There has been a controversy over the decades about the legitimacy of law enforcement of Preventive detention. Preventive detention is undertaken primarily to deter an offender from committing a potential cognizable offense.

 Historically, the preventive arrest was used infamously in India under British rules under the 1818 Bengal State Prisoners Legislation to detain or arrest someone guilty or suspected.

The primary aim of criminal law is to defend society from offenders and law-breakers. The Penal law is composed of both Procedural and Substantive law. In India, the Indian Penal Code, 1860, is substantive law, and the Code of Criminal Procedure, 1973, is Procedural law, in which the whole process leading to the arrest of a person who has committed some offense is stated. Chapter V of the Criminal Procedure Code, 1973 deals with the detention of an individual in compliance with Sections 41 to 60.

What is Arrest?

The word “arrest” is not defined anywhere, but it can be explained as “a seizure or physical restriction, an exercise of power to deprive a person of his or her rights.” The main aim of the arrest is to put the offender before a judge and secure law enforcement. An arrest also serves the function of notifying the organization that a specific person has committed an act against its Society, and serves as a comment for future crime prevention.

However, even if a person against whom no charges have been made can also be detained for certain reasons such as removing from one place to another in safe Custody. Arrest should not be confused with custody, as a person’s judicial custody is imposed by a judge on conviction after a person’s arrest. Custody is in every arrest but not vice-versa.

Who is authorized to arrest?

The Criminal Procedure Code empowers three individuals to enforce the arrest motion. They are as follows:

  1. A police officer with or without a warrant according to the type and seriousness of the offence,
  2. A Magistrate,
  3. A private person can arrest another person who commits a non-bailable crime in his presence, is convicted of a cognizable offense, or is declared a criminal.

Arrest without warrant

Under certain circumstances, the police officers may arrest a person without a warrant. The prerequisite for arresting a person without a warrant referred to in Section 41 of the Code is as follows:

  1. Who has been involved in a known crime such as murder, rape, robbery or is suspected of committing a known crime punishable by imprisonment of 7 years or more or against whom a complaint was lodged about such involvement.
  2. Who has owned some housebreaking weapon without any justifiable reason.
  3. Who has been named offender under either the Code of Criminal Procedure or any other order by the government of the state or any legislation in effect.
  4. Who obstructs any police officer when carrying out his duties, or who has fled or tried to escape from legal custody.
  5. Who has been concerned in any law or against whom a reasonable complaint has been lodged or credible information has been received of his involvement in an act committed anywhere outside India, if committed in India, would be liable to punish an offence for which he is liable to be arrested or detained in the custody of India.
  6. Who is fairly believed by some of the Union’s Armed Forces to be a deserter.
  7. Whoever is released as a prisoner violates any law referred to in Subsection 5 of sections 356e. the state government must be told that it makes the rules for applying the provisions of this section relating to registration of residence or change of residence.

For whose arrest request was issued from another police officer, given that the request must identify the person to be arrested and the reason for the arrest and it appears that the person must be arrested legally without a warrant.


On 26.08.86, DK Basu, Executive Director, Legal Aid Services, West Bengal, a non-political organization addressed a letter to the Indian Chief Justice drawing his attention to some news items reported in the Telegraph Newspaper concerning deaths in police lock-up and custody. He demanded that the letter be handled with the category Public Interest Litigation as a Writ Petition. Given the significance of the concerns posed in the letter, it was regarded as a written petition, and the respondents were given notice. While the Writ Petition was being considered, Mr. Ashok Kumar Johri sent a letter to the Chief Justice drawing his attention to the death of one of Pilkhana’s Mahesh Bihari, Aligarh in Police Custody.

Indeed the same letter was dealt with as Writ Petition and was identified along with DK Basu’s writ petition. On 14.08.87, the court issued an order issuing notices to all the governments of the state and a notice was also sent to the Law Commission of India demanding reasonable suggestions within two months.


  1. The problem in this case was Custodial Torture and Police Deaths?
  2. Do cops arbitrarily arrest a person?
  3. Are there any instructions given for making an arrest?

Issue answered:-

  1. Policemen should not behave arbitrarily while they arrest a human. And a policeman has to follow certain rules.
  2. Yes, when arresting an individual the court had set out a range of rules.


In this case, the court said the deaths from lock-ups need to be minimized. It will take a toll directly upon the public’s confidence in law and order. The Supreme Court has ordered all the high courts to review the specifics and punishments levied on prisoners in the goals. They were asked to provide a comprehensive list of all the people arrested and who have ever been in lock-ups.

Special Rights of women

  1. Only another woman can scan for females with strict privacy and decency in mind (Section 51 of the Code)
  2. Female offenders must be held at the police stations in a separate lock-up. Female offenders must be held at the police stations in a separate lock-up.
  3. If a woman is arrested for an offense that is not liable, even if the offence is very serious, the court can release her on bail (Section 437 of the Code)


The Supreme Court has also raised the question of women being arrested between dusk and dawn. Modifying the Bombay High Court order that no “female person to be arrested without the presence of a constable lady and in no case at night” be held by the court that all efforts should be made to keep a constable lady present but strict compliance can trigger practical difficulties in investigating agencies and rom for evading the process of law by unscrupulous accused.

