The problem of a person being arrested without a warrant is one that has been
discussed commonly because it has led to an extreme misuse of power that
breaches fundamental rights before the trial even starts. This is because there
are no proper channels established to protect the rights of the person being
arrested and the arrest is based on suspicion rather than criminal conviction.
In order to tackle this topic, which is covered in Chapter 5 of The Code of
Criminal Procedure, 1973, this paper made an effort.
The paper additionally addresses the definition, method, and abuses of detaining
someone before concluding with some recommendations that can be understood with
the aid of a few well-known legal precedents.
Since laws that were created solely to safeguard the nation's citizens have
occasionally been broken, infringing on people's fundamental rights, the idea of
police arrests and how they are misused has come up for discussion.
Police always had the legal authority to make grave offence charges without a
warrant if they believe there is probable cause, reliable evidence, or other
factors to believe the suspect is guilty of a crime.
There are reports of occasionally occurring unjustified arrests in the country,
despite numerous occasions when the Hon'ble Courts have emphasized that these
powers should not be violated and even amendments have been made to protect the
rights of individuals, but not much has been performed to stop them from
violating the Section that was made giving the officers with such special
Therefore, there is a need to make and bring about significant changes in how
those in positions of power violate people's rights without knowing the effects
it has on people's lives.
Arrest: Its Meaning And Provisions:
Although the word "arrest" isn't defined anywhere in the CrPC or IPC, we can
still comprehend it by giving it a straightforward definition, such as
"apprehension of arrest by a legal authority to deprive him of his liberty." The
purpose of an arrest is to bring a person before a court of law or to ensure the
administration of justice. It also serves to alert the community or society that
a person has been accused of a crime and may serve as a caution to him not to
commit additional crimes.
There are various methods of arresting someone by a police officer, such as with
or without a warrant, by a judge, or by a private individual, each of which has
specific guidelines and rules. But for the purposes of this paper, I will only
discuss "Arrest by a Police Officer without a Warrant," as this is one of the
provisions that is being abused. It gives police officers the authority to
detain someone without a warrant in order to stop them from committing a crime,
with various sections defining the circumstances in which this is permissible.
However, with authority comes responsibility, and this will be covered in more
detail in a later chapter.
Therefore, one should be aware of "How an arrest is made" in accordance with
CrPC before understanding the idea of Arrest without a Warrant.
The term "arrest" is not defined by law, as was previously mentioned, but under
Section 46 of CrPC2 it is mentioned the provisions linked to how an arrest is
made, which can be stated as follows:
- A person should only be held or otherwise restrained when a police
officer or other person intends to apprehend him and there is no sign of
verbal or physical submission.
- The police officer or the person performing the arrest should use all
available means to apprehend the suspect if he or she attempts to resisted
or elude the arrest.
- However, it is not acceptable to kill someone while they are being
detained if they are not facing the death penalty or a life sentence for the
crime they did.
Provisions Of Arrest By A Police Officer Without Warrant:
According to Section 41 of the 1973 Criminal Procedure Code, it is legal to
detain someone without a subpoena if the circumstances are as follows:
In addition, under Section 42 of the CrPC, a police officer may detain
someone without a warrant if:
- A individual who has committed a cognizable offense, against whom a
complaint has been made, against whom there is cause for suspicion, or who
is the subject of any credible information. (Cognizable offences are those
which are grave like rape, theft, murder where the police officer can start
investigating without the court's approval). According to Section 154 of the
Criminal Procedure Code, they are required to submit all information
relating to a cognizable offence because there is a chance that the offender
could flee or something else could happen.
- If the person has a weapon that can be used to sneak into houses without
a valid reason.
- if an individual is declared an offender under the CrPC, a state government
order, or any other current laws.
- If a person prevents a police officer from performing his or her duties
or tries to flee from lawful custody.
- If he is in possession of a product that may be stolen property, or if
he has committed a similar offence,
- A member of the Union's armed forces who is accused of being a traitor.
- If he is someone who has been involved in, or against whom a complaint
has been filed, or a reasonable suspicion exists, or any credible
information exists, that he has committed an offence outside India that
would have been punishable in the territory of India, he would be held
responsible to be apprehended or detained in the custody of India under any
law concerning extradition, or otherwise.
- If he is a released convict and violates any of the State government's
instructions under Section 356 (5) of CrPC4, which deals with provisions
relating to the change or absence of released convicts from their home.
- If another officer has sent a requisition stating that he should be
arrested for his offence and it considers appropriate, he or she can be
arrested without a warrant by a police officer.
- The person is accused of a non-cognizable crime and has refused to
provide information about his name or location, or has provided any false
information, and he is arrested in order to obtain his correct information.
- After establishing his accurate information, he can be released on the
condition of executing the bond with or without sureties and appearing
before a judge if necessary, and if he is not a resident of India, the bond
can be secured by surety or sureties of Indian residence.
- And if the information is not taken within 24 hours of his arrest, or he
fails to execute the bond or necessary sureties, he should be taken to the
closest Magistrate within the jurisdiction.
Section 151 of the Criminal Procedure Code allows police officers to arrest
someone for a cognizable crime without a warrant or approval from a Magistrate
if the offence cannot be stopped otherwise. However, the arrested individual
cannot be held in custody for more than 24 hours unless his continued detention
is authorised by other provisions of the CrPC or any other law in effect at the
Whereas arresting someone without a warrant may be useful in some cases, such as
national security, obstructing any actual danger, or other serious offenses, the
use of this provision is limited when compared to its misuse, which has only
increased over the year.
