Concept of Arrest and Latest Amendments

8/17/2019 Concept of Arrest and Latest Amendments

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1 | P a g e C o n c e p t o f A r r e s t a nL a t e s t A m e n d m e n t s

CONCEPT OF ARREST AND LATEST

AMENDMENTS

Arrest in criminal jurisprudence signifies the detention of a person under the

authority of law in connection with an alleged or expected violation of the law. Police

officers area entrusted with wide powers of arrest under different circumstances, so are

several other classes of officers who are entrusted with the enforcement of penal

enactments. Magistrates have powers of arrest in certain circumstances and even private

persons have the power to arrest in extraordinary circumstances. However, the power to

arrest has to be exercised with intelligent discretion and caution.

Moreover, arrest is undoubtedly a serious interference with fundamental right of the

Personal liberty of the citizen, which includes an arrestee or an accused, guaranteed under

Articles ! and of the "onstitution of #ndia and it has to be strictly in accordance with

the law, so as to be escaped the arresting authority from the punishment.

Arrest probably is the most effective method of securing an attendance of the accused at

his trial though for other reasons it is not $uite desirable to use it in each and every case.

Arrest may be arrested not only for the purpose of securing the attendance of the accused

at the time of trial, but it may become necessary as a preventive and precautionary

measure in respect of a person intending to commit cognizable offence, o a habitual

offender or ex%convict, or person found under suspicious circumstances. Arrest may


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sometimes become necessary for obtaining the correct name and address of a person

committing a non%cognizable offence. A person obstructing a police officer in discharge

of his duties is liable to be arrested to put a stop to such obstruction. &o also, a person

escaping from lawful custody is liable to be arrested and re%ta'en in custody.

Meaning of Arrest

(he term )arrest* is not defined either in "ode or in the various substantive Acts.

(he word )arrest*, when used in its ordinary and natural sense, means the apprehension or

restraint or the deprivation of one*s personal liberty. +hen used in legal sense, in the

procedure connected with criminal offence, an arrest consists in the ta'ing into custody of

another person, under authority empowered by law, for the purpose of holding or

detaining him to answer a criminal charge or of preventing the commission of a criminal

offence. (he essential elements re$uired to institute an arrest, in the above sense, are that

there must be intent to arrest under the authority, accompanied by a seizure or detention

of person, in the manner 'nown to law, which is so understood by the person arrested. #n

every arrest there is custody but not vice%versa%%and both the words )custody* and )arrest*

are not synonymous terms.

(he "ode contemplates two types of arrests

-a Arrest made in pursuance of a warrant issued by a Magistrate/ and

-b Arrest made without such warrant but made in accordance with some legal

provision permitting such arrest.


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Arrest with Warrant

WARRANT OF ARREST

A warrant of arrest is a written authority given by a competent magistrate for the arrest

of a person. #t is a more drastic step than the issue of a summons. #t is addressed to a

person, usually a police officer, to apprehend and produce the offender in front of the

court. 0orm number of "1P" provides for format of arrest warrant

FROM NO. 2

2See, &ection 345

+AA1A6( 70 A118&(

(o99999. -name and designation of the person or persons who is or are to execute

the warrant.

+H818A& -name of accused of -address stands charged with the offence of 9999..

-state the offence, you are hereby directed to arrest the said 9999999.. and to

produce him before me. Here in fail not.

:ated, this99. 99.day of 9..49

-&ignature

(Seal of the court)


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ESSENTIAL ELEMENTS OF A VALID WARRANT –

!. (he warrant must clearly mention the name and other particulars of the person to be

arrested. As per Section 70-!, every warrant of arrest shall be in writing. #t must be

signed by the presiding officer of the court and must bear the seal of the court. As

per section 70(2), a warrant remains in force until it is cancelled or is executed. 6ormally,

0orm of &econd schedule is used to write a warrant.

. #t must show the person to whom the authority to arrest has been given. As per Section

72, a warrant is normally directed to one or more police officers but, if necessary, the

court may direct it to any other person or persons. 0urther, section 73 provides that a

magistrate may direct a warrant to any person within his jurisdiction for the arrest of any

escaped convict, proclaimed offender, or of any person who is accused of a non%bailable

offence and is evading arrest.

;. #t may include a direction that if the person arrested under the warrant executes a bond

and gives security for his attendance in court, he shall be released. +arrant with such a

direction is called as bailable warrant of arrest.


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in the opinion of the magistrate ta'ing cognizance of the offence, there is sufficient ground

for proceeding, and if the cases is a warrant case, he may issue a warrant or if he thin's fit,

he may issue a summons.

0urther, Section $7, empowers a magistrate to issue a warrant even if the case is a

summons case if he has reason to believe that the summons will be disobeyed. He must

record his reasons for this action.

