Law on Arrest and Remand

In a free society like ours, the law is quite jealous of

the personal liberty of every individual and does not
tolerate the detention of any person without legal
sanction. The right of personal, liberty is a basic
human right, recognized by the general assembly of
United Nations, in its universal declaration of human
rights. This right has also been prominently included
in the convention on civil and political rights, to which
India is a party. Our constitution also recognizes this
fundamental right in Article 21,which provides as
under:-
"No person shall be deprived of his life or personal
liberty, except according to procedure established by
law"
2.Thus, the personal liberty, being the corner stone of
our social structure, legal provisions, relating to
arrest, have special significance and importance and
for that reason they have been incorporated in the
Criminal Procedure Code.
3.The relevant provisions regarding the arrest of the
persons, accused of the commission of an offence.
are contained in Sections 41 to 60.

4. Police can arrest a person without warrant

Section 41 Cr.P.C.
a) who has been concerned in any cognizable
offence, or against whom a reasonable complaint,
has been made or credible information, has been
received, or a reasonable suspicion exists, of his
having been, so concerned; or
b)who has in his possession without lawful excuse,
the burden of proving which excuse, shall lie on such
person, any implement of house breaking; or
c)who has been proclaimed as an offender either,
under this code or by order of the state government;
or
d)in whose possession anything is found which, may
reasonably be suspected to be stolen property and
who may reasonably be suspected of having
committed an offence with reference to such thing; or
e)who obstructs a police officer while in the execution
of his duty, or who has escaped, or attempts to
escape, from lawful custody; or
f)who is reasonably suspected of being a deserter,
from any of the Armed Forces of Union; or
g)who has been concerned, in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists, of his having been concerned, in ,
any act committed at any place, out of India, which, if
committed in India, would have been punishable, as
an offence, and for which he is, under any law
relating to extradition, or otherwise liable to be
apprehended or detained in custody in India. Or
h) who, being a released convict commits a breach of
any rule, made under Sub Section 356 or
i) for whose arrest any requisition, whether written or
oral, has been received from another police officer,
provided that the requisition specifies the person, to
be arrested and the offence or other cause for which
the arrest is to be made and it appears therefrom that
the person might lawfully be arrested without a
warrant, by the officer, who issued the requisition.

Protection to Members of Armed Forces from

arrest

4. Section 197(2) (3) Cr.P.C. prohibits taking

cognizance of any offence, alleged to have been
committed by any member of the Armed Forces,
acting or purporting to act in the discharge of official
duty except with the previous consent of Central or
State Government, as the case may be whereas
Sections 45 Cr.P.C. provides as under:-

1). Nothwithstanding anything contained in Section

41 to 44, no member of the Armed Forces of the
Union shall be arrested for anything done or
purported to be done by him in the discharge of his
official duties.

Rules framed by the Hon'ble Punjah and

Haryana High Court, on the subject
6. It is provided in Part-C(1) Chapter-1 Vol.3, Rules
and Orders of the Punjab and Haryana High Court
that a Magistrate, has discretion to issue summons or
warrant in the first instance, for securing attendance
of the accused, in a case registered, on the basis of
complaint. Sub rule 3 provides, that warrant shall not
be issued when summons, would be sufficient, for the
ends of justice. It is further provided, that Magistrate
should remember that issue of warrant involves
interference, with the personal liberty of a person and
should take care to see that no greater hardship is
caused, to the accused, than it is necessary and, as
such, he is to exercise his jurisdiction, to issue the
process, with regard to the nature of offence, position
of the accused person, and circumstances of the
case.
Section 82 to 89 Cr.P.C.
7.If any court has reason to believe that any person,
against whom warrant, has been issued, has
absconded or concealing himself, that warrant cannot
be executed, then the Court may publish a written
proclamation, under Section 82 Cr.P.C, requiring him
to appear at the specified time, and place not less
than 30 days, from the date of publication of such
proclamation. The provisions of section 82 Cr.P.C., in
this regard, are mandatory and imperative. As such,
a proclamation cannot be issued, before first issuing
a warrant of arrest, otherwise, it would be illegal.
Before issuing the proclamation , the Court has also
to satisfy itself, by examining the serving Officer, or,
in any other manner, that a warrant of arrest, had
been issued and that the accused, is absconding,
concealing his presence or evading the execution of
warrant. This section has to be strictly construed.

