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Critical Analysis Of Arrest By Police Without Warrant & Its Misuse In India

The problem of a person being arrested without a warrant is one that has been discussed commonly because it has led to an extreme misuse of power that breaches fundamental rights before the trial even starts. This is because there are no proper channels established to protect the rights of the person being arrested and the arrest is based on suspicion rather than criminal conviction. In order to tackle this topic, which is covered in Chapter 5 of The Code of Criminal Procedure, 1973, this paper made an effort.

The paper additionally addresses the definition, method, and abuses of detaining someone before concluding with some recommendations that can be understood with the aid of a few well-known legal precedents.

Since laws that were created solely to safeguard the nation's citizens have occasionally been broken, infringing on people's fundamental rights, the idea of police arrests and how they are misused has come up for discussion.

Police always had the legal authority to make grave offence charges without a warrant if they believe there is probable cause, reliable evidence, or other factors to believe the suspect is guilty of a crime.

There are reports of occasionally occurring unjustified arrests in the country, despite numerous occasions when the Hon'ble Courts have emphasized that these powers should not be violated and even amendments have been made to protect the rights of individuals, but not much has been performed to stop them from violating the Section that was made giving the officers with such special powers.

Therefore, there is a need to make and bring about significant changes in how those in positions of power violate people's rights without knowing the effects it has on people's lives.

Arrest: Its Meaning And Provisions:

Although the word "arrest" isn't defined anywhere in the CrPC or IPC, we can still comprehend it by giving it a straightforward definition, such as "apprehension of arrest by a legal authority to deprive him of his liberty." The purpose of an arrest is to bring a person before a court of law or to ensure the administration of justice. It also serves to alert the community or society that a person has been accused of a crime and may serve as a caution to him not to commit additional crimes.

There are various methods of arresting someone by a police officer, such as with or without a warrant, by a judge, or by a private individual, each of which has specific guidelines and rules. But for the purposes of this paper, I will only discuss "Arrest by a Police Officer without a Warrant," as this is one of the provisions that is being abused. It gives police officers the authority to detain someone without a warrant in order to stop them from committing a crime, with various sections defining the circumstances in which this is permissible. However, with authority comes responsibility, and this will be covered in more detail in a later chapter.

Therefore, one should be aware of "How an arrest is made" in accordance with CrPC before understanding the idea of Arrest without a Warrant.

The term "arrest" is not defined by law, as was previously mentioned, but under Section 46 of CrPC2 it is mentioned the provisions linked to how an arrest is made, which can be stated as follows:
  1. A person should only be held or otherwise restrained when a police officer or other person intends to apprehend him and there is no sign of verbal or physical submission.
  2. The police officer or the person performing the arrest should use all available means to apprehend the suspect if he or she attempts to resisted or elude the arrest.
  3. However, it is not acceptable to kill someone while they are being detained if they are not facing the death penalty or a life sentence for the crime they did.

Provisions Of Arrest By A Police Officer Without Warrant:

According to Section 41 of the 1973 Criminal Procedure Code, it is legal to detain someone without a subpoena if the circumstances are as follows:
  1. A individual who has committed a cognizable offense, against whom a complaint has been made, against whom there is cause for suspicion, or who is the subject of any credible information. (Cognizable offences are those which are grave like rape, theft, murder where the police officer can start investigating without the court's approval). According to Section 154 of the Criminal Procedure Code, they are required to submit all information relating to a cognizable offence because there is a chance that the offender could flee or something else could happen.
  2. If the person has a weapon that can be used to sneak into houses without a valid reason.
  3. if an individual is declared an offender under the CrPC, a state government order, or any other current laws.
  4. If a person prevents a police officer from performing his or her duties or tries to flee from lawful custody.
  5. If he is in possession of a product that may be stolen property, or if he has committed a similar offence,
  6. A member of the Union's armed forces who is accused of being a traitor.
  7. If he is someone who has been involved in, or against whom a complaint has been filed, or a reasonable suspicion exists, or any credible information exists, that he has committed an offence outside India that would have been punishable in the territory of India, he would be held responsible to be apprehended or detained in the custody of India under any law concerning extradition, or otherwise.
  8. If he is a released convict and violates any of the State government's instructions under Section 356 (5) of CrPC4, which deals with provisions relating to the change or absence of released convicts from their home.
  9. If another officer has sent a requisition stating that he should be arrested for his offence and it considers appropriate, he or she can be arrested without a warrant by a police officer.

In addition, under Section 42 of the CrPC, a police officer may detain someone without a warrant if:
  1. The person is accused of a non-cognizable crime and has refused to provide information about his name or location, or has provided any false information, and he is arrested in order to obtain his correct information.
  2. After establishing his accurate information, he can be released on the condition of executing the bond with or without sureties and appearing before a judge if necessary, and if he is not a resident of India, the bond can be secured by surety or sureties of Indian residence.
  3. And if the information is not taken within 24 hours of his arrest, or he fails to execute the bond or necessary sureties, he should be taken to the closest Magistrate within the jurisdiction.

Section 151 of the Criminal Procedure Code allows police officers to arrest someone for a cognizable crime without a warrant or approval from a Magistrate if the offence cannot be stopped otherwise. However, the arrested individual cannot be held in custody for more than 24 hours unless his continued detention is authorised by other provisions of the CrPC or any other law in effect at the moment.

Whereas arresting someone without a warrant may be useful in some cases, such as national security, obstructing any actual danger, or other serious offenses, the use of this provision is limited when compared to its misuse, which has only increased over the year.

