Arrest How Made – Section 46 of the Code of Criminal Procedure, 1973

According to the common parlance, arrest means keeping a person in custody with lawful authority. Putting what Cambridge Dictionary says, an arrest is taking away a person by the police for the purpose of questioning about an act committed by him.

Specifically talking about the Code of Criminal Procedure, 1973, Section 46 explains the concept in more precise manner.

  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 people 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.
  4. Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

The focus of this article is to understand what the arrest is. Section 46(1) provides that to make an arrest, touching or confining a person is necessary either by words or actual action by the police officer. To understand this concept well, the judgment given in State of Haryana and ors. v. Dinesh Kumar and anr. is an excellent example. The High Court has clubbed 2 appeals herein, both involving the question as to how arrest is made or what arrest is.

Also Read: The Procedure of Investigation Under Criminal Procedure Code

The respondent in the first appeal- Dinesh Kumar and appellants in the second appeal- Lalit Kumar and Bhupinder, submitted an application form for recruitment as Constable- drivers in Haryana police. There were 2 questions in the form- whether the person applying for a job has been arrested and whether he has been convicted for any offence in his life. Both the respondent and appellants have answered in “NO” for both questions.

In the first case during the inspection, it was found that Dinesh was accused of an offence under 323/324/ 34 of IPC but he was acquitted of all the charges as he voluntarily appeared before the magistrate with his lawyer and granted bail immediately. The selection committee denied the recruitment on the ground that respondent has failed to disclose the true facts of the case. When the case was taken before the Punjab and Haryana High Court, it was held that the appellant has not suppressed any material and as he was immediately granted bail without actual arrest, it was deemed that no arrest was made. The appellant was acquitted of the charges ultimately, so it was held that no case was ever filed against him. The High court quashed the order of Director General of Police and upheld his recruitment.

On the other hand, in the second case, the appellants’ application for recruitment was initially rejected according to the same facts. But when an appeal was made before the same High Court, another bench of Judges upheld this order of denial of recruitment.

Now, there were 2 divergent views of the same High Court upon the same question of matter, which created a controversy that needed to be decided as to what constitutes an arrest. The expressions ‘arrest’ and ‘custody’ have neither been defined in IPC or CrPC or any other criminal law. It was contended that respondent in the first case and appellant in the second case, have prayed for bail before the magistrate which eventually mean that they have surrendered to the authority of law. For bail, an arrest is the first step. It does not matter whether there was a formal arrest or not, but the fact that they, with their own volition, have appeared before magistrate, amounts to arrest. It also means that they have given up their right to move freely and right to speech as they were confined in the Court premises and not allowed to leave of their own free will.


Drawing conclusions from the reference made to various definitions, that the word arrest in its legal sense means the deprivation of one’s personal liberty and his custody under the authority of law to question him of a criminal charge or to prevent the commission of a crime. The main ingredient of arrest is the intention to arrest. Custody here means the physical control over the body or the physical appearance of accused in the Court with submission to its jurisdiction.

The term arrest which has been defined in the Halburys Laws of England was taken into account which states:

“Arrest consists in the seizure or touching of a person’s body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, to a person’s notice that he is under compulsion and he thereafter submits to the compulsion.”

Section 46 also doesn’t talk about any formality but a person can submit his custody through words too.

Therefore it was held that the view laid down in Dinesh Kumar case with regard to arrest was incorrect but the view of a bench in Lalit Kumar case was apt. In both cases, the arrest was made. But the Court also took the view that for common man, getting bail without being formally detained in prison, does not amount to arrest; so the appellants were excused and said to have given correct information as to their knowledge, in the application form. Their recruitment was allowed.

The whole concept and the meaning or the term arrest is very much clear in the purview of this case.

Section 46(2) empowers the police officer to apply any force for the purpose of arresting a person. The measure of such force would be done by comparing whether a prudent person would apply the same force without any intention to cause injury to a person.

Reading section 46(3), it can be interpreted that a police officer is authorised to kill an accused if he has committed an offence punishable with death or life imprisonment. It gives a reference to extrajudicial killings or what is known as police encounters.

Section 46(4) was inserted in the Code purely for the purpose of safeguarding modesty of women and to protect them from alleged harassment by police officials. Keeping the Humanitarian approach at an upper hand, the safety of a woman is a must, whether she is an offender or innocent. Thus, the section prohibits the arrest of a woman before sunrise or after sunset and if exceptional circumstances arise, the arrest shall only be made by a women police officer. Even in unavoidable circumstances, the arrest shall not be made without the prior permission of Judicial Magistrate of First class. Non-adherence to this clause will cause the arrest illegal.

Also Read: First Information Report (F.I.R) under CrPC

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