8. Section 46 Cr.P.C. provides that in making arrest,

the police officer or other persons shall actually touch
him. It also provides that, if a person, forcibly resists
the endeavor to arrest him, or attempts to evade the
arrest, such police Officer may use all means
necessary, to effect the arrest. However, Sub Section
3, says that nothing, in this section, shall give a right
to cause death of a person, who is not accused of the
commission of an offence, punishable with death, or
with imprisonment for life.
Right of arrested person
Section 50 Cr.P.C.
9. Every Police Officer or other person, arresting any
person without warrant, shall forthwith communicate
to him, with full particulars of the offence, for which he
is arrested and grounds of his arrest.
Under Sub-Section (2) the Police Officer arresting a
person, without warrant, other than a person accused
of a non-bailable offence, shall inform the person
arrested that he is entitled to be released on bail and
may arrange for sureties on his behalf.
Search of arrested person
Section 51(2) Cr.P.C.

10.Whenever, it is necessary to cause a female to be

searched, the search shall be made by another
female, with strict regard to decency.
Communication of charges to the accused
11. Section 55 Cr.P.C. provides that when a
Subordinate Officer is deputed by a Senior Officer to
arrest a person, then he shall before making the
arrest, notify to the person, to be arrested, the sub
stance of written order, given to him, by a Senior
Police Officer, specifying the offence or other cause
for which the arrest is to be made. Non- compliance
of this provision, will render his arrest to be illegal.
Section 75 Cr.P.C.
12. Provides that the Police Officer or other person,
executing a warrant of arrest, shall notify the
substance thereof, to a person, to be arrested and, if
so arrested, shall show him the warrant. If substance
of the warrant, is not notified, by such officer, then
arrest would be unlawful.
Article 22(1) of Constitution of India also
provides as under
13. No person who is arrested shall be detained in
custody without being informed as soon as may be of
the grounds of such arrest, nor he shall be denied the
right to consult and to be defended by a legal
practitioner of his choice.
In order to give practical shape to this provision, a
Free legal Aid Counsel is deputed, in every Court, at
the Cost of the State under the provisions of the
Legal Services Authorities Act, 1987, to defend the
accused who are not represented by any Counsel,
during remand proceedings.
Medical examination of the accused after his
arrest at the request of the Police Officer.
Section 53 Cr.P.C.
14. When a person is arrested on a charge of
committing an offence of such a nature, and alleged
to have been committed, under such circumstances,
that there are reasonable grounds, for believing that
an examination of his person will afford evidence as
to the commission of an offence, it shall be lawful for
a registered medical practitioner acting on the
request of a police officer not below the rank of Sub
Inspector and for any person acting in good faith in
his aid and under his direction, to make such an
examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may
afford such evidence, and to use such force as is
reasonably necessary for that purpose.
II). Whenever the person of a female is to be
examined under this section, the examination shall be
made only by or under the supervision of a female
registered medical practitioner.
Report of arres
Section 58 Cr.P.C.
15. This provision provides that officer Incharge of
the police station, shall report to the District
Magistrate, or if, he so directs to the Sub Divisional
Magistrate, the cases of all the persons arrested
without warrant within the limits of their respective
Stations, whether such person has been admitted to
bail or otherwise.
The object of this provision is to keep the District
Magistrate, informed of the situation regarding the
commission of grave offences. The administration of
 police in a District is under the general control and
directions of District Magistrate, therefore, report
under this section would enable him to see whether
the police is exercising the powers properly or not.
Right to be produced before a Magistrate
without delay Section 56 Cr.P.C.
16. Provides that a Police Officer making an arrest
without warrant, without unnecessary delay and
subject to the provisions regarding grant of bail take
or send the person arrested before a Magistrate,
having jurisdiction in the case or before the officer
incharge of the Police Station.
Section 76 Cr.P.C.
17. Provides that the Police Officer or other person
executing the warrant of arrest, without uncessary
delay, bring the person arrested before the Court
before which he is required by law to produce such
person. The proviso engrafted to this provision,
provides that such delay in any case shall not exceed
24 hours exclusive of the time necessary for journey
from the place of arrest, to the Court of a Magistrate.
The right to be brought before a Magistrate, within a
period not more than 24 hours of arrest, has been
created, with a view (i) to prevent arrest and detention
for the purpose of extracting confessions, or as a
means thereof compelling people to give information.
(2). To prevent Police Stations, being used, as though
they are prisons, the places for which they are
unsuitable.3) to afford an early recourse to a Judicial
Officer, independent of police of all questions of bail
or discharge. The Hon'ble Supreme Court in 1981
RCR (Criminal) 228, Khatri(II) versus State of Bihar,
has strongly urged upon the State and its police
authorities to see that this Constitutional and legal
requirement to produce an arrested person before a
judicial magistrate within 24 hours of the arrest, must
be scrupulously observed.
Right of the accused to be examined by a
medical practitioner at his request.
Section 54 Cr.P.C.
18. When a person who is arrested, whether on a
charge or otherwise alleges, at the time, when he is
produced before a Magistrate, or at any time during
the period of detention, in custody, that the
examination of his body will afford evidence which will
disprove the commission by him of any offence, or
which will establish the commission by any other
person of any offence against his body, the
Magistrate, shall if requested by the arrested person,
so to do, direct examination of the body of such
person, by a Registered Medical Practitioner unless
the Magistrate considers that the request is made for
the purpose of vexation or delay or for defeating the
ends of justice.
Arrest of juvenile delinquents.
19. No Magistrate can remand a person below the
age of 18 years, to any custody, because it is
prohibited by the provisions of the Juvenile Justice
Act, 2000. In case, a Juvenile delinquent, is produced
before a Magistrate, then he is to record that
apparently he appears a juvenile, and, as such, he is
to be produced before the Juvenile Justice Board.
20. If a public servant, having authority, to arrest,
