LATEST CASELAWS ON ARREST OF A PERSON
A project submitted to
Army Institute of Law, Mohali
In partial fulfilment of the requirements for the award of
Degree of B.A. LL.B.
Submitted to Submitted by
Dr Bajirao A Rajwade
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LANDMARK CASES ON ARREST OF A PERSON
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LATEST CASELAWS ON ARREST OF A PERSON
A project submitted to
Army Institute of Law, Mohali
In partial fulfilment of the requirements for the award of
Degree of B.A. LL.B.
Submitted to Submitted by
Dr Bajirao A Rajwade
DECLARATION
It is certified that the project work presented in this report entitled “Latest Case laws on Arrest of a Person” embodies the result of original work carried out by me. All ideas and references have been duly acknowledged. i
INDEX
TOPIC PAGE NUMBER
INTRODUCTION 1
WHAT IS ARREST 1
WHO CAN MAKE AN ARREST AND
WHEN?
CASELAWS ON ARREST OF A PERSON 3-
CONCLUSION 10-
BIBLIOGRAPHY 12
iii
INTRODUCTION
Arrest is not explicitly defined in the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, it refers to the act of restraining a person's liberty by legal authority, intending to detain them in response to an alleged or suspected violation of the law. The provisions governing arrest in the BNSS aim to balance the rights of individuals with the need for maintaining public order. The BNSS, 2023, is a procedural law that regulates the procedural framework of the criminal justice system. BNSS, 2023 has replaced the Code of Criminal Procedure, 1973 and aims at expeditious disposal of cases and trials while incorporating modern techniques for investigation procedures. It consists of provisions for arrest, rights of arrested persons, and post-arrest procedures. In order to defend individual rights and uphold peace and order, the judiciary has been instrumental in developing the legislation on arrest. Ten seminal instances that establish the legal framework around arrests are listed below, along with their facts, rulings, and importance.
WHAT IS ARREST?
Arrest means the deprivation of a person of his liberty by a legal authority of a person who is accused of any offence or under an apprehension that he may commit a crime. Arrest is one of the steps in ensuring a fair trial and it is not to be done arbitrarily. It must be done by due process of law and the arresting authority shall exercise the power of arrest keeping the spirit of Article 201 (protection in respect for conviction for offences) in mind. The person exercising such power should also comply with the rights provided under Article 21^2 , and the due procedure should be just, fair and reasonable. The Sanhita also contemplates two types of arrests. They are – I. Arrest made in pursuance of a warrant issued by a Magistrate, and II. Arrest made without warrant but made in accordance with some legal provision permitting such arrest. The provisions containing arrest have been provided under Chapter V of the BNSS, 2023 from Sections 35-62^3. (^1) The Constitution of India, art. 20. (^2) Id., art. 21. (^3) The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023), ss. 35–62.
Under Section 41(1)^12 , when an offence (cognisable or non-cognisable) is committed in the presence of a magistrate, he can himself, or by ordering any other person to, arrest that offender. Under Section 41(2)^13 , if the magistrate is competent to issue a warrant of arrest on a person, he can at any time arrest such person, or direct the arrest of such person. This is so that the person may not escape from the investigation or trial. read with Section 210 (1)(c)^14 (Cognisance of offenses by Magistrate), ‘presence’ means that the Magistrate is taking cognisance of the offense on his own knowledge. Arrest may not always happen. In 41(2)^15 , the arrest is to be done in his presence. Here, the meaning of the word is literal, i.e., the Magistrate should be present when the arrest directed by him happens. By Police In all warrant cases, in summons case if necessary and in case of breach of bond, the police arrest someone through the authority of judge through a warrant. A warrant is an order issued by some authority empowering an officer to make an arrest or search and seize or to carry out a judicial sentence. But in some cases, the police officer can arrest without a warrant. When and how such an arrest may happen is detailed in ‘Section 35^16 : When police may arrest without warrant’.
