Arrest of a person is made with a view to ensure his presence at trial in connection with any offences in which he is directly or indirectly involved. In case of serious offences, arrests are often made, but in ordinary cases which are not of serious nature, the persons accused of having committed the offence are normally called to the police station through summons to answer certain questions and thereafter, their presence is ensured at the trial of the case too. The Criminal Procedure Code contemplates two types of arrest
one arrest made in pursuance of a warrant issued by a magistrate,
two arrest made without such a warrant but made in accordance with some legal provision permitting such an arrest.
While the first type of arrest is made by the police, the second type of arrest could be made by the police, or a private person, or by the Magistrate himself.
Section 41 and 42 Arrest by police officer
Cases where a police officer may arrest a person without warrant are specified in schedule 1 of the Code. Section 41 clause (1) enumerates nine categories of offences and cases relating thereto where a police officer may arrest any person without an order from a Magistrate and without a warrant. This section is depositary of general powers of the police officer to arrest but this power is subject to certain other provisions contained in the Code.
A. Who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists in this regard
B. Who is found in possession of any implement of house breaking without any lawful excuse
C. Who has been proclaimed as an offender, either under the code or by order of the state government
D. Who is found in possession of property reasonably suspected to be stolen
E. Who obstructs a police officer in the discharge of his duty
F. Who is reasonably suspected of being a deserter from any of the armed forces of the union
G. Who has been concerned or reasonably suspected to be concerned in any act committed at a place outside India which if committed in India would be punishable as an offence for which he would be liable to be apprehended or detained in custody in India
H. Who is a released convict committing a bridge of any rule made under section 356 clause five of the code
I. For whose arrest any requisition is received from another police officer competent to arrest that person without a warrant, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made.
Section 42 provides for arrest of a person if he refuses to disclose his identity and if he is suspected to be one of the offenders. But such a person must be released on bail after securing a bond if he is suspected to having committed a non cognizable offence. In case, however, the person happens to be not resident in India, the section makes it obligatory that before releasing the person on a bail bond such a bond will be secured by a surety or sureties resident in India.
Section 43-Arrest by private person and procedure on such arrest
Arrest of an accused is not the sole duty of the police. It can be made by private individual. Also a private individual may arrest a person only when the person is a proclaimed offender or the person commits a non bailable and cognizable offence in his presence. The provision is extraordinary in nature inasmuch as it enables a private person to arrest a person in certain circumstances and, therefore it must be construed strictly in the manner so as not to enlarge the power of private individuals to arrest a person.
Arrest by magistrate- Section 44
There is a subtle difference between clause (1) and clause (2) of section 44. Under clause (1), the magistrate has been given power to arrest a person who has committed an offence in his presence and also to commit him to custody under clause (2). The magistrate has power to arrest a person who is suspected to have committed an offence but has not been given any power to commit him to custody.