Law and You >Procedural Laws > CrPC > Section 41 of CrPC: Arrest by Police Without Warrant
The Criminal Procedure Code of 1973 that deals with the aspects of arrests have not defined the term ‘Arrest’. The word arrest, when used in its ordinary and natural sense it means the apprehension or restraint or the deprivation of one’s personal liberty. An arrest occurs when police officers take a suspect into custody. An arrest is complete as soon as the suspect is no longer free to walk away from the arresting police officer. Thus the officer deprives a person who has been arrested of his or her freedom of movement. The person is taken into custody, against that person’s will. It may involve a physical application of force or submission to an officer’s show of force. Every deprivation of liberty or physical restraint is not an arrest. Only the deprivation of liberty by a legal authority or at least by apparent legal authority, in a professionally competent and adept manner amounts to arrest. In a legal sense, an arrest is a procedure connected with the criminal offences, consisting of the taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of the criminal offence and prevent him from absconding. As arrest involves depriving the freedom of an individual, it must be exercised with utmost care and caution. In this article, we shall study the provisions of Section 41 of CrPC dealing with an arrest by police without warrant.
In State of Punjab vs. Ajaib Singh. AIR 1953 SC 10 the Supreme Court defined arrest as: “Arrest means a physical restraint put on a person as a result of an allegation of accusation that he has committed a crime or an offence of quasi-criminal nature.”
In Roshan Beevi v. Joint Secretary to Government of Tamil Nadu, 1983 Mad. LW (Crl) 289 case, the Court observed: “The essential elements required to institute arrest, in the above sense, are that there must be an intent to arrest under the authority, accompanied by seizure or detention of the person, in a manner known to the law, which is so understood by the person arrested.”
In V Viswanathan v. State of Kerala. 1971 Cr LJ 725 case, the Court held that “In cases where the accused persons were not arrested by police, but surrendered before the Magistrates, the taking into custody of such persons by Magistrates, will come within the ambit of the term “Arrest”
Difference Between Arrest and Custody:
It is to be noted that ‘custody’ and ‘arrest’ don’t have same meaning. The term Arrest is not defined either in the Code of Criminal Procedure Code or the various Substantive Acts. The word arrest, when used in its ordinary and natural sense it means the apprehension or restraint or the deprivation of one’s personal liberty. An arrest is complete as soon as the suspect is no longer free to walk away from the arresting police officer. When the police charge someone with a crime and then takes them into custody is called arrest. However, in order to arrest someone, the police must have sufficient evidence, credible information, or a reasonable cause about the illegal act committed by him.
According to Section 27 of the Indian Evidence Act, 1872 the expression “in Custody” denotes Surveillance or restriction on the movements of the person connected. Custody is the state of being guarded, or kept in prison temporarily, especially by the police. It is the legal right or duty to take care of somebody/ something. In criminal law, custody is the second stage of the arrest. Taking of a person into judicial custody is followed after the arrest of the person by Magistrate on appearance or surrender.
In every arrest, there is custody but not vice versa. Thus, mere taking into custody of a person an authority empowered to arrest may not necessarily amount to arrest. In Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775 case, the Court observed: “In every arrest, there is custody, but not vice-versa – and both the words “custody” and “arrest” are not synonymous terms.”
Need of Arrest:
- To find probable cause of the offence.
- To prosecute or interrogate the accused,
- To notify society that an individual has been committed a crime
- To deter him from the commission of any other crime in the future.
- For securing the attendance of an accused at trial on the charge of some crime, where his attendance at the time of trial becomes necessary.
- As preventive or precautionary measure when there is imminent danger of the commission of a serious crime (cognizable offence)
- For obtaining the correct name and address.
- For removing obstruction to police to carry out the duty
- For retaking a person escaped from custody
Arrest of Person Under CrPC, 1973:
Section 41 to 60 of Chapter V of the Code of Criminal Procedure, 1973 deals with “Arrest of Persons. Administrative authorities like the police, the Judicial Magistrate, and/or any private person, can make an arrest of an individual under certain provisions under the Criminal Procedure Code. The code exempts the members of Armed forces from being arrested for anything done by them in the discharge of their official duties except after obtaining the consent of the government. Broadly speaking, an arrest may be classified into two categories namely, (i) Arrests under warrants issued by a court; and (ii). Arrests without warrants issued by a court.
Section 41: Arrest by Police Without Warrant
Section 41 of the Code of Criminal Procedure, 1973 deals with the arrest of any person by any police inspector without an order from a Magistrate and without a warrant. Under this Section, the police have the power to arrest a person without a warrant when a prompt and immediate arrest is needed and there is no time to approach magistrate and obtain a warrant in case of serious crime. This Section is to be read with Sections 155 and 156 of the Code.
Not in all cases arrest is necessary, Notice of appearance before a police officer can be made if a reasonable complaint has been made, credible information has been received and suspicion exists of cognizable offence and if the concerned person continues to comply with such notice and appears, then arrest is not necessary but he if he doesn’t, then arrest can be made.
