Difference Between Arrest And Detention


As opposed to mainstream thinking, being arrested and being detained address disparate stages inside the legal process. An arrest indicates a conventional activity by the police, wherein an individual is arrested because of reasonable justification or a warrant, in this manner starting criminal procedures against them. It implies a significant point where the individual is accused of wrongdoing, flagging the initiation of legal procedures that can significantly influence their freedom and future.

On the other hand, detention envelopes a starter gradually easing in police interactions, commonly described by temporary restriction or questioning of people associated with a contribution to crime. Dissimilar to an arrest, detention doesn't guarantee formal charges or the commencement of judicial actions. All things being equal, it fills in as a transient delay in which law enforcement assembles data or surveys likely threats, often before an assurance of whether there are reasons for arrest.

Meaning and Legal Framework Of Arrest


The expression "Arrest" has been characterized neither in the Code of Criminal Procedure,1973 (CrPC) nor the Indian Penal Code,1860. The definition has not been furnished even in any authorizations managing criminal offenses. However, as per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.”

Legal Framework

Under the CrPC, an arrest is a significant procedural action carried out by law enforcement authorities in criminal investigation and prosecution. The provisions related to arrest under CrPC primarily lie in Sections 41 to 60.

  • Authority to Arrest: Section 41 of the CrPC awards the authority to the police to arrest without a warrant. Nonetheless, this authority isn't outright and is dependent upon specific circumstances. A police officer might capture an individual without a warrant if there are reasonable grounds to accept that the individual has committed a cognizable offense or is going to commit one.
  •  Grounds for Arrest: The grounds for capture under Section 41 should be founded on facts and not mere suspicion. Fundamentally, the official has a reasonable belief that the individual has committed or is going to commit a cognizable offense. The official's choice to capture should be founded on a cautious evaluation of the conditions and proof accessible at that point.
  • Recording of Arrest: After arrest under Section 41, the cop is expected to set up a reminder of capture, reporting essential details like the time, date, and place of arrest. This update fills in as an authority record of the arrest and is critical for keeping up with responsibility and straightforwardness in law enforcement. The update should be confirmed by at least one witness, ideally a respectable individual from the territory where the arrest was made, to guarantee its credibility.
  • Right to consult a legal practitioner: Section 41D of CrPC gives the option to the accused to counsel an advocate of his own choice and he is likewise qualified to meet an advocate of his own choice during interrogation, but not throughout the interrogation. Article 22(2) also ensures the right of the accused individual to consult an attorney voluntarily. Section 303 of CrPC states that when an individual is claimed to have carried out an offense before the criminal court or against whom procedures have been started, has a right to be shielded by a legal practitioner of his choice.
  • Exception to Armed Forces: Section 45 of CrPC excludes individuals in the armed forces from being arrested for anything done by them in the release of their authority obligations except after obtaining the assent of the government.
  • Search of Arrested Person: According to Section 51, after arrest, an individual might be searched, and anything found with them that applies to the offense might be seized. The search should be led by an individual of the same gender as the arrested individual and within the sight of an observer to guarantee decency and forestall abuse of power.
  • Right to be examined by a Medical Practitioner :As indicated by Section 54(1) of CrPC, the accused reserves the right to have a full body medical assessment. This assessment can assist the accused with refuting the offense that he is said to have committed or can assemble proof that the offense has been committed by another individual. Be that as it may, it can happen just when the magistrate allows it.
  • Right to be taken before Magistrate without Delay: As indicated by Section 56 of CrPC, the police officer who is making such an arrest whether with or without a warrant will undoubtedly produce the accused in 24 hours for his detention before the magistrate barring the time taken for going from the place of arrest to the magistrate's court.

Meaning and Legal Framework Of Detention


Although not characterized under any of the Indian laws, detention can refer to the demonstration of holding an individual or property, and, 'unlawful detention' is the unverified imprisonment or unlawful deprivation of liberty of a person by arresting for an illegitimate cause or doubt, alongside persistent limitation on one's very own liberty by keeping such person in custody. 

Therefore, when a police officer or some other authority or any individual holds or keeps an individual or group of people under doubt of an unlawful act yet doesn't accuse them of the wrongdoing is known as detention.

Circumstances Under Which a Person Can be Detained

In India, the circumstances under which an individual can be kept are represented by a combination of constitutional provisions, statutory laws, and legal points of reference. Detention is a serious hardship of individual liberty and should be completed strictly inside the boundaries of the law. Below are the particular conditions under which an individual can be detained under Indian laws, taking into account both criminal and civil contexts.

Criminal Detention:

  1. Arrest under CrPC: Section 41 of the CrPC engages police officers to arrest people without a warrant if they have sensible doubt or credible data that the individual has committed a cognizable offense or is going to commit one.
  2. Arrest Warrants: Arrest warrants issued by justice are fundamental for the arrest of people for non-cognizable offenses or when there is a requirement for formal judicial intervention.

Pre-trial Detention:

  1. Judicial Remand: After arrest, people might be remanded to judicial custody by a magistrate if there are grounds to accept that their release would prevent the investigation or represent a risk of fleeing.
  2. Bail Conditions: Courts might force conditions for bail, including surrendering identifications, providing guarantees, or reporting routinely to the police station, to forestall flight risk or guarantee public security.

Immigration Detention:

  1. Foreigners Act and Passport Act: The detention of foreign nationals for movement-related matters is administered by the Foreigners Act, 1946, and the Passports Act, 1967. People might be detained for unapproved passage, visa infringement, or forthcoming extradition procedures.
  2. National Security Act (NSA): Under the NSA, the government has the position to detain people considered a danger to public safety or public order for preventive detention, dependent upon explicit procedural safeguards and intermittent surveys by a review board. Under this law, an individual can be kept for as long as a year without being produced before a court.