CASELAWS ON ARREST OF A PERSON
- D.K. Basu v. State of West Bengal^17 Facts: Social activist D.K. Basu brought attention to the growing number of deaths in custody and the absence of procedural protections during arrests by filing a Public Interest Litigation (PIL). Ashok K. Johri's appeal over custodial violence in Uttar Pradesh was heard concurrently with the case. Judgment: The Supreme Court issued 11 guidelines to prevent custodial torture, including: (^12) Id ., s. 41(1). (^13) Id ., s. 41(2). (^14) Id ., s. 210(1)(c). (^15) Id ., s. 41(2). (^16) Id ., s. 35. (^17) (1997) AIR 610 SC.
Arresting officers must wear name tags. A memo of arrest must be prepared, signed by a relative or witness. The person should undergo a medical examination every 48 hours. The person who has been arrested is entitled to tell a friend or family member. Significance: In order to prevent police brutality and to provide responsibility and openness in circumstances involving detainees, this case established essential procedural safeguards during arrest.
- Joginder Kumar v. State of U.P.^18 Facts: The practice of making arbitrary arrests under rules pertaining to preventative detention was contested by the petitioner. He maintained that these kinds of detentions frequently lacked cause. Judgment: The Supreme Court ruled that: People cannot be harassed or arrested based only on suspicion. The police must use their discretion legally and with fair reasons. Only when it is essential to stop an offense or maintain the integrity of an investigation should an arrest be made. Significance: The case strengthened the right to personal liberty guaranteed by Article 21^19 of the Constitution by emphasizing protection against arbitrary arrests.
- Maneka Gandhi v. Union of India^20 Facts: (^18) (1994) SCC 260. (^19) The Constitution of India, art. 21. (^20) (1978) AIR 597.
After being taken into police custody, Nilabati Behera's son was discovered dead with serious injuries. Concerns regarding police abuse during arrest and custody were brought up by this instance. Judgment: The Supreme Court: Ordered compensation for custodial deaths, establishing State liability for police actions. Reaffirmed D.K. Basu guidelines on custodial safeguards. Significance: The case established custodial violence as a direct violation of fundamental rights, reinforcing State responsibility.
6. Arnesh Kumar v. State of Bihar^24 Facts: Arnesh Kumar was arrested under Section 498A^25 IPC (Dowry Harassment) without adequate investigation. He challenged the misuse of arrest powers in matrimonial cases. Judgment: The Supreme Court ruled that: Arrest should not be automatic in dowry cases. Police must record reasons for arrest in writing. Magistrates should not authorize detention without sufficient grounds. Significance: This case restricted unwarranted arrests in family disputes, ensuring judicial scrutiny before detention. 7. State of Punjab v. Ajaib Singh^26 Facts: (^24) (2014) SCC 696. (^25) The Indian Penal Code, 1860 (Act 45 of 1860), s. 498A. (^26) (1953) AIR 10 SC.
This case questioned whether the police could arrest individuals without a warrant for preventive reasons. Judgment: The Supreme Court ruled that: Arrests without a warrant must be justified under CrPC provisions. Police must have valid reasons and cannot detain individuals indefinitely. Significance: This case laid down boundaries on preventive arrests, ensuring procedural safeguards.
8. Madhu Limaye v. Sub-Divisional Magistrate^27 Facts: Political leader Madhu Limaye was detained without being given a trial right away under regulations pertaining to preventive detention. He contested the validity of his ongoing incarceration. Judgment: The Supreme Court ruled that: Preventive detentions require strong justification and must be reviewed periodically. Personal liberty cannot be curtailed indefinitely without trial. Significance: This case reinforced judicial scrutiny over preventive detentions, limiting government power to misuse arrest laws. 9. Hema Mishra v. State of U.P.^28 Facts: The petitioner sought anticipatory bail, arguing that her arrest was based on politically motivated false allegations. (^27) (1970) SCC 739. (^28) (2014) SCC 728.
