“Arrest” and its scope in contemporary Indian criminal justice system


Arrest The emerging trends in the criminal justice system emphasize the need to speedy trail. Since our Constitution envisaged the spirit of fundamental rights to its citizens the Right of life and personal liberty

Article 21 of the Indian constitution read as “No person shall be deprived of his life or personal except according to procedure established by law”. However in spite of the constitutional and statutory provisions are aimed at safe guarding the personal liberty and life of a citizen, growing incidents of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation….custodial death in perhaps one of the worst crime in a civilized society governed by the rule of law”{1}

Speedy trial thus an integral and essential part of the fundamental right to life and personal liberty enshrined in Article 21 of the Constitution. {2}In Kadra Pahadiya Vs. state of Bihar {3} it was held that several trials were languishing in jail for several years without their trial having made any progress. The Supreme court commented “it is a crying shame upon our adjudicatory system which keeps men in jail for years an end without a trial.

In this context it is obvious to know about arrest and its scope in the code of criminal procedure.

“Arrest” means the apprehension of a person suspected of criminal activities” {4}

When a person is found to be committed an offence under I.P.C or ant other law for the time being in force, be arrested by the police officer and a Magistrate as according to the following provisos




According to the provisions of the Criminal Procedure Code a person who is found to be committed an offence may be arrested as mentioned infra:

  BY A MAGISTRATE:    A Magistrate may arrest under the following circumstances,

Section. 44: when an offence is committed in the presence of a magistrate whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender…..”

Section. 87:  A Magistrate is empowered by this code to issue a warrant of arrest for appearance of any person after recording the reasons in writing.

Section. 89: A Magistrate is empowered to issue a warrant of arrest against who is bound by any bond taken under this code for his appearance.

It s to be noted that under sections 87 and 89 the warrant issued by the Magistrate not only against the accused but also any person who disobey the order by the court.

Section. 204: The Magistrate taking cognizance of an offence thinks fit that there is sufficient ground for proceedings and the case appears to be a warrant case, he may issue a warrant against the accused. However it is to be noted that the discretion of Magistrate is essential in issuing warrant.

Section. 319: As per section 319(2) the Magistrate is empowered to issue arrest warrant against a person appearing to be guilty of offence as the circumstances of the case may require him to do so.

 BY POLICE OFFICER: The power of  police officer to arrest is of two fold, former entitles him to arrest without acting under discretion and the latter puts him into the discretion in arresting the offender a per the amended proviso in the CR.P.C.

Without warrant : (without using discretionary power)

 Section 41 (1) (a) : The police officer may arrest any person who commits in his presence a cognizable offence

Section 41(1) (ba) : The police officer may arrest any person who commits any cognizable offence punishable with an imprisonment of a period more than 7 years.{5}

Section 41(1)(c to i) :  The police officer may arrest without warrant under the circumstances mention in sub clauses c to i.

Section 42 : The police officer may arrest a person who commit in his presence a non cognizable offence and refuses to give his name and address.

Section 151 :A police officer knowing of a design to commit any cognizable offence may arrest without the orders/ warrant from a Magistrate as a preventive action to maintain law and order .

Without warrant (with discretionary power)

 Section 41 (1) (b):  The police officer may arrest any person under this section like wise as in the old code section 41 (a) but after fulfilling the grounds mentioned in Clauses (i) and (ii)  for arrest and recording in writing about the necessity  of arrest in his case diary. As per section 41 (1) (b) (i) for arresting a person it is very essential for police officer to satisfies about well establishment of guilt and under as per section 41(b) (ii) before arresting a person under this section the police officer has to well firmed about necessity of arrest as mentioned in the circumstances stated under sub clause (a) to (e) to clause (ii).

The new sections brought drastic changes in arrest by the police officer by vesting the discretionary power.

With warrant by police officer :

Section 41 (2) : The police officer is not entitled to arrest a person who commits a non cognizable offence or against whom a complaint has been made   except with the warrant of the Magistrate.

On perusing the above amendments it appears that the recognition of need of arrest in certain cases. The Code of Criminal Procedure (Amendment) Act, 2008 which came in to force on 1st November 2010 vide Notification: S.O.2687 (E) OF MINISTRY OF HOME AFFAIRS DATED 30TH OCT 2010.This amendment brought as a result of recommendations made in the 177th Law Commission Report headed by j. B.R. Jeevan reddy.

The theme of the report is to maintain a balance between the liberty of citizens (the most precious of all fundamental rights) and the societal interest a difficult balance but it has to be attempted and achieved to the extent possible. The report taken in to the consideration of the judgments in the cases mainly D.K.Basu (1997) and Joginder kumar (1994) and concentrates on the specific theme “the police officer must be able to justify the arrest apart from his power to do so “

In Amarabati Vs. State of U.P. [2005 CR.L.J 755 ] it was held that arrest and detention in the police custody can cause ill-calculable harm to the reputation and self –esteemed of a person and, that, is why no arrest can be made in routine manner on minor allegation of commission of a crime

In M.C.Abraham Vs. State of M.H. (2003 SCC 628 Cri.) The lordships held that Section 41 gives a discretion to the police officer from a magistrate and even without a warrant may arrest any person in the situation enumerated in that section’

CONCLUSION: It is there fore the concept of arrest has an important role in the criminal justice system and it is inevitable the new changes in the concept of arrest in view of contemporaneous societal changes which recognizes the fundamental rights of citizens.

AIR 1997 SC 610 (D.K.Basu’s case)

  1. AIR SC 1675 (State of M.H. Vs. Champalal)
  2. AIR 1981 SC 939
  3. Oxford Dictionary of Law (3rd Edtn)
  4. The code of Criminal Procedure (Amenment) act 2008.

One Comment ““Arrest” and its scope in contemporary Indian criminal justice system”

  • Rajeshwer Rao


    Dear C,
    Please keep up the good interpretation.

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