Arrest without warrant

PROCEDURE OF ARREST WITHOUT WARRANT

Author: Mr. Badal Khurana, JIMS School of Law.

  • What do we understand by the term arrest and where is it defined?

One of the most common terms which we hear in the modern era is “arrest”. Whosoever does or has done any act which is against the law, gets arrested. The term “arrest” basically means the apprehension of a person by the legal authority so as to cause deprivation of liberty.

The taking or keeping of a person in custody by legal authority, especially, or an exercise of the power to deprive a person of his or her liberty, in response to a criminal charge.

An arrest can be made in both criminal and civil both but in civil matters the arrest is the drastic measure which is not looked upon in favor by the court.

It is an important tool for bringing an accused before the court and to prevent him from absconding. Not every deprivation of liberty or physical restraint amounts to arrest. Only the deprivation of liberty by any legal authority in a professional and competent and manner amounts to arrest.

Objective

The mere objective of arrest is to bring an arrestee before a court and to secure the administration of the law. An arrest also serves the function of notifying society that an individual has committed a crime and to deter him from committing any other crime in the future.

The term “arrest” is not specifically defined in the Code of Criminal Procedure but a Chapter V of CrPC is completely dedicated to the “arrest of persons”.

  • What are the legal provisions enacted for making an arrest without a warrant?

Section 41 of CrPC[1]and Section 42 of CrPC[2]are the main sections providing for situations when Police may arrest without warrant.

Section 43 of CrPC[3] states the circumstances when a private person becomes authorized to make an arrest without a warrant.

Section 44 of CrPC[4] is the provision which deals with the arrest of a person by a Magistrate.

Section 151 of CrPC[5] is one of the most key sections, other than Section 41 and 43, which empowers police to make an arrest to prevent the commission of cognizable offences. This provision is also known as a preventive provision.

  • Who is authorized to make an arrest without a warrant?

People who are authorized to make an arrest without a warrant are laid down below:

An arrest can be made by a police officer, magistrate or any private person, like us, we can also arrest any person but it should be made as per the process mentioned under CrPC. A police officer is authorized to arrest a person with a warrant and without a warrant. The code exempts the members of Armed forces from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the government (Sec. 45)[6]. Any private individual may arrest a person only when the person a proclaimed offender and the person commits a non-bailable offence and cognizable offences in his presence (Sec. 43). Any magistrate (whether Executive or judicial) may arrest a person without a warrant (Sec. 44)

So, we can categorize and lay down three kinds of personalities, which are:

  • Police
  • Private Person
  • Magistrate
  • In what situations arrest can be made without a warrant?

The following situations under which a police officer can make an arrest are:

  • When any person is actually concerned or reasonably suspected to be concerned in a cognizable offence
  • Any person, who in the presence of such an officer has been accused of committing a non-cognizable offence and refuses to give his true name or residence.
  • Any person for whose arrest any requisition is received from another police officer competent to arrest that person without a warrant
  • Any person reasonably suspected of being a deserter from any of the Armed Forces of the Union
  • Any person found in possession of any implement of house-breaking without any lawful excuse
  • Any person found in possession of property reasonably suspected to be stolen and who may be reasonably suspected of having committed an offence with reference to such property
  • Any person obstructing a Police officer in the discharge of his duties
  • Any person who has escaped from lawful custody
  • Any released convict committing a breach of any rule made under Section 356(5) of CrPC[7]
  • Any person designing to commit a cognizable offence which cannot be prevented (except) by the arrest of such a person
  • A police officer-in-charge of a police station may as a preventive measure arrest without warrant any person belonging to one or more of the categories of persons specified in Section 109 of CrPC[8] or Section 110 of CrPC[9], i. e. persons taking precautions to conceal their presence with a view to commit a cognizable offence, habitual robbers, housebreakers, thieves, etc. and persons habitually indulging in the commission of certain social and economic offences.

The following situations under which a private person can make an arrest are:

  • Where any person commits a non-bailable and cognizable offence in his presence; or
  • Any proclaimed offender;

Note

It is important to note that such a private person arresting another shall without delay handover the arrested person in custody to the nearest police station.

The following situations under which a magistrate can make an arrest are:

  • When any person commits an offence within the local jurisdiction of and in the presence of such Magistrate
  • When any person within his local jurisdiction for whose arrest he is competent to issue a warrant.

Section 151 of CrPC lays down the situation under which the police get empowered to make an arrest when it appears to such a police officer that such person is designed to commit a cognizable offence and that the commission of offence cannot be prevented otherwise.

Intention

The bare perusal of these legal provisions reflects that the intention of the legislative assembly is to prevent the commission of a non-bailable and cognizable offence.

  • What is the complete process/procedure of making an arrest without a warrant?

The entire procedure of arrest has been laid down under section 46 with or without a warrant. In making an arrest the police officer /other person making the same actually touches or confines the body of the person to be arrested unless there be a submission to the custody by words or action.  When the police make an arrest of a person in execution of a warrant of arrest obtained from a magistrate, the person so arrested shall not be handcuffed unless the police have obtained orders from the Magistrate in this regard.

  • In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.
    Provided that where a woman is to be arrested unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
  • If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other people may use all means necessary to effect the arrest.
  • Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
  • Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

[1]https://indiankanoon.org/doc/1899251/

[2]https://indiankanoon.org/doc/631265/

[3]https://indiankanoon.org/doc/73521/

[4]https://indiankanoon.org/doc/120844/

[5]https://indiankanoon.org/doc/1228992/

[6]https://indiankanoon.org/doc/1583711/

[7]https://indiankanoon.org/doc/1709471/

[8]https://indiankanoon.org/doc/11461/

[9]https://indiankanoon.org/doc/291822/

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