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Author: Shreya Roy, III year of B.A.,LL.B(Hons.) From Xavier Law School, St, Xavier University, Kolkata.


Section 41 of the Criminal Procedure Code, 1973 sets forth 9 categories of cases when police may arrest without warrant and without an order from the Magistrate. Section 41 grants the power of arrest to a Police Officer who is also subjected to limitations and several rules. 

Despite the law which clearly lays down the procedures for the exercise of the power of arrest, several cases have arisen where we see Police Officers misusing the power for undisclosed purposes leading to harassment of the public in general. Often, we have seen Police officers misusing the powers of arrest working under the dictates of people in power for the fulfilment of deceptive intentions as we have seen in the case of Bhim Singh Vs. State of Jammu & Kashmir, where a member of the Legislative Assembly was arrested to prevent him from attending the Assembly Session. Therefore, these days too we have seen despite clear mention of laws cases of arbitrary and illegal arrests taking place to satisfy personal or political vengeance or for various other rationale.


From a series of landmark cases like D.K. Basu Vs. State of WB, Joginder Kumar, Nilabati Behera Vs. State of Orissa, State of MP Vs. Shyam Sunder Trivedi, we can summarize the guidelines given by the Supreme Court in respect to the procedural requirements for arrests:

  1. The police officer carrying out the arrests and interrogations must have accurate, visible clear identifications with name and with their designation. The details of the Police Officers who handled the interrogation must be recorded in a register.

  2. The person who is arrested should be informed about the reasons for his arrests and has the right to inform his relatives, family or friends about his detention. The place from where the detention is made an entry must be made in the diary and shall also contain the name of the friend or family or anyone to whom the information of his arrest and details of the police officials is given. 

  3. The police officer making the arrest must prepare a memo of arrest which shall be attested by at least one witness who may be either a family member of the arrestee or any responsible person from the locality from where the arrest is made. It should be signed by the arrestee along with the time and date of arrest must be mentioned.

  4. The arrestee where he so requests must also be examined at the time of his arrest for major or minor injuries if any present on his/her body and must be recorded. The ‘Inspection Memo’ must be signed by both the arrestee and the police officer and a copy of it has to be provided to the arrestee.

  5. Medical Examination must be conducted by a trained doctor on the arrestee every 48 hours during his detention in custody (in Tehsils and districts as well) by a doctor appointed by the Director, Health Services of the State and Union Territory concerned.

  6. Every district and State headquarters must have a police control room where information about any arrest and place of custody of the arrestee must be communicated by the officer making the arrest within 12 hours of the arrest and there it should be displaced in a conspicuous notice board.

  7. The arrestee had the right to meet his lawyer though not throughout the investigation process.


Arrest means seizure and restriction of a person’s liberty and forcibly restraining him to pursue his or her activities and movements and keeping him in legal or judicial or police custody. The concept of arrest has several negative implications in accordance to the Arvind Kumar’s case which of them are:

  1. Arrest brings with itself a scar that stays forever, and is also a source of indignity.

  2. Arbitrary arrest is nothing but a tool of harassment and maltreatment which affects the person both physically and mentally.

  3. Then sometimes the power of arrest is the origin for public corruption.

The police officers should consider and analyse all the situations before arresting a person, whether it is necessary for exercising such a vast power and what purpose will be served by the arrest and if arresting the person is the last of all the options then arrest should be made according to the guidelines mentioned by the Supreme Court.

When the arrest of a person is not required under the provision of Section 41 of Cr.P.C, then the police officer can simply issue a notice to the person against whom a reasonable complaint has been made or there is a suspicion, that he has committed a cognizable offense, to appear and if he complies with such notice then then arrest should not be made. But if he thinks that for preventing the commission of further offenses or the arrest is necessary for following purposes:

  1. for investigation of the case;

  2. to prevent the accused from tampering with the evidence;

  3. for preventing a person from making threat or inducement or to a witness so as to dissuade him from disclosing facts to the court or the police officer, 

  4. unless the presence of accused in the court cannot be ensured;

The police officer can arrest the person according to the proper guidelines.


In any case the dignity of an accused person shall not be jeopardized by not following the procedures of arrest laid down in Section 41 of Cr.P.C.

In the case of Charu Khurana Vs. Union of India, the Supreme court held the word ‘dignity’ as Something which has a high value and is a classic attribute of a personality. When the liberty of a person will be restricted due to practice of unlawful manners it will affect him in several ways and will leave him disturbed, in distress and will be emotionally weak which will be an assault on his/her identity.

Often harassment caused to people in custody puts them in trauma and Mehmad Nayyar Azam’s case explains harassment as mental disturbance and troubling of the spirit which includes mental and psychological harassment as well. 

But the law of the land protects the dignity of a citizen. Article 21 of the Constitution acts as a protector and prevents a person from all kinds of harassment. The person has the right of claiming compensation because of the consequences of illegal arrest and the quantum of the compensation will be decided on the amount of harassment and pain he has been subjected to.


  1. Article 22(1) of the Constitution of India provides safeguards for a person arrested like:

(i) he has the right to be informed about the grounds of his arrest,

(ii)right to be produced before a magistrate within 24 hours of his arrest,

(iii) right to consult and be defended by a legal practitioner of his choice. 

If these are not followed the detention becomes unlawful.

  1. There should not be unnecessary and unreasonable restraint exercised to prevent escape as given under Section 49 Cr.P.C

  2. Under Section 50(2) of Cr.P.C where the police officer has arrested the person without warrant other than a person accused of a non bailable offence he shall inform the arrestee that he is entitled to be released on bail and may arrange for sureties on his behalf.

  3. The person arrested has the right to be examined by a medical practitioner under Section 54 of Cr.P.C if he claims that such an examination may lead to a detail which might proof that he has not committed the crime or towards evidence about the commission of the crime by some other person.

Every person has a right to of freedom of movement and theses constitutional safeguards and statutory safeguards prevent a person from arbitrary and illegal arrests. These rights help an accused from illegal torture and helps him to defend himself when he is not the person who has committed.


Our country needs a comprehensive Bail legislation because most of the people in prisons are undertrials and are poor and uneducated and therefore are not able to get monetary bail. The police officers are quick to make arrest but the less privileged people cannot take the advantage of the legal system unlike those with education and influence.

Bail applications keep on pending for months and unnecessary arrests without bail adds to the distress. In Higher Courts too appeals by the convicts are pending and they deserve bail if there is no fault of theirs.

The 2014 Arnesh Kumar case guidelines cannot be undermined by the Police officials. The judgement had asked the police officials to record reasons if any arrest has been made by them and the Magistrate must grant bail if the reasons do not make a good persuasive bail.

“The power of arrest must be used sparingly.” and courts must grant immediate bail for minor offences. “Quick Bail is a good corrective against unnecessary arrests.”


Basic Human Rights must be protected for the growth of the society. Arbitrary arrests are not only a problem in India but around the world as well. Often a civil case is given a colour of a criminal case and arrests are made for devious reasons. These cases must be a “cognizable offence” punishable by law. The guidelines of the various landmark cases must be incorporated in Section 41 of Cr.P.C so that the arrests happen in a proper procedure where regular case diaries with reason and records shall be maintained for production in the court whenever required. there’s still scope for more improvement and demarcations and clarities and explanations needs to be there in the statues. So, this year when we celebrate the 75th Independence Day of our country we must pledge together to remove all human rights violation and that proper implementation of laws are followed.


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