PART I- 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 first post of this series wherein I shall be dealing with the cases where the police is empowered to arrest a person.

First Part

When Can a Person be Arrested?

In this post, I shall be specifying the situations which permit the arrest of a person without warrant. I would like to begin with a few basic concepts which must be kept in mind while understanding the power of arrest. These concepts are important for understanding each post of this series.

1. There are offences for which police can arrest without warrant (the class of offences is known as cognizable offences), and there are offences where it cannot do so and a warrant issued by a Magistrate is a compulsory requirement for effecting arrest (this class is known as non-cognizable offences).

2. The power of arrest should be exercised by the Police in the most careful manner as it operates as a reasonable restriction on a person’s fundamental right to life and liberty under Article 21. If the power is exercised arbitrarily by the Police, then it becomes a violation of the person’s fundamental right.

3. No arrest shall be made except in accordance with the provisions of the CrPC, 1973 or any other law for the time being in force. [S.60A, Chapter V of CrPC, 1973]

With these most basic concepts in mind, I begin with the main subject of this post, that is, when a person may be arrested.    

I. Arrest related to cognizable offences (S. 41 of CrPC)

Any police officer may without an order from a Magistrate and without a warrant, arrest any person in the following cases-

a. Commission of a cognizable offence in presence of a Police Officer

Any person who commits a cognizable offence in presence of a police officer can be arrested.

b. When information is received about commission of Cognizable Offence punishable with an imprisonment upto 7 years

Any person against whom

– a reasonable complaint has been made, or

– a credible information has been received, or

– a reasonable suspicion exists,

that he has committed a cognizable offence entailing a punishment of upto 7 years  can be arrested. However, this is not enough and there are additional conditions to be met if an arrest has to be made in such a case.

The police officer must apply his mind and form his own belief on truth, veracity and authenticity of the information, complaint or suspicion referred to hereinbefore. Secondly, he should be satisfied that such an arrest is necessary for any of the following reasons-

– to prevent commission of any further offence by him, or

– for proper investigation of the offence, or

– to prevent tampering, disappearance or destruction of evidence and to prevent extending of any threat or inducement to witnesses, acquaintances, or

– for ensuring the presence of such person before the court.

In addition, a police officer has to record reasons in writing prior to making arrest under this sub-clause.

c. When information is received about commission of a Cognizable Offence punishable with an imprisonment exceeding 7 years

Any person against whom credible information has been received about him having committing a cognizable offence punishable with an imprisonment exceeding 7 years, and the police officer has a reason to believe the information, he may be arrested.

Note 1 - It may be noted that proviso to S.41(1)(b) states that whenever an arrest is not required under the provisions of the sub-section, then the police officer must record the reasons in writing. The placement of the proviso is misleading as it appears that this requirement applies only in cases falling under S.41(1)(b) but the language suggests otherwise and applies it to entire S.41(1).  

Note 2- The Section begins with the term 'any' thereby meaning any police officer has the power to arrest without warrant in the cases referred to in that section. It may be useful to refer to S.55 at this juncture. S.55 provides for a situation when a police officer carrying out an investigation under Ch. XII of the Code deputes his subordinate to make an arrest under the provisions of S.41. In such a case, he must provide his subordinate with a written order containing the name of the person to be arrested and the cause of arrest. The order shall be shown by the subordinate/deputed police officer to the person sought to be arrested, if required. This is not a curb on 'any' police officer's power of arrest but merely a procedural safeguard to be followed when the person carrying out any investigation does not make the arrest himself. 

II. Permissibility of Arrests in some other situations (S. 41, CrPC)

There are some other situations where arrest without warrant is permitted.

a. Anyone who has been declared proclaimed offender under the Code or any order of the State Government may be arrested.

b. Upon being found with Stolen property

Anyone found in possession of a thing reasonably suspected to be a stolen property and when he may be suspected of committing an offence with reference to such thing.  

c. Obstructing a police officer while in execution of his duty.

d. Person suspected to be a deserter from the Armed Forces of the Union.

e. A person who has committed an act outside which is punishable as per India law

When a person is

– concerned in, or

– against whom
           –a reasonable complaint has been made, or
          – a credible information has been received, or
          – a reasonable suspicion exists,

of him having been concerned with commission of any act outside India which is punishable in India, then such a person can be arrested without warrant provided that he is liable to be apprehended or detailed in India under any law relating to extradition  or otherwise. 

III. Arrest not mandatory in the cases covered under II and III (S.41A)

It is not mandatory that arrest be made in each and every case enumerated under II and III. A notice under Section 41A can also be issued to such a person requiring him to appear before the police officer at the place specified in the notice. If such person continues to comply with such notices, then usually he shall not be arrested. But if the police officer is of the opinion that he ought to be arrested, then he may be arrested.

IV. Preventive Arrests related to cognizable offences [S. 151 of CrPC]

Till now, we have discussed the cases where a cognizable offence has been committed, but the power of arrest is not limited to only such cases where the offence has already been committed. For a power to be effective, it also needs to have a preventive outlook and use. This preventive dimension has been added by the S.151 of the CrPC which empowers a police officer knowing of a design to commit any cognizable offence without a warrant or an order from Magistrate. The only limitation on this power is that there should not be any other way of preventing the commission of the offence. As in the case of other arrests, preventive arrest can also not last for more than 24 hours unless allowed by the Magistrate under Section 167 of the Code or any other law for the time being in force.  

V. Arrests related to non-cognizable offences [S. 41(2) and 42 of CrPC]

Section 41(2) clearly provides that a person accused of committing a non-cognizable offence cannot be arrested without a warrant issued by, or an order of a Magistrate. Then what is expected from the Police if it is informed about commission of a non-cognizable offence. Is it powerless in such cases, and everything is in the hands of the area magistrate? Yes, much lies in the hands of the Magistrate only but the Police is not entirely powerless in such cases. The following is one situation expressly given in the Code when an arrest can be effected for commission of a non-cognizable offence.

Commission of a non-cognizable offence in the presence of a police officer and giving of wrong name and address to the police officer, or a name and address which appears to be false to the Police Officer can invite arrest. However, upon ascertainment of the true name and address of that person, he can be released on a bond with or without sureties, whereby he undertakes to appear before the Magistrate, if required.

Such a person must be produced before the nearest Magistrate having jurisdiction, if-

a. within 24 hours from the time of arrest, his true name and address is not ascertained,
b. he fails to execute a bond ensuring his appearance before the Magistrate,
c. he furnishes the bond, but fails to furnish sufficient securities, as required.

An attempt has been made to encapsulate various circumstances where a person can be arrested by the Police. Kindly share your comments below.