ARREST WITHOUT WARRANT BY POLICE @LexCliq by Anisha Roy

ARREST WITHOUT WARRANT BY POLICE

Police have been granted with wide powers for making arrest without warrant under section 41 and 42 of the Code. Under Section 41, the police have the power to arrest a person without a warrant when a prompt and immediate arrest is needed and there is no time to approach magistrate and obtain a warrant in case of serious crime. No arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest.15 This Section is to be read with Sections 155 and 156 of the Code. A police officer shall, in all cases where the arrest of a person is not required under the provisions of Section 41(1) record the reasons in writing for not making the arrest.

Under Section 41(1) (a) of Cr.P.C., the police officer may arrest without any order from the Magistrate and without any warrant, any person, who commits, a cognizable offence in the presence of a police officer. The use of phrase “may … arrest” indicates that the power of arrest is a discretionary. Police officer is not always bound to arrest for cognizable offence. Under Section 41 (1) (b) of Cr.P.C., the police officer may arrest without any order from the Magistrate and without any warrant, any person against whom :-

a reasonable complaint has been made,

or credible information has been received,

or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, It could be seen that a police officer is empowered to arrest any person under reasonable suspicion. The requirement of reasonability and credibility is made to prevent misuse of such powers and also because suspicion cannot be scrutinized or used as an evidence. Credible and reasonable suspicion must have reference to the mind of the person receiving the information. It must be based on definite facts other than the personal feelings of the police officer. If police act bona fide and wrongly arrests a person on reasonable suspicion he is protected. It is not enough for arrest of a person, under this section, that there was likelihood of cognizable offence being, committed in future. When the legality of an arrest without warrant is challenged in the court, the burden of proof is on the police officer to satisfy the court that he had reasonable grounds of suspicion. Malicious and excessive exercise of powers of arrest under these sections would be punishable under Section under 220 IPC.

For the arrest of a person under Section 41 (1) (b), two conditions must be satisfied. They are:

▪ Section 41(1)(b)(i) of Code lays down that the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence. It makes obligatory to the police officer to give reasons in writing for such belief.

▪ Section 41(1)(b)(ii) lays down list of necessary conditions under which a person committing such offences can be arrested. The police officer shall record his reasons in writing while making such arrest under this section. If the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence and is satisfied that the arrest is necessary under following conditions:-

  • If the police officer believes that if the person is not arrested then there is a possibility that the person may commit further offences (Section 41 (1)(b) (ii) (a))
  • If the police officer believes that the person needs to be taken into custody for further and proper investigation of the offence. (Section 41 (1)(b) (ii) (b))
  • If the police officer believes that the person if not arrested may cause the evidence of the offence to disappear or tampering with in any manner. (Section 41 (1)(b) (ii) (c))
  • If the police officer believes that the person if not arrested may make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer. (Section 41 (1)(b) (ii) (d))
  • If the police officer believes that the person if not arrested then his presence in the court on requirement during trial is not ensured. (Section 41 (1)(b) (ii) (e))

The police officer may arrest without any order from the Magistrate and without any warrant, having reasons to believe that, any person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence. This clause (ba) is not talking of reasonable complaint and reasonable suspicion. It is obligatory for the police officer to adduce reasons if he decides not to arrest a person under the provisions of this section. He can arrest, without warrant or order from Magistrate following category of person:-

❖ any person who has been proclaimed as an offender either under this Code or by order of the state Government. If it is not proved that the proclamation published, mentioned in this section, is duly published then the arrest is illegal.

❖ in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. (Section 41 (1) (d))

❖ who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody. (Section 41 (1) (e))

❖ who is reasonably suspected of being a deserter from any of the Armed Forces of the Union. (Section 41 (1) (f)).

❖ who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India (Section 41 (1) (g)) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356, (Section 41 (1) (h)). Section 356 Subsection (5) of Cr.P.C. deals with the order for notifying address of previously convicted offender (notification of residence or change of or absence from the residence of released convicts).

❖ For whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (Section 41 (1) (i)) It also facilitates the arrest of a person at a distance. Such requisition can be made in writing or even through telephone or wireless. In regards to the Section 42 in accordance to the Code of Criminal Procedures the police are having power to arrest any person who denies giving the correct information to them and also in regards to know about the original residence of them. However, if his name and address were previously known to the police officer, he cannot be arrested and detained under this section. The provisions in accordance to Section 42 says that at the time any person has committed some offence which is non-cognizable in the presence of the police or also if he has been accused by the police, and after that he refuse to give the correct information about the residence, name, etc on being demanded to provide so by police or if the police officer has a belief that the information that has been given is false then he may exercise his right to arrest that person in order to ascertain the name and residence of the person. If the person fails to give his name and address, the police officer shall produce him before the magistrate within 24 hours of arrest.

The police officers are also having the power to arrest the person as per Section 151 of Code for arresting any person to prevent the commission on the cognizable offences so that it doesn’t happen in the society. He may, knowing about design to commit any cognizable offence arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. However, such person cannot be detained in custody for a period exceeding twenty- four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of the Code or of any other law for the time being in force. Section 154 in accordance to the CrPC has been providing the rights to the Police officers that if they receive any information about any person who has done some cognizable offenses, then they have the option to arrest that person even though the process of warrant is being undergoing in the court.

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