The investigation and prosecution of criminal offences in India are governed by the Code of Criminal Procedure (CrPC), a comprehensive statute. The CrPC gives the police broad authority to detain those who are believed to have committed a crime. We will examine the police’s ability to make arrests under the CrPC in this article.

According to “Section 41 of the Code of Criminal Procedure (CrPC),” a police officer may make an arrest without a warrant in certain circumstances. The following are these circumstances:

  1. The police officer has grounds to believe that the subject has broken the law.
  2. The police officer has cause to think the suspect is about to commit a crime.
  3. The police officer has reason to believe that the person is in the process of committing an offense.
  4. The police officer has reason to believe that the person has committed a non-bailable offense.

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What is the Law to Arrest by Police Officer?

The Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973 (CrPC) serve as the primary legal frameworks for police arrests in India (IPC). In accordance with the CrPC, a police officer may detain a suspect without a warrant if the officer has reason to suspect that the subject has done or is about to commit a cognizable offence. An offence for which a police officer can make an arrest without a warrant is known as a cognizable offence.

The IPC has provisions that list several offences and their associated penalties. There are cognizable and non-cognizable offences under the IPC. Without a warrant, police cannot make an arrest for non-cognizable offences.

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In addition to the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973 (CrPC), there are other statutes that give the police authority to make arrests of people under particular circumstances. For instance, if there is a reasonable suspicion of corruption, a police officer is permitted by the Prevention of Corruption Act, 1988, to detain a public official without a warrant.

What are the Limitations on Arrest Power?

There are several restrictions placed on the police’s ability to make arrests. These restrictions are meant to safeguard citizens’ fundamental rights and guarantee that only necessary and legal arrests are conducted.

The prerequisite of reasonable suspicion is one such restriction. Police must have a solid reason to believe that the subject has committed or is about to commit a crime that is punishable by law before they can make an arrest. The purpose of this criterion is to stop arbitrary detentions and safeguard the right to personal liberty.

Another restriction is that non-cognizable offences require a warrant. Without a magistrate’s warrant, the police are not permitted to detain someone for a crime that is not immediately identifiable. This rule is intended to prevent arrests from being used as a form of intimidation or harassment and to guarantee that they are only made when absolutely required.

The law also offers some procedural safeguards to protect the rights of people who have been arrested. For instance, the police are required to tell the individual who has been arrested of the reason(s) for the arrest, the right to bail, and the right to legal counsel. The person who was arrested must also appear before a magistrate within 24 hours of their arrest, who must advise them of their rights and take their statement.

What is Non-Bailable Offense?

A non-bailable offence is one for which the accused must request bail from the court since it cannot be granted as a matter of course.

In addition to these requirements, the police officer must also have reason to believe that the arrest is necessary to stop the suspect from evading the court’s jurisdiction, stop the suspect from committing any other crimes, or guarantee the suspect’s appearance in court.

What Is The Procedure To Be Followed When Making An Arrest?

The Code of Criminal Procedure gives police broad authority to make arrests (CrPC). To prevent arbitrary arrests, these powers are also subject to a number of restrictions and safeguards. Before making an arrest, the police must have good reason to believe that it is necessary and they must also follow the correct procedures.

It is outlined in “Section 46 of the Code of Criminal Procedure (CrPC)” how an arrest is to be made. The arresting police officer is required to explain the circumstances leading up to the arrest as well as the justification for it. The person being detained must also be informed by the police officer of their right to legal representation and their right to notify a friend or family member of the arrest.

The individual being arrested or a witness must sign a memo that the police officer has prepared detailing the arrest. The arrested individual must also be told by the arresting police officer that they will appear before the local magistrate within 24 hours of the arrest.

Section 46

“46. Arrest how made.
(1) 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.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life”.

Even for a crime that is subject to bail, the police have the right to detain someone without a warrant in certain situations. The police may detain a person if, for instance, they refuse to provide their personal recognisance bond or fail to provide a surety. Similarly, the police have the right to arrest someone if they have cause to believe that individual won’t show up in court if required to.

What If Police Arrest Illegally India?

If the police in India arrest someone illegally, meaning without following the proper legal procedures or without a valid reason, the arrested person has several options for seeking redress:

File a complaint

The person who was arrested or their family members may lodge a complaint against the officers who performed the unlawful arrest with the police station in question or with a higher police authority such as Commissioner of Police, Director General of Police etc. Information on the arrest’s circumstances and any rights breaches may be included in the complaint.

File a writ petition

Under Article 32 or Article 226 of the Indian Constitution, the arrested individual or their family members may file a writ petition in the High Court or Supreme Court of India. The petition might request that the court issue an order invalidating the unlawful arrest and ordering the release of the arrested person.

What is Writ of Habeas Corpus?

The Latin phrase “Habeas Corpus” means “you shall have the body.” A writ, also known as a legal order, is a document that mandates that a person who is being held or imprisoned be brought before a judge or court. The writ’s goal is to stop wrongful detention or imprisonment and guarantee that the individual in custody isn’t being held against their will.

An essential defence against capricious detention by the government or other authorities is the writ of habeas corpus. It is a fundamental right that is protected by numerous legal frameworks all over the world, including the Indian Constitution. Article 21 of the Indian Constitution guarantees all the right to life, the right to personal liberty, and the right to petition for a writ of habeas corpus.

