Understanding The Distinction Between Arrest & Custody

Contrary to the common person’s belief, arrest & custody are not synonymous. It’s true that in every arrest there is an underlying custody as well, but there is major difference. 

Where ‘Arrest’ & ‘Custody’ Stand Apart

Contrary to the common person’s belief, arrest & custody are not synonymous. It’s true that in every arrest there is an underlying custody as well, but there is major difference.



Understanding ‘Custody’ 

  1. Custody may amount to arrest in certain cases.

A person may walk in a police station and submits himself before a police officer present there, stating that he has committed an offence or an act amounting to be an offence, then the person has submitted to the custody of law.  Therefore custody summarizes a person committing to a prison.


  1. The custody includes the circumstances in which the person or accused has come into the hands of police.






Understanding ‘Arrest’

  1.  Arrest is the process of formally taking the person in police custody. The objective of arrest is to compel the obedience to the order of Court of Justice.
  2. The arrest of an accused is major step in the process of investigation
  3. 2 Basic Types of Arrests according to Objective are :
      1. An arrest is effected to ensure the production of the arrested person in a court of law, if there exists a criminal complaint
      2. An arrest executed with the aim of preventing such person in continuing with the unlawful activity.
  • Procedure of making arrest ( section 46 Cr. PC)
    1. The word ‘I Arrest You’ shall be used as the law envisages that the accused who is being arrested shall be properly informed by the arresting authority.
    2. In case of resistance, police may use force to reasonable extent and means to affect the arrest.
  • Formal Steps of Executing Arrest - Section 46 Cr. P.C

The section 46 Cr PC contemplates three actions in arrests , namely :

      1.  Submission of the arrested to custody by means of words & action
      2. Touching the body of the arrested
      3. Confining the body of the arrested to a restraint.


   Can I Be Arrested in Anticipation of Crime that May Occur In Future?

                       The law has clear definitions of conducting arrests either with the intent to produce the accused in court of justice, or to prevent a person from committing unlawful activities.

Unless there is prevalent trend of the person having committed unlawful activities or being a part or related to an offence, arrest can’t be ruled out.


But on mere speculation that a person may commit a crime in future, a landmark judgement has been passed, which is the guiding for action by police:


Eisah Mian vs Tripura Administration 1962 (2) Cr. L.J 673

The judgement reads as :

No arrest can be made on the ground that delinquent may commit a cognizable offence in future  


Similar judgement has been issued in trail Jai Narayan & Another vs. State of Haryana 1994 (I) crimes 394


In this some person were arrested while they were under influence of liquor & they wanted to have some mutual entertainment. Such situation is not a ground that they were preparing to commission a cognizable offence.            






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