification with respect to the members of the Armed
Forces and where they are serving. This is not required to be done by the Central Govt.
but.
 This provision exempts from arrest under Ss. 41-44.
  If the act is done while discharging official duties then this exemption/ immunity can be
claimed. This cannot be done when acting in their personal capacity.
 Meaning of arrest:
 In a very ordinary and natural sense it means derivation of one’s personal liberty.
 The test is to see whether the person has been deprived of his personal liberty.
 Essential ingredients:
- Intent to arrest the person
- Actual seizure is not required
- The person should be submitting to the custody of the police.
- Mere utterance of the words “you’re under arrest”, or showing index finger does not
imply arrest. Will of the person is essential, he should be submitting to the custody.
 When a person from his ordinary place of business is brought to the police station and
thereafter he is released on his personal bond, this amounts to arrest. The very fact that
he is brought to the police station and the intent on his part to submit to custody and
furnish bond, imply arrest.
 Roshan Bibi v. Joint Secretary, Govt. of Tamil Nadu, AIR 1984 Mad(Regarding arrest
and the interpretation of the words arrest and custody): If the summons have been
issued under Ss. 107 and 108 of the Customs Act, for an inquiry, then it may amount
to custody but not with respect to arrest. However, it may subsequently materialise
into an arrest.
 Section 46: Arrest how made
 Arrest being a restraint of the liberty of a person 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 arrest without actual contact or submission to
custody will not amount to arrest.
 Halsbury’s Laws of England1- Arrest consists in the seizure or touching of a person’s body
with a view to his restraint. Words may however amount to an arrest if in the

1
Para 99,Vol. XI, 4th ed.
 circumstances of a case they are calculated to bring and do bring to a person’s notice
that he is under compulsion and he thereafter submits to that compulsion.
 When the person submits to custody, no use of force is required at all to arrest him. But
when there is no submission to custody, force can be applied but only as much as is
required to effect the arrest.
 If the person is refusing to submit or tries to evade then reasonable force can be applied
but it cannot exceed what is required for making arrest.
 Confinement and rough handling of a person are not permissible as they are contrary to
the law.
 If the person is forcibly resisting the endeavour to arrest or he attempts to evade then
the police may use all means to effect the arrest. While doing so, causing death will not
be permissible if the offence committed by the person is not punishable with life
imprisonment or death sentence.[S. 46(3)]
 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 JMFC within whose jurisdiction the offence is committed or
the arrest is to be made.[S. 46(4)]
 Death in police action against a mob: police officers cannot be made liable to pay
compensation individually; it will born by the State.
 Application of S. 46 in other laws: Under S. 3(a) of the Preventive Detention Act, S. 46 can
be invoked as no procedure has been prescribed.
 An illegal arrest will not vitiate the trial.
 Section 47: Search of place entered by person sought to be arrested
 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
for the purpose of liberating himself in case he is detained in the house.
  The section also puts reasonable restrictions on the police when the part of the house to
be searched is occupied by a purdanashin woman.
 Section 48: Pursuit of offenders into other jurisdictions
 Under this section, a police officer is authorised to pursue the offender to any place in
the Indian Union for purposes of effecting his arrest. Hence, the arrest of a person by the
police officer investigating an offence in pursuit of an offender is legal though it is made
outside his circle.
 Section 49: No unnecessary restraint
 The person arrested shall not be subjected to more restraint than is necessary to prevent
his escape.
 Section 50:Person arrested to be informed of grounds of arrest and of right to bail
 A person arrested without any warrant should immediately be intimated the full
particulars of the offence and the grounds for his arrest. [50(1)]
 Where the offence is a bailable one, he should immediately be informed about his right
to be released on bail.[50(2)]
 A person is entitled to know the grounds of his arrest and the same is a right guaranteed
under Article 22(1) of the Constitution.
 This information should be given as soon as possible and may not be given immediately.
 The arrested person must be informed of the bare necessary facts leading to his arrest
including the facts in respect of who and by whom the offence is said to be committed,
date, time, and place of offence, and it is the burden of prosecution to establish that the
requirements of S. 50(1) and Art. 22(1) have been fully complied with.
 Section 50-A: Obligation of the person making arrest to inform about the arrest, etc. to a
nominated person
 Inserted by amendment in 2005.
 This section makes it obligatory on part of the police officer not only to inform the friend
or relative of the arrested person about his arrest etc. but also to make an entry in a
register maintained by the police.
  The Magistrate is also under an obligation to satisfy himself about the compliance of the
police in this regard.
 Section 51: Search of arrested person
 This section empowers a police officer to make a search of the arrested person when the
arrested person is not released on bail.
 The rules made under the Police Act direct that the search should be made in the
presence of independent and respectable witnesses.
 If incriminating things or stolen articles are found in such search, the police officer can
seize them under S. 102 of the Code and produce them in court.
 After search all the articles other than necessary wearing apparel found upon the
arrested person are to be seized, and it has been made obligatory to give to the arrested
person a receipt showing the articles taken in possession by the police.
 In case the arrested person is a woman then the search can be made only by a female
with strict regard to decency.