The court, therefore, ruled that when arresting a woman, every attempt should be made to retain a lady constable, except in circumstances where the arresting officers are fairly sure that the presence of a lady constable is inaccessible or necessary and that the delay in arresting the accused by securing the presence of a lady constable will hinder the progress of the investigation; such officer for reasons to be recorded, be permitted to arrest a female person at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.

This position has now been incorporated into Section 46(4), in which women police are required in extraordinary circumstances to seek prior permission from First Class Judicial Magistrate under whose jurisdiction the crime is committed or arrested.

Arrest on refusal to give name and residence (Section 42)

If any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offense refuses to give the name and residence of such officer at the request of such officer, and if given reason to believe that such officer is false, such officer may arrest him to establish his name or residence.

  1. When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if required. Provided that if that person is not residing in India, protection residing in India shall protect the bond.
  2. If it is not ascertained within 24 hours from the time of arrest, or if it fails to enforce the bond, or if possible to provide adequate protection, it shall forward it to the Magistrate with jurisdiction nearest it.



Nathu Banjara was tortured at the police station, Rampura during the interrogation. As a result of extensive injuries caused to him, he died in police custody at the police station. The defense set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10:30 p.m after interrogation itself and about 7:00 a.m. a death report was recorded at the police station, Rampura. One of the respondents said that he had found “one unknown person” near a tree by the side of the tank rigging with pain in his chest and as soon he reached near him the said person died.[4]


If a detained person runs out of detention and found dead, then who was responsible for the death?


The accused Trivedi Sub-Inspector has been found guilty of framing incorrect writing and recording to save people responsible for beating the deceased Nathu Banjara and causing his death in the Rampura Police Station and is also found guilty of supplying false information to screen offenders from legal punishment. As such, he is convicted of the crimes punishable under Indian Penal Code sections 218 and 201. He is sentenced to two years in prison on each of the two offenses. However, the sentences are to run concurrently.

Arrest by a private person without a warrant (Section 43)

Any private citizen may arrest or cause any citizen to be arrested in his or her presence who commits an offense that is not liable and identifiable, or any proclaimed offender shall, without undue delay, be made to arrest a police officer or, in the absence of a police officer, take such person or cause him to be taken into custody at the nearest police station. Based on his own experience and seen from his own eyes, he can do it. If the private person arrested under this section does not follow the following arrest procedure as specified in this section, he may be prosecuted for the offence of unlawful imprisonment under IPC Section 342.

Arrest by Magistrate (Section 44)

When an offense is committed within his local jurisdiction in the presence of a Judge, whether executive or judicial, he can arrest himself or order another person to arrest the offender regardless of the nature of the offence. Even if, in the presence of such a Magistrate, no such crime is committed, but if the Magistrate is qualified to issue a warrant for the arrest of any person and the person is present before him, he may arrest that person.


This segment has been integrated to save Armed Forces veterans. It says that no member of the Union’s Armed Forces shall be detained for anything done or alleged to be done by him in the course of his official duties except after obtaining the Central Government’s consent.

The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression Central Government occurring therein, the expression State Government were substituted.[5]

Arrest how made (Section 46)

In making an arrest, the police officer or other person doing the same shall contact or confine the body of the person to be detained, unless there is a word or action application to the custody.

If such a person refuses the effort to arrest him forcefully or attempts to evade the arrest, such a police officer or another person may use any means necessary for the arrest to take place. Nothing in this section provides the power to cause the death of a person who is not charged with a death-punishable offence or life imprisonment.

Arrest to prevent the commission of the cognizable offence (Section 151)

A police officer who is aware of a plan on how to commit some cognizable offense may arrest the person so designing, without a Magistrate’s orders and a warrant, if it appears to such officer that the execution of the offense can not otherwise be prevented.

No person arrested shall be held in custody for a period exceeding 24 hours from the time of his arrest unless, for the time being, his further detention is necessary or permitted under any of the provisions of his code or any other law.


Here we hit the end of our ‘arrest’ report. As we go through the pages, it can be reasonably inferred that ‘arrest’ serves as a ‘power’ to the police officers being ordered to do so, or that the judge who can do so clearly based on opinions. However, when it comes to an arrest made by a ‘private citizen’ there must be few issues lying. Perhaps not many people would be aware of the fact that, in its rules, the Code of Criminal Procedure allows a reasonable person to arrest a suspect, but only when he sees him committing an act prohibited by statute.

On top of that, the arrested person is also given quite a few rights to deal with any injustice that might happen to him while in detention.

We discussed how people can be detained without a warrant. But by going through the Commission’s data on arrest rule, we realize that this power to protect peace in society is being misused due to people’s lack of knowledge of their rights.

A person’s arrest affects his personality with a demoralizing and diminishing effect. The person so detained becomes scandalous, isolated, and aggressive. Therefore a balance should be established between state protection and individuals’ right.

[1] Dk Basu v. State of West Bengal (1997) 6 scc 642

[2] State of Maharashtra v. Christian community welfare council of india (2003) 8 scc 546

[3] State of Madhya Pradesh v. Shyamsunder rivedi & ors (1995(3) scale, 343).

[4] Poojatsk90, Arrest without warrant, Legal service India,

[5] Poojatsk90, Arrest without warrant, Legal service India,

Author –

Ms. Arpita Singh

BA.LLB (2nd Sem)

Indore Institute of Law