“Pow Power of Polic lice To Arrest Without Warrant”
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Arrest without Warrant: A person is to be arrested without a warrant if such person is reasonably suspected to have committed a serious (cognizable) offence. Even in case of a less serious crime (non-cognizable offence) immediate arrest without warrant may become necessary to ascertain the name and address of the offender perpetrating the crime. It may also be necessary as a preventive measure to make arrests without warrant fore the forestalling of impending crimes, and for enabling the police to discharge their duties effectively. Arrests without warrant can be made by police officers or even by private citizens in emergencies. Wide powers have been conferred on the police for making arrests without warrant in Section 41 and 42.
41. When Police may arrest without warrant:(1) Any police officer may without an order from a magistrate and without a warrant, arrest any person(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, of his having been so concerned; or (b) who has in his possession without a lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) 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; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) 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; or (h) who being a released convict, commits a breach of any rule, made under sub-section (5) of Section 356; or (i) 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. (2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110. Clauses (a), (d) and (g) of Section 41(1) clearly show that the police have very wide powers of making arrests without warrant in respect of cognizable offences. However, these powers are not without limitations. The requirement of reasonability and credibility would hopefully prevent the misuse of such powers. The word “reasonable” brings in the requirement of the honest belief based on facts. The words “reasonable” and “credible” have reference to the mind of the police officer receiving information, and such information must afford sufficient materials for the exercise of an independent judgment at the time of making arrest. The police certainly have no power to arrest persons without warrant on the chance of something being thereafter proved against such persons. When the legality of an arrest without warrant is challenged in court, the burden is on the police officer to satisfy the court that he had reasonably grounds of suspicion. The word “may” in section 41(1) suggests that a police officer has discretion in making arrest without warrant. The Code however gives discretion to the magistrate to depart from this general rule if the circumstances so demand in a particular case. For instance, if at any time, the magistrate has reason to believe that the accused has absconded or
would not obey the summons, he may issued a warrant for his arrest. In practice, magistrate got hardly any occasion to issue the warrant in the cognizable offence because the police report is submitted to magistrate after the police has completed their investigation into the offence that’s why there would be no occasion in practice to issue the warrant for the arrest of the cognizable offence on a police report. Further, a view has been expressed that even if a police officer has been empowered by Section 41 to arrest without warrant, this power is to be exercised in circumstances where the obtaining of a warrant from a magistrate would involve unnecessary delay defeating the arrest itself. This view, it appears, has not yet been universally adopted by the courts. While in several other clauses of section 41(1) there is a distinct provision made to enable a police officer to act upon a reasonable suspicion, in clause (b) there is no such provision. Therefore, the inference is that clause (b) contemplates definite knowledge or information on the part of the police before he takes action under section 41. The law certainly does not intend to give a license to every policemen moving about on the road to search any person at his sweet will merely upon some suspicion of his own which may have no reasonable foundation at all that the said person might have an implement of house-breaking in his possession. The police officer acting under clause (b) must have definite knowledge or at least definite information that a certain person is in possession of an implement of house-breaking putting that person under arrest.
Clause (i) of section 41(1) has been designed to facilitate the arrest of a person at a distance. A police officer may by sending a requisition to another police officer can get wanted person arrested by such other police officer. Such requisition can be made in writing or even through telephone or wireless. The police officer receiving such requisition can arrest such person without warrant only if it appears without warrant by the officer sending the requisition. Section 41(1) empowers any police officer to arrest a person without warrant under the circumstances mentioned therein, sub-section (2) of section 41 permits only a police officer in charge of a police station to arrest without warrant the persons specified in section 109 and 110. As a preventive measure, arrest without warrant any person belonging to one or more of the categories of persons specified in section 109 or section 110, e.g. persons taking precautions to conceal their presence with a view of committing a cognizable offence; habitual robbers, housebreakers, thieves, etc., and persons habitually indulging in the commission of certain social and economic offences. These powers would enable station-house officer to take immediate steps against dangerous bad characters found within his jurisdiction before there is time to go to a magistrate and seek preventive orders against such bad characters under section 111. An unusual situation created by the unlawful arrest of a magistrate by the police has made the Supreme Court issue the following guidelines to be followed by the State
Governments and High Courts while effecting the arrest of a subordinate judicial officer:(a) If a judicial officer is to be arrested for some offence, it should be done under imitation of District Judge or High Court, as the case may be. (b) If the facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected. (c) The fact of such arrest should be immediately communicated to the District and Sessions Judges of the District concerned and Chief Justice of the High Court. (d) The judicial officer so arrested shall not be taken to a police station, without the prior order or directions of the District and Session Judge of the district concerned, if available. (e) Immediate facilities shall be provided to the judicial officer, for communication with his family members, legal advisors and judicial officer, including the District and Session Judge. (f) No statement of a judicial officer who is under arrest be recorded nor panchnama be drawn up nor any medical test be conducted except in the presence of legal advisor of the judicial officer concerned or another judicial officer of equal or higher rank, if available. (g) There should be no handcuffing of a judicial officer. If, however, violent resistant to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb the person
resisting arrest may be overpowered and handcuffed. In such a case, immediate report shall be made to the District and Session Judge concerned and also to the Chief Justice of the High Court. The Court has added that these guidelines are not exhaustive and that if the arrest and handcuffing are found to be unjustified the police officer would be guilty of misconduct and personally liable for compensation or damages as may be summarily determined by the High Court. The Supreme Court has had occasion to deal with the arrest of women. Modifying the Bombay High Court’s direction to the effect that police should not arrest a women without the presence of a lady constable and arrest of a women after sunset and before sunrise, the Supreme Court ruled that ‘while arresting a female person, all efforts should be made to keep a lady constable present but in the circumstances where the arresting officers are reasonably satisfied that such presence of the lady constable is not available and delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such officer for reasons to be recorded, be permitted to arrest a female person at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable. It is pertinent to note that what has emerged from case law has been enacted in S. 46(4) laying down that except in exceptional circumstances no women may be arrested after sunset and before sunrise and where such exceptional circumstances exist the women police officer should obtain
prior permission of the Judicial Magistrate of the First Class within whose jurisdiction the offence has been committed.
42. Arrest on refusal to give name and residence:(1) when any person who, in the presence of police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. (3) Should the true name and residence of such person not be ascertained within 24 hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction. Section 42 is clear in itself. If a person commits a noncognizable offence in the presence of a police officer and refuses to give his name and address when demanded by such officer, he can be arrested by such officer in order to ascertain his name and residence.
According to clause (2) of this section, when the true name and address has been ascertained he will be released with or without surety bond and if a person apprehended is not a resident of India then he will be released on the surety who is the resident of India. If the true name and address of such a person who is arrest is not ascertained within 24 hours or fails in executing any surety bond then he will be forwarded to the nearest magistrate for having a jurisdiction. However, if his name and address were previously knows to the police officer, he cannot be arrested and detained under this section.
Bibliography: The Code of Criminal Procedure, 1973- Bare Act (2012). •
K.N. Chandrasekharan Pillai (ed): Kelkar’s Lectures on Criminal Procedure, 4th edition, 2011, Eastern book company. •
K.N. Chandrasekharan Pillai (ed): R.V. Kelkar’s Criminal Procedure, 5th edition, 2012, Eastern book company. •
