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Arrest Without Warrant

For decades across the globe, there has been a debate regarding the validity of preventive arrest by law enforcement. The preventive arrest is simply done to stop a person from committing a cognizable offence in future. Historically, the preventive arrest was infamously be used in India during British rules under the Bengal State Prisoners Regulation, 1818 which empowered the government to detain or arrest anybody on mere suspicion.

The main object of criminal law is to protect society from criminals and lawbreakers. The criminal law consists of both procedural law and substantive law. In India, substantive law is the Indian Penal Code, 1860 and procedural law is the Code of Criminal Procedure, 1973.

The procedural aspects of arrest are laid down in the Code of Criminal Procedure, under this, the complete process is mentioned related to the arrest of a person who has committed any offence. Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of a person under Section 41 to 60.

The term arrest is not defined anywhere but it can be defined as:
A seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty.

The major purpose of arrest is to bring the person before a court and secure administration of law. An arrest also serves the purpose of notifying the society that a particular individual has committed an act which is against the society and act as a remark to deter crime in future.

However, even if a person against whom no accusation has been made can also be arrested for certain purposes like removal in safe Custody from one place to another. Arrest should not be confused with custody as judicial custody of a person is followed after the arrest of a person by a magistrate on appearance. In every arrest there is custody but not vice-versa.


Arrest means deprivation of person's liberty by legal authority.
There are four components involved:
  • A seizure or touching of a person's body.
  • Followed by words such as you are under arrest
  • The person's submission to the compulsion.
  • The police informing the person of the true grounds for his arrest.

Persons authorised to arrest:

Code of Criminal Procedure empowers three people to issue the process of arrest. They are:
  • A police officer with or without a warrant depending on the nature and gravity of the offence,
  • A magistrate,
  • A private person can arrest another person who in his presence commits a non-bailable offence, cognizable offence or is proclaimed offender.

Arrest without warrant

The police officers may arrest a person without warrant under certain conditions. The condition to arrest a person without warrant mentioned under Section 41 of the code are as follows, any person:
  1. Who has been involved in a cognizable offence such as murder, rape, theft or is suspected to be so involved of having committed a cognizable offence punishable with imprisonment of 7 years or more or against whom a complaint has been received has been received of such involvement
  2. Who has been in possession of any housebreakingweapon without any lawful excuse.
  3. Who has been proclaimed as an offender either under Criminal Procedure Code or any other order by state government or any law in force.
  4. Who obstructs any police officer while performing his duty or who have escaped or make attempts to escape from lawful custody.
  5. Who has been concerned in any law or against whom a reasonablecomplaint has been made or credible information has been received, of his having committed involved in an act committed at any place outside India, if committed in India would be punishable of an offence and for which he is under law relating to extradition or otherwise, liable to be apprehended or detained in custody of India.
  6. Who is reasonably suspected of being a deserter from any of the Armed forces of the Union.
  7. Who being released as a convict, commits a breach of any rule mentioned under subsection 5 pf section 356 i.e., the state government may be notification make the rules to carry out the provisions of this section relating to the notification of residence or change of residence.
For whose arrest requisition has been received from another police officer, provided that the requisition must specify the person to be arrested and the reason for which the arrest is to be made and it appears that the person must be lawfully be arrested without a warrant.

The arrest by a constable of a totally deaf person who could not lip-read would be valid if the constable had done everything that a reasonable person would do in the circumstances. An arrest constitutes an absolute restrictions on a person's freedom of movement.

DK Basu V State of West Bengal[1]

DK Basu, The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation on 26.08.86 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph Newspaper regarding deaths in police lock up and custody. He requested that the letter be treated as a Writ Petition with the Public Interest Litigation category. Considering the importance of the issues raised in the letter, it was treated as a writ petition and notice was served to the respondents. While the Writ