PROED!RE FOR E%E!TIN" A WARRANT

As per section 7&, a warrant can be executed by showing the substance of the warrant to

the person being arrest. #f re$uired, the warrant must be shown to the person arrested.

Section 7' mandates that the person executing the warrant must produce the arrested

person before the magistrate without unnecessary delay and within < hours excluding the

time ta'en for travel from the place of arrest to the magistrate.

As per section 77, a warrant may be executed anywhere in #ndia. Section 7$ specifies that

if a warrant is to be executed outside the local jurisdiction of the court issuing it, such

court may send it to the 8xecutive Magistrate or :istrict &uperintendent of Police or

"ommissioner of Police within the local limits of whose jurisdiction it is to be executed

instead of directing it to the police officer within the jurisdiction of the issuing court.

Section 7 specifies the procedure for executing a warrant outside the local jurisdiction of

the issuing court as follows =


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-! +hen a warrant directed to a police officer is to be executed beyond the local

jurisdiction of the "ourt issuing the same, he shall ordinarily ta'e it for endorsement either

to an 8xecutive Magistrate or to a police officer not below the ran' of an officer in charge

of a police station, within the local limits of whose jurisdiction the warrant is to be

executed.

- &uch Magistrate or police officer shall endorse his name thereon and such

endorsement shall be sufficient authority to the police officer to whom the warrant is

directed to execute the same, and the local police shall, if so re$uired, assist such officer in

executing such warrant.

-;+henever there is reason to believe that the delay occasioned by obtaining the

endorsement of the Magistrate or police officer within whose local jurisdiction the warrant

is to be executed will prevent such execution, the police officer to whom it is directed may

execute the same without such endorsement in any place beyond the local jurisdiction of

the "ourt which issued it.

WEN AN A O!RT ISS!E A WARRANT IN A ASE IN WI IT IS

EMPOWERED TO ISS!E S!MMONS

As per Section $7 a court may issue a warrant even in a case in which it is empowered

only to issue a summons. A court can issue a warrant either before issuing a summons or

even after issuing a summons. #t may do so if it has reason to believe that the person has


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absconded or that the person will not obey the summons. 0urther, a court may issue a

warrant if the summons was duly served and still the person fails to appear before it at the

re$uired date and time without any reasonable excuse. (he court must record its reasons to

do so

#t must be noted that Section 20# empowers the court to issue a summons even for a

warrants case if it believes that a summons is sufficient to enforce the appearance of the

person before it, while Section $7 empowers the court to issue a warrant even in a

summons cases, if reasonable causes exist. #n general, a warrant ought not to be issued

where a summons can serve the purpose and care should be exercised by the court to

satisfy itself that upon the materials present before it, it was necessary to issue a warrant.

#n Anoo* Sin+, -s ,ee/ AIR &7, it was held that this applies to an accused as well

as a witness. >ut where the court has no power to issue a summons, it cannot issue a

warrant under this section. #n P 1 i45 -s ,5 Rni AIR & , it was held that

when a witness avoids his appearance in spite of the summons being appropriately served,

court can ta'e steps for securing his presence under this section.

&o in n/ts,e Arrest without warrant is as following

(he re$uisites of a valid warrant can be gathered from this section and the form of warrant

of arrest in 0orm 6o. of &econd &chedule. (hey are%%

!. (he warrant must be in writing.

. #t must bear the name and designation of the person who is to execute it.


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;. #t must give full name and description of the person to be arrested.


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Police Ofcer(u/s

41)

Private Person(u/s 43)

Magistrate (u/s 44)


Who Can:

A118&( +#(H7( +A11A6( >B P7C#"8 700#"81

(he exigencies of the circumstances may re$uire a person to be arrested without

warrant if such person is reasonably suspected to have committed a serious

-cognizable offence even in case of less serious crime -non%cognizable offence

immediate arrest without warrant may become necessary to ascertain the name and

address of the offender perpetrating the crime. #t may also be necessary as a

preventive measure to ma'e arrests without warrant for the forestalling of impending

crimes, and for enabling police to discharge their duties effectively. Arrest without

warrant can be made by police officers or even by private citizens in emergencies.

