Under a Police officer, a Private person and a Magistrate may arrest a person without warrant ?
It is a fundamental principle of criminal law that any police officer may arrest any accused person with warrant of arrest which is issued by a competent Magistrate or a Court. But there are certain provisions in the CrPC where the police may arrest any person without warrant. As;
Section 41 (1) – Arrest by Police without warrant under any of the following grounds:- Any person,
Who commits, in the presence of a police officer, a cognizable offences, u/s 2(c)
Against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment up to 7 years or more,
Who keeps unlawful equipment for house-breaking,
Who has been proclaimed as an offender either under this code or by the order of the State Govt.,
Whose possession anything is found which may reasonably be suspected to stolen property,
Who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escapes from lawful custody,
Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union,
Against whom a reasonable complaint has been made or credible information has been received or reasonable suspicion exists, concerning the law of extradition,
Who, being a released convict, commits a breach of any rule made u/s 356 (5) or falls under category of section 109 & 110,
For whose arrest any requisition, whether written or oral has been received from another police officer,
Who refuses to give name and address to the concerned police officer u/s 42, alleged to have committed a non-cognizable offence,
To prevent the commission of cognizable offence u/s 151,
Against whom cancellation or suspension or remission of sentence by the appropriate Govt. where any condition on which a sentence has been suspended or remitted, is not fulfilled.
Other sections – where police may arrest without warrant are – sec. 43(3), 44(1 & 2), 72, 74, 123(6), & 432 (2).
(2) (r/w, sec. 155(2)) – No arrest shall be made in non-cognizable offence except under warrant or order of the magistrate.
Other grounds for arresting without warrant are;
a) to secure attendance of a person during Investigation and at the Trial,
b) as a preventive or precautionary measure,
c) the offender could not hide himself or absconds abroad and evade the process of law,
d)to prevent the continuation or repetition of an offence, being a habitual offenders,
e) to protect the arrested person himself or others from him,
f) to prevent him from tampering any evidences and to secure or preserve evidences relating to offence, g) To prevent him from making any inducement, threat or promise to any witnesses related to the offence.
Person arrested without warrant must be informed by the police to DM or SDM.
Arrest ~ Custody = Former meant physical restraint of a person subject to compulsion, on the movement of the arrestee or confined a body of such person while latter meant committing a person to prison.
Modes of Arrest u/sec.46 –
i) Submission of arrestee to custody by word or action,
ii) Touching of the body of the person,
iii) Confining the body of such person.
Sec. 41 A (Saukin vs. UP) – Notice of appearance before police officer - The police officer may, where arrest of person is not required, issue a notice to the alleged accused of cognizable offence either on complaint or on credible information or on reasonable suspicion, so as to make his appearance before him or such other places as may be specified in the notice.
Amendment 2010 – The police cannot arrest anyone before sending a Memo of Appearance. However, if he refused to comply then police may obtain a warrant of arrest from a magistrate for the same, where the alleged offence is punishable with 7 yrs. of imprisonment.
Sec. 41 B – Procedure of arrest and duties of officer making arrest –
i) bear an accurate, visible and clear identification of his name,
ii) prepare a memorandum of arrest, attested by at least one witness as being a member of a family of arrested person and counter signed by the person arrested,
iii) inform the relative / friend of an arrested person, about his arrest.
Sec. 41 C – Control room at districts. Every State Government shall establish a police control room (PCR) at district and State both.
Sec. 41 D – (r/w sec.303 & 24 (8-proviso)) – Right of an arrested person to meet an advocate of his choice during interrogation.
Other rights of an arrested person are to obtain a copy of FIR and to have a proper medical check-up by a medical officer before his arrest.
Sec.41 A to D was amended in 2008, but it came into force on 1st November 2010.
Section 43 – Arrest by private person – Any private person may arrest or caused to be arrested, any person who in his presence commits,
a) non-bailable offence,
b) cognizable offence,
c) is a proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or in his absence to the nearest police station.
Search of such arrested person, shall be done only by a police.
Dangerous weapons from such arrested person can be taken either by police or by the arresting person.
A private person cannot arrest any person on mere suspicion.
Section 44 – Arrest by Magistrate–
(1) When any offence, cognizable or non-cognizable, is committed in the presence of a Magistrate, whether executive or judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, commit the offender to custody or released him on bail.
(2) – Any such Magistrate, may at any time arrest or direct the arrest, of any person for whose arrest he is competent to issue a warrant.
Directorate of Enforcement v/s Deepak Mahajan, 1994, SC – It was observed that, this Code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person in custody and deal with him according to law. For more details reach us out at Bangalore Lawyers