knowingly exercises that authority, in contravention of
law and affects an illegal arrest, he can be
prosecuted for the commission of offence, under
Section 220 IPC, apart from the remedy available
under Section 342 IPC, for wrongful confinement.
If the arrest is illegal it is a sort of false imprisonment
and the person, making such arrest exposes himself,
to a suit, for damages.
REMAND
21. Judicial Magistrate to whom the accused is
forwarded may authorize his detention in such
custody as he thinks fit for a term not exceeding 15
days, in the whole. The nature of custody can be
altered from judicial to police and vice-versa, during
the first period of 15 days mentioned in Section 167
(2) Cr.P.C. but after the expiry of 15 days, accused
can be detained only in judicial custody.
It is specifically provided that no Magistrate shall
authorize the detention, in any custody, unless the
accused is produced before him. The object is to
enable the magistrate whether the remand is
necessary and also enable the accused to make any
representation, he wishes to make to controvert the
grounds on which the police asked for remand. In
order to facilitate proof of factum of production of the
accused before him, the Magistrate may obtain his
signatures.
The magistrate has to apply the judicial mind,
whether or not the detention of an accused, in any
custody is necessary for which he is under obligation
to peruse the Police file and the case diaries. The
order of detention shall not be mechanically passed
in routine, by the Magistrate, on the request of the
police. It is very often seen, that the remand is
granted although recovery has been effected and
there is no scope for further investigation, but it is
denied where the accused, is to be taken to a distant
place for further investigation and his assistance is
necessary to ascertain the involvement of other
person and collection of incriminating evidence.
Therefore it is desirable that the Magistrate shall
record the reasons for grant or refusal to grant
remand, as envisaged by Section 167(2) Cr.P.C.
It is provided in Section 167(2) Cr.P.C. that no
magistrate of Second Class, not specifically
empowered by the Hon'ble High Court can authorize
detention of an accused in police custody.
The total period of detention shall not exceed 90 days
if the investigation relates to the commission of an
offence punishable with death, imprisonment for life,
imprisonment for a term not less than 10 years and
not more than 60 days, where the investigation
relates to any other offence. The period of 90 days
and 60 days is to be computed from the date the
Magistrate authorized detention of the accused. If the
detention is ordered on the very day of arrest, then
the said period is to be computed from that date.
LAW ON BAIL
22. The object of arrest and detention of the accused
person is primarily to secure his presence, at the time
of trial and to ensure, that in case he is found guilty,
he is available to receive sentence. If, this object can
be ensured, otherwise than his arrest and detention
then it would be unjust and unfair to deprive him of
his liberty during the pendancy of criminal
proceedings, launched against him. Grant of bail is
the Rule and Jail is an exception.The accused who is
a public servant, if sent to jail, loses his job and is
prevented from contributing effectively, to the
preparation of his defence. Equally important is the
burden of his detention, which frequently falls heavily,
on the innocent members of his family. However, if a
person is accused of the commission of a serious
offence and is likely to be convicted and punished
severely for such a crime, he would be prone to
abscond or jump bail, in order to avoid the trial and
consequential sentence. As such, if such person is
under arrest, it would be rather un-wise to grant him
bail and to restore his liberty. There may be cases, in
which the accused may put obstructions, in the
conduct of a fair trial, by destroying evidence or may
commit a serious offence, during the period of his
release on bail. In such like cases, it would be
improper, to release the accused, on bail but where
no such risk is involved, in the release of the accused
person, it would be cruel and unjust, to deny him the
concession of bail. As such, law on bail, has to
dovetail two conflicting demands viz requirements of
the society for being shielded from the hazards of
being exposed, to the misadventures, of a person,
alleged to have committed, a crime and fundamental
cannos of criminal jurisprudence viz. presumption of
innocence of accused person till he is found guilty.
23. In order to sub serve the above said object, the
Legislature in its wisdom, has given some precise
directions for the grant or refusal to grant bail. Where
the legislature has granted discretion to the Courts, it
is to be exercised, as per the guidelines, provided
under the law.
WHERE TRIAL DOES NOT CONCLUDE WITHIN
60 DAYS
Section 437(6) Cr.P.C. provides that if, in any case,
triable by a Magistrate, the trial of a person accused
of any non bailable offence is not concluded within a
period of 60 days from first date fixed for taking
evidence, in the case, such person shall , if he is in
custody, during the whole of the period be released
on bail, unless for reasons to be recorded in writing,
the Magistrate otherwise directs.
This provision has been enacted by the Legislature to
avoid hardship to the accused, in non-bailable cases,
where the proceedings are prolonged un-necessarily
beyond a certain period. However, it may be noted
that the cases triable by the court of Sessions, are
not within the purview of this provision.
DISCRETION FOR GRANT OF BAIL
24. Scope of grant of bail under section 437(1)
Cr.P.C. depends upon various considerations, like
gravity of the crime. However, the discretion vested in
the Court, cannot be exercised, in an arbitrary
manner. It has to be exercised, in a judicial manner .
While considering the question of bail, in case of a
non-bailable offence, the Courts can, for their
guidance, look to the following circumstances
i).the enormity of the charge
ii).the nature of the accusation;
iii). the severity of the punishment which the
conviction will entail
iv). the nature and the character of the evidence, in
support of the accusation;
v).the danger of the accused person's absconding, if
he is released on bail;
vi). the danger of the witnesses being tampered with
and influenced;
vii). the protracted nature of the trial;
viii). Opportunity to the applicant for preparation of his
defence and access to his Counsel;
ix).the health age and sex of the accused;
x). the nature and the gravity of the circumstances, in
which the offence is committed'
xi). the position and status of the accused, with
reference to the victim and the witnesses;
xii). The probability of the accused committing more
offences if released on bail etc.
xiii). previous conviction and criminal record of the
accused;
xiv). Likelihood of the repetition of the same offence
by the accused, if released on bail.