+ide powers have been conferred on the police for ma'ing arrests without warrant

under circumstances mentioned in &ections


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#. W,en *oice 65 est 8it,o/t 8nt -! Any police officer may without an

order from a Magistrate and without a warrant, arrest any person—

*[(a) who commits, in the presence of a police officer, a cognizable offence

(b) against whom a reasonable complaint has been made, or credible information has

been recei!ed, or a reasonable suspicion e"ists that he has committed a cognizable

offence punishable with imprisonment for a term which may be less than se!en years or

which may e"tend to se!en years whether with or without fine, if the following conditions

are satisfied, namely#$

(i) the police officer has reason to belie!e on the basis of such complaint, information, or

suspicion that such person has committed the said offence

(ii) the police officer is satisfied that such arrest is necessary$

(a) to pre!ent such person from committing any further offence or

(b) for proper in!estigation of the offence or

(c) to pre!ent such person from causing the e!idence of the offence to disappear or

tampering with such e!idence in any manner or


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(d) to pre!ent such person from ma%ing any inducement, threat or promise to any person

ac&uainted with the facts of the case so as to dissuade him from disclosing such facts to

the 'ourt or to the police officer or

(e) as unless such person is arrested, his presence in the 'ourt whene!er re&uired cannot

be ensured, and the police officer shall record while ma%ing such arrest, his reasons in

writing

**[ro!ided that a police officer shall, in all cases where the arrest of a person is not

re&uired under the pro!isions of this sub$section, record the reasons in writing for not

ma%ing the arrest

(ba) against whom credible information has been recei!ed that he has committed a

cognizable offence punishable with imprisonment for a term which may e"tend to more

than se!en years whether with or without fine or with death sentence and the police

officer has reason to belie!e on the basis of that information that such person has

committed the said offence+

*[sub$clauses (a) and (b) substituted by 'ode of 'riminal rocedure Amendment act, -../

**[ro!iso to sub$clause (b) inserted by 'ode of 'riminal rocedure Amendment Act, -.0.

*[(-) Sub1ect to the pro!isions of section 2-, no person concerned in a non$cognizable

offence or against whom a complaint has been made or credible information has been


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recei!ed or reasonable suspicion e"ists of his ha!ing so concerned, shall be arrested

e"cept under a warrant or order of a Magistrate+ 3

*[sub$clause (-) substituted by 'ode of 'riminal rocedure Amendment act, -../

+ide powers have been conferred on the police for ma'ing arrests without warrant under

circumstances mentioned in &ections

"lauses -a, -d and -g of &ection

wide powers of ma'ing arrest without warrant in respect of cognizable offences.

However, these powers are not without limitations.! (he re$uirement of reasonability and

creditability would hopefully prevent the misuse of such powers. +hat is reasonable

complaint or suspicion or what is credible information must depend upon the facts and

circumstances in each case. #t may be noted that malicious and excessive exercise of

powers of arrest under these sections would be punishable under &ection 4 #P".

(he word )may arrest* shows that the power of arrest is discretionary. A police officer

is not always bound to arrest for a cognizable offence. (he power of arrest given

under &ection

1 Joginer !u"ar v# $tate of %#P#& (1''4) 4 $CC *#

O+servations in !a,al -e. v# $tate of Assa"& 1'' Cri 0J 1*' (au)#


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in arbitrary manner,; but judiciously, subject to the limitations specified under the

provisions of "r.P.".

6o arrest is to be made because it is lawful for the Police officer to do so. (he

police officer must be able to justify the arrest apart from his power to do so. Arrest is

not a must in every case, there must be sufficient reasons for exercising such powers by

the police officers.

A Magistrate, Dudge or any other judicial 7fficer is, liable to criminal prosecution

for an offence li'e any other citizen but in view of paramount necessity of preserving the

independence of judiciary and at the same time ensuring that infractions of law are

properly investigated, the following guidelines laid down by the &upreme "ourt in De,i

9/4ici Se-ice Assocition: Tis ;i o/t -. Stte o< "/=t,


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-: (he Dudicial 7fficer so arrested shall not be ta'en to a police station, without the

prior order or directions of the :istrict E &essions Dudge of the concerned :istrict, if

available.

-8 #mmediate facilities shall be provided to the Dudicial 7fficer to communication

with his family members, legal advisers and Dudicial 7fficers, including the :istrict E

&essions Dudge.

-0 6o statement of a Dudicial 7fficer who is under arrest be recorded nor any

panchnama be drawn up nor any medical tests be conducted except in the presence of

the Cegal Adviser of the Dudicial 7fficer concerned or another Dudicial 7ffice of e$ual

or higher ran', itF available.

-G (here should be no handcuffing of a Dudicial 7fficer. #f, however, violent

resistance to arrest is offered or there is imminent need to effect physical arrest in

order to avert danger to life and limb, the person resisting arrest may be over%powered

andF handcuffed. #n such case, immediate report shall be made to the :istrict E

&essions Dudge concerned and also to the "hief Dustice of the High "ourt

(he above guidelines are not exhaustive but these are minimum safeguards, which

must be observed in case of arrest of Dudicial 7fficer.

&ection

warrant, if such a person sought to be arrested has been concerned in any cognizable

offence etc.


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A >ce4i?e in eson?e s/s*icion@, upon which an arrest can

be made by a police officer, must be based on certain facts and materials placed before

him, which the officer must consider for himself, before he can ta'e any action. #t is not

enough for a person, under this section, that there was li'elihood of cognizable offence

being committed, in future. (he existence of a warrant is e$uivalent to credible

information.