 Whenever a search is genuine, no technical objections shall be prevailing. An irregularity
in making the search will not make the search-evidence inadmissible, or vitiate the trial.
For eg. Recovery memo is not signed by the accused.
 Section 52: Power to seize offensive weapons
 Power to cease offensive weapons.
 A police officer can cease them and hand them over to a senior officer or to the court. If
evidence of the police officer regarding the weapons is found to be convincing then it
shall be relied upon without further corroboration.
 Police case/ prosecution case effecting recovery cannot be discarded if the punch
witnesses or the prosecution witnesses turn hostile. This should not be done as giving so
much power to the punch witnesses will be like giving veto power to them which should
not be the case.
 Vahaji Raoji Thakur v. State of Gujarat, 2004 CrLJ Guj
 Section 53: Examination of the accused by medical practitioner at the request of police
officer
 This section comes into effect only when:
1. A request is made by a police officer not below the rank of sub-inspector,
2. Upon reasonable grounds which such officer bonafide entertains,
3. That an examination of the arrested person by a medical practitioner will afford
evidence as to the commission of the offence.
 This provision has been made to facilitate effective investigation.
 This section does not debar other superior officers or the Court concerned from
exercising the said power if it is necessary for doing justice in a criminal case.
 A magistrate cannot direct it suo motu.
 When relevant: for instance when the offence is of murder and the deceased bit the
finger of the accused and only after medical examination of the accused can it be
confirmed.(AD example)
 Even if an accused person is released on bail, he is still notionally in the custody of
the court and therefore his medical examination can be carried out in terms of S. 53.
 Medical examination of females shall be conducted by or under the supervision of a
registered female medical practitioner.
 The section permits the use of force as is reasonably necessary for the purpose of
medical examination of the arrested person. Some amount of pain, hurt caused while
taking the samples is reasonable under the circumstances, and the causing of
consequential discomfort to the person is justified under this section. - Ananth Kumar
v. State of A.P., 1977 CrLJ A.P.
 Meaning: It means to see the body of the accused and find out the very signs of an
offence.
 S. 53 is not in violation of Art. 20(3), a person cannot be said to have been compelled
“to be a witness” against himself if he is merely required to undergo a medical
examination in accordance with the provisions of S. 53.
 Extent:
- Jamshed v State of UP(1976, CrLJ All): Blood samples can be taken
- State of Maharashtra v Dhyanoba Bhikoba Dagade(1979 CrLJ Bom): Blood samples of
the accused cannot be taken.
- Ananth Kumar v. State of AP(1977, CrLJ, AP): samples of blood, sputum, semen, urine,
etc can be taken.
- Neeraj Sharma v. State of U.P., (1993 CrLJ All): Samples of even hair and nails can be
taken where there are reasonable grounds that such an examination will afford
evidence as to the commission of an offence. Such an order does not offend Art.
20(3).
- Anil Lokhande v. State of Maharshtra(1981, SC,present view): All such samples can be
taken. Medical examination cannot be confined to external examination of the body.
Many a times it may become necessary to make examination of some organs inside
the body of the person for the purpose of collecting evidence.
 DNA Test:
- Whether the accused can be subjected to a DNA test or whether it infringes his rights
under Articles 20(3) and 21? The court, before issuing any directions, has to consider
some criteria. It has to balance public interest and rights of the accused under the
Constitution.
- Grounds to be considered prior to issuing an order for DNA test:
1. Extent to which the accused may have participated in the commission of the
offence.
2. Gravity of the offence and the circumstances under which it was committed.
3. Age, physical, and mental condition of the accused.
4. Whether there is a less intrusive and practical way to collect evidence either to
prove or disprove the involvement of the accused.
5. The reasons, if any, for the accused refusing to undergo the DNA test.
- Thoga Rani v. State of Orissa, 2004 CrLJ Orissa
 Permissibility of potency test of an accused:
- A potency test is permissible. Medical examination of internal organs of the body is
permissible(Thaniel Victor v. State, 1991 CrLJ Mad)
 Section 53-A: Examination of person accused of rape by medical practitioner
 Inserted in 2005.
 This section provides for a detailed medical examination of a person accused of an
offence of rape or an attempt to commit rape by the registered medical practitioner
employed in a hospital run by the Government or by a local authority .In the absence
of such a practitioner, it should be done by any other registered medical practitioner
within the radius of sixteen kilometres from the place where the offence has been
committed.
 This section seeks to provide statutory sanction to the medical examination of a
person accused of sexual offence as often due to lack of foresight on the part of the
Investigating Officer, conclusive scientific evidence, which could be obtained through
forensic examination of the accused or victim’s clothes is lost.
 Section 54: Examination of an arrested person by a medical officer
 This section has been substituted by the amendment of 2008.
 Earlier it was the duty of the Magistrate to inform the arrested person of his right to
get himself medically examined, in case the arrested person complained of physical
torture or maltreatment in police custody and the Magistrate was empowered to
refuse the medical examination where he considered the request to be vexatious or
defeating the ends of justice.