Misuse Of Power By The Police

Whereas Sections 41, 42, and 151 of the CrPC empower police officers to arrest someone without a warrant, the vague terms such as "reasonable", "credible", and "appears to the police officer" may appear general, in reality, they are very subjective, leading to violations of arrested persons' rights and misuse of power by the officers. Section 151 of the CrPC, which gives such power, was made during the British rule and was used by rulers to arrest some people.

Even recently, the Allahabad High Court stated in a case while awarding anticipatory bail that "arrest should be the last option when detaining the accused is critical and custodial interrogation is required." The court even stated that indiscriminate and irrational searches are gross violations of a person's human rights because personal liberty is very important under Article 21 of the Indian Constitution and should only be curtailed if it becomes very important.

Even the Third Report of the National Police Commission stated that approximately 60% of arrests are unnecessary and unjustifiable, and that 42% of total jail funds are spent on prisoners who should not be there, as highlighted in the case of Joginder Kumar v. State of Uttar Pradesh.

Furthermore, the sections for arresting a person without a warrant give the officer an unfair advantage, which undermines justice because it is up to the police to determine whether the person is going to conduct a cognizable crime or not. Which was even condemned by the Hon'ble Supreme Court in the case of Bhim Singh, MLA v. State of J&K ors that police officers should have the uttermost concern for citizens' personal liberty and that their malafide, authoritarian behaviour cannot deprive people of their liberty.

One cannot deny that 'Preventive Detentions' are a gross violation of personal liberty and freedom because they are frequently used to convey 'tough messages' to society at large. However, there is a need to strike a balance between the interests of society and the rights of an accused, and in general, the rights of an accused are given greater priority. In addition, in V. Shantha v State of Telangana and Ors, the court held that in order to prevent abuse of power, all preventive arrest laws should have at least a judicial review provision, to limit their use, and if a person is detained, there should be appropriate evidence to prove the same.

As the Hon'ble Supreme Court correctly stated, the purpose of such detention is not to punish someone, but to prevent him from doing something that is not based on a criminal conviction, but on suspicion and a plausible possibility that can only be supported by evidence.

As a result, stronger provisions should be put in place to protect the rights of those who have been arrested, because giving someone more power without giving the other party the appropriate rights will always result in violations of several rights, as is the case with arrests without warrants.

  • In 2008, several amendments were made to the provisions of arrest under the CrPC that incorporated Section 41A, which states that when the arrest of an individual is not required under Section 41(1) of the CrPC15, police officers can give notice to the person against whom a reasonable complaint is filed to appear before him. Also, Section 41B of the CrPC, which governs the process and duties of a police officer when making an arrest.
  • Various guidelines provided for arrest and detention in the case of D.K. Basu v. State of West Bengal, such as the right to be medically examined every 48 hours, the right to contact his lawyer, the arrest to be recorded in a diary, the diary to be shown to the magistrate, and so on, should be implemented to help reduce police officers' abuse of power.
  • No arrest should be made before verifying the complaint is real in order to harass and intimidate the arrested person, which requires judicial intervention.
  • There may also be rules for harsh penalties for those who engage in, or even aid and abet, such grave violations of power.
  • There may also be rules for harsh penalties for those who engage in, or even aid and abet, such grave violations of power.

If we look at the provisions of arresting someone without a warrant based on just misuse of power and violating their rights to natural justice and the rule of law that is available to all, we see that India follows the principle of "It is better to let go ten guilty people than to convict a single innocent man."

A law is only good when it protects the rights of all people, but when that law begins to violate those rights and is only beneficial to those in authority, it is no longer valid.

The impact of arresting someone without proper findings should be clearly understood because it affects a person physically and psychologically because his life is kept at risk, and one cannot simply play with it based on allegations without proper evidence for the same.

As a result, the police should use the powers granted under these sections to prevent real crimes rather than arbitrarily by ensuring fairness and stability between the interests of society and an individual and not using it as a weapon for oppression or political gain.

  1. Code of Criminal Procedure, � 46 (1973).
  2. Code of Criminal Procedure, � 154 (1973).
  3. Code of Criminal Procedure, � 365(5) (1973).
  4. Code of Criminal Procedure, � 42 (1973).
  5. Code of Criminal Procedure, � 151 (1973).
  6. Express News Service, Arrest should be the last option for police, The Indian Express (Jan 10, 2021), Arrest should be the last option for police: Allahabad HC | India News, The Indian Express.
  7. Devansh Sharma, The power of arrest of the police: The uses and misuses, Racolb Legal (Jan 1, 2020), THE POWER OF ARREST OF THE POLICE: THE USES AND MISUSES | RACOLB LEGAL. 9 AIR 1994 SC 1349.
  8. AIR 1986 SC 494, 1986 CriLJ 192.
  9. AIR. 1978 S.C. 1025.
  10. (2017) SC 2625
  11. Union of India v. Paul Nanickan & ors, Appeal (crl.) 21 of 2002
  12. Code of Criminal Procedure, � 41A (1973).
  13. Code of Criminal Procedure, � 461 (1) (1973).
  14. Code of Criminal Procedure, � 41 B (1973)
  15. (1997) SCC 416.
  16. Anubhav Pandey, Power of police to detain and arrest people under Section 107 and 151 of code of criminal procedure, I Pleaders (March 30, 2018), Power of Police under CRPC, Section 107 and 151 - iPleaders.

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