+hen arrest is made under the suspicion, the police has to carry out investigation

without unnecessary delay and the magistrate has to be watchful, as the power of

arrest without warrant under suspicion is liable to be abused. Arrest and seizure

become doubtful when no effort was made by police to join any independent witness

amongst several person present.

#2. Aest on e


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(-) 4hen the true name and residence of such person ha!e been ascertained, he shall be

released on his e"ecuting a bond, with or without sureties, to appear before a Magistrate

if so re&uired#

ro!ided that, if such person is not resident in 5ndia, the bond shall be secured by a

surety or sureties resident in 5ndia

(6) Should the true name and residence of such person not be ascertained within twenty$

four hours from the time of arrest or should he fail to e"ecute the bond, or, if so re&uired,

to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate

ha!ing 1urisdiction

(his section is clear in itself. #f a person commits a non%cognizable offence in the

presence of a police officer and refuses to give his name and address when demanded by

such officer, he can be arrested by such officer in order to ascertain his name and

residence. However, his name and address were previously 'nown to the police officer,

he cannot be arrested and detained under this section.?

A227$8 9 P26A87 P72$O; (%/$ 43) O< C2PC:

Section 43 (0) Any pri!ate person may arrest or cause to be arrested any person who in

his presence commits a non$bailable and cognizable offence, or any proclaimed offender,

= o>al ;aiu v# !ing 7">eror& 602(1'3) 4 Ma *=& =#


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and, without unnecessary delay, shall ma%e o!er or cause to be made o!er any person so

arrested to a police officer, or, in the absence of a police officer, ta%e such person or

cause him to be ta%en in custody to the nearest police station

(-) 5f there is reason to belie!e that such person comes under the pro!isions of section

20, a police officer shall re$arrest him

(6) 5f there is reason to belie!e that he has committed a non$cognizable offence, and he

refuses on the demand of a police officer to gi!e his name and residence, or gi!es a name

or residence which such officer has reason to belie!e to be false, he shall be dealt with

under the pro!isions of section 2- but if there is no sufficient reason to belie!e that he

has committed any offence, he shall be at once released

#t is in general sense of society that a person committing a very serious offence

-cognizable offence should be immediately arrested and expeditiously dealt with

according law. (he powers of police arrest without warrant are an extent to helpful for

this purpose but they may not in themselves prove ade$uate in all situations. +hen a

serious offence has been committed in presence of several private citizens and no police

officer is near the scene of offence, it would totally unreasonable to tell the private

citizens witnessing the crime that they cannot arrest the offender without first obtaining a

warrant from Magistrate or that they should do nothing except to inform the police and

Magistrate and to wait for the police to ta'e steps for arresting the culprit. A private

person is also entitled to arrest or cause to be arrested any person -! who in his presence


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commits a non%bailable and cognizable offence, or - who is a proclaimed offender. He

must, without unnecessary delay, ma'e over such person to police officer, or either ta'e

him or cause him to be ta'en to the nearest police station. #f such person is liable to be

arrested under section

have committed a non%cognizable bailable offence, his name and residence is to be

ascertained. #f he is believed to have committed no offence, he is to be set at liberty. #f a

police officer outside the &tate arrests a proclaimed offender in his private capacity, he is

authorized to do under section


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law. #f the private person ma'ing arrest under this section fails to follow the procedure as

prescribed in this section, he can be prosecuted for the offence of wrongful confinement

under &ection ;erintenent ? 2e"e"+rancer of 0egal A@airs v# agirath Mahto& A62 1'34 Cal# 1*

Anant Prasa 2a. v# 7">eror& (1') Cri#0J 13&13*51 (Pat#)


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arrested person must be produced before another magistrate within < hours, otherwise

his detention will be illegal.

"onsidering the general principle embodied in section


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(6) ;othing in this section gi!es a right to cause the death of a person who is not accused

of an offence punishable with death or with imprisonment for life

*[(2) Sa!e in e"ceptional circumstances, no women shall be arrested after sunset and

before sunrise, and where such e"ceptional circumstances e"ist, the woman police officer

shall, by ma%ing a written report, obtain the prior permission of the :udicial Magistrate

of the first class within whose local 1urisdiction the offence is committed or the arrest is

to be made

[*sub$clause (2) 5nserted by 'ode of 'riminal rocedure (Amendment) Act, -..


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#f a person ma'es a statement to police officer, accusing himself of having

committing an offence, he would be consider to have submitted to the custody of the

police officer.!4

#f the accused proceeds towards police station as directed by the police

officer, he would have held to have submitted to the custody of police officer.