The order to grant bail to the accused person, merely

on the concession of the Public Prosecutor, would
amount to non-application of mind. The mere fact that
an accused person may be required for being
identified, by the witnesses, during the investigation
shall not be a sufficient ground for refusing to grant
bail, if he is, otherwise, entitled to be released on bail,
and gives an undertaking that he shall comply with
such directions as may be given by the Court.

25. Section 437(i) provides that a person under arrest

or detention believing to be accused of the
commission of an offence punishable with death or
life shall not be released on bail. However, the Court
may direct that any person, under the age of 16 years
or woman or any sick or infirm person, accused of
such an offence, be released on bail, as envisaged
by the proviso engrafted to this Section. The basis for
this rule, is that the graver the offences, the chances
of the accused making himself unavailable, or escape
by absconding or by delaying collection of evidence
by threatening the witnesses or scaring them away,
are more. A female or a person below 16 years of
age or a sick or infirm person because of physical
handicaps and immaturity is not likely to interfere with
the investigation, or delay the trial by abscondence.

CANCELLATION OF BAIL
26 Section 435(5) lays down that any Court which
has released a person on bail under Sub Section 437
(i) may if it considers, necessary, to do so, direct
such person, to arrest or commit him to custody. Bare
perusal of the above said provision, reveals that the
power to cancel the bail, has been given to the Court,
which granted the bail.
27 Rejection of bail when bail is applied for, is one
thing, but cancellation of bail already granted, is quite
another. It is easier to reject a bail application in a
non-bailable case than to cancel the bail granted in
such a case. The cancellation of bail unnecessarily
involves the review of a decision already made and
can by and large be permitted only if by reason of
supervening circumstances it would be no longer
conducive to a fair trial to allow the accused to retain
his freedom, during the trial. In this regard re-
reference may be made to AIR 1978 (2) SCC-411
State Delhi Administration Vs. Sanjay Gandhi. Some
of the cases, in which the bail may be cancelled, are
as under:-
i) where the person on bail, during the said period
commits the very same offence for which he is being
tried or has been convicted and thereby proves his
utter unfitness to be on bail
ii) if he tampers with the investigation.
iii) If he tampers with the evidence by intimidating the
prosecution witnesses, interferes with the scene of
the offence in order to remove traces or proof of
crime etc.
iv) if he runs away to a foreign Country, or goes
underground or beyond the control of his sureties.
v) If he commits acts of violence in revenge against
the police and the prosecution witnesses and those
who have booked him or are trying to book him.
 (Sham Sunder)
District &Sessions Judge,
Kapurthala.