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Powers Of Police To Arrest Without Warrant Or Without An Order Of Magistrate

The provision of Arrest is given in the Chapter V from section 41 to section 60 of the Code of Criminal Procedure, 1973.

This chapter deals with provisions of Arrest of Persons and the rights of arrested persons. Questions like:
  1. How arrest is made
  2. Who can arrest?
  3. Can a police officer make an arrest without warrant or without order of a magistrate?
  4. Can a magistrate himself make an arrest?
  5. Can a private person make an arrest?
  6. What are the rights of an arrested person?
  7. What are the procedures regarding arrest in different circumstances?

Etcetera have been answered in the said provisions. In this assignment, I will be dealing with a primary question, When can a Police Officer arrest without warrant or without an order of magistrate?

Meaning:
According to Section 273 of Cr.P.C., Evidence of the trial and other proceedings shall be taken in the presence of the accused. In order to follow the said procedure, the trial before the magistrate commences when the accused appears before the magistrate.

Accordingly, the attendance of the accused can be secured by his arrest.

Thus, arrest is the first step in the process of investigation and trial after complaint. Arrest of a person can be effected in two ways:
  1. With a warrant
  2. Without a warrant
Conclusively, Arrest can be understood as, the deprivation of a person at his liberty by legal authority or at least by an apparent legal authority.

Definition:
The term arrest has been neither defined in the Code of Criminal Procedure, 1973 nor in any other enactment of Law dealing with criminal offences.

However, various jurists and judicial precedents have laid down a framework which can referred to understand this term.

Some of such definitions are given below:
  1. According to The Legal Glossary, Government of India,
    ‘Arrest means the restraining of the liberty a person in order to compel obedience to the order of the court of justice or to prevent the commission of the crime or to ensure that a person charged or suspected of a crime may be forthcoming to answer it
  2. In the case Union of Indian v. Padma Narain, arrest was defined as ‘the execution of the command of a court of law or a duty authorized officer.’
  3. In the case R. R. Chari v. State of Uttar Pradesh, the apex court defined the term arrest as the act of being taken into custody to be formally charged with a crime. The court observed that in a constitutional sense, it means the seizure of a person (body of a person).

When a Police Officer may arrest without warrant
Section 41 of the Cr.P.C. deals with the main situations when a police officer may make an arrest without a warrant or without an order of a magistrate.

  1. A Police Officer may arrest any person,
    1. who commits any cognizable offence in the presence of that police officer.
    2. Against whom
      • Reasonable complaints are made or
      • Credible information has been received or
      • Reasonable suspicion exists

        That he has committed an offence punishable with 3 to 7 years imprisonment of either description with or without fine.
        Provided that the police officer:
        • Have reasons to believe that such person has committed the said offence and
        • Is satisfied that arrest is necessary
        • to prevent further commission of offence; or
        • for proper investigation; or
        • to prevent tampering of evidences; or
        • to prevent threat, inducement, etc. to witness; or
        • to ensure his presence.

          (ba) Against whom
          • Reasonable complaints are made or
          • Credible information has been received or
          • Reasonable suspicion exists

            That he has committed an offence punishable with more than 7 years imprisonment of either description with or without fine or life imprisonment or death sentence.
            Provided that the police officer have reasons to believe that such person has committed the said offence.
             
    3. Who is a proclaimed offender
    4. Who has or is suspected to have a stolen property in possession without a lawful excuse.
    5. Who:
      • Obstructs an on-duty police officer; or
      • Escapes or attempts to escape from legal custody.
    6. Who is deserter from armed forces
    7. Who has
      • Committed an offence outside the Indian territory
      • But if done in India, would have been punishable under any enactment
      • Thus, subjected to Laws of extradition.
    8. Who, being a released convict, breaches any rule stated under sub-section (5) of section 356 of Cr.P.C.
    9. Against whom a requisition (in which all the details of the offender to be arrested are mention along with the cause of the arrest) has been made to this Police officer by another Police officer, who is authorized to arrest that person without a warrant.
This is to be noted that if the Police Officer makes or does not make any such arrest, he must record the reasons of his act in written.

Section 42 states another situation when a police officer is authorized to make an arrest with a warrant or order from magistrate.
This section authorizes any police officer to arrest a person

  • Who commits a non- cognizable offence,
  • In presence of that police officer and
  • Denies to give his name and residential address; or
  • Gives false name and residential address to Police.
Such arrest may be made in order to ascertain the real identity and address of the said person.

Other cases when a Police Officer is empowered to make an arrest without any warrant
  1. Arrest to prevent the commission of an offence: Section 151 empowers a police officer to arrest any person who is designing to commit any cognizable offence which cannot be otherwise prevented.
     
  2. Section 432(3) lays down the provision that any person whose suspension or remission of sentence has been cancelled can be arrested by a police officer without any warrant or order from magistrate.
     
  3. For the purpose of maintenance of public order and tranquility, any executive magistrate or police officer (not below the rank of a sub-inspector) may arrest any person without warrant if such person forms a part of any unlawful assembly and does not disperse or shows determination to not disperse when commanded by such magistrate of police officer in-charge as per the Section 129, Chapter X of the Code of Criminal Procedure, 1973.
     
  4. Sub-section (3) of Section 123 empowers a police officer to arrest a person whose conditional order of discharge has been cancelled under sub-section (5) of the Section 123 of Cr.P.C.
     
  5. The proviso of Section 438 (1) of Cr.P.C. empowers the Officer in-charge of Police Station to arrest a person without any warrant if the court has not entertained his application of anticipatory bail for a non-bailable offence.


Case Laws relating to Power of Police to arrest without a warrant or without an order of a magistrate:
  1. Laxminarayan Vishwanath Arya V. State of Maharashtra, 2008 CriLJ 1:
    It was held that the general provisions contained in Chapter V and especially Section 41(1) (d) of the code will have to be read in conjunction with the provisions contained in Section 155 and Section 156. Powers under Section 41 can be exercised without the intervention of the court.
     
  2. Bhawoo Jivaji v. Mulji Dayal, 1966:
    It was held that the Section 41 is not exhaustive. There are various other acts e.g. Arms Act, Explosives Act, etc. which also confers such powers on Police Officer.
     
  3. Emperor v. Madho Dhobhi (1903)
    The following are held in this case:
    1. Police Officer are not defined in the Code of Criminal Procedure.
    2. If a police officer makes a wrong arrest under a bona fide mistake he is protected.
    3. The arrest even if illegal does not affect the trial of the case.

      Award Winning Article Is Written By: Ms.Archana Yadav
      Awarded certificate of Excellence
      Authentication No: JL118260565152-01-0721

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