Bail and Arrest: Everything you need to know

13 Sep 2022  Read 893 Views

Arrest and bail are the two important concepts in Criminal Law. An arrest is made as a preventive measure to bring the accused into lawful custody and to avoid any hindrances in the investigation during the trial. Bail is considered a matter of right, and refusal of bail restricts personal liberty guaranteed under Article 21 of the Constitution of India.

Meaning and definition of Arrest

Arrest – The term arrest has not been defined under Criminal Law, but according to Black’s Law Dictionary, the word arrest means “To deprive a person of his liberty by legal authority”.  

In the Landmark judgment of R.R. Chari v. State of Uttar Pradesh (1951), the honorable apex court defined arrest as “the act of being taken into custody to be formally charged with a crime”. An arrest is made to secure the presence and attendance of the accused during the trial, obtain adequate details, and secure a free and fair trial. 

Types of Arrest 

  1. Arrest without a warrant - Section 41 lists the conditions that police may arrest without a warrant. Suppose the cognizable offence has been committed in front of the Police Officer and he thinks that a proper investigation is necessary or there is a possibility of getting any credible information. In that case, the Police Officer can arrest the person. 

  2. A person can be arrested under section 42 - If someone refuses to provide any necessary detail, such as name and residence, that a Police Officer might think necessary. 
  3. Arrest with a warrant - An arrest warrant is issued by a Magistrate for a non-cognizable offence. An arrest warrant is not required for cognizable offences. Police can arrest without a warrant.

  4. Arrest made by a private person -  Any private person, under section 43, may arrest anyone committing a cognizable and non-bailable offence in front of him. 

  5. Arrest by Magistrate Under section 4 - The Magistrate may himself arrest or present an order of arrest if he thinks the person is committing an offence. 

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Rights of arrested persons 

  1. Right to be informed 

  2. Right to silence

  3. Right to be released on bail 

  4. Right to be taken before Magistrate without delay 

  5. Rights regarding detention 

  6. Right at trial 

  7. Right to consult a legal practitioner 

  8. Right to be examined by a medical practitioner 

  9. Right to free legal aid

  10. Right of the accused to produce evidence 

Case laws on arrest

1. Birendra Kumar Rai vs. Union of India, 1992
It was held that to make an arrest, the police officer need not handcuff the person, and it can be completed by spoken words also if the person submits to custody himself.

2. Kultej Singh vs. Circle Inspector of Police, 1992
It was held by the court that keeping a person in custody in the police station or confining the movement of the person in the precincts of the police station amounts to arrest of the person.

3. D.K. Basu v. State of West Bengal, 1997
In the landmark case of D.K. Basu v. State of West Bengal, the court issued eleven guidelines in addition to constitutional and statutory safeguards that must be followed in cases of arrest and detention.

It's mandatory that:

  1. Identification of arresting officer must be visible, and all details must be recorded in the register,

  2. a memorandum must be prepared to contain all the details which must be witnessed by near or dear of the detainee

  3. police must ensure that accused should avail the right to be informed

  4. police need to inform him about legal aid organizations within 8-12 hours of arrest

  5. the person arrested must be informed of his right as an accused

  6. an entry must be made in the prescribed diary

  7. if the arrestee is injured, he must be legally examined

  8. the medical examination should be done within 48 hours

  9. all details must be sent to the magistrate in writing

  10. the arrestee must be allowed to meet an attorney

  11. a room shall be provided to officers for communication

Bail under CrPC

Bail is taken from the old French verb baillier which depicts giving or delivering. Bail is also not defined in our criminal System but signifies the right of the individual protected by the state. Granting bail to an accused person in custody is primarily intended to ensure that, as long as the accused does not threaten society, tamper with the evidence, or compel the witnesses, he will not be imprisoned while the case is being tried.

Types of Bail

Regular - Any person arrested and in Police custody has the right to bail. Section 437-439 of the Code of Criminal Procedure, 1973 deals with the provision regarding bail 

Interim - An accused person is given interim bail when the court directly orders it to grant them temporary liberty. The amount of interim bail issued has been reduced due to the courts realizing that they are frequently utilized improperly.

Anticipatory - Anticipatory is a pre-arrest bail granted to a person where he thinks a false case can be filed against him. The concept of anticipatory bail was introduced to protect people's interests.  

Case Laws on bail

  1. Vaman Narayan Ghiya v. State of Rajasthan (2009) 
    In this case, The applicant of the anticipatory bail just suspected and applied for the bail. While rejecting the bail, the Court mentioned that the reason to believe must satisfy the Court and direct it towards the actual requirement of the anticipatory bail. The reason to believe the requirement of bail must depend on the facts and circumstances and not just fear and suspicion. The accused should present reasonable facts that might help the Court analyze the importance of anticipatory bail in such cases.

  2. Sanjay Chandra v. CBI (2011) 
    The accused were charged with manipulation and misappropriation to influence UAS licenses of the telecom industry. The Special Judge CBI rejected the bail applications of the accused, for which the accused appealed the validity of the said rejection of bail in the High Court of Delhi, which was denied on 23.05.2011. The accused appealed to the Apex Court.  The Supreme Court delivered a judgment mentioning that the grant and rejection of bail applications are at the Court's sole discretion as the situations and circumstances should be carefully studied before granting or rejecting bail. 

  3. Aasu v. State of Rajasthan (2017)
    All four accused in this case are booked under Section 302 and Section 34 of the Indian Penal Code. The lower court granted anticipatory bail for all the other co-accused. The petitioner in the instant case also applied for anticipatory bail, which was not decided for a long time. He challenged the same in the High Court.


Cr. P.C provides provisions for arrest and bail. Arresting someone is done to prevent them from committing other crimes and to guarantee their appearance at trial. The presence of a reported 2/3 of the prison population is alleged to be unproven. Bail, therefore, functions as a right guaranteed by Article 21 of the Indian Constitution. Instead of abusing these features, it is crucial to use them properly.

About the Author: Gurpreet Kaur Dutta | 16 Post(s)

A legal content writer who pursued BBA-LL.B.(H) from Amity University Chhattisgarh. She has a keen interest in corporate and IPR sectors. 

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