#n case there is forcible resistance or attempt to evade arrest, the person attempting

to ma'e arrest may use all necessary means for the same. +hether the means necessary

or not would depend upon whether a reasonable purpose having no intention to cause

any serious injury to the other would have used to effect his arrest. 0urther, resistance or

obstruction to lawful arrest has been made punishable by the Penal "ode, !K@4-#P".!!

7n the other hand, sub%section -; of section


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be arrested after sunset and before sunrise, and where such exceptional circumstances

exist, the woman police officer shall, by ma'ing a written report, obtain the prior

permission of Dudicial Magistrate of first class within whose jurisdiction the offence is

committed or arrest to be made.!<

%owers$ &i'en to arrestee to &i'e e(e)t to arrest

(o procure the presence of another person with the purpose of preventing commission of

criminal offence or detaining to answer a criminal charge there are certain provisions

which give certain powers to arrestee to do so. +e will discuss these powers with

following heads

i. Power to use 0orce% &ection


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may use all necessary means to effect the arrest of that person. However, to limit the

abuse of power by police or any other person legislature beautifully provides another sub%

section -; to this &ection which says that all necessary means does not mean that to

cause the death of the person who is not even accused of an offence punishable with

death or with imprisonment for life. &o in nutshell force should be according to the

punishment of offence. &ection


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allow him such free ingress thereto, and afford all reasonable facilities for a

search therein

(-) 5f ingress to such place cannot be obtained under Sub$Section (0), it shall be

lawful in any case for a person acting under a warrant and in any case in which a

warrant may issue, but cannot be obtained without affording the person to be

arrested an opportunity of escape, for a police officer to enter such place and

search therein, and in order to effect an entrance into such place, to brea% open

any outer or inner door or window of any house or place, whether that of the

person to be arrested or of any other person, if after notification of his authority

and purposes, and demand of admittance duly made, he cannot otherwise obtain

admittance

ro!ided that, if any such place is an apartment in the actual occupancy of a

female (not being the person to be arrested) who, according to custom, does not

appear in public, such person or police officer shall, before entering such

apartment, gi!e notice to such female that she is at liberty to withdraw and shall

afford her e!ery reasonable facility for withdrawing, and may then brea% open the

apartment and enter it

(6) Any police officer or other person authorised to ma%e an arrest may brea% open

any outer or inner door or window of any house or place in order to liberate

himself or any other person who, ha!ing lawfully entered for the purpose of

ma%ing an arrest, is detained therein


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; Power to pursue offenders into other Durisdiction% &ection


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+hen any officer in charge of a police station or any police officer ma'ing an

investigation under "hapter L## re$uires any officer subordinate to him to arrest without

a warrant -otherwise than in his presence any person who may lawfully be arrested

without a warrant, he shall deliver to the officer re$uired to ma'e the arrest an order in

writing, specifying the person to be arrested and the offence or other cause for which the

arrest is to be made and the officer so re$uired shall, before ma'ing the arrest, notify to

the person to be arrested the substance of the order and, if so re$uired by such person,

shall show him the order.

6othing in &ub%&ection -! shall affect the power of a police officer to arrest a

person under section

? Power to rearrests escapee% &ection @4

#f a person in a lawful custody escapes or is rescued, the person from whose custody he

escaped or was rescued may immediately pursue and arrest him in any place in #ndia.

2&ection @4-!5 the person ma'ing such re%arrest has the same powers and duties as

mentioned in &ections


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#*T+ES OF ARRESTEE $

"riminal Procedure "ode also tal's about the duties of person while ma'ing arrest. And

these duties are () &ection provides 8very police officer while ma'ing an arrest

shall%

-a bear an accurate, visible and clear identification of his name which will facilitate easy

identification/

-b prepare a memorandum of arrest which shall be%

-i attested by at least one witness, who is a member of the family of the person arrested

or a respectable member of the locality where the arrest is made/

-ii countersigned by the person arrested/ and

-c inform the person arrested, unless the memorandum is attested by a member of his

family, that he has a right to have a relative or a friend named by him to be informed of

his arrest.


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2#nserted by "ode of "riminal Procedure Amendment act, 44K5

(2) section ??%A tal's about health and safety of arrested person.