Civil Detention:

  1. Mental Health Act, 2017: This Act accommodates the involuntary admission and detention of people with mental illness if they represent a risk to themselves or others. Such detention should be approved by a mental health professional and intermittently explored by a mental health review board.
  2. Preventive Detention Laws: Different state-explicit regulations and central enactments, for example, the Protection of Unfamiliar Trade and Avoidance of Pirating Exercises Act (COFEPOSA) take into account preventive detention to keep public order, public safety, or economic stability, dependent upon constitutional safeguards.

Preventive Detention Laws:

Preventive detention empowers an individual to be denied liberty, by executive determination, to protect public order without that individual being charged or brought to trial. Preventive Detention is the most disputable piece of the fundamental rights in the Indian constitution. 

In the case of Union of India v. Paul Nanickan and Anr., the Supreme Court expressed that the motivation behind preventive detention isn't to punish any individual for following through with something but to obstruct him before he gets it done and dissuade him from doing so. The reasoning for such detention depends on doubt or reasonable possibility and not a criminal conviction, which can be legitimate simply by substantial confirmation.

Article 22

  • Accommodates the protection of the life and personal liberty of people and sets out the strategy for preventive detention. According to this article, no individual can be kept without being informed regarding the justification for such detention, and no individual can be kept for more than 90 days without a judicial review.
  • Article 22(2) requires the state to accommodate a judicial review of the detention within 5 weeks from the date of detention except if the individual is generally released before.
  • Article 22(3) considers the detention of people without a trial in specific conditions, for example, when a state of emergency has been declared.
  • Article 22(4) gives that any person who is kept under preventive detention guidelines has the choice to be tended to by a legal practitioner of their choice and has the right to be informed in regards to the grounds for their detention.

The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)

COFEPOSA provides for preventive detention to maintain and improve foreign exchange and to deter illegal trade. Section 3 grants powers to the Central or State Government or authorized officers to detain individuals involved in activities detrimental to foreign exchange conservation or smuggling. Section 8 mandates the formation of Advisory Boards to review detentions, with provisions for revocation if deemed unjustified. The detention period for smugglers initially was for a year via another ordinance. This was increased to 2 years.

Unlawful Activities (Prevention) Act, 1967 (UAPA)

Section 43D of the UAPA states that if it is unreasonable to expect finishing the investigation within the expressed time of 90 days, the court may, assuming it is satisfied with the report of the Public Investigator demonstrating the advancement of the investigation and the particular explanations behind the detention of the accused past the expressed period for 90 days, extend out the expressed period upto 180 days.

Although essentially pointed toward managing unlawful exercises connected with terrorism and insurgency, the UAPA additionally incorporates arrangements for preventive detention. It considers the detention of people suspected of being associated with unlawful exercises or having links with terrorist organizations.

The Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980

The Act allows for preventive detention of individuals likely to engage in malpractices like black marketing and hoarding, with provisions for safeguards against abuse of power. Constitutional safeguards ensure detained persons are informed of the grounds for their detention and allowed to make representations. The Act also establishes Advisory Boards to review detentions, limiting detention periods to a maximum of six months.

The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

The Act replaced an ordinance and aimed to effectively immobilize drug traffickers through preventive detention. Section 3 of the Act empowers the Central or State Government to detain individuals, including foreigners, engaged in illicit drug trafficking to prevent their further involvement in such activities.

Key Difference

Points to Differentiate Arrest Detention
Legal Definition The arrest is when a police officer takes in custody an individual who has been accused of wrongdoing, to examine, hence eliminating his/her freedom.  Detention alludes to the demonstration of keeping somebody in official custody, to question them corresponding to a particular matter or wrongdoing.
Purpose The basic purpose of an arrest is to officially accuse an individual of wrongdoing, arrest them, and start judicial procedures against them. Detention fills different needs, including working with investigations, keeping up with public well-being, forestalling flight, or ensuring compliance with immigration laws, without essentially inferring criminal responsibility.
Authority Arrests are commonly done by law enforcement officials who have the authority to catch people associated with perpetrating violations and furthermore, in certain circumstances, by private persons or magistrates. Detentions can be led by different authorities, including law enforcement, immigration officials, or military personnel, contingent upon the unique circumstance and the idea of the detention.
Duration Can be held in custody until bail is conceded or a case is presented before the court. By and large for a brief timeframe.
Legal Rights People arrested are qualified for specific legal rights, including the right to be informed of the grounds of arrest, the right to legal representation, the right to medical examination, and the right to be produced before a magistrate within 24 hours. Detained people likewise have specific rights, even though they might change depending upon the unique circumstance and the particular provisions invoked, including the right to be informed of the reasons for detention and the right to challenge the detention before an appropriate authority.
Procedures Arrest systems are represented by the CrPC, which frames the means that police officers must follow, including informing the individual of the grounds of arrest, recording the arrest in a register, and producing the person before a judge in 24 hours or less. Detention systems fluctuate contingent upon the reason and the particular legal provisions invoked, for certain provisions expect adherence to procedural defends like the recording of reasons behind detention and intermittent review by an advisory board.
Release Release from arrest might happen through different means, including getting bail, being released on personal recognizance, or being acquitted of charges. Release from detention can happen through different instruments, including lapse of the detention time frame, revocation of the detention order, or judicial intervention such as habeas corpus proceedings.
Consequences Being arrested can have huge legal outcomes, including criminal allegations, potential imprisonment, and the formation of a criminal record, which might influence work, travel, and other aspects of life. Detention might prompt outcomes like an inconvenience, impermanent loss of freedom, or limitations on movement, however, it may not necessarily in every case bring about proper charges or the formation of a criminal record, contingent upon the result of the investigation or administrative proceedings.