BASIC CONTOURS OF ARREST UNDER CrPC
Basic Contours of Arrest under the CrPC
1. Definition of Arrest
Arrest is the act of taking a person into custody by a legal authority, usually the police or a magistrate, to answer for a criminal charge or to prevent the commission of a crime. The purpose of arrest is to ensure the presence of the accused during investigation, trial, or to prevent further crimes.
2. Legal Provisions Governing Arrest
Section 41 of the CrPC: Powers of police to arrest without warrant.
Section 46 of the CrPC: How arrest is to be made.
Section 50 of the CrPC: Duty to inform arrested person of grounds and right to bail.
Section 41A of the CrPC: Notice of appearance before police instead of arrest in certain cases.
Section 438 of the CrPC: Anticipatory bail.
Section 167 of the CrPC: Procedure after arrest (remand, custody).
Article 22 of the Constitution of India: Rights of arrested persons.
3. Conditions/Requirements for a Lawful Arrest
Authority to Arrest: Only police officers or magistrates can make a lawful arrest.
Grounds for Arrest: The arresting authority must have a reasonable suspicion or belief based on evidence that the person has committed a cognizable offense or is likely to commit one.
Arrest with or without Warrant:
Arrest with warrant: Issued by magistrate (Section 70, 73 CrPC).
Arrest without warrant: Allowed under specific conditions (Section 41 CrPC).
Procedure: The arresting officer must identify themselves, inform the arrested person of the grounds of arrest and their rights, and follow due procedure (Section 50 CrPC).
Use of Force: Force, if necessary, must be reasonable and proportionate to the situation (Section 46 CrPC).
Right to Bail: Arrested person has the right to seek bail unless exceptions apply.
Recording of Arrest: The arrest must be recorded in the police diary, and the person must be produced before the magistrate within 24 hours.
4. Types of Arrest
Preventive Arrest: To prevent commission of a cognizable offense (Section 151 CrPC).
Arrest in Cognizable Cases: Without warrant (Section 41).
Arrest in Non-Cognizable Cases: Generally with warrant unless permission from magistrate.
5. Important Judgments on Arrest
A. D.K. Basu v. State of West Bengal (1997)
Facts: Guidelines were issued by the Supreme Court to prevent custodial torture and illegal detention.
Key Points:
Police officer must identify themselves to the arrested person.
The grounds of arrest must be communicated.
A memo of arrest must be prepared, attested by witnesses.
The arrested person must be produced before a magistrate within 24 hours.
Medical examination must be conducted.
Right to inform a relative or friend.
Significance: Established mandatory safeguards to protect the rights of arrested persons and curb custodial violence.
B. Joginder Kumar v. State of UP (1994)
Facts: The Court emphasized that arrest should not be made as a routine or mechanical exercise.
Key Points:
Arrest should be a last resort; police must consider alternatives like summons.
Arrest without reasonable suspicion is illegal.
Courts should intervene if arrest is made arbitrarily or mala fide.
Significance: Arrest is an exception, not the rule, and safeguards must be applied.
C. Kartar Singh v. State of Punjab (1994)
Facts: The Court stated the need for arrest should be based on reasonable grounds.
Key Points:
Arrest must be justified, and suspicion should be based on objective facts.
Significance: Prevents misuse of power by police.
D. Sheela Barse v. Union of India (1986)
Facts: The court dealt with the treatment of undertrial prisoners and arrested persons.
Key Points:
Rights of arrested persons in custody must be respected.
Custodial torture and inhuman treatment must be prevented.
6. Rights of the Person Arrested
Right to be informed of grounds of arrest (Article 22(1), Section 50 CrPC).
Right to consult a legal practitioner.
Right to be produced before magistrate within 24 hours (Article 22(2), Section 57 CrPC).
Right to be released on bail, if applicable.
Protection from torture and cruel treatment.
7. Procedure After Arrest
Arrested person to be taken to police station.
Informing family/friends about arrest.
Medical examination (as per D.K. Basu guidelines).
Production before magistrate within 24 hours.
Possible remand (police or judicial).
8. Summary
| Aspect | Details |
|---|---|
| Authority to Arrest | Police or Magistrate |
| Grounds for Arrest | Reasonable suspicion of cognizable offense |
| Arrest with Warrant | Magistrate issues warrant |
| Arrest without Warrant | Allowed under Section 41 CrPC |
| Rights of Arrested | Information of grounds, legal aid, bail |
| Time Limit for Production | Within 24 hours before magistrate |
| Use of Force | Reasonable and necessary |
| Safeguards | D.K. Basu guidelines to prevent abuse |
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