Objective behind “Arrest”

The primary aim of a criminal justice system is to disseminate public justice, to punish the wrong-doers and to see that the trial is carried about and eventually concluded expeditiously before the memory of the witnesses and the genuineness of evidences fade out. The criminal trial does not mean only doing the justice with the accused but also with the victim and society, so that law and order is maintained in the society.

For this to happen, an act of Arrest plays a crucial role. Firstly, an Arrest ensures the appearance of the accused in the court of law for the trial. Once, a person has been arrested, he is taken into police custody and this ensures his appearance in the court since there is no scope for him to evade the trial.

A police officer can arrest an accused if the offence committed comes under first or second category of offence. Arrest can be made under a third category in which the police is of the opinion that the accused will fail in making the required court appearance as per the summons sent to him.

Secondly, an act of Arrest is an urgent recourse when there exists serious, immediate and imminent security threats to the society and citizens at large for example in cases of terrorist activities or repeat offenders like serial killers.

Limitation on the Power of Arrest

The criminal Procedure Code, 1908 confers fairly extensive powers of the arrest mainly to the police in various Sections i.e Sec. 41, 42, and 151 of the code. There are number of the instances, which shown how the police officers are misusing this power. Therefore, the concept of the arrest procedure must be in consonance with Art. 21 and 22 of the Constitution of India. Hence, it is the duty of the magistrate to ensure that all the requirements of the arrest have been duly fulfilled.

A new Section 436-A of the Cr.P.C. which deals with the “Maximum period for which an under trial prisoner can be detained”. The purpose of this Section is to ensure the human rights of the arrested person. Now it is up to on judiciary for full realization of this right. Moreover, court should also keep in mind the Section 310 of the Cr.P.C. which mentions that any Judge or Magistrate, at any stage of enquiry after serving due notices towards the same to the parties, and visit and inspect any place concerned with the offence committed.

Therefore, it is clearly evident from the above Section that magistrate has an ample amount of power for proper realization of human rights at any stage of any inquiry.

Arbitrary Arrest and the view of the Judiciary on the same

The power of the police to arrest is also often very grossly abused. There have been several instances in the past in which the arrest a person has been held to be illegal under the laws prevalent. Now, arbitrary arrest isn’t restricted to the cases of first arrest. Illegal detention such as those in which the accused is still detained even after the court’s verdict has acquitted him of all charges shall come under the ambit of Arbitrary Arrest.

One classic example of the same can be found in the landmark case of Rudal Shah v. State of Bihar In this case, the petitioner was detained in prison for over 14 years after the court had acquitted him. He filed a Habeas Corpus petition under Article 32 of the Constitution of India claiming his detention was unlawful and demanding compensation and other reliefs for the same. The court decided that the detention of the petitioner even after acquittal was indeed unjustified and unlawful. This can be analyzed by following cases.

There are numbers of the cases where Apex Court directed various guide lines regarding the arrest for example in D.K Basu v. State of West Bengal in instant case court streamlined the procedure relating to the arrest. Court reiterated in this case that, protection from arbitrary arrest flows from Article 21 and 22 (1) of the constitution and are to be enforced strictly. The Supreme Court in Joginder Kumar v. State of the U.P. has put clear restrictions on the powers of police to make arbitrary arrests.

The above cases are really, path breaking judgments that are glaring examples that show how the power of arrest is not a complete authoritative power in the hands if the government and is infact subject to certain restrictions or limitations mostly owing to the fundamental constitutional rights guaranteed to every citizen by the State.

Need for Providing Statutory Protection against Abuse of Power of Arrest

Notwithstanding the cases discussed above, it can safely be presumed that the directions and guidelines contained were duly published by respective Directors General of Police of all the States and the same were brought to the notice of all the police officers but still that did not stop the complaints of abuse of power of arrest to recede. There have been several examples of such exercise of abuse of power in the past, and the scenario, sadly, still continues in the present day.

