Unit 4-Arrest &a search &

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 Arrest- Procedurea &
arm
Rights of aarrested
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(S. 41 A-D, 46,47,50, 50A, 51-53, 53A, 54-54A, 55A, 56-57, 60A)
Rational behind arrest:

 By arrest, restraint is put upon the freedom of moment of the accused.

 Purpose is to balance the societal interest & individual liberty.
 For fair & effective investigation, there should be no hindrance. Therefore,

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for grave & heinous offences there are chances that accused be absconding or
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may threaten witnesses etc. thereby arrest is made.
Stoharrest an accused.
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It is not mandatory upon lPO
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 Types of arrest:
1. When PO arrests without warrant(S.41)-

When cognizable offence Information received of any cognizable

committed in his presence offence, more than 7 yrs or complaint

Proclaimed Stolen Escaped

deserter obstruction requisition
offender property
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extradition
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Reasons be recorded for arrest in writing by PO, if 7yrs. or less punishment.
2. Arrest in non-cognizable cases (S.42)-
3. Arrest by private person(S.43)-
4. Arrest by judicial/executive mag.(S.44)-
 Nature of offence can be cognizable or non-cognizable.
 Offence be committed in presence of mag. Or accused is present in front of him.
 Procedure for arrest:
S.54A TIP
S.51/52
(test
S.45 protection Search of
S.47 Search of S. 48 Pursuit of identification s.55
of member of arrested
place entered by offenders into other pared) Procedure when
armed forces person/power to
jurisdiction Arrestee can PO asks
inform arrest. person sought to seize offensive
subject himself subordinate to
be arrested- if weapon- memo arrest without
any women inside to TIP by any
is to be made. warrant.
& due to customs other person
she can’t come S.60 power on
out. escape, to pursue S. 164A
& retake S.53 examination of S. 53A accused of Examination

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From whose accused by medical rape- medical of rape

S.59 discharge of person apprehended

a rmcustody person practitioner at the examination (if no victim with

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escaped has power request of PO govt. hospital consent of

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only on bond, bail or procedure before

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to arrest from women or

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within 50Km then

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mag.

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anywhere in India. go to pvt. Hospital) guardian in

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24hrs.
 Safeguards for arrest:
s. 57 – produce S.50 inform
S.58 report to
arrestee within arrestee Information
DM S.46
24hr to the grounds of about
mag. reasonable
arrest & his bailable
force be used
right to bail offence

S.50A/41B inform
family & friends S.53/54/53
(daily dairy) S.41B arrest
A- medical S.41D
memo
examinatio

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lawyer

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S.41C- control S. 49- no unnecessary
room @ district & health &
safety restrain
state

For women to arrest-

women PO is required
& not before sunrise
& sunset.
Cases:

 D.K. Basu v. State of west Bengal (1996)

 State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 33
 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

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 Case: D. K. Basu v. State of West Bengal, (1997) 6 SCC
642 30
Facts: Mr. D K Basu, addressed a letter (a postcard) to the Chief Justice of India drawing his attention to
certain news items published in newspapers regarding deaths in police lock-ups and custody.
 It was requested by the petitioner that the letter along with the new items be treated as a writ petition
under ‘public interest litigation’ category.
11 Guidelines for Arresting a Person:

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1. Police personnel arresting and interrogating suspects should wear “accurate, visible and clear”
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identification and name tags with their designation. The particulars of all such police personnel who
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handle interrogation of the arrestee must be recorded in a register.
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2. A memo of arrest must be prepared at the time of arrest. This memo should have the time and date of
arrest. This memo must be attested by at least one witness who may either be a family member of the
person arrested or a respectable person of the locality where the arrest was made. It must be counter-
signed by the person arrested.
3. The person arrested, detained or being interrogated in custody in a police station or interrogation
center or other lock up has a right to have a relative, friend or well-wisher informed as soon as
practicable, of the arrest and the place of detention or custody. If the person to be informed has signed
the arrest memo as a witness this is not required.
4. Where of the person arrested lives outside the district, the time and place of arrest and venue of
custody must be notified by police within 8 to 12 hours after arrest. This should be done by a
telegram through the District Legal Aid Authority and the concerned district and police station.
5. The person arrested should be told of the right to have someone informed of the arrest, as soon
as the arrest or detention is made.
6. An entry must be made in the diary at the place of detention about the arrest, the name of the

