Arrest Search And Seizure Under Code Of Criminal Procedure
🧾 1. Introduction
The Code of Criminal Procedure, 1973 (CrPC) provides the legal framework for arrest, search, and seizure — the three most important tools available to police during criminal investigation.
However, because these powers directly interfere with personal liberty (Article 21 of the Constitution), the CrPC and the judiciary have imposed strict procedural safeguards to prevent misuse.
⚖️ 2. Arrest under the CrPC
Meaning
“Arrest” means taking a person into custody under legal authority to ensure that he appears before a court or prevents him from committing further offences.
(Though not defined in CrPC, its meaning has evolved through case law.)
Key Provisions
| Section | Provision | Description |
|---|---|---|
| Section 41 | When police may arrest without warrant | For cognizable offences or to prevent crime. |
| Section 42 | Arrest for non-cognizable offences | If a person refuses to give name and address. |
| Section 46 | How arrest is made | Touching or confining the body; use of reasonable force if necessary. |
| Section 49 | No unnecessary restraint | Person should not be subjected to more restraint than necessary. |
| Section 50 | Rights of arrested person | Must be informed of grounds of arrest and right to bail. |
| Section 57 | Person not to be detained beyond 24 hours | Must be produced before Magistrate within 24 hours. |
| Section 60A | Arrests to be made strictly in accordance with CrPC | Prevents arbitrary or illegal arrests. |
🧰 3. Search and Seizure under the CrPC
Search
A search means looking for evidence or contraband that may be connected with an offence.
Seizure
Seizure means taking possession of such property by lawful authority.
Key Provisions
| Section | Provision | Description |
|---|---|---|
| Section 91–92 | Summons or warrant to produce documents or things | Magistrate or officer may require production of evidence. |
| Section 93–94 | Search warrant | Issued by Magistrate if evidence is likely concealed. |
| Section 100 | Procedure for search of closed places | Requires independent witnesses and written record. |
| Section 102 | Power of police to seize property | Police may seize any property suspected to be stolen or linked to an offence. |
| Section 165 | Search by police officer without warrant | Permitted in urgent cases; reasons must be recorded in writing. |
Safeguards
Searches must be witnessed by independent persons (panch witnesses).
Females can be searched only by female officers.
Documentation and reporting to Magistrate is mandatory.
Unlawful searches/seizures can be challenged and evidence excluded.
⚖️ 4. Landmark Case Laws on Arrest, Search, and Seizure
(1) D.K. Basu v. State of West Bengal (1997) 1 SCC 416)
Facts:
The petitioner wrote to the Supreme Court highlighting incidents of custodial torture and deaths during arrest and detention.
Judgment:
The Supreme Court laid down 11 mandatory guidelines for arrest and detention, including:
Clear identification of arresting officers.
Memo of arrest to be prepared and attested by a witness.
Family or friend to be informed immediately.
Medical examination every 48 hours.
Copies of documents to be sent to the Magistrate.
Significance:
This case made the procedure for arrest a constitutional mandate under Article 21, ensuring transparency and accountability.
Violation of these directions amounts to contempt of court.
(2) Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260
Facts:
Joginder Kumar, a lawyer, was taken into custody by police for questioning and detained without formal arrest or information to family.
Judgment:
The Supreme Court held:
“No arrest should be made in a routine manner. Arrest should only be made when it is justified by reasonable satisfaction of the police officer that such arrest is necessary.”
Significance:
The Court introduced the concept of “necessity of arrest” — limiting arbitrary police powers. It also emphasized the right to inform family and consult a lawyer.
(3) State of Maharashtra v. Natwarlal Damodardas Soni (1980) 4 SCC 669
Facts:
Gold was seized from the respondent during a customs raid. The legality of the search and seizure under the CrPC was challenged.
Judgment:
The Supreme Court held that:
“Search and seizure is a necessary power of investigation, but it must be exercised strictly in accordance with law and with due regard to constitutional rights.”
Significance:
The Court recognized search and seizure as a reasonable restriction on the right to privacy but subject to procedural safeguards under CrPC and Article 21.
(4) Pooran Mal v. Director of Inspection (Investigation), Income Tax (1974) 1 SCC 345
Facts:
Documents were seized during an income tax raid without proper authority. The accused argued that illegally obtained evidence should be excluded.
Judgment:
The Supreme Court held:
“Evidence obtained illegally or irregularly is not automatically inadmissible unless its use is expressly prohibited by law.”
Significance:
This case clarified that illegality of search does not automatically render evidence inadmissible — though it may expose officers to disciplinary action.
Thus, it balanced investigative efficiency and personal liberty.
(5) Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
Facts:
Arnesh Kumar was arrested under Section 498A IPC (cruelty by husband). He argued that police arrested him without necessity or reason.
Judgment:
The Supreme Court emphasized that arrest is not mandatory in all offences punishable up to 7 years.
Police must:
Record reasons for arrest and non-arrest under Section 41(1)(b).
Issue notice of appearance instead of immediate arrest.
Magistrates must check whether police complied with Section 41 before remanding.
Significance:
This case reformed arrest procedure and aimed to stop misuse of arrest powers, especially in matrimonial or minor offences.
🧩 5. Key Legal Principles from Case Law
| Principle | Case | Legal Impact |
|---|---|---|
| Arrest must follow procedural safeguards | D.K. Basu v. State of West Bengal | Constitutionalized arrest procedure under Article 21 |
| Arrest only when necessary | Joginder Kumar v. State of U.P. | Prevents arbitrary arrest by requiring justification |
| Search & seizure must follow due process | Natwarlal Damodardas Soni Case | Ensures lawful search with respect for privacy |
| Illegally obtained evidence admissibility | Pooran Mal Case | Evidence admissible unless expressly barred |
| Arrest must comply with Section 41 safeguards | Arnesh Kumar v. State of Bihar | Introduced mandatory checklists for police and magistrates |
🏛️ 6. Conclusion
The powers of arrest, search, and seizure under the CrPC are essential for effective law enforcement — but they must operate within the constitutional boundaries of personal liberty and dignity.
The Supreme Court, through landmark judgments, has:
Made arrest and detention procedures transparent,
Ensured judicial oversight over police powers, and
Established that no individual can be deprived of liberty except by fair, just, and reasonable procedure (Article 21).
Thus, while these powers are necessary for investigation, their misuse converts law enforcement into oppression — something Indian criminal jurisprudence strictly prohibits.
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