It is essential to balance interests of accused i.e. not to be arrested unless
guilt proved in fair trial and the societal interests. In case of conflict,
decision can be made by judge only, who is known for his abilities and being
impartial. But certain situations require people not having judicious mind such
as police etc. to make arrest w/o warrant, to prevent absconding amongst other
things, or where preventive action is necessary in form of immediate arrest.
However, rights such as presenting him before Magistrate within 24 hrs. and
other natural justice principles are still guaranteed to accused.
By virtue of S. 41, Police has been conferred with wide powers to arrest in
certain situations in absence of order or warrant from a Magistrate. It is
important first to make distinction as to what offences would amount to
cognizable and non cognizable. First schedule of CrPC deals with this aspect and
envisages that generally, serious offences come under cognizable category where
seriousness is determined by the punishment described w.r.t. the same.
having sentence not lesser than 3 years are therefore generally cognizable and
less serious ones with punishment less than 3 years are generally non cognizable
with certain exceptions.
Following are instances where arrest can be made w/o warrant:
- S. 41(1)(a): Cognizance offence committed by someone in front of police.
- S. 41(1)(b): When there is prevalent, either reasonable complaint or info. of
credible nature or some reasonable suspicion, regarding an offence of cognizable
nature having imprisonment upto 7 years, and if following two conditions are
satisfied, police is authorised to proceed with arrest w/o warrant:
- On basis of which, there exist a reason for believing that the person has
committed the offence.
- And that arrest is required for either securing his court presence, or for
proper investigation, or preventing him from further committing any offence, or
preventing him from tampering or making evidence disappear, or preventing him
from making threats or inducement or promise in order to dissuade a person from
disclosing the facts he is aware about regarding the case, in front of court or
police. The reasons are to be recorded in writing.
- S. 41(1)(ba): Arrest person when there exist credible info. before police,
regarding a cognizable offence having imprisonment of 7 years or more, on basis
of which there is reason for believing that he has committed that offence.
- S. 41(1)(c): Person who is proclaimed offender by virtue of CrPC or order of
State govt and includes who's held absconding or in hiding or blocking warrant
execution etc. by court.
- S. 41(1)(d): Person in whose possession a property stolen found in addition to
him being reasonably suspected of an offence committed related to same property.
- S. 41(1)(e): Person obstructing police officer from doing his duty or
who has escaped or attempted to escape from legal custody
- S. 41(1)(f): Suspected deserter from armed forces
- S. 41(1)(g): When credible info. or reasonable complaint or suspicion exists,
against a person regarding an act committed outside India, and the same is
offence in India in addition to him being liable for apprehension, from the lens
of extradition or some other law.
- S. 41(1)(h): State govt. is authorised by virtue of S. 356(5) to make rules when
it comes to convicts released after serving sentence of 3 years or more,
regarding change of his residence or absence from residence be notified. If that
rule is breached, he is liable to be arrested w/o warrant.
- S. 41(1)(i): On requisition received in either oral or written form, by another
police officer with due mention of whom to arrest, grounds and offence in same.
S. 42 grants authority to police, to arrest a person who is either accused of
committing a non-cognizable offence, or has in front of police done the same,
w/o warrant, if the accused denies to give name and address, or if given the
same being suspected to be false. This can be done for obtaining required info.
The necessity for this purpose is that police were not aware about name and
There are situations where the info. doesn't disclose clearly a cognizable
offence and rather needs an inquiry to be made, to ascertain if there is
disclosure of the same. The object behind is to ascertain credibility of info.
and whether its needed or not will depend on circumstances of case and if
required, shall be entered into General Diary.
Certain situations such as
commercial/corruption cases, matrimonial disputes or where there was delay in
initiating criminal prosecution etc. are where this inquiry is common and must
be completed in time bound manner. For instance when S.498A of IPC comes into
picture by virtue of a complainant who alleges whole groom's family, it becomes
necessary that certain essentials are fulfilled as laid down in cases such as
Arnesh Kumar case before arresting accused family straight forward, merely
because it has power to do so.
The terms used such as reasonable
in above-mentioned provisions
differ as per facts as well as circumstances of case2. These have connection to
the mindset of officer who in first place receives info. and this info. should
afford material of such nature, that can be construed to be suffice, in order to
come to an independent judgment to be exercised, for purpose of making arrest 3.
This power to arrest cannot be exercised on a mere chance of something that can
be proved against accused afterwards the arrest. When it is alleged that a
certain arrest is unlawful, burden of proof lies upon police officer to prove
that he had reasonable grounds which lead to suspicion and if found malicious or
excessive in nature, can be liable to be punished u/S 220 of IPC.
Other Important Aspects
S. 41-B mandates the police officer making arrest to have a visible and clear
name identification, prepare arrest memo. duly signed by atleast 1 independent
witness in addition to signature of person being arrested. If it's not attested
by family member, a relative or member must be informed regarding arrest of his
choice. S. 41-D makes it obligatory to let arrested person meet advocate of his
choice who shall remain present at time of investigation though not for whole
Guidelines regarding arrest of judicial officers have been laid down by SC4 and
comprises that whenever immediate arrest is needed, only technical/formal arrest
is to be effected. He shall not be taken to police station w/o prior order from
Distt. or Session Judge and communication to family and legal advisors be done
with immediate effect. No interrogation to be made or memo. shall be drawn or
medical to be done in absence of his legal adviser.
In case of female to be arrested, it shall be done in presence of female
constable only and not between dusk and dawn. In situation where, unavailability
of female constable or delay in arresting can impede investigation, with due
recording of reasons, may be permitted to arrest5 and was later envisaged in S.
46(4) for such an arrest after getting authorization from Judicial Magistrate of
1st class having jurisdiction.
SC has been pained to see on various occasions that purpose behind amendment in
S. 41 i.e. to prevent arbitrary arrest is not being fulfilled. It held that
power to arrest is not absolute6 and laid certain guidelines to be followed in
cases related to S. 498A of IPC and even where, offence is cognizable,
non-bailable but punishment lesser than 7 years. It said that police need not
arrest accused immediately post complaint and should satisfy itself, whether
essentials laid down in S. 41(1)(b)(ii) are fulfilled or not.
Hence, it is
essential to conduct a preliminary trial. This list of essentials should be
filled and presented before magistrate, when further detention is sought amongst
recording of other reasons. If arrest not required, proceed with serving of
notice to appear before it as per S. 41A. These guidelines amongst other
directions issued to magistrates and State govt. etc. in this landmark case
shall be followed by heart, as this will reduce significantly, the anticipatory
bail cases and unnecessary burden upon judicial system.
- Gopal Naidu v. King Emperor, ILR (1923) 46 Mad 605
- Kajal Dey v. State of Assam, 1989 Cri LJ 1209(Gau).
- Tribhuwan Singh v. R., AIR 1949 Oudh 74.
- Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.
- Rajkumari v. SHO Noida, (2003) II SCC 500.
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.