PART III- THE ARREST SERIES (WITH FOCUS ON THE CODE OF CRIMINAL PROCEDURE, 1973)

This multi-part blogpost series is aimed at illuminating the most essential aspects of the police’s power to arrest any person. This is the third post of this series wherein I shall be dealing with the issue as to who, besides the police, can arrest a person. Click here for the first post and second post of the series.

Third Part

Who can arrest without warrant?

Though the common sight of a person being arrested is incomplete without police, procedurally, it is possible for an arrest to be made by a private person as well as by a Magistrate himself. With respect to an arrest by police officers also, it is important to note that notwithstanding the power given to ‘any’ police officer in S. 41 of the CrPC, 1973, there are certain other formalities to be followed when an arrest is made during an investigation under Ch XII of the CrPC. The said formalities have been mentioned in the First Part but are also relevant for the purpose of the present post.

I. Arrest without warrant by a private person (S. 43)

Discretionary Power exercisable when a non-bailable cognizable offence committed in one’s presence

1. The power of arrest conferred upon private citizen is an important power because it is impossible for the police to be omnipresent and maintain law and order everywhere all on its own. Undoubtedly, such a power cannot be unbridled and thus has been saddled with numerous safeguards so as to narrow down its scope to prevent its misuse. The power is discretionary in nature which can be exercised by any person by himself or through someone else if any person commits non-bailable and cognizable offence in his person or any person has been declared a proclaimed offender (See S. 82, CrPC, 1973).

2. In view of S.46, it appears that a female cannot be arrested by a private person and she can be arrested only by a female police officer. But it may be a possibility to read to the law so as to allow a female private person to arrest a female and that too only after the sunrise and before the sunset.

3. The arrestee has to be handed over to a Police officer, or in absence of a Police Officer, to be taken in custody to the nearest Police Station without unnecessary delay.

4. Upon being satisfied about the legitimacy of the arrest under S. 41 of the CrPC, 1973, the police shall re-arrest him. This entails fulfilling the compliance under S.41B of the Code (You may also read our fourth post on how to arrest). In case the police is of the opinion that the offence involved is a non-cognizable offence, then the procedure under S. 42 is required to be followed.

5. If there is no sufficient reason to believe that he has committed any offence in the opinion of the police officer or the in-charge of the police station, as may be applicable, then the person shall at once be released.

II. Assessing the applicability of the procedural provisions pertaining to arrest in case of arrest by a private person

Applicability of following provisions	Arrest by a Private Person
Applicability of Section 41 B (Procedure of Arrest and Duties of officer making arrest)	Not Applicable, applies as soon as the Police re-arrests under S. 43(2).
Availability of Powers under S. 46 (Arrest how made)	In case of a male offender, powers are same but in case of a female offender, only a female police officer is empowered.
Availability of powers under S.47 (Search of a place entered by person sought to be arrested)	Available but the private person should have a warrant. And if he is required to enter the premises by breaking open the door or window due to denial of admittance under s. 47(2) and he does not have a warrant, then he can do so only if he shows that the warrant was capable of being issued but was not obtained to prevent the arrestee from fleeing.
Availability of power under S.48 (Pursuit into other jurisdictions)	Not Available
Applicability of S. 49 (No unnecessary restraint)	Appears to be applicable
Applicability of S. 50(1) (Communication of grounds of arrest to the accused)	Applicable
Applicability of S. 50(2) (Communication of right to bail wherever applicable)	Not Applicable
S.50A (Obligation of a person making arrest to inform about the arrest, etc. to a nominated person)	Only S. 50A(1) is applicable.
Availability of S. 51 (Search of arrested person)	Not available
Availability of S. 52 (Power to seize offensive weapons)	Available
Applicability of S. 53, 53A, 54, 55A, 57	These provisions don’t appear to be applicable in cases of arrest by private person because firstly these are post-arrest modalities, and secondly S. 43(1) requires the person arrested to be handed over to a Police Officer or the nearest Police Station without any unnecessary delay.

III. Arrest by a Magistrate (S. 44 CrPC)

1) The power to arrest conferred on a Magistrate is wide as he is expected to be a powerful and responsible person acting as the first judicial officer of the criminal justice system in our country. Viewed in this perspective, the power is also dangerous as it allows the Magistrate to be the judge, jury and the executor all on his own, but at the same time it cannot be expected that a judge should keep his eyes and ears closed even when he sees a crime being committed in front of him.

2) The power is available to Executive Magistrates [See S. 6(iv), 20 and 23 of CrPC] as well.

3) The power can be exercised by him only within his local jurisdiction. (See S. 14 and 22 of the CrPC)

4) The Magistrate may, upon arrest, send him to custody or release him on bail as per the relevant provisions of the Code in this behalf.

5) The Magistrate may also arrest or direct an arrest of any person in his presence who may not have committed any offence in his presence but the Magistrate is competent at the time and in the circumstances to issue a warrant.[See S.190(1)(b) read with S. 204(1)(b)]