The case also raised concerns regarding violation of Article 21^31 and Article 22(1)^32 (right to personal liberty and right to be informed of grounds of arrest). Judgment: The Supreme Court held that: Providing grounds of arrest is a mandatory constitutional requirement, not a formality. Written grounds of arrest must be furnished to the accused as a general rule. If written grounds are not provided within the prescribed time, the arrest and remand become illegal. Oral communication may be allowed only in exceptional situations, but written grounds must still follow shortly. The Court expanded this requirement to all offences (not just special laws like PMLA/UAPA). Significance: Strengthens Article 22(1)^33 protection: no person can be detained without being informed of the grounds. Makes written communication of arrest grounds a universal rule under criminal law (including BNSS). Ensures: Transparency in arrest procedures Protection against arbitrary arrest Better access to legal counsel and bail Shifts burden onto police to prove compliance, failing which detention becomes illegal. Marks a major move toward due process and procedural fairness in India’s criminal justice system.
- Ashish Kakkar v. Union Territory of Chandigarh^34 Facts: (^31) The Constitution of India, art. 21. (^32) Id., art. 22(1). (^33) Ibid. (^34) 2025 SCC OnLine SC 1318
The case arose out of the arrest of the petitioner, Ashish Kakkar, by the police in Chandigarh. Although the police carried out certain procedural formalities such as preparing an arrest memo, the petitioner contended that the arrest was illegal as the authorities failed to communicate the grounds of arrest to him. Additionally, the mandatory requirement of issuing a notice under Section 41A^35 of the Code of Criminal Procedure prior to arrest was not complied with. The petitioner argued that this omission violated his fundamental rights under Articles 2136 and 22(1)^37 of the Constitution, as he was deprived of his personal liberty without due process of law. After his plea was rejected by the Punjab and Haryana High Court, he approached the Supreme Court challenging the legality of his arrest and subsequent detention. Judgment: The Supreme Court carefully examined the distinction between procedural compliance and substantive constitutional requirements. It held that merely furnishing an arrest memo does not satisfy the legal obligation of informing the accused about the grounds of arrest, which is a separate and mandatory requirement under Article 22(1)^38 of the Constitution and relevant provisions of criminal procedure law. In light of these violations, the Court declared the arrest to be illegal, holding that the police had failed to adhere to the mandatory legal framework governing arrests. Consequently, the Court set aside the order of the Judicial Magistrate granting police remand and directed the release of the accused from custody, reaffirming that procedural lapses affecting fundamental rights cannot be condoned. Significance: This judgment reinforces the constitutional safeguard that personal liberty cannot be curtailed without strict adherence to due process of law. It clearly establishes that the requirement to inform the accused of the grounds of arrest is not a mere formality but a substantive right that enables the accused to seek legal remedies such as bail and prepare a defence. Moreover, the decision serves as a strong precedent against arbitrary police action, emphasizing that even technical non-compliance with procedural safeguards can render an arrest unlawful. It (^35) The Code of Criminal Procedure, 1973 (Act 2 of 1974), s. 41A. (^36) The Constitution of India, art. 21. (^37) Id., art. 22(1). (^38) Ibid.
BIBLIOGRAPHY
- Dr. Amit Rangi, “The Legal Framework of Arrest under the Bharatiya Nagrik Suraksha Sanhita: A Rights-Based Approach”, International Journal of Advanced Research and Multidisciplinary Trends (IJARMT), Vol. 2, No. 3 (2025), available at: https://www.ijarmt.com/index.php/j/article/view/384 (last visited on March 17, 2026).
- Prince Yashwant Ramesh, “Procedure of Arrest under BNSS” , Indian Journal of Legal Review (IJLR), Vol. 5, Issue 8 (2025), pp. 301–307, available at: https://ijlr.iledu.in/wp- content/uploads/2025/05/V5I831.pdf (last visited on March 17, 2026).
- Richa Kochar and Vijayata Uikey, “Unrestrained Expansion of Police Authority under the BNSS and Its Effect on Accountability: A Critique” , Anusandhanvallari Journal (2025), available at: https://psvmkendra.com/index.php/journal/article/view/74 (last visited on March 17, 2026).
- Shibu Puthalath, S. Sapna and Pratham Kumar, “Effective Police Investigation under BNSS 2023: Existing Legal Framework and Challenges” , in Rethinking the Police for a Better Future, Springer (2025), pp. 61–76, available at: https://link.springer.com/chapter/10.1007/978-3-031-83173-7_4 (last visited on March 17, 2026).