&&A. et, n4 s


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! &earch of arrested person% &ection ?! &ection ?! empowers police officer to ma'e

a search of the arrested person under certain circumstances. &uch search may prove

useful for proper investigation. #f incriminating things or stolen articles are found

in such search, the police officer can seize them under &ection !4 and produce

them in "ourt. &ection ?! as follows

(0) 4hene!er a person is arrested by a police officer under a warrant which does not

pro!ide for the ta%ing of bail, or under a warrant which pro!ides for the ta%ing of bail

but the person arrested cannot furnish bail, and whene!er a person is arrested without

warrant, or by a pri!ate person under a warrant, and cannot legally be admitted to bail,

or is unable to furnish bail, the officer ma%ing the arrest or, when the arrest is made by a

pri!ate person, the police officer to whom he ma%es o!er the person arrested, may search

such person, and place in safe custody all articles, other, than necessary wearing$

apparel, found upon him and where any article is seized from the arrested person, a

receipt showing the articles ta%en in possession by the police officer shall be gi!en to

such person

(-) 4hene!er it is necessary to cause a female to be searched, the search shall be made

by another female with strict regard to decency

(hough the section does not re$uire to search to be conducted in the presence of witness,

the rules made under the Police Act, direct that the search should be made in the presence


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of witnesses. (he witnesses should be independent and respectable. #t will be seen that

the power to &earch under &ection ?! is available only if the arrested person is not

released on bail. 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 of showing the articles ta'en in possession by the police.

PoBer to seiDe o@ensive Bea>ons: $ection =

&ection ? reads as follows# =he officer or other person ma%ing any arrest under this

'ode may ta%e from the person arrested any offensi!e weapons which he has about his

person, and shall deli!er all weapons so ta%en to the 'ourt or officer before which or

whom the officer or person ma%ing the arrest is re&uired by this 'ode to produce the

person arrested

#f the evidence of the investigating officer who recovered the material objects is

convincing, the evidence as to recovery need not be rejected on the ground that seizure

witnesses do not support the prosecution version.!? (he evidence of recovery would not

be rejected merely because the panch witnesses turned hostile, the judicial pragmatism

re$uires that the evidence of police officer with regard to recovery can be relied upon if

otherwise found trustworthy and reliable.

1= Moan $ingh v# $tate of 2a,asthan& A62 1'$C 1=11#


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#t may be noted that the seizure can be made by any person ma'ing arrest under this

"ode.

iii. Medical examination of accused% section ?; E ?;A (o facilitate effective

investigation, provision has been made authorising an examination of the arrested

person by a medical practitioner, if, from the nature of the alleged offence or the

circumstances under which it was alleged to have been committed, there is a

reasonable ground for believing that an examination of person will afford

evidence.I &ection ?; empowers senior police officer to compel the accused in

custody to submit to medical examination. &ection ?; reads

(0) 4hen a person is arrested on a charge of committing an offence of such a nature

and alleged to ha!e been committed under such circumstances that there are

reasonable grounds for belie!ing that an e"amination of his person will afford

e!idence as to the commission of an offence, it shall be lawful for a registered

medical practitioner, acting at the re&uest of a police officer not below the ran% of

sub$inspector, and for any person acting in good faith in his aid and under his

direction, to ma%e such an e"amination of the person arrested as is reasonably

necessary in order to ascertain the facts which may afford such e!idence, and to

use such force as is reasonably necessary for that purpose


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(-) 4hene!er the person of a female is to be e"amined under this section, the

e"amination shall be made only by, or under the super!ision of, a female registered

medical practitioner

*[9"planation$ 5n this section and in sections


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under Article 4-; to only testimony written or oral. !3 1elying on the principles

laid down by the &upreme "ourt in the Oathu Oali case it has been held that

&ection ?; is not violative of Article 4-; and that a person cannot said to have

been compelled to be a witnessI against himself if he is merely re$uired to

undergo a medical examination in accordance with the provisions of &ection ?;.!K

(he power to compel the accused to submit to medical examination is hedged in

various conditions. (he object obviously is to balance the conflicting interests of

the individual and society. 8xamination by a medical practitioner logically ta'e in

examination by testing his blood, sputum, semen, urine, etc. it may include L%ray

examination or ta'ing electrocardiograph depending upon the nature of the case.!J

(he section itself permits use of force as is reasonably necessary for the purpose of

medical examination of the arrested person. #f the process of ta'ing such samples

is reasonable under the circumstances, then the causing the conse$uential

discomfort to the person is justified by the section.4

(hough the section lays down a condition that the medical examination is to be

done at the instance of a police officer not below the ran' of &ub%#nspector, it does

1 3th 2e>ort& ># *=#

1 Anil A# 0oEhane v# $tate of Maharashtra& 1'1 Cri#0J 1=& 13* (o"#)

1' 6eeraj &harma v. &tate of .P., !JJ; "riCD @@. Also >havani Prasad Dena v. 7rissa &tate "ommission for +omen, -4!4 K

&"" @;;. 1egarding :6A test.

* Ibid.


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not debar other superior officers or the court concerned from exercising the said

power if it becomes necessary for doing justice in "riminal "ase.

#t may be useful to mention here some of the provisions of the #dentification of

Prisoners Act, !J4, which li'e the medical examination of the accused under this

section, are helpful for police%investigations. &ection < of the Act empowers a

Police officer to ta'e measurements of a person arrested in connection with an

offence punishable with imprisonment which may extend to one year or more.

