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Rights of an Arrested Person in India and Case laws under Crpc

The main aim of Criminal law is to protect society from criminals and lawmakers. It is necessary that such criminals should be kept away from society for their safety. This objective is achieved through arrest.

The object of arrest is to bring before the court a person suspected of being involved in a crime and to secure the administration of law. This article will attempt to cover the relationship between arrests and provide you with the procedures and provisions laid down under the law.

Criminal Procedure code

Section 41 to 60 of the Criminal procedure code covers the ‘arrest of persons’.

The arrest can be made by contact with or touching the body of a person or by a person who has been deposited in the custody of the police.


If a person resists arrest, the police are authorized to use force and other means to arrest that person. The forces and means used must be reasonable, level-headed, and considered and must not cause serious injury.


An arrest is made by a person with the belief that the suspect has committed, is committing, or is about to commit a crime. The reasons for the arrest are-

1. To ensure the presence of the accused at the trial.

2. For the prevention of any offense committed or as a precautionary measure.


3. To obtain the correct name and address of the arrested person.

4. To remove the obstacles created by the police.

5. One person escaped from custody for a retake.

Procedure to arrest (Under Section 46 of Cr.p.c)

1. Arrest by police office-Actual touch and confining the body necessary. But in the case of self-submission, it is not required.


2. Police can use force if a warrant with the magistrate’s signature is available.

3. Force can’t be excessive and should not cause death.

4. Women can be arrested only between sunrise to sunset( A women police officer to accompany).

Types of arrest

Generally, Arrests are of three types-

  1. With warrant(Non Cognizable offense)
  2. Without warrant(Cognizable Offense)
  3. Arrest without a warrant

Section 41 of Cr.pc states about arrests without a warrant are-

  • Person involved in a cognizable offense, or against whom a reasonable complaint / credible information / reasonable suspicion exists,
  • A person who has any weapon to break a house without any legal pretext,
  • Declared as an offender,
  • is found to be in possession of the stolen property,
  • Whoever tries to prevent a police officer from performing his duty or attempts to escape from legal custody,
  • Who is involved in an offense committed outside India,
  • The released convict is violating the rule,
  • Arrest demand has been issued.

Section 42 of Crpc – Arrest for refusing to give name and residence The police have the right to arrest if he refuses to give the correct name and residential address. The police can arrest him to identify the actual place of residence.

Section 151 of Crpc gives wide powers to a police officer and enlisted cases where a police officer may make an arrest without a warrant to prevent the commission of a cognizable offense. If the officer feels that the offense without arrest cannot be stopped.

Landmark judgment

D.K.Basu Vs. State of West Bengal, 1997

In this case, the Supreme Court had issued guidelines for all cases of arrest and detention. The matter deals with the serious issue of custodial deaths and sets out the various rights conferred on a person upon arrest which is as follows:

  • Right to be informed of the grounds of his arrest.
  • Right to advocate/lawyer of your choice.
  • Right to inform family or friends about the arrest.
  • Right to the medical examination.
  • Right to get all necessary documents registered by the police.
  • Right to appear before Magistrate within 24 hours of arrest.
  • Right to remain silent and not to give any objectionable information to the police in itself.

Arrest with warrant

A warrant is required to be issued if a person commits an offense that cannot be arrested. Police cannot make such arrests without a warrant. The warrant is issued by a judge or a magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of a person or the possession or confiscation of any person’s property.


Section 41(1) of CrPC, 1973 lays down when a person can be arrested without a warrant.

Section 41(2) of CrPC, 1973 states that subject to the condition in section 42, no person may be arrested without a warrant and order of a Magistrate in the case of a non-cognizable offense and where a complaint is made.

The procedure to be followed while arresting a person is mentioned in section 46 of the Code. But this Code is not exhaustive enough to provide all the procedures for which the guidelines given in individual cases are followed.


Crpc gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the arrested person will be harmful to 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.

To meet the needs of ”fair trial several provisions are given in Crpc, that give specific rights to an arrested person these rights are-

  • Right to know the grounds of arrest.  section 50(1)
  • Rights to be informed of the provision for bail.  section 50 (2)
  • Rights to be taken to magistrate without delay-Article 22(2) to produce before a magistrate within 24 hours.
  • Right to consult legal practitioner-article 22(1) fundamental right.
  • Right to free legal aid (section 304)
  • Right to be informed about the right to inform his relative or friend.
  • Right to be examined by a medical practitioner.

Section 49 of Crpc

An arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.

Section 47 of Crpc

Explains search of the place entered by the person sought to be arrested.


Section 48 of Crpc

Pursuit of offenders into other jurisdictions.(A police officer may, for the purpose of arresting without warrant any person whom he is authorized to arrest, pursue such person into any place in India.

Special protection to females

Due to concerns of violation of the rights of women a new provision was inserted in subsection 4 of section 46.

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 prior permission from the concerned judicial magistrate of first class.


Birendra kumar Rai v UOI 1992

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.


Bharosa Ramdayal v. Emperor AIR 1941

If a person makes a statement to the police accusing himself of committing an offense, 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 to be taken into custody. In such cases, physical contact is not required.

Directorate of enforcement v.deepak Mahajan AIR 1994

It may be noted that custody & ’arrest’ are not synonymous terms. Taking a person into judicial custody is followed after the arrest of a person.


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