Arrest without warrant under CRPC

This Article is written by Priya Aggarwal, BBA LLB, 4th Year, Student of Himgiri Zee University, Dehradun.

Introduction – The word ‘arrest’ is well known term in the society. It simply means to confine a person by the public authorities such as police or magistrate. However, the code of criminal procedure does not define the term ‘arrest’ but it can be understood as an act by which a person is taken into custody. The code of criminal procedure laid down the entire procedure of arrest specifically when a police officer can arrest a person without or with warrant and how arrest can be made and also provides the situation where arrest can be made by private person. In this article, we will discuss when a person may be arrested without warrant. As per the provisions of CRPC, persons who are authorised to arrest an offender are as follows:

1. Arrest by police officer
2. Arrest by private person
3. Arrest by Magistrate

Arrest by police officer-

Section 41 of the code of criminal procedure, 1973 enumerated the circumstances when a police officer may arrest a person without warrant and without an order from a magistrate. There are certain conditions and any of the conditions must be satisfied while making arrest without warrant by a police officer. These conditions are:

1. Cognizable Offence- If a person commits a cognizable offence in the presence of police. Cognizable offences are those offences which are enumerated as cognizable under first schedule of the CRPC such as Murder, Rape, Robbery etc; or
2. Information- A person may be arrested without warrant against whom a credible information has been received, or complaint has been made, or reasonable suspicion exists that a person has committed a cognizable offence punishable with less than seven years imprisonment or imprisonment upto seven years. A police officer has authority to arrest a person without warrant on above mentioned conditions if –
3. The police officer has reason to believe that such person has committed an offence against whom information has been received or complaint has been made;
4. When the arrest is necessary: –
5. To prevent such person from committing further offence; or
6. For proper investigation of the offence; or
7. To prevent such person for tempering and disappearing evidences of the offence; or
8. To prevent such person from making any inducement, threat or promise to the person who is acquainted with the facts of the case; or
9. The presence of such person is required in the court,

It is the duty of the police officer to record a reason in writing while making arrest of any person.

• Information of more serious offence- A person may be arrested without an order of magistrate against whom a credible information has been received, or complaint has been made, or reasonable suspicion exists that a person has committed a cognizable offence punishable with more than seven years imprisonment, or with death sentence; or
• Proclaimed offender- A person who has been declared as an offender either under the provisions code of criminal procedure or by the order of the state government; or
• Stolen Property- A person in whose possession stolen property is found and he has reason to believe that the property is his possession is stolen property and suspicion exists that he has committed an offence with reference to such property; or
• Obstruct- When a person obstructs or resist a police officer while performing his official duty or such person escaped or attempt to escaped from lawful custody; or
• Desert from army- A person deserts from any of the Armed Forces of the Union; or
• Extradition- If a person commits an offence outside the India, then such offence shall be deemed to be committed in India and such person shall be liable to be prosecuted in India for that offence and such person can be arrested by the police officer in India; or
• Released convict- If a released convict commits to breach any of the conditions on which he has been released; or
• Another police station- If the order has been received whether in writing or oral, from another police station that such person is to be arrested and specify that he has committed such offence.

The police officer has authority to arrest a person without warrant if any one of the above-mentioned conditions is fulfilled. In other cases, the police need an order from magistrate or warrant while making arrest.

However, this section is not exhaustive and there are various other acts which also confers such powers to police officers. For instance, Arms Act, 1959, Explosives Act, 1884 etc.

In section 41 of CrPC, used the term ‘may’ instead of must or something obligatory term which clearly explains that police officer is not bound to make arrest under section 41. In Amarawati and Anr. Vs State of U.P (2005), It was held by the honourable court that ‘may’ cannot be interpreted as ‘must’ or ‘shall’.

In Arnesh Kumar Vs. State of Bihar and Anr. (2014), the supreme court clearly states that an accused arrested without warrant has fundamental right as guaranteed under Article 22(2) of the constitution of India and section 57 of the code of criminal procedure to be produced within 24 hours of his arrest before the magistrate without any unnecessary delay and the police officer must satisfy the court why was the arrest necessary without warrant.

In the manner of Section 42 of the code, also empowered to a police officer to arrest a person without warrant if such person commits any non-cognizable offence in the presence of police officer and refuse to give name and residence on the demand of such officer or if a police officer has reason to believe that name and resident received by an accused is false.

Section 151 of the code of criminal procedure, 1973, also authorised a police officer for making arrest without warrant or without an order from magistrate in case of preventing the commission of cognizable offence. If a police officer has reason to believe that a person is required to be arrest for prevention of cognizable offence, he shall make arrest under this section.

Under sub-section (2), no person shall be detained for a period exceeding twenty-four hours and further detention of such person must be authorised by law.

Arrest by Private person-

Section 43 of the code of criminal procedure, 1973, a private person is authorised to arrest another person if such person, in his presence, commits a non-bailable and cognizable offence or he is proclaimed offender and private person is bound to make over to arrested person to the nearest police station or a police officer without any unnecessary delay. The police officer shall re-arrest him under section 41 of the code if he thinks fit to do so.

In short, this section enumerated two conditions and any one of them must be fulfilled:

1. A person commits a non-bailable offence and cognizable offence; or
2. A person is a proclaimed offender.

Arrest by Magistrate-

The provision of arrest by magistrate contained under section 44 of the code, if a person is committed any offence in the presence and local jurisdiction of executive or judicial magistrate, the magistrate may arrest such person himself or order any police officer to arrest the offender.

The above-mentioned section requires two conditions:

1. An offence is committed in the presence of magistrate, and
2. An offence is committed in his local jurisdiction.

Conclusion- Every individual has a right to liberty and no one has a right to curtail the liberty of another person but certain exceptions are there as stated under code of criminal procedure where the liberty of person can be curtailed by an act of arrest. Although the power of arrest is not arbitrary and the police officer is also bound to record the reason and ensure that the rights of person being arrested are protected while making arrest and non-compliance of the rules can make arrest illegal.

Keywords- arrest, without warrant, cognizable offence, CRPC