Author: Akash Dubey


Introduction

It is a common conception that the police does not have the power to arrest someone without a proper warrant in their name. However, there are some exceptions to this rule under Section 41 of the CrPC, that envisions the circumstances under which an arrest can be made without a warrant. These exceptions were made keeping in consideration the need for such power in times like emergency or instances of necessity. Although, rights of an arrested is protected under Article 20, 21 and 22.

Instances when Police make an arrest

There are multiple types of offences for when the police has different types of powers to make an arrest;

A. Cognizable Offences:

A cognizable offence is a type of offence where the police officer is given power under the first schedule of the CrPC, to arrest the convict without a warrant and can start an investigation without the permission of the court. Cognizable offences are generally heinous or serious in nature such as murder, rape, kidnapping, theft, dowry death etc. The first information report (FIR) is registered only in cognizable crimes. FIR is made mandatory under Section 154 of the CrPC. The police may also conduct some kind of preliminary inquiry before registering the FIR. In these offences, a convict is arrested and produced before the magistrate in the stipulated time. Owing to the serious nature of the crime, court’s approval is implicit in cognizable offences. It is defined in Section 2(c) of the Criminal Procedure Code, 1973.

B. Non-Cognizable Offence:

A non-cognizable offence is the type of offence listed under the first schedule, in the CrPC and is bailable in nature. In cases of non-cognizable offences, the police have no authority to arrest the accused without a warrant neither can they start an investigation without the permission of the court. The crimes of forgery, cheating, defamation, public nuisance, etc., fall in the category of non-cognizable crimes. In such crimes, a criminal complaint is lodged with the metropolitan magistrate who is supposed to order the concerned police station to initiate an investigation. The police officer is supposed to file the charge sheet in the court which is followed by a trial. After the trial, if the accused is found guilty, the court passes the order to issue the warrant to arrest the accused. It is defined in Section 2(I) of Criminal Procedure Code 1973.

Conditions for Making an Arrest for a Cognizable Offence

Section 41 of the CrPC lays down the conditions and all the requirements that is needed for the arrest. These conditions are as follows;

  1. The police can make the arrest in case if a cognizable offence committed in the presence of a police officer them self. Hence, this displays the need for arrest in case of ‘imminent necessity’, or if one relies on the general procedure to make the arrest, it will be too late until the FIR is registered, and a warrant is procured from the court. Such arrest may also be made to ascertain the identity or the address of a person committing such non-cognizable offence in presence of an officer.
  2. Further, a person may be arrested when they are designed to be committing any cognizable offence and if such commission cannot otherwise be prevented. This is also another example of imminent necessity.
  3. The officer has reasonable complaint or credible information, or reasonable suspicion regarding commission of a cognizable offence, then the officer may arrest the accused without a warrant as well. There are even more conditions and restrictions to such power given to the police. The most important pre-requirement is that the officer has reasonable belief of commission of such offence. Also, they have to keep in check that Arrest is extremely necessary and that such arrest is;
    1. To prevent commission of further offence by accused.
    2. For proper investigation of the offence.
    3. To prevent destruction/tampering of evidence
    4. To prevent accused from influencing any person having the knowledge of facts to suppress the facts.
    5. To prevent the person from absconding
  4. It is to be noted that persons who are concerned with or against whom a reasonable complaint has been made or any credible information is received, or a reasonable suspicion exists of his being concerned with an act committed outside India which is an offence if committed in India and is liable to be detained or apprehended in India, without warrant.
  5. Further, the officer has the power to arrest in case the person is a proclaimed offender.
  6. Or if, any suspected stolen property is found in possession and the person is suspected to have committed any offence with reference to such offence, then the police has the power to arrest the concerned person who is suspected to have committed the offence.
  7. Another condition, that strengthens the suspicion and gives another reason to arrest without the warrant is when the person suspected to be a deserter from armed forces. This is to save the national interest.
  8. A police officer can also arrest someone who obstruct them from doing their duty.
  9. A person who has escaped or attempts to escape from lawful custody is also bound to get arrested, along with those who violate probation rules.
  10. One more condition that allows arrest without warrant is when there is some sort of requisition of arrest by another Police Officer.
  11. Another reason that may be a condition to arrest without warrant may be for those people who fail to comply with notice of appearance provided by the PO.

Conclusion

Keeping in consideration the above-mentioned factors, it is imperative that arrest of the person should not merely be on suspicion on accused’s complicity in the crime. It is important that the police officer is satisfied that the said arrest is based on some sort of investigation and shall make sure that as soon as the arrest is made, the station diary is updated accordingly. These protections of rights are laid under Article 21 and 22(1) of the Constitution. All this was observed by the Apex Court in the case of Joginder Kumar[i]. Further, in another case[ii], Court confirms that arrest made by the PO has to be done with great sensitivity, while keeping in consideration all the facts and circumstances, as per the case requires. Although, the court also confirms that the Police need not obtain leave from the Court to make such arrest.

In the end, it is important for the police while making arrest of a woman, they have to comply by the rules laid down in State of Maharashtra v. Christian Community Welfare[iii], that such arrest has only to be done with the presence of a female constable, and has to keep the time of the day in consideration. The Apex Court clarified and laid down that in case a female officer may not be present, then the officer may be justified in making such arrest, except that they have to give proper reasons, such as that the arrest may have caused delay in investigation, or was extremely necessary in the said circumstance, and hence the court may look into the matter. This is necessary to keep the interests of women intact.


[i] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[ii] Laxminarayan Vishwanath Arya v. State of Maharashtra, 2007(5) Mh.L.J. 7.

[iii] (2003) 8 SCC 546.


About the Author: Akash is a 2016-21 Batch B.A.LL.B student at Jindal Global Law School.


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