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person informed and the name and particulars of the police officers in whose custody the person
arrested is. This should include details of all events from police officers leaving police station arrest
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to bringing the arrestee to the custody. It includes details all police officers involved, mode of
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transportation including details of vehicle used. It should also disclose the name of the next friend
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of the person who has been informed of the arrest.
7. The person being arrested can request a physical examination at the time of arrest. Minor and
major injuries if any should be recorded. The “Inspection Memo” should be signed by the person
arrested as well as the arresting police officer. A copy of this memo must be given to the person
arrested.
8. The arrestee must have a medical examination by a qualified doctor every 48
hours during detention in custody. This should be done by a doctor who is on the
panel of approved doctors, which must be constituted by the Director of Health
Services of every State or union territory. Director, Health Services should
prepare such a penal for all Tehsils and Districts as well.
9 Copies of all documents including the arrest memo have to be sent to the Area
Magistrate for his record.
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10. The arrestee has a right to meet a lawyer during the interrogation, although
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not throughout the interrogation.
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11. There should be a police control room in every District and State
headquarters where information regarding the arrest and the place of custody
of the person arrested must be sent by the arresting officer. This must be done
within 12 hours of the arrest. The control room should prominently display the
information on a notice board.
 State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 33
 This case came up in two appeals.
 Question was-In these two appeals it is to be decided what constitutes arrest & custody?
 FACTS:
 FIR was filled against the accused Dinesh, he approached to the mag. for bail and he got bail & later on he was acquitted in the case. (appeal I)
 Lalit & Bhupendrer also applied for bail, in a case where FIR was filled against them, they were released on bail & later got acquitted. (appeal II)
 All three persons applied for the post of constable (driver) & filled the form. There were two ques. In the form-

1. Have you ever been arrested?

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2. Were you convicted any time?

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Dinesh answered in negative for both ques.
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Lalit & Bhupindra withheld this ques. 1 & did not answered.

DGP rejected all of their candidature for hiding information.

 They went to Punjab & Haryana High Courts.
 For Dinesh: court said he be appointed for the post as they were never arrested or convicted.
 For Lalit & Bhupindra: court said not to be appointed as they withheld the information.
 Matter went to Supreme court- legal que involved was

“what constitutes arrest & custody”?

 S. 46 CRPC – arrest how made?
 In making an arrest the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by
word or action.
 If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means necessary to effect the arrest.
 No women shall be arrested after sunset and before sunrise.
Supreme Court:
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while considering the que. Of whataconstitutes
l i S h arrest & custody in relation to criminal proceedings,

never been arrestedn a

onj his appearing before the court & being granted bail immediately, it would
SC held that it may not be altogether unreasonable to except a layman to construe that he had
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amount to arrest only. Position might have been different, had person concerned not been released
on bail.
But the supreme court took a liberal view in the case. SC allowed all of them to join the post & their
salary be given from the date of this judgment.
 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
 This petition was filed by the appellant apprehending his arrest in a case under S. 498-A of IPC & section 4
of Dowry Prohibition act, 1961.
 Case is related to dowry. FIR was filed by the wife against husband u/s 498A (cognizable offence) . He
applied for anticipatory bail in the case.
 His anticipatory bail was rejected & he filed SLP in Supreme Court.
 Supreme court gave guidelines related to misuse of s. 498A.

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Mandatory Directions given in the case-
The Supreme Court of India under Para 13 of the judgement in order to ensure that police officer do not arrest the accused unnecessarily
and magistrate do not authorize detention, the Court giving the following directions:
1. All the State Government should instruct its police officers not to automatically arrest a person when an offence under section 498-A of
the Indian Penal Code is registered. The necessity of arrest arises when the case falls under the parameter of section 41 of the Code of
Criminal Procedure.
2. All police officers be provided with the check list containing specified clauses under Section 41 (1) (b) (ii). For example if there are

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chances of him committing further offence or tempering the evidences, inducing threat or promise etc. then arrest shall be made.
3.