According to Indian law, anyone who has been detained or imprisoned without justification may petition the High Court or the Supreme Court of India for a writ of habeas corpus. The authorities must next appear in court with the detained person and give a defence for their detention, the judge will mandate. The court may order the detained person’s release and other necessary relief if the detention is determined to be unlawful or unwarranted.

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Approach human rights organizations

Human rights organizations can offer support and help to the arrested person or their family members in their pursuit of legal redress for the unlawful detention.

It is significant to remember that it is the arrested person’s responsibility to establish that the arrest was unlawful, and they must do so with supporting documentation. Also, it’s critical to move swiftly because pending complaints or petitions might undermine a claim.

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What are the Landmark Judgements on Police Power To Arrest?

Here are a few landmark judgments on the police power to arrest as per CrPC:

D.K. Basu v. State of West Bengal (1997)

The Supreme Court of India established rules for the police to adhere to when making an arrest in this case. The court ruled that the police must inform both the individual who is being detained and a friend or relative of the arrestee of the reason(s) for the arrest. The court further ruled that the arrestee’s or a witness’ signature must be included on a police memo detailing the arrest.

“WITH WRIT PETITION (CRL) no. 592 OF 1987 O R D E R On December 18, 1996 in D.K. Basu Versus State of West Bengal (1997 (1) SCC 416), this court laid down certain basic “requirements” to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial violence. The requirements read as follows.
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock- up, shall be entitled to have one friend or relative or other person know to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next fried of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a penal for all tehsils and districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illega Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
11. A police control room could be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”

This court also opined that failure to comply with the above requirements, apart from rendering the official concerned liable for departmental action, would also render him liable to be punished for contempt of court and the proceedings for contempt of court could be instituted in any High Court of country, having territorial jurisdiction over the matter.”

Read Citation: Shri Dilip K. Basu Etc.Ashok K. … vs State Of West Bengal & Ors

Joginder Kumar v. State of U.P. (1994)

In this case, the Supreme Court of India ruled that while police are allowed to make arrests without a warrant, they must do so in a way that is legal. The court ruled that the police must adhere to the CrPC’s protocol and have a good basis to think that making the arrest is required.

“These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with”

Read Citation: Joginder Kumar vs State Of U.P 

Arnesh Kumar v. State of Bihar (2014)

The Supreme Court of India ruled in this case that the police cannot arbitrarily detain someone only because a complaint has been made against them. The court ruled that the police must adhere to the CrPC’s protocol and have a good basis to think that making the arrest is required. The police must document their justifications for making an arrest, the court further ruled.

“We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce”

Read Citation: Arnesh Kumar vs State Of Bihar & Anr

Gurbaksh Singh Sibbia v. State of Punjab (1980)

In this case, the Supreme Court of India ruled that unless there are extraordinary circumstances, police officers can-not detain someone for a crime that is subject to bail. The court ruled that before granting bail, the court must take the accused’s past into account and that the police must have a good basis to believe that the individual is likely to flee the scene of the crime or tamper with the evidence.

“A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.”

Read Citation: Gurbaksh Singh Sibbia Etc vs State Of Punjab

Shafhi Mohammad v. State of Himachal Pradesh (2018)

In this case, the court ruled that unless there are special circumstances, a police officer cannot be arrested for a crime that is subject to bail. In addition, the court ruled that the arrest must be required to prevent the accused from fleeing or tampering with evidence and that the police must have reasonable suspicion in support of this belief.

Read Citation: Shafhi Mohammad vs The State Of Himachal Pradesh

Lalitha Kumari v. Government of Uttar Pradesh (2014)

The Supreme Court explained in this decision the process that police must follow while investigating crimes that are punishable by law. The court ruled that the police must carry out a preliminary inquiry to confirm that a crime has been committed before making an arrest.

Read Citation: Lalita Kumari vs Govt.Of U.P.& Ors 

These rulings have had a significant impact on the police’s ability to make arrests in accordance with the CrPC and have established crucial rules that the police must adhere to while making an arrest.


Although the responsibility of the law and order authorities is to safeguard the public, occasionally it is discovered that there are some gaps that violate human rights. Such a police action was taken in violation of a set of rules that had been established and recommended. The police’s power to make arrests is a key tool for upholding law and order and administering justice in India. Yet, a number of legislative limitations are established on this power to protect citizens’ fundamental rights. It is important that the police use this power properly and consider these constraints to make sure that arrests are only made when required and appropriate.

The police arrest power in India is an important tool for maintaining law and order and ensuring justice. However, this power is subject to certain legal limitations that are designed to protect the fundamental rights of citizens. It is important for the police to exercise this power responsibly and with due regard for these limitations, in order to ensure that arrests are made only when necessary and justified.


The views expressed in the blogs are purely the authors’ own, and they are not intended to offend anyone or to be prejudicial toward or against any individual, group of individuals, society, sex, gender, race, creed, nation, or religion, or any other term that is even remotely and closely connected. Legal-Varta is a platform for disseminating knowledge so that everyone can comprehend the legal system better. In order to avoid any misrepresentation and since it is even not advisable to do so, only content that is directly related to the Law and Statute is included in the articles. If any misrepresentation is discovered, however, we are willing to amend it because it is only for everyone’s advantage.

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