Arrest under Code of Criminal Procedure

Arrest under Code of Criminal Procedure

The arrest comes under Chapter V of C.r.PC, under sections 41 to 60. Arrest is the first step in criminal proceedings against an accused individual. The taking of a person into custody to be compelled is to respond to the commission of an offence. The word ‘Arrest’ has not been specified in the code of criminal procedure.


Arrest means a person who is arrested by police when the police officer suspects that the person has done any criminal activity which is not legal or which is harmful to society. For this, the police officer takes that person in their custody for the inquiry.

Difference between ‘Custody’ and ‘Arrest’  

1- Following the arrest of the individual by the magistrate on presence or surrender, the taking of a person into judicial custody is observed.

2- There is detention for any conviction, but not vice versa.

Purpose of Arrest

1- Mere custody of an entity and authority empowered to arrest may not equate to arrest. The very object of the arrest is to put a detainee before a judge and to ensure that the law is administered.

2- It also helps to warn society that a person has committed a crime and to prevent him from committing any such crime in the future.

Types of Arrest

1- With Warrant (warrant issued by Magistrate)

2- Without Warrant (Agreement with Certain Legal Requirements Permitting Arrest)

Who can Arrest?

1- Under Section 41 Police Officer.

2- Under Section 44 Magistrate.

3- Private Citizen (only in compliance with certain constitutional requirements authorizing such an

arrest) under Section 43.

4- Exemption: Member of the Armed Forces, even after obtaining the approval of the Government, for everything they have done in carrying out their official duties under Section 45.

Arrest Made by Police Officer

Section 46 defines an arrest made by a police officer

1- Whether there is a submission to detention through words or action, the police officer/other person making the same arrest simply approaches or confines the person’s body to be detained.

2- When a person is detained by the police for carrying out an arrest warrant obtained from a judge, the person so arrested shall not be handcuffed until the police have issued instructions in this regard from the magistrate.

3- If the person is physically resisting the attempt to arrest him or tries to evade his arrest, the police officer or any other person can use all the means necessary for the arrest to take place.

4- There is no right in this section to cause the death of a person who is not convicted of a crime punishable by death or life imprisonment.

5- An accused person shall not be subjected to more restriction than is required to prevent his escape from taking place. (section49)

Arrest of Women under Section 46 of the Criminal Procedure Code

1- In the case of women, unless the facts suggest otherwise, the woman’s entry to custody for an oral intimation of arrest is assumed and, unless otherwise required by the circumstances or unless the police officer is a woman, the woman’s person shall not be referred to by the police officer for arrest.

2- No female police officer shall be detained after sunset and before sunrise and, if such extraordinary circumstances occur, the female police officer shall receive direct approval from the First-Class Judicial Magistrate, under whose local jurisdiction the crime is committed or the arrest is to be made, by making a written report.

3- To be granted different lockups for them.

4- If the person is physically resisting the attempt to arrest him or tries to evade his arrest, the police officer or other person can use any force for the arrest.

5- There is no right in this section to cause the death of a person who is not convicted of a crime punishable by death or life imprisonment.

6- An accused person shall not be subjected to more restriction than is required to prevent his escape from taking place. (Section 49)

Arrest made by Private Person


Under this section, a private citizen can arrest the person if the person has done a noncognizable or non-bailable offence and handle over him to the police officer. If there is a delay for the police officers coming to the spot then the private person takes the accused person to the nearest police station. After this, the police re-arrest the accused under section 41 if there is a possibility that he had committed a cognizable offence.

Also when the arrested person does not cooperate with a police officer and refuses to give his name or address after the request of the police officer then section 42 applies to him

Arrest made by Magistrate

Section 45

If any crime is committed in the presence, within its local jurisdiction, of a judge, whether executive or judicial, he may arrest or order any person to arrest the offender himself and may, subject to the conditions contained herein on bail, commit the offender to custody.

The magistrate can arrest a person at any time within his jurisdiction. He is also can issue a warrant at any time according the circumstance. Whether the magistrate is executive or judicial magistrate he can arrest in their own jurisdiction.

