Lucknow, UP, India, 226028

ARREST WITHOUT WARRANT

jail

INTRODUCTION

The term ‘arrest’ is defined as to restrain a person, compelling him to obey the law of the land. It is defined to be the performance of the directions of Court of by officer who is authorized to give justice by law. An arrest is an onset of confinement by a lawful authority where a man is primarily taken into custody & is deprived of his autonomy.[1]

Blacks Law Dictionary defines arrest as deprivation of a person’s liberty by any legal authority.[2]

The term ‘arrest’ hasn’t been defined in any of the laws. However, in Ajaib Singh versus State[3], the Hon’ble Punjab High Court said that the term ‘arrest’ used in Constitution in Article 22 is an inclusive term which covers all kinds of cases in which a person is incarcerated by legal authority and is not confined to cases in which a person is incarcerated by or under the directions of a Civil Court or a Criminal Court.

TYPES OF ARREST

A person can be arrested for commission of an offence by a legal authority when such offence is-

  • Cognizable Offence

Cr.P.C section 2(c) defines the cognizable offence as an offence under the First Schedule or any other law where a police officer can arrest without warrant.

  • Non-Cognizable Offence

Cr.P.C section 2(l) defines a non-cognizable offence. It states that a non-cognizable offence is an offence where a police officer has no authority to arrest without a warrant.

There are various cognizable cases in the First Schedule of the Cr.P.C. Some of those are the offences include Offences against the State (Section 121- 130), Section 215, Offences relating to Coin and Government Stamps (Section 231- 263A), Offence against the human body are few examples of cognizable cases.

PERSONS WHO CAN MAKE AN ARREST

According to Cr.P.C., the following persons can arrest-

  • A Police Officer
  • A Private Person
  • A Magistrate

ARREST BY A POLICE (SECTION 41)

Cr.P.C section 41 postulates about the procedure of when a police officer can arrest anybody without a warrant. This Section provides that any police officer can arrest any person without authorization from the Magistrate and without any warrant in the following cases-

  1. Such a person commits a cognizable offence in presence of a police officer. In Kura Rajaiah versus State[4] Hon’ble Andhra Pradesh High Court held that when a person is accused of 5 cognizable offences, the Cr.P.C. authorizes police to detain such person without the existence of a warrant under this clause. In EasihMian versus Tripura Administration[5], it was held by the Court that a person cannot be arrested by a police officer just because there was a chance of such a person committing a cognizable offence in the future.

Such arrest as mentioned in this clause is justified only when there is a reasonable complaint or suspicion that the person to be arrested is concerned in the commission of a cognizable offence as held in Roshan versus Superintendent of Police.[6]

  1. The person against whom a complaint is reasonably made. Information on such complaints must be plausible and reliable. There must be reasonability in the suspicion of commission of a cognizable offence. Such a person shall be punished with imprisonment for a term up to 7 years with or without fine.

The term ‘reasonable’ as held SagwanPasi versus State of Bihar[7]means a bona fide belief that an offence has been committed or is about to be committed necessitating the arrest of the person involved.

However, this clause is fulfilled only when certain conditions are met-

  • The police officer must have a reasonable belief that such a person has committed the offence based on such complaint, information, or suspicion made to the police.
  • The police officer thinks that arrest of that person is requisite to prevent such person from perpetrating of any more offence, for better investigation, prevent him from tampering the evidence, inducing or threatening any person from disclosing facts against him in the Court of law or if such person is not taken into custody then his attendance in Court is not ensured.

The police officer arresting such a person must record-making of such arrest and also the reasons for arresting any person.

Further Section 41 states that police can arrest any person without an order from the Magistrate if against such person credible information is received of this person committing a cognizable offence and the police officer believes that this person has committed the said offence, then he shall be punished with imprisonment for a term for that 7 years with or without fine or with a death sentence.

However, in Subodh versus Emperor[8], it was held that a bare assertion about the existence of credible information is not sufficient to attract an arrest.