>y giving an elaborate explanation as to the meaning of examinationI and

registered medical practitionerI the "ode of "riminal Procedure -Amendment

Act, 44? has inserted &ections ?;%A, ?


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any in1uries or mar%s of !iolence upon the person arrested, and the appro"imate

time when such in1uries or mar%s may ha!e been inflicted

(6) 4here an e"amination is made under sub$section (0), a copy of the report of such

e"amination shall be furnished by the medical officer or registered medical practitioner,

as the case may be, to the arrested person or the person nominated by such arrested

person

*[Substituted by the 'ode of 'riminal rocedure (Amendment) Act, -../

(his newly inserted section ?;%A empowers investigating agency to compel

medical practitioners to help it to get the person accused of rape examined

promptly. (he sub%section - spells out the particulars to be furnished in the report

thus

i. (he name and the address of the accused and of the person by whom he was

brought/

ii. (he age of the accused/

iii. Mar's of injury, if any, or the person of the accused/

iv. (he description of material ta'en from the person of the accused of :6A profiling/

and

v. 7ther material particulars in reasonable detail/

vi. (he reasons for each conclusions arrived at by the practitioner/

vii. (he exact time of commencement and completion of the examination.

(he medical practitioner should send up the report to the Magistrate through the

#nvestigating 7fficer. A copy of the report should be sent to the accused.


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iv #dentification of person Arrested% &ec. ?istrict Magistrate, or, if

he so directs, to the Sub$di!isional Magistrate, the cases of all persons arrested

without warrant, within the limits of their respecti!e stations, whether such

persons ha!e been admitted to bail or otherwise

(he object of the report is to 'eep the :istrict Magistrate etc. informed of the situation

regarding grave offences. (he administration of police in a district is under the general

control and direction of the :istrict Magistrate. (herefore the report under this section

would enable him to see whether the police are exercising their powers properly or not.

. :ischarge of persons apprehended% section ?J


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7nce a person is arrested by police, he can only be enlarged after ta'ing a bond or bail

for his appearance before a Magistrate/ the police cannot discharge him on their own

responsibility without the order of the Magistrate contemplated in this section is a

special order of a Magistrate under &ection !@3 which prescribes procedure when

investigation according to police cannot be contemplated within < hours.

R+-!TS OF ARRESTE# %ERSON

"rP" gives wide powers to the police for arresting a person. &uch powers without

appropriate safeguards for the arrested person will be harmful for the society. (o 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. 0urther,

once arrested, a person is already at a disadvantage because of his lac' of freedom and so

he cannot ta'e appropriate steps to defend himself. (hus, to meet the needs of fair trial,

several provisions are given in "rP", that give specific rights to an arrested person.

(hese rights can be described as follows %

. Ri+,t to no8 t,e +o/n4s o< est % Section &0() % According this provision,

every police officer or other person arresting any person without warrant shall forthwith

communicate to him full particulars of the offence for which he is arrested or other

grounds for such arrest.


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&imilarly, when a subordinate officer is deputed by a senior police officer to arrest a

person under Section &&, the subordinate officer must notify the person to be arrested of

the substance of the written order given by the senior officer, which clearly specifies the

offence for which he is being arrested. (he same provision exists in case of an arrest

made under a warrant in Section 7&. #n this case, the police officer or any person ma'ing

arrest under warrant must notify the substance of the warrant to the person being arrested

and if re$uired, must show the warrant. As held in Stis, ,n4 Ri -s 9o4/ Nn4n

Sin+,: ILR 2' 7#$, if the substance of the warrant is not notified, the arrest would be

unlawful.

#n !45?,n S,/i -s Stte o< !P L9: A held that right to be notified of

grounds of arrest is a precious right of the arrested person. (his allows him to move the

proper court for bail, ma'e a writ petition for habeas corpus, or ma'e appropriate

arrangements for his defence.

(his right is also a fundamental right given by the "onstitution in At 22(), which says,

6o person who is arrested shall be detained in custody without being informed, as soon

as may be, of the grounds for such arrest nor shall he be denied the right to consult, and

to be defended by, a legal practitioner of his choice.. #t embodies two distinct rights % the

right to be told of the grounds of arrest and the right to consult a legal practitioner of his

choice. (he second right of consulting a legal practitioner of his choice actually depends


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on the first right of being told about the grounds of arrest. #f the person doesnFt 'now why

he is being arrested, he cannot consult a legal practitioner meaningfully. #n iis,n

-s Stte o< M,s,t AIR '2, &" held that the grounds of arrest must be

communicated to the person in the language that he understands otherwise it would not

amount to sufficient compliance of the constitutional re$uirement.

