India: No Automatic Arrests, Due Process To Be Followed: SC

  • No automatic arrests/detentions to be made by the Police/Magistrates even in non-bailable and cognizable offences; conditions precedent for making arrest/authorizing detention under the Code of Criminal Procedure, 1973 must be satisfied first
  • Directions for making arrest/authorizing detention issued to all police authorities/ Magistrates
  • Another step forward in developing a fair and corruption free environment for India Inc.


The Supreme Court of India ("Supreme Court") in its recent judgment of Arnesh Kumar ("Petitioner") vs. State of Bihar and Ors.1 ("Ruling") ruled on the principles for making arrest and detention under the Code of Criminal Procedure, 1973 ("Cr.P.C."). The Supreme Court, in its Ruling, has issued certain directions to be followed by the police authorities and the Magistrates while making arrest and/or authorizing detention of an accused.


Over the years, India Inc. has witnessed a rampant increase in white collar crimes. Police in India has almost set a trend of effecting immediate arrests with a view to come down heavily on white collar criminals. Even worse is a growing trend of the investors, promoters, directors, senior management and other officers of companies being indicted in criminal cases so as to bring the corporate to the negotiating table. Though the Ruling deals with the issue of misuse of anti-dowry provisions under the Indian Penal Code, 1860 ("I.P.C."), it carves out certain parameters for making arrests and/or authorizing detentions and the role of police authorities as well as the Magistrate involved in order to prevent automatic arrests and detention under the criminal law framework of India, which may be applied to the other offences including the alleged white collar crimes which ordinarily comprise of offences such as cheating, fraud, criminal breach of trust, forgery, falsification of accounts etc. and other offences punishable with imprisonment for a term which may extend to seven years or less.


The Petitioner had preferred a Special Leave Petition before the Supreme Court after having failed to secure anticipatory bail before the Sessions Judge and thereafter, the High Court of Bihar in a matrimonial dispute. The allegation levelled against the Petitioner involved making illicit demands for dowry, an offence punishable under Section 498 A of I.P.C. and Section 4 of the Dowry Prohibition Act, 1961.


The Supreme Court, in its Ruling, emphasized on the need of caution while exercising the drastic power of arrest, which has for years, been treated as a tool of harassment, oppression in the hands of the police authorities and has greatly contributed to police corruption in India. Citing statistics to demonstrate the misuse of the power of arrest by the police authorities, the Supreme Court proceeded to set out certain objective criteria to be applied before making arrest under the Cr.P.C.

The Supreme Court held that no arrest should be made only because the offence is non-bailable and cognizable. Neither should arrest be made in a routine, casual and cavalier manner or on a mere allegation of commission of an offence made against a person. Arrest should only be made after reasonable satisfaction reached after due investigation as to the genuineness of the allegation. Dealing with Section 41 (1) of the Cr.P.C. which provides for conditions precedents for making arrest, the Supreme Court emphasized that for making arrest, the police must be satisfied that all the conditions set out in the provision are met viz.,:

Arrest is necessary:

  • to prevent such person from committing any further offence; or
  • for proper investigation of the case; or
  • to prevent destruction of tampering with evidence by the accused; or
  • to prevent such person from influencing the witnesses; or
  • to ensure presence of the accused in the court.

Police must, in any case, record reasons for making, or not making the arrest in a particular case.

Further, the Supreme Court laid down the circumstances in which the Magistrate might authorize detention of the accused. As per Article 22(2) of the Constitution of India and Section 57 of the Cr.P.C, an accused must be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours, excluding the time necessary for the journey. An accused may be kept in detention beyond 24 hours of his arrest, only when authorized by the Magistrate2. The Supreme Court held that when an accused is produced before the Magistrate, the police officer effecting the arrest must furnish the facts, the reasons and the conclusions for arrest and the Magistrate, only upon being satisfied that the conditions of Section 41of Cr.P.C. are met and after recording its satisfaction in writing, may proceed to authorize the detention of an accused.

The Supreme Court, further, clarified that even in terms of Section 41 A of the Cr.P.C. where arrest of accused is not required, the condition precedents for arrest as envisaged under Section 41 of Cr.P.C. must be complied with and shall be subject to the same scrutiny by the Magistrate. The Supreme Court, in its Ruling, further condemned the practice of police mechanically reproducing reasons contained in Section 41 Cr.P.C. for effecting arrest in case diaries being maintained by the police officers.

In light of the above, the Supreme Court has issued the following directions to all the State Governments:-

  • To instruct the police officers to not mechanically arrest the accused under Section 498 A of I.P.C. without satisfying themselves that the conditions of arrest are met;
  • All police officers to be provided with the check-list of condition precedents prescribed under Section 41 of Cr.P.C., to be duly filed and forwarded to the Magistrate while producing the accused for further detention;
  • The Magistrate shall then peruse the report provided by the police officer and only after recording its satisfaction in writing, may authorize detention;
  • The decision to not arrest the accused should be forwarded to the Magistrate within two weeks from the date of institution of the case, the period may be extended by the Superintendent of police for reasons to be recorded in writing;
  • The notice of appearance in terms of Section 41 A Cr.P.C. should be served on the accused within two weeks from the date of institution of the case, the same may be extended by the Superintendent of police for reasons to be recorded in writing.
  • Failure to comply with the directives set out above may render police officers/Magistrates liable for departmental action and proceedings for contempt of court to be instituted before the High Court having territorial jurisdiction.


Litigation risks in India have proven to be a serious deterrent in attracting foreign investments in India. As per the Annual Global Fraud Report of FY 2013-143, percentage dissuaded from investing in India is 8% on account of its high-corruption environment.

India's law on arrest, though fairly evolved, still lacks the desired clarity. The unprecedented rise in the instances of arrest coupled with high charge-sheeting rate on the one hand and low conviction rate on the other hand clearly demonstrates the need to check abuse of the power of arrest vested with the authorities in India. The directions issued by the Supreme Court in the Ruling provide some respite from the casual/mechanical approach of the authorities in making arrest/authorizing detentions on the basis of mere allegations of commission of an offence.

More importantly, from the perspective of the reluctant foreign nationals doing business in India, the Ruling proves to be another step forward in India's efforts in developing a fair and corruption-free environment.


1 Special Leave Petition (Crl.) No.9127 Of 2013, Order dated July 01, 2014, available on

2 Section 167 of the Code of Criminal Procedure, 1973

3 Seventh edition of Kroll's Global Fraud Report, prepared in conjunction with the Economist Intelligence Unit, available at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Moazzam Khan
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.