Criminal law in India has grown over time responding to the evolving needs of society and making appropriate amendments. The detention of a convicted person is one of the most critical elements of criminal law. For Indians, social respect is extremely significant and having a police officer at their door to arrest them is a huge blot on their family reputation. It is important that the power granted to police to detain a suspect is not abuse, and the accused is given rights they are entitled to by law.

The requirements prerequisite to imprisonment outlined in Section 41 of the Cr.P.C. must be met and; are subject to the same rules by the Magistrate. In the judgment of Arnesh Kumar vs State of Bihar and Anr.; the Supreme Court dismissed the practice of police forces mechanically recreating Section 41 Cr.P.C. reasons for making arrests in case writings kept by the staff.

Reasons mentioned

The presence of the reasons mentioned is a pre-condition for detention in instances where the suspect faces imprisonment for a period of fewer than 7 years or with or without a fine. The police officer must be certain that the person in question committed the aforementioned offence.

In such cases, the policeman must be fully convinced that; the detention is sufficient to stop the convicted from pursuing anything further crimes; 2) or that the detention is important for the successful inquiry; 3) or that the capture is essential to protect the suspected from affecting the information of the crime to simply disappear; 4) or that the detention is vital for the efficient investigative process; To prevent interfering with testimony in some way, or to prevent such a person from bribing, threatening, or promising a witness to keep him from revealing such information to the Tribunal or the officer; or It is impossible to guarantee that such an accused will appear in court when it is needed until he is detained.

Other than that, the policeman must be convinced that the prosecution is required that one or more of the purposes. Though the Judiciary has dealt with the privileges of detained suspects in other well-known rulings; the case of Arnesh Kumar is refocusing attention on the issue and; is not shifting away from stating that police department who do not obey the Apex Court’s orders are not only subject to Disciplinary measures, but also to criminal contempt.

The accused should be produced before Magistrate within 24 hours

Supreme court issued guidelines stating that an offender will only be held in custody for more than 24 hours if the Magistrate exercises his or her authority under Section 167 of the Code of Criminal Procedure.  Before such a Magistrate may sanction restraint under Section 167 of the Code of Criminal Procedure, he must also be assured that the prosecution was lawful and in line with the regulations and that the individual arrestee’s rights and freedoms were respected.

Before granting arrest, the Magistrate may register one’s own satisfaction; which may be concise and must be based on the warrant. It will never be dependent on the policeman officer’s unproven statement. When a perpetrator is detained and brought before a Magistrate for custody, then he must determine if particular reasons for arrests have already been reported and if so, if such reasons appear justifiable, and if the police officer may reasonably conclude that several of the qualifying conditions above are applied. The Magistrate can conduct judicial oversight to this restricted degree. This phrase is extremely important because the Judiciary determined the scope and anticipated line of enabling legislation, or system of checks and balances, in such instances.

Failure to adhere to the above orders would subject the officer involved to administrative punishment as well as a charge of the contravention; which will be brought before the High Court within the jurisdiction. Approving imprisonment without documenting the grounds as stated by the respective Magistrate would be subject to disciplinary action by the applicable High Court.


Despite all, India’s arresting law, though fairly established, lacks the optimum consistency. In India, arrests have been made at just the drop of a hat. The Justice Department expressed its significant issue faced by various courts over a duration of time to introduce a core issue of criminal jurisprudence to the various courts and circumspection law enforcement authorities that the capacity to arrest should be included in a more reasonable and rational way rather than in an insensitive manner as, imprisonment brings shame, limits independence, and restricts liberty.

While India’s detention law has advanced, it still misses the clarification that is needed. The unprecedented increase in arrests, combined with a high charge-filing rate on the first hand and; a lower number of arrests on the other, actually indicate some need to rein in the misuse of the agencies’ arresting power.


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Written By:

Bhavaishya Sandhu

(Legal Intern)

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