 Now, the substituted section makes the medical examination of the arrested person
mandatory whether he desires it or not and there is no question of the Magistrate
being satisfied with the genuineness of the request. It also lays down that where the
arrested person is a female, the examination shall be made only by or under the
supervision of a female medical officer, and in the absence of female medical officer,
by a female registered medical practitioner.
 (what AD taught in class is with regard to how this provision stood prior to the
amendment. The same is given as follows:)
- Different from S. 53 as here the request is made by the accused himself
- Circumstances:
 1. When he wants to prove his innocence
2. Has committed an offence under Ss. 104 or 177 of the IPC.
- When can such a request be made?
1. When he is presented before the Magistrate
2. During the period of detention or custody
- Grounds:
1. To show that he could not have committed the offence of which he is accused. To
prove impotency when charged with a sexual offence, or rape of a minor girl.
2. To show that others have committed an offence against him. Police has assaulted
him, has serious injuries.
- Duty cast upon the Magistrate to inform the accused of this right of his to request for
medical examination under this provision.
- Sheila Barse v. State of Maharashtra: If a person has a complaint of maltreatment
then the Magistrate has to inform that accused person about this right. The Court
held that the accused has a right to medical examination.
 Section 54A: Identification of the person arrested
 If request made by the police officer or prosecution then some other person will be
identifying the arrested person. The arrested person has to subject himself to such
identification.
 If the person identifying the arrested person is mentally or physically disabled then
the identification shall take place under the supervision of Judicial Magistrate.
 If the arrested person is mentally or physically disabled then the identification
process shall be videographed.
 Section 55: Procedure when police officer deputes subordinates to arrest without warrant.
 Requirements: Passing an order in writing specifying the name of the person to be
arrested, cause for the arrest. If the arrested person demands then the subordinate
officer shall show the order to him.
  The power which a police officer has under S. 41 to act on his own initiative and
arrest without a warrant a person concerned in a cognizable offence is quite
unaffected by this section.
 Section 55-A
 Duty to maintain the health and well being of the arrested person
 Added by the 2009 amendment
 Section 56: person arres ted to be taken before Magistrate or officer in charge of police
station
 The arrested person should be presented before the Magistrate without any delay.
 If detained for more than 24 hrs without being presented then he has a right to be
released.
 When the police feel that they cannot complete the investigation within 24 hrs then
they do not have the right to detain the person, they should immediately place him
before the Magistrate.
 When they feel that it can be done within 24 hrs, then they have the right to detain
him till 24 hrs and present him before the Magistrate.
 If subsequent remand is given to police and if absence of any complaint by the
accused regarding a delay in producing him before the Magistrate upon completion
of each remand period, then he won’t be getting a bail. Had he made the complaint
on first instance of delay then he would have been released on bail.
 Section 57: Person arrested not to be detained more than 24 hours
 When a person is arrested without a warrant
 Mandatory provision
 If a delay is caused in producing before Magistrate of 2-3 hours, then if he is
informing the Magistrate from time to time, then delay will be condoned, if
otherwise then the person shall be released.
 Time of conveyance will be excluded while calculating 24 hrs.
 Illustration: Person arrested on June 25 at 11:30 pm and produced before a
Magistrate at 8 pm the next day, but the Magistrate was on leave. He could not be
 taken to the District Magistrate’s court as there was no conveyance. He was thus
detained till the next morning. This detention for more than 24 hrs will be legal as
this delay can be condoned.
 Ss. 56, 57 of the CrPC and Article 22(1) & (2) of the Indian Constitution: for safeguarding the
rights of the accused.
 Accused has a right to be represented by a legal practitioner of his choice. This is accrued
under S. 303 of the CrPC.
 If a person has been detained or arrested and his relatives do not know about the
whereabouts of his arrest and he has not been produced before a Magistrate then this will
be illegal. Remedy for this can be asking for a writ of habeas corpus before the High Court or
the Supreme Court.
 In case an underage girl and boy elope then usually a writ of habeas corpus is filed by the
parents and it is then the duty of the police to find them and produce them before the court.
 If an accused is kept for more than 24 hrs and after this he escapes then it won’t be treated
as an offence.
 Section 58: Police to report apprehensions
 Officers in charge of police stations have to report cases of all persons arrested
without warrant, within the territorial jurisdiction of their stations, to the District
Magistrate or SDM.
 Need not be complied with when the arrest is made under S. 57 of the NDPS Act.
 Section 59: Discharge of person apprehended
 No person who has been arrested by a police officer shall be discharged except:
1. On his own bond, or
2. On bail, or
3. Under the special order of the Magistrate.
 Section 60: Power, on escape, to pursue and retake
 If a person escapes or is rescued from lawful custody, the person from whose lawful
custody he escaped or was rescued may immediately pursue and arrest him in any
place in India.
  60(2) further provides that such person shall have powers conferred by S. 47 to
search any place where the escaped person may have taken shelter.
 Section 60-A: Arrest to be made strictly according to the Code
 Prohibits arrest except in accordance with the Code or any other law for the time
being in force providing for arrest.