2. Ri+,t to ?e in


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decided by a competent judicial authority. (his is exactly what is embodied in At

22(2) that gives a fundamental right to the arrested person that he must be produced

before a magistrate within < hours of arrest. #t says, 8very person who is arrested and

detained in custody shall be produced before the nearest magistrate within a period of

twenty%four hours of such arrest excluding the time necessary for the journey from the

place of arrest to the court of the magistrate and no such person shall be detained in

custody beyond the said period without the authority of a magistrate.

Section &7 of "rP" also contains a similar provision for a person arrested without a

warrant. #t says, 6o police officer shall detain in custody a person arrested without

warrant for a longer period than under all the circumstances of the case is reasonable, and

such period shall not, in the absence of a special order of a Magistrate under &ection !@3,

exceed twenty four hours exclusive of the time necessary for the journey from the place

of arrest to the MagistrateFs court.

Section 7' contains a similar provision for a person arrested under a warrant. #t says,

(he police officer or other person executing a warrant of arrest shall -subject to the

provisions of section 3! as to security without unnecessary delay bring the person

arrested before the court before which he is re$uired by law to produce such person.

Provided that such delay shall not, in any case, exceed twenty%four hours exclusive of the

time necessary for the journey from the place of arrest to the MagistrateFs court.


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(hus, it can be see that it is a very important right that is meant to prevent abuse of police

power and to prevent the use of a police station as a prison. #t prevents arrest merely for

the purpose of extracting confessions. (he arrested person gets to be heard by a judicial

authority that is independent of the police.

#n 1,ti (II) -s Stte o< i, $ S: S has strongly urged upon the &tate and its

police to ensure that this constitutional and legal re$uirement of bringing an arrested

person before a judicial magistrate within < hours be scrupulously met. (his is a healthy

provision that allows magistrates to 'eep a chec' on the police investigation. #t is

necessary that the magistrates should try to enforce this re$uirement and when they find it

disobeyed, they should come heavily upon the police.

0urther, in S,i


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person arrested under a warrant must be produced before a magistrate within < hours.

#. Ri+,t to cons/t Le+ Pctitione At 22 () % 0or conducting a fair trial it is

absolutely necessary that the accused person is able to consult with a legal practitioner

whom he trusts. &econd part of Article -! gives this fundamental right to an arrested

person. #t says that no person who is arrested shall be denied the right to consult, and to

be defended by, a legal practitioner of his choice. However, this does not mean that the

&tate must provide a legal practitioner of the personFs choice. #t is up to the arrested

person to contact and appoint a such a legal practitioner. (he &tateFs responsibility is only

to ensure that he is not prevented from doing so.

(he same right is also provide by "rP" under Section 303, which says, Any person

accused of offence before a "riminal "ourt or against whom proceedings are instituted

under this "ode, may of right be defended by a pleader of his choice.

&. Ri+,t to


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Stte o< i, $ S: &upreme "ourt has also held that access to a legal practitioner

is implicit in Atice 2, which gives fundamental right to life and liberty. (he state is

under constitutional mandate to provide free legal aid to an indigent accused person and

this constitutional obligation arises not only when the trial is commenced but also when

the person is first produced before a magistrate and also when he is remanded from time

to time. #n S/ Ds -s !nion Teito5 o< A/nc, P4es, $': S , &" has held

that non%compliance of this re$uirement or failure to inform the accused of this right

would vitiate the trial entailing setting aside of the conviction and sentence. (he right of

an accused person to consult his lawyer begins from the moment of his arrest. (he

consultation with the lawyer may be within the presence of a police officer but not within

the police officerFs hearing. &" also held that it is the duty on all courts and magistrates to

inform the indigent person about his right to get free legal aid.

'. Ri+,t to ?e in


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Section &0 A () provides that once the arrested person is brought to the police station,

the police officer must inform a relative or a friend, or any other person of the arrested

personFs choice, about his arrest. He must also tell the place where the arrested person has

been 'ept. (his is a very important step in ensuring justice with the arrested person

because this allows the arrested person and his well%wishers to ta'e appropriate legal

steps to secure his release. However, all this will amount to nothing if the arrested person

does not even 'now about this very critical right. (hus, Section &0 A (2) provides that the

police officer must inform the arrested person of this right. 0urther, as per Section &0 A

(3) he must note down the name and address of the person who was informed about the

arrest. (o ma'e sure that there is no violation of this right, section ?4 A -


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the body of such person by a registered medical practitioner unless the Magistrate

considers that the re$uest is made for the purpose of vexation or delay or for defeating the

ends of Dustice. +hile &ection ?; is meant to aid the police in investigation, &ection

?


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special order of a Magistrate under section !@3, exceed twenty%four hours exclusive of

the time necessary for the journey from the place of arrest to the MagistrateFs "ourt.

,ERTA+N %EO%.E +""*NE FRO" ARREST

&ection


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Concept of Arrest and Latest Amendments

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