  1. Arrest any person who has been proclaimed as a perpetrator by this Code or by any other order of the State Government.
  2. Arrest any person owning an article that is reasonable to be suspected stolen property and there is also suspicion on the person of a commission of such offence.
  3. Arrest any person who obstructs an officer to-
  • perform his duty
  • has run away from custody
  • Attempted to escape from lawful custody.
  1. Arrest person who has deserted the Union Armed Force.
  2. Arrest any person who is related to the offence in any way commits such act outside India, and if he had committed such offence in India then he would have been punished by any Indian law relating to extradition or otherwise captured or detained in India.
  3. Arrest any person who is a released convict, breaks any rule under Section 356 (5).
  4. Arrest any person whose arrest was ordered by another police officer whether in written form or orally. It is essential to note that the order made by a police officer to another officer must specify the person to is to be arrested, the offence for which he is to be arrested, and whether there are grounds for arresting such a person without a warrant.

In Gulam Mohammad Ajimuddin versus State of Madhya Pradesh[9], it was held that the power directing the arrest under this clause of a person outside the local jurisdiction of a Court is very wide & drastic and so to be exercised with caution and circumspection and on substantial reasons.

The officer concerned as held in BhootatiCondaMurugadu versus State of Andhra Pradesh[10], has to satisfy himself that the officer who asked him to arrest was legally entitled to arrest without warrant under Section 41(1) and he would be then effecting the arrest on his discretion or initiative depending on the circumstances of the situation.

Sub-Section (2) of Section 41 provides that any person who is not related to any cognizable offence or any credible information against him has been received won’t be arrested without a warrant.

ARREST BY PRIVATE PERSON

Section 43 of this Code provides the provision of arrest by a private who is not police and the procedure of making such an arrest.

Sub-section (1) provides that any person may arrest or causes an arrest another person or any proclaimed offender who has committed any non-bailable and cognizable offence in such a private person’s presence. Such a private person, without any delay, should deliver himself or make someone else deliver such an arrested person to a Police Officer. If the Police Officer is absent at the time of such delivery, he should take such an arrested person to custody or should take him to Police Station closest to that place.

Sub-section (2) says that if any Officer believes that this person has committed any offence which makes him liable to be arrested under Section 41, then in such case the Officer will arrest him again.

Sub-section (3) postulates that such person shall be handled under the provision of Section 42 if such Police Officer believes that-

  1. The person arrested has committed a non-cognizable offence;
  2. Such a person refuses to give his name and residence on demand of the Police Officer;
  3. Such a person gives his name and residence but the Police Officer believes it to be false.

However, if the Police Officer believes that if there are no sufficient reasons to believe of the commission of any offence then such person shall be set free at once.

ARREST BY MAGISTRATE

Section 44 of this Code provides the procedure of arresting by a Magistrate.

Sub-section (1) provides that if any offence takes place in presence of an Executive Magistrate or a Judicial Magistrate within the jurisdiction of such Magistrate, then he shall arrest such offender or order anyone to arrest that offender and commit him to custody.

F.I.R. IN COGNIZABLE CASES

Section 154 lays down the provision of filing a First Information Report in a Cognizable Offence.

Sub-section (1) provides that-

  • When a person gives oral information to the Officer in Charge (hereinafter referred to as O/C) of a Police Station then it must be written down by the O/C himself or by anyone under his direction and must be recited out to the person giving that information.
  • Such information provided whether in written form or written by the O/C and there must be the signature by the person providing it.

The fundamentals of such details must be written down in the book which would be kept by the O/C in the certain format that the State Government has given.

This Sub-section provides that if a woman against whom an offence has been allegedly committed or was attempted under Sections 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or 509of the Indian Penal Code,1860, then such information shall be recorded by a woman police officer or any other lady officer.

