Procedure of Arrest & the

Rights of Arrested Person

Chapter V, Ss 46 - 60A
Learning objective Ss 46 - 60A
How the arrest is made

What powers have been given to persons making arrest to

facilitate their work

What restrictions are put on the exercise of these powers for

safeguarding public interest

What rights are given to the arrested person for facilitating

his defence

What are the legal consequences flowing from non compliance of

these rules
Meaning of Arrest
Arrest means the deprivation of a person of his Liberty

Example example when a police officer arrest a a pickpocket

authority must be lawful
Arrest How Made
Section 46 discusses how arrest is to be made

While making an arrest the police officer shall actually touch or confined the body
of the person who is to be arrested

However if there is a submission to the custody by word or action then touch or

confinement is not necessary

the police officer making arrest has all the rights to use all means necessary to
affect the arrest in situation where the person being arrested forcibly resists or
tries to evade the arrest

No police officer making an arrest has the right to cause the death of the person.
Exception where an accused is accused of an offence punishable with death or with
imprisonment for life and is evading.
Section 46 make special provision for arrest of
women
When a woman is to be arrested the police office officer shall not touch the woman
for making her arrest.

Her submission to custody on an oral intimation of arrest shall be presumed.

If however the person of the women is to be touched for making her arrest search is
to be done by a police officer who is female.

Sub-section 4 of section 46 make special provision for arrest of women stating that
no woman shall be arrested after the sunset and before sunrise however if
exceptional circumstances exists prior permission of judicial magistrate of first
class is required before the arrest
Resistance or Obstruction to lawful arrest has been
made punishable by the IPC
Sections 224, 225, B
Search of Place - Section 47
Section 47 - search of place entered by persons are to be arrested

There might be situation where the person who is to be arrested has entered into or
is within any place. For example inside a building.

In such situation the person who is residing in such place or is in charge of such
place must allow free ingress to the police officer and afford all reasonable
facilities for a search.

In case where free ingress to search place cannot be obtained then police officer
in order to to get an entrance into such place may break open any outer or inner
door window of any house or place.
This route is to be taken only when a notification of his authority has been given
and he cannot otherwise obtain admission into such place.

This provision is only applicable in cases where a warrant has been issued or where
a warrant may be issued but cannot be obtained without delay and the person to be
arrested has a probability of escaping.

When a police officer who entered such place looking for the person who is to be
arrested and in such a process is detained search police officer has all the lawful
authority to break open any outer or in a door window of any house such place in
order to liberate himself
Pursuit of Offenders - Section 48
In case of arrest without warrant a police officer can go to any place in
India for arresting search person who he is authorised to arrest.

Section 48 - to pursue search person into any place in India.

Similarly in case where arrest is to be made under warrant

section 77 provides that a warrant of arrest may be executed at any place in

India.
Deputing Subordinate To Arrest - Section 55
Where a senior police officer in his presence requires that a subordinate
police officer proceeds and arrest a person who maybe lawfully arrested
without a warrant then search subordinate officer is under a legal duty under
Section 55 to arrest.

Section 55 requires that when a senior police officer wants to send and
depute a subordinate for arresting a person without warrant, written order is
to be given to the subordinate.

The order should mention the person who is to be arrested and the cause for
such arrest
S 49. No unnecessary restraint
49. No unnecessary restraint.—

The person arrested shall not be subjected to more restraint

than is necessary to prevent his escape.
60. Power, on escape, to pursue and retake
If a person in 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 India.

The provisions of section 47 shall apply to arrests although the person

making any such arrest is not acting under a warrant and is not a police
officer having authority to arrest.
Post Arrest Procedure
51. Search of arrested person.

52. Power to seize offensive weapons

53. Examination of accused by medical practitioner at the request of police

officer

53A. Examination of person accused of rape by medical practitioner

58. Police to report apprehensions

59. Discharge of person apprehended

51. Search of arrested person.
When a person is arrested the police officer making the arrest has the powers
to conduct a search of the arrested person under certain circumstances.
Section 51 empowers this.

Under section 51 the officer making the arrest may search the person who is
arrested and place in safe custody all articles which are found upon him.
However wearing apparel is excluded from this.

After search seizure the police officer is duty bound to give a receipt
showing list of all articles taken by the police officer and such list is to
be furnished to the person arrested.
Applicability of Section 51
● Section 51 is applicable only in cases of arrest with a warrant which
does not provide for taking of bail or
● under a warrant which provides for taking of bail but the person arrested
cannot furnish the bail.
● In case where a person is arrested without warrant and cannot legally be
admitted to bail or is unable to furnish bail.

Section 51 is available only when arrested person is not released on bail

Section 51 subsection 2 to make special provision for search of female and

puts forward the contention that when female is to be searched the police
officer searching shall be female and search will be made with strict regard
to decency.
Seizure of offensive weapons section 52
When an offensive weapon is found in the person of of the person arrested

the police officer making the arrest under section 52

To seize such weapon and deliver it it to the court

Medical examination of accused after arrest section 53
Section 53 is applicable only in cases where the person is arrested for
committing an offence of such a nature where there are reasonable grounds for
believing that his examination will afford evidence as to the commission of
an offence.