In Avinash Madhukar Makhedkar v. State of Maharashtra case, 1983 Cr LJ (1833) Bom case, the Bombay High Court observed: “Section 41 is a depository of a general powers of the police officer to arrest but this power are subject to certain other provisions contained in the Code as well as in the special statute to which the Code is made applicable.
Section 41: When police may arrest without warrant:
|
(1) |
Any police officer may without an order from a Magistrate and without a warrant, arrest any person— |
||
|
|
(a) who commits, in the presence of a police officer, a cognizable offence; |
||
|
|
(b) 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 for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:- |
||
|
|
|
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; |
|
|
|
|
(ii) the police officer is satisfied that such arrest is necessary- |
|
|
|
|
|
(a) to prevent such person from committing any further offence; or |
|
|
|
|
(b) for proper investigation of the offence; or |
|
|
|
|
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or |
|
|
|
|
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or |
|
|
|
|
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. |
|
|
|
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. |
|
|
|
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; |
||
|
|
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or |
||
|
|
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or |
||
|
|
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or |
||
|
|
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or |
||
|
|
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or |
||
|
|
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or |
||
|
|
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. |
||
|
(2) |
Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. |
||
Section 41 Subsection 1 of Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of any person by any police inspector without an order from a Magistrate and without a warrant.
Section 41 (1) (a):
Under Section 41(1) (a) of CrPC, the police officer may arrest without any order from the Magistrate and without any warrant, any person, who commits, a cognizable offence in the presence of a police officer. This Clause uses the phrase “may … arrest”. Thus the power of arrest is a discretionary,
In Amarawati v. State of Uttar Pradesh, 2005 Cr LJ 755 (762) case, the Court held that a police officer is not always bound to arrest for cognizable offence.
In State of Rajasthan v. Bhera, 1997 Cr LJ 1237 (Raj-DB) case the Court observed: “The power of arrest under Section 41 given to police officer is not absolute and not to be exercised in arbitrary manner, but judiciously.”
In Dinkarrao Rajarampant Pole v. State of Maharashtra, 2004(1) Crimes 1(7) (Bom-DB) case, the Court observed: “No arrest to be made because it is lawful for the police officer to do so. The police officer must be able to justify the arrest apart from his power to do so.” Court further observed that “Except in heinous offences, an arrest would be avoided.”
In Joginder Kumar vs State of UP, AIR 1994 SC 1349 case, the Court held that no arrest can be made merely because it is lawful to do so. There must be a justifiable reason to arrest.
In Kura Rajaiah alias K Rajanna v. Government of Andhra Pradesh, 2007 Cr LJ 2031 (2038) (DB) case, where the petitioner was involved in five cognizable cases. The Court held that he can be arrested without warrant in the view of provisions of Section 41(1) (a) of CrPC.
Section 41 (1) (b):
Under Section 41 (1) (b) of CrPC, the police officer may arrest without any order from the Magistrate and without any warrant, any person 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 for a term which may be less than seven years or which may extend to seven years whether with or without fine,
This Section empowers a police officer to act to arrest any person under reasonable suspicion, but it is subjected to objective determination by the magistrate at the time of granting remand. The suspicion may not stand the scrutiny of law because suspicion is no evidence. The Legislation in wisdom has given the power to the police officer, which may likely to act as injustice upon innocent people. Credible and reasonable suspicion must have reference to the mind of the person receiving the information. It must be based on definite facts other than the personal feelings of the police officer. If police act bona fide and wrongly arrests a person on reasonable suspicion he is protected.
In Mohd. Farooquzzaman v. State of Bihar, 2006 (3) Pat. LJR 165 (Pat) case, the Court held that a person is not liable to be arrested merely on the suspicion of complicity in an offence.
In Easih Mia v. Tripura Administration, (1962) 1 Cr LJ 673 case, the Court held that it is not enough for arrest of a person, under this section, that there was likelihood of cognizable offence being, committed in future.
In Shahadat Khan, AIR 1965 Tripura 27 case, the Court held that when arrest is made under suspicion, the police has to carry out investigation without unnecessary delay and the Magistrate has to be watchful. As the power of arrest without warrant under suspicion is liable to be abused.
In Sagwan Pasi v. State of Bihar, 1978 CrLJ 1062 (Pat.) case, where a police constable, on learning that some criminals from outside station limits, had assembled at a shop and arrested them without any credible information regarding their involvement in any offence, the Court held their arrest illegal.
In State of Rajasthan v. Bhera, 1997 CriLJ 1237 case, it was held that the “reasonable suspicion” and “creditable information” must relate to definite averments which must be considered by the Police Officer himself before he arrests the person.
For the arrest under Section 41 (1) (b) following two conditions should be satisfied.
The first condition is specified in Section 41 Subsection 1 Clause (b) Subclause (i). It lays down that the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence. It makes obligatory to the police officer to give reasons in writing for his such belief.
