PART-V 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. After discussing the circumstances where the police is empowered to arrest a person without warrant in the first and second posts, who can arrest without warrant in the third post, and the procedure and rights of arrestee just prior to and at the time of arrest in the fourth post, this is the fifth post of this series. In this post, I intend to discuss the procedure meant to be followed by the Police if the accused tries to evade the arrest.


Fifth Part

Powers Of Police Where The Person Sought To Be Arrested Attempts to Flee Or Goes Into Hiding


There are times when the police goes to arrest a person and the person has prior information or anticipation of arrest and tries to flee and goes into hiding. On the contrary there are also times when a person has absolutely no apprehension of arrest but yet when police arrives to arrest him, he feels intimidated and tries to flee. At times, it is also seen that accused use force to resist the arrest, and are sometimes even armed with deadly weapons. Therefore, it is useful to know about the powers of police so as to understand that how arrest is effected in such a tough situation.

1. Power of search available when the accused goes into hiding into any premises [S. 47(1)]

a. Premises Owner’s/ In-charge’s obligation to provide free ingress

If a police officer has authority to arrest (i.e. either it is case falling under S. 41(1), S.42(1), or he is armed with an arrest warrant issued by a Competent Magistrate) and he has-

  • a reason to believe that the person sought to be arrested has entered into or is within any place,

  • any person, residing in, or being in charge of, such place shall, on demand of the police officer,

  • allow him free ingress thereto, and afford all reasonable facilities for a search therein.

b. Power of forceful entry when Premises Owner’s/ In-charge’s denies to provide free ingress [S. 47(2)]

In such case, if after notifying his authority and purposes, and demanding admittance into the premises, a police officer may break open any outer or inner door or window of any house or place in order to effect an entrance into such place, if he otherwise cannot obtain admittance. The power must be used sparingly and only be invoked as a measure of last resort.

If the premises is occupied by a female who according to custom does not appear in public (pardanashin lady)

In such case, the Police Officer shall before entering such premises, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing.

c. Power to liberate himself

If a police officer in a) or b) (i.e. a police officer who has lawfully entered premises for making an arrest) is detained in the said premises, then he may break open any outer or inner door or window of that premises in order to liberate himself or any other person who has entered the premises as per his direction or for his assistance.

Power also available to a private person

Besides a Police Officer, the section also authorises a private person to search a premises for the accused. But it is mandatory for him to have warrant prior to effecting search under this section. It appears that the warrant may be issued under Section 37(a) of the Code. But this limitation does not apply in a case where such a warrant cannot be obtained without affording the person to be arrested an opportunity of escape.

Note- It is the view of the author that there is a drafting error in sub-section 2 of Section 47. There should be an ‘or’ between ‘...escape,’ and ‘for a police officer…’.

2. Attempt to evade arrest by use of force [S.46(2)]

If you try to ‘forcibly’ evade your arrest, then you enable the police officer to use all the force ‘necessary’ to effect the arrest. While the provision virtually gives the police a carte blanche to use all its resources to effect the arrest in such a case, however the use of the word ‘necessary’ brings the doctrine of proportionality in play. Another restriction on the power of the police officer in such a case is that he cannot ordinarily cause death of the accused for effecting his arrest.

Such a course is possible only when the person sought to be arrested is accused of any offence punishable with life imprisonment/death. To illustrate, if a man accused of rape tries to evade an arrest by use of force, and the police officer has no other option for effecting his arrest but to shoot him in his leg, it would not be a case of excess committed by the police even if the accused dies. However, quite evidently, such a power has to be used very sparingly and in the rarest of rare cases genuinely requiring deployment of such offensive means.

3. Power to pursue offenders in other jurisdictions. [S. 48]

A Police Officer may, for purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.

With this, I conclude this post. Please share your comments below.


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