Examination is to be made by a registered medical practitioner

Orders can be given only by a police officer not below the rank of sub
inspector

Force can be used for the purpose of examination under section 53

Special provision for examination under section 53 when accused is a female.
Subsection to talks about it

Examination shall be made only by or under supervision of a female registered

medical practitioner
Meaning of examination under section 53
Examination of blood blood stains simen swab in case of sexual offences sweat hair
sample fingernail clippings examination shall be done by using modern and
scientific technique including DNA profiling and such other tests which the
registered medical practitioner things necessary as per the case

Meaning of registered medical practitioner

A medical practitioner who possesses medical qualification as defined under section
2 h of Indian medical council act and whose name has been registered in state
medical register
Constitutional safeguards visa v section 53
Whether the provision of section 53 is violative of
constitutional privilege against self incrimination

State of Bombay vs Kathi Kalu 1961 2 CrLj 856

20 (3)

Section 53 is not violative of article 20 (3) and that a person

cannot be said to have compelled himself to be a witness against
himself if he is merely required to undergo a medical
examination in accordance with the provision of section 53
Identification of prisoners act 1920
Section 4 and Section 5 to be read with section 53 of of
criminal procedure code

Section 4 empowers a police officer to take measurements

including finger impressions of a person arrested in connection
with an offence punishable with imprisonment which may extend to
one year or more.

Section 5 provides that if in the opinion of a magistrate it is

expedient to direct any person to allow his measurements of
photographs to be taken for the purpose of investigation of
proceeding under the criminal procedure court may make an order
to that effect
Special provision for the examination of person accused
of rape by medical practitioner under section 53a
Where a person is arrested on charge of committing an offence of rape aur and
attempt to commit rape

and there exists reasonable ground for believing that an examination of his person
will afford evidence regarding the commission of such offence

Police inspector not below the rank of sub inspector can cause the examination of
person of such accused by registered medical practitioner employed in hospital run
by the government or by local authority
In absence of such medical practitioner any other registered medical practitioner
can cause this examination provided such practitioner is within the radius of 16
kilometres kilometres where the offence has been committed

If required force as reasonably necessary can be used

The registered medical practitioner shall prepare a report of such examination.
Contents of the report shall be as follows
The report shall state precisely the reason for each conclusion arrived at

The exact time of commencement and completion of examination

Registered medical practitioner shall forward the report to the investigating

officer who in turn shall forward it to to the magistrate
Report of arrest to be sent to to district magistrate under
section 58
In all cases of of arrest without warrant it is the duty of officer in charge
of the police station making the arrest to report to the district magistrate
about the arrest and whether such person have been admitted to bail or not
Person arrested not to be discharged except on bond
or bail section 59
Either on his own bond on bail or under the special order of magistrate.
Police cannot discharge him under their own responsibility
Rights of Arrested Person
1. Section 50(1) right to know the ground of arrest
2. 50(2) information regarding the right to be released on bail
3. Right to be examined by a medical practitioner section 54
4. Right to be taken before a magistrate without delay
5. Right of not being detained for more than 24 hours without judicial
scrutiny section 57
6. Right to consult a legal practitioner article 22 (1)
7. Right of an arrested indigent person to free legal aid and to be informed
about it
1. Right to know the grounds of arrest 50(1)
In cases of arrest without warrant, every police officer arresting any person
without warrant shall communicate to the person arrested full particulars of
the offence or other grounds for such arrest

In case of arrest with warrant section 75 provides that the police officer or
other person executing a warrant of arrest shall notify the substance to the
person arrested

In case of arrest under Section 55, such subordinate officer shall before
making the rest notify the substance of the written order given by the senior
police officer specifying the offence to the person arrested.

Constitutional safeguard under article 22(1) no person who is arrested shall

be detained in custody without being informed as soon as maybe of the grounds
for such arrest. This is also called the right to be informed of the ground of
arrest.
Joginder Kumar vs State of Uttar Pradesh and DK Basu vs
State of West Bengal - 50A
Incorporation of the ratio of these cases by enactment of section 50A

Publication of person making arrest to inform about the arrest to a nominated

person

It is the duty of a police officer making an arrest to give the information to

any of the friend relative or other nominated person regarding such arrest and
place where the arrested person is kept

It is the legal duty of police officer to inform the arrested person about
such rights

Special book is to be kept in the police station in which entry of the fact as
to who has been informed of the arrest of such person shall be made
2. Information regarding the right to be released on
bail section 50 (2)
In case of arrest without warrant where a person is arrested for an offence
other than non bailable offence the police officer shall inform the person
arrested about his right to be released on bail

The person arrested has to arrange for securities on his behalf

6. Right to be examined by medical practitioner under
section 54
Section 54 is applicable to any person who is arrested

Medical officer in the service of Central or state government shall examine

the registered person and in case where medical officer is not available
registered medical practitioner will examine the arrested person soon after
the arrest is made

A report of of examination of the arrested person is to be prepared mentioning

any injuries or marks of violence upon the person arrested and the approximate
time when such injury or marks have been inflicted

Copy of this report shalby furnished to the arrested person for the person
nominated by suggested person
3. Right to be taken before a magistrate without delay
Section 56 and 76 discuss this

Section 56 person arrested to be taken before magistrate or officer in charge

of a police station.

In case of an arrest without warrant the police officer without unnecessary

delay and subject to the provision of bail take the person arrested before a
magistrate or before the officer in charge of a police station

Section 76 person arrested to be brought before court without delay

In cases of arrest without warrant the police officer executing the warrant
without unnecessary delay bring the person arrested before the court. In no
case the delay should exceed. Section 76 is subject to provision of securities
as per section 71.
4. The right of not being DetainED for more than 24
hours without judicial scrutiny section 57
In cases of arrest without warrant section 57 provides that no police officer
shall detain in custody a person arrested for a longer period than 24 hours.
This is subject to special order of a magistrate under section 167

Article 22 (2)
5. Right to consult a legal practitioner article 22 (1)
Section 303 of the code of criminal procedure provides that any person against
whom proceedings are instituted has the right to be defended by a pleader of
his choice.

This right of an arrested person to consult his lawyer begin from the moment
of his arrest