Misuse Of Power By The Police
Whereas Sections 41, 42, and 151 of the CrPC empower police officers to arrest
someone without a warrant, the vague terms such as "reasonable", "credible", and
"appears to the police officer" may appear general, in reality, they are very
subjective, leading to violations of arrested persons' rights and misuse of
power by the officers. Section 151 of the CrPC, which gives such power, was made
during the British rule and was used by rulers to arrest some people.
Even recently, the Allahabad High Court stated in a case while awarding
anticipatory bail that "arrest should be the last option when detaining the
accused is critical and custodial interrogation is required." The court even
stated that indiscriminate and irrational searches are gross violations of a
person's human rights because personal liberty is very important under Article
21 of the Indian Constitution and should only be curtailed if it becomes very
Even the Third Report of the National Police Commission stated that
approximately 60% of arrests are unnecessary and unjustifiable, and that 42% of
total jail funds are spent on prisoners who should not be there, as highlighted
in the case of Joginder Kumar v. State of Uttar Pradesh.
Furthermore, the sections for arresting a person without a warrant give the
officer an unfair advantage, which undermines justice because it is up to the
police to determine whether the person is going to conduct a cognizable crime or
not. Which was even condemned by the Hon'ble Supreme Court in the case of Bhim
Singh, MLA v. State of J&K ors that police officers should have the uttermost
concern for citizens' personal liberty and that their malafide, authoritarian
behaviour cannot deprive people of their liberty.
One cannot deny that 'Preventive Detentions' are a gross violation of personal
liberty and freedom because they are frequently used to convey 'tough messages'
to society at large. However, there is a need to strike a balance between the
interests of society and the rights of an accused, and in general, the rights of
an accused are given greater priority. In addition, in V. Shantha v State of
Telangana and Ors,
the court held that in order to prevent abuse of power,
all preventive arrest laws should have at least a judicial review provision, to
limit their use, and if a person is detained, there should be appropriate
evidence to prove the same.
As the Hon'ble Supreme Court correctly stated, the purpose of such detention is
not to punish someone, but to prevent him from doing something that is not based
on a criminal conviction, but on suspicion and a plausible possibility that can
only be supported by evidence.
As a result, stronger provisions should be put in place to protect the rights of
those who have been arrested, because giving someone more power without giving
the other party the appropriate rights will always result in violations of
several rights, as is the case with arrests without warrants.
- In 2008, several amendments were made to the provisions of arrest under
the CrPC that incorporated Section 41A, which states that when the arrest of
an individual is not required under Section 41(1) of the CrPC15, police
officers can give notice to the person against whom a reasonable complaint
is filed to appear before him. Also, Section 41B of the CrPC, which governs
the process and duties of a police officer when making an arrest.
- Various guidelines provided for arrest and detention in the case of
D.K. Basu v. State of West Bengal, such as the right to be medically
examined every 48 hours, the right to contact his lawyer, the arrest to be
recorded in a diary, the diary to be shown to the magistrate, and so on,
should be implemented to help reduce police officers' abuse of power.
- No arrest should be made before verifying the complaint is real in order
to harass and intimidate the arrested person, which requires judicial
- There may also be rules for harsh penalties for those who engage in, or
even aid and abet, such grave violations of power.
- There may also be rules for harsh penalties for those who engage in, or
even aid and abet, such grave violations of power.
If we look at the provisions of arresting someone without a warrant based on
just misuse of power and violating their rights to natural justice and the rule
of law that is available to all, we see that India follows the principle of "It
is better to let go ten guilty people than to convict a single innocent man."
A law is only good when it protects the rights of all people, but when that law
begins to violate those rights and is only beneficial to those in authority, it
is no longer valid.
The impact of arresting someone without proper findings should be clearly
understood because it affects a person physically and psychologically because
his life is kept at risk, and one cannot simply play with it based on
allegations without proper evidence for the same.
As a result, the police should use the powers granted under these sections to
prevent real crimes rather than arbitrarily by ensuring fairness and stability
between the interests of society and an individual and not using it as a weapon
for oppression or political gain.
- Code of Criminal Procedure, � 46 (1973).
- Code of Criminal Procedure, � 154 (1973).
- Code of Criminal Procedure, � 365(5) (1973).
- Code of Criminal Procedure, � 42 (1973).
- Code of Criminal Procedure, � 151 (1973).
- Express News Service, Arrest should be the last option for police, The
Indian Express (Jan 10, 2021), Arrest should be the last option for police:
Allahabad HC | India News, The Indian Express.
- Devansh Sharma, The power of arrest of the police: The uses and misuses,
Racolb Legal (Jan 1, 2020), THE POWER OF ARREST OF THE POLICE: THE USES AND
MISUSES | RACOLB LEGAL. 9 AIR 1994 SC 1349.
- AIR 1986 SC 494, 1986 CriLJ 192.
- AIR. 1978 S.C. 1025.
- (2017) SC 2625
- Union of India v. Paul Nanickan & ors, Appeal (crl.) 21 of 2002
- Code of Criminal Procedure, � 41A (1973).
- Code of Criminal Procedure, � 461 (1) (1973).
- Code of Criminal Procedure, � 41 B (1973)
- (1997) SCC 416.
- Anubhav Pandey, Power of police to detain and arrest people under
Section 107 and 151 of code of criminal procedure, I Pleaders (March 30,
2018), Power of Police under CRPC, Section 107 and 151 - iPleaders.