Additional Powers for Affecting Arrest

1- Search of Place (Section 47)

2- Pursuit of offenders (Section 48, 77)

3- Deputing subordinates to arrest (Section 55)

4- they has a power to pursue on escape and retake (Section 60)

Post Arrest Procedure 

1- Search of arrested person (Section 51)

2- Seizure of offensive weapons (Section 52)

3- Medical examination of accused after arrest (section 53, 53A, 54)

4- Report of arrests to be sent to District Magistrate (Section 58)

5- The person arrested is not to be discharged except on bond or bail (Section 59)

Rights of Arrested Person

  1. Arrested person has a right to know the grounds under section 50 (1).
  2. Arrested person should have the knowledge as the right to be released on bail under section 50 (2).
  3. Right without delay to be brought before a magistrate (Section 56, 76)
  4. Under section 57, article 22(2) and section 76 right to not be in the custody of police for more than 24 hours.
  5. Right to consult a licensed attorney (Art. 22(1) of Section 303)
  6. The right of an arrested indigent person to request, and be told about free legal assistance.
  7. Right to have a medical doctor checked (Section 54)

Consequences of Non-Compliance

  1. It is a tort of false imprisonment if any person is arrested unlawfully, and the arrested person is entitled to seek damages from the person who made such an arrest.
  2. If the arrest of any person who is arrested is unconstitutional, the right of private protection may be exercised by the provisions of Sections 96 to 106 of the Indian Penal Code, 1860.
  3. If any individual who unlawfully arrests another person is punishable for wrongful confinement under section 342 of the Indian penal code 1860.
  4. Under Section 220 of the Indian Penal Code 1860, an offense can be punished by the public servant having the authority to make any arrest, conscientious effects, and unlawful arrest in violation of the law.
  5. If the detention is unlawful, the victim of unjust arrest and incarceration is entitled to compensation.
  6. Informal detention or restraint of any kind by the police is known as arrest since they are not permitted by law and that person requests the rights of the arrested person if illegally detained or confined.
  7. And if the arrangements for the arrest were not fully finalized, the trial would not be invalid.

Guidelines for Arrest, Custodial Death, and Detention from Supreme Court

  1. The questions and the identification must be written in a log.
  2. That the police officer carrying out the arrest of the arrested person shall prepare, at the time of the arrest, a memo of arrest, and that memo shall be attested to by at least one witness who may either be a member of the arrested person’s family or a reputable person from the place of arrest. It shall also be countersigned by the arrestee and shall include the date and time of the arrested person.
  3. At the time of arrest the place of the arrested person should be informed by the police if his friend or relatives live outside of the district it should be informed by the legal aid agency and the police station within 8 to 12 hours of the arrest.
  4. When an arrest happens it should check the arrestee body if he gets injuries it should be written on the report and the inspection memo signed by the investigation officer and also by the arrestee and a copy of the memo should be given to them.
  5. Every 48 hours during his detention in custody, the arrested person should be subjected to a medical examination by a qualified physician on the panel of approved doctors appointed by the Minister, Health Services of the State or Union Territory concerned. Such a panel should also be prepared by the Director of Health Services for all Tehsil and Districts.
  6. The Illaqa Magistrate should be given a copy of all the records, including the arrest memo referred to above, for the record.
  7. During questioning, the arrestee may be able to see his lawyer, but not throughout the interrogation.
  8. In all districts and State Headquarters, where information about the arrest and the place of custody of the arrested person is conveyed by the officer responsible for the arrest, a police control room should be given within 12 hours of the arrest and a conspicuous notice board should be displayed in the Police Control Room.

Joginder Kumar VS State of U.P. [(1994) 4 SCC 260]  

In this case, the Apex Court ruled that an arrested person in custody is entitled, if so demanded, to have a friend, relative, or other person involved in his or her welfare aware that he or she has been arrested and where he or she is being detained. The police officer shall, when taken to the police station, notify the arrested person of this right. An entry is required in the report as to who was told of the arrest. The Magistrate is expected to reassure himself that it has met their requirements.


The arrest is a procedure done under the criminal procedure code. When a person is suspected by the police or any private person or by magistrate they can arrest the person. This rule is made to bring peace and security in the society. When a private person arrest an offender he can take him to the nearest police station and it is also risky for them it is very commendable work done by a private person.





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