However, if such person against whom the aforesaid offence was allegedly committed or was attempted is disabled permanently or temporarily, either mentally or physically then the information would be recorded at the resident of such person or any other convenient place by a police officer of choice of such person in the presence of a special educator or an interpreter. Such information must be video-graphed. If the statement was recorded by a Judicial Magistrate under Section 164 (5a) (a), then the police officer must get such a statement from the Judicial Magistrate as soon as possible.

Sub-section (2) provides that a copy of the information recorded must be given to the informant without any cost.

Sub-section (3) provides that if the O/C of a police station refuses to record information given by any aggrieved person then such person writes down the substance of the information and sends it to the S.P. by post. If the S.P. is satisfied with the fact that there has been the commission of an offence of cognizable nature then he will start investigating into it himself or he may order any subordinate police officer for investigation as provided in this Code. This Police Officer appointed will possess all the powers O/C of a police station has relating to that offence.

PREVENTING COMMISSION OF A COGNIZABLE OFFENCE

Section 149 to 151 of Cr.P.C. speaks about the procedure the police shall take to prevent a cognizable offence and arrest such offender.

Section 149 provides that every police officer may step in to prevent any cognizable offence to the best of his ability.

Section 150 provides that every police officer on receiving of information of commission or a plan to carry out a cognizable offence, then that officer has to give this information to officer he is subordinate to and also to any other officer whose duty is to take cognizance of the commission of any offence.

Section 151 speaks of the arresting a person to prevent a cognizable offence.

Sub-section (1) provides that when a police officer has the knowledge or information of a plan of a commission of any cognizable offence then such officer can arrest the person or persons planning to commit such offence without a warrant only if the officer cannot prevent such offence without arresting them.

In Medha Patkar versus State of Madhya Pradesh[11], it was held that when people peacefully and are shouting slogans on the roadways demanding and protesting without showing in their conduct that they had any design to any cognizable offence.

Similarly, the Section only empowers the police to capture a person and without a warrant and to produce that person before a competent magistrate. This was further reiterated in Notobar Parida versus State of Orissa[12], the Apex Court rules out a person arrested under Section 151 cannot be sent to jail as no Court or authority can remit the person to jail custody unless specifically authorized by law.

Sub-section (2) provides that no person can be detained over 24 hours unless further detention is necessary.

ORDER TO FURNISH SECURITY

Section 106 of CrPC provides the orders given by the Court to the convicted person to give security with or without sureties for keeping the peace. It is to note that the offences that are specified in this Section are all cognizable cases such as the Offences against Public Tranquility (except Sections 153A, 153B, 154), Criminal Force (S. 350), Assault (S. 351), Criminal Mischief (S. 425), any offence of Criminal Intimidation (S. 503) and any offence caused to cause a breach of peace.

The person who has committed the aforesaid cognizable offence and has been convicted, the Court can set him free by the furnishing of security for keeping the peace.

Section 108 provides that when any person commits an offence of seditious nature, the Executive Magistrate shall show-cause such person as to provide the reasons why such person shouldn’t be permitted to give a bond with sureties or without for maintaining good behavior and conduct.

Section 109 provides that when the Executive Magistrate gets knowledge of a person who might carry out a cognizable offence then he shall show-cause that suspected person of why he should not be ordered to execute a bond to keep good behaviour.

Author(s) Name: Arka Ray (Surendranath Law College, Kolkata)

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[1] Concise Law Dictionary, P. Ramanatha Aiyar, 3rd Edition, p. 81

[2] Blacks Law Dictionary, 4th Edition, p. 140

[3]AIR 1952 Punj 309, 320 (FB)

[4]2007 Cri LJ 2031 (AP)

[5](1962) 1 Cri LJ 673

[6]AIR 1950 MB 83

[7]1978 Cri LJ 1062

[8]AIR 1925 Cal 278

[9]AIR 1989 MP 147

[10]1996 Cri LJ 3310

[11] 2008 Cri LJ 47 (MP)

[12] AIR 1975 SC 1465