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The police officer shall forward the check list duly filed and furnished with the reason and material necessitated the arrest while

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producing accused before the magistrate for further detention.

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4. The magistrate while authorizing the order of further detention shall rely upon the report furnished by the police officer and only after
recording the reason duly furnished on Police report and on the satisfaction, the Magistrate will authorize further detention.
5. The decision not to arrest an accused be forwarded to Magistrate within two weeks from the date of institution of the case with a copy
of Magistrate which may extended by the Superintendent of police of the district for the reason to be recorded in writing.
6. Notice of Appearance in terms of Section 41-A of the Code of Criminal Procedure be served upon the accused within two weeks from
the date of institution of case which may be extended by the Superintendent of Police after recording the reason in writing.
7. Failure to comply with the directions mentioned above shall rendered the police officer liable to be punished for contempt of court
before High Court having jurisdiction.
8. Authorizing detention by the Judicial Magistrate without recording the reason, the concerned Judicial Magistrate shall be liable for
Departmental Proceedings by the High Court.
 Dk basu case pertains to the rights of the arrested person.
 Arnesh Kumar v. State of Bihar this case talks about a situation when can a
person be arrested in case which are punishable with upto 7 yrs
imprisonment. The guidlines are applicable only in case of offences
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punishable with upto 7 years of punishment.
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Search
a l i S h a & seizure
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Search:

Within police Outside police

Outside India
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station
station

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s. 165
l i Sh s. 166
s. 166A

n j a Letter of request

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 Provisions for search & seizure

S. 165: Search by police officer.

 PO if thinks search is necessary for investigation he can do so.
 For this PO should record reasons in writing, specifying things to be searched.
Otherwise, it will be illegal.
 S. 100 & S. 165 be complied with.

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S. 166: when a police officer is in charge of a police station he may
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S to issue the search warrant
require another iperson
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Anauthorizes an officer in charge of one PS to get search made by
This section
another officer-in-charge of Police Station.
S. 166A: Letter of request for investigation in other country (outside
India). Such request shall be sent through govt. of India.
s. 166B: search to be made in India by country outside India.
 Search:
 Search with warrant(search warrant)- given by court order. Ordered in cases like- stolen property,
documents or things necessary for investigation in trial, search of any seditious or obscene matter etc.
 Search without warrant- when there is no time to obtain a search warrant & immediate search is necessary
for the purpose of investigation.
 Search can be made of:-
 Personal searches- conducted immediately after a person is arrested & taken into the custody.

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House search- conducted prior to arrest or after the arrest as per the needs & demands
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behmade be mentioned while conducting search.

Grounds of PO to believe searchS
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Procedure for search- n
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 atleast, 2 witnesses of locality be present at search.
 search shall be conducted in their presence & list of things seized be signed by them.
 the occupant of the place or his representative shall be allowed to be present during the search & a copy of
the search list signed by the witnesses shall be given to him
 before commencement of the search the PO & the witnesses should be searched, so that there may not be
suspicion of something extraneous (irrelevant) being planted in the house or the place to be searched.
 Normally search be made in day light.
 Personal articles of person shall be kept in the custody (malkhana).
 other property should be returned to him or his nearest kith & kin when is
remanded to custody.
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rorder of custody of such property until
 custody of property- court may h
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made
pendency of trial.
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 Seizure:
 a seizure refers to the collection of evidences by the law enforcement officials & to the arrest of
person.
 an arrest occurs when police officer takes a person against his or her will for questioning.
 search & seizure is a necessary exercise in on going criminal prosecution pursuit of criminals.
 Every PO shall forthwith report the seizure to the magistrate having jurisdiction & where the

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property seized is such that it cannot be conveniently transported to the court, he may give custody
thereof to any person on his executing a bond undertaking to produce the before the court as and
when required ( S. 102 CRPC)
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l sent to the court without delay within the reasonable time.
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The seized article should be
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