The second condition is given in Section 41 Subsection 1 Clause (b) Sub clause (ii), which gives list of necessary conditions under which a person committing such offences can be arrested. The police officer shall record his reasons in writing while making such arrest under this section. If the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence and the arrest is necessary
- If the police officer believes that if the person is not arrested then there is a possibility that the person may commit further offences (Section 41 (1)(b) (ii) (a))
- If the police officer believes that the person needs to be taken into custody for further and proper investigation of the offence. (Section 41 (1)(b) (ii) (b))
- If the police officer believes that the person if not arrested may cause the evidence of the offence to disappear or tampering with in any manner. (Section 41 (1)(b) (ii) (c))
- If the police officer believes that the person if not arrested may make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer. (Section 41 (1)(b) (ii) (d))
- If the police officer believes that the person if not arrested then his presence in the court on requirement during trial is not ensured. (Section 41 (1)(b) (ii) (e))
There is Proviso for Section 41 Subsection 1 Clauses (a) and (b) that, a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
Section 41 (1) (ba):
Under Section 41 (1) (ba) of CrPC, the police officer may arrest without any order from the Magistrate and without any warrant, any person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to more than seven years whether with or without fine or with a death sentence. The police officer arresting under this Clause must give reasons for his belief that such person has committed the said offence.
Try to understand difference between Clause (b) and Clause (ba) of Section 41. The criteria based on punishment for applying Clause (b) is that the offence is cognizable and punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, While the criteria based on punishment for applying Clause (ba) is that the offence is cognizable and punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence. Similarly Clause (ba) is not talking of reasonable complaint and reasonable suspicion.
Section 41 (1) (c-i):
The police officer may arrest without any order from the Magistrate and without any warrant, any person,
- who has been proclaimed as an offender either under this Code or by order of the State Government. (Section 41 (1) (c)) A person against whom an arrest warrant has been issued can be declared a ‘proclaimed offender’ if the court has reasons to believe that he/she is absconding or is in hiding, blocking the execution of the warrant. State Government by the order can also declare such person as ‘proclaimed offender’.
- in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. (Section 41 (1) (d))
- who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody. (Section 41 (1) (e))
- who is reasonably suspected of being a deserter from any of the Armed Forces of the Union. (Section 41 (1) (f))
- who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India (Section 41 (1) (g))
- who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356, (Section 41 (1) (h)). Section 356 Subsection (5) of CrPC deals with the order for notifying address of previously convicted offender (notification of residence or change of or absence from the residence of released convicts).
- for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (Section 41 (1) (i))
Section 41 (2):
Section 41 Subsection (2) lays down that “Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.” This Section is applicable i.e. the arrest can be made only for the cognizable offence by the police officer without any order from the Magistrate and without any warrant. No person should be arrested for the non-cognizable offence without any order from the Magistrate and without any warrant provided the person is not coming under Section 42 of this code and providing necessary information about his name and address.
In Elumalai v. State of Tamil Nadu, 1983 Mad LW (Crl) 121 case, the Court held that in cases of arrests made under Section 41 (2), there is no question of trial of any criminal case and there is no consumption of the case by its ending in any conviction or acquittal. And as such no investigation is required.
Arnesh Kumar v/s State Of Bihar Case
In Arnesh Kumar v/s State Of Bihar (2014) 8 SCC 273 case, the Bench of Supreme Court consisting of J. Chandramauli Kr. Prasad and J. Pinaki Chandra Ghose proposed some rules and directions for arresting a person.
Observations of the Supreme Court:
- Arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers know it so also the police. The police have not learnt its lesson; the lesson implicit and embodied in the Cr PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. The power of arrest is one of the lucrative sources of police corruption. It has become a handy tool for the police officers who lack sensitivity or act with oblique motive.
- Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make an arrest as they believe that they possess the power to do so.
- As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another.
- Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.
- Ultimately, the Parliament on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, enacted Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC).
- Under Section 41 of the Code, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before the arrest, in such cases, has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear, or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest.
- In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised.
- An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of the investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorized by the Magistrate in the exercise of power under Section 167 Cr.PC.
- The power to authorize detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorized in a routine, casual and cavalier manner. Before a Magistrate authorizes detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with the law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorize his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate, in turn, is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused.
- The Magistrate before authorizing detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons, and materials on the basis of which the police officer had reached its conclusion.
- Those shall be perused by the Magistrate while authorizing the detention and only after recording its satisfaction in writing that the Magistrate will authorize the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorizing the detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted.
- Section 41A makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue a notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless, for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to comply and shall be subject to the same scrutiny by the Magistrate as aforesaid.
- The Supreme Court in the present case held that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrongs committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially be reduced.
- The judges emphasized that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.
Directions by Court:
- All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
- All police officers be provided with a checklist containing specified sub- clauses under Section 41(1)(b)(ii);
- The police officer shall forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention;
- The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
- The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
- Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
- Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
- Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
The court also added that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.