Hence, The Law Commission believed it to be suitable to do something more to prevent the abuse and misuse of the power of arrest while at the same time not compromising the overall interest of the society at large in peace and law and order. It is, therefore, highly crucial to lay down suitable legal provisions not only incorporating the suggested rules and guidelines, but also incorporating such changes in law as might be necessary to abort abuse/misuse of the said power while at the same time ensuring that interest of the society in maintenance of peace and law and order is not jeopardized.

Frequently Answered Questions:-

What is an Arrest warrant ? Can one be arrested without a warrant ?

An arrest warrant is a document that authorizes police to arrest a person that they suspect has committed a crime. A magistrate will issue an arrest warrant if a police officer submits a sworn affidavit showing probable cause that a specific crime has been committed by the person named in the warrant. Yes, one can be arrested without a warrant. Typically, if a police officer has probable cause to believe that a crime has been committed, the officer may make an arrest without an arrest warrant. There are two exceptions to this general rule. First, absent exigent circumstances, officers must obtain an arrest warrant before arresting a suspect in their home. Second, most jurisdictions require an officer to obtain a warrant to arrest a suspect for a misdemeanor offense, unless the misdemeanor was committed in the officer’s presence.

What are the rights available to the person getting arrested ?

Those who have been arrested have a number of rights after arrest, including:
• The right to know what charges have been brought against them.
• The right to be told the identity of arresting officers.
• The right to communicate by telephone with an attorney, family, friends or a bondsperson.
• The right to remain silent if questioned by police.
• The right to be represented by an attorney before speaking with police.

Are arrest warrants public information or are kept private ?

In general, arrest warrants are public information, although if the wanted person in question is considered a flight risk, the court may decide to keep it hidden until after it has been served.

What is a false arrest ? Is false arrest a crime ?

False arrest is an arrest made without a warrant or probable cause. False arrest is a form of false imprisonment conducted by a party who claims to have authority to make the arrest. It can be had against law enforcement, but false arrest is more commonly prosecuted against private security firms. False arrest is a common law tort, where a plaintiff alleges they were held in custody without probable cause, or without an order issued by a court of competent jurisdiction. Although it is possible to sue law enforcement officials for false arrest, the usual defendants in such cases are private security firms.
False arrest is the unlawful restraint of a person’s freedom of movement. It can occur any time one person:
• holds another individual against his or her will or
• takes another individual into custody without consent or without legal justification to do so.
It’s important to note that any person can be liable for false arrest — not just police officers.
What you have to prove can vary depending on the applicable law. Typically, however, the person bringing the lawsuit (the plaintiff) must show that:
• the person they’re suing for false arrest (the defendant) intended to confine the plaintiff
• the plaintiff was conscious of the confinement
• the plaintiff did not consent to the confinement, and
• the confinement was not otherwise privileged

When is an Arrest Warrant necessary ?

The answer involves a doctrine that has evolved from the Fourth Amendment called the “expectaton of privacy” doctrine. This looks at the level of privacy a reasonable person expects in the area of police intervention. The lowest being when one is out in the public, the highest being in a person’s home. Because of that privacy concern, the court said in Payton v. New York (1980) that ” to be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant.”

Edited by Vedanta Yadav
Approved & Published – Sakshi Raje


Chiranjeeb Prateek Mohanty
I am Chiranjeeb Prateek Mohanty from National Law University Odisha pursing BA.LLB. (Hons.). The sphere of Criminal Law, Intellectual Property law and Media Law attract me the most. If at all I get any free time, I like reading books mostly of the Fiction genre, more specifically, the Crime-fiction. Apart from that I like watching shows and movies, again, mostly crime-thrillers. I am an enthusiastic debater who loves taking part in any debates, moots or conferences that have a theme of any contemporary legal or socio-political issues. I am a good listener and the kind of person one would want in a team because I believe in team-work. I like being the leader and working with the team while keeping in mind the various responsibilities that a leader has to undertake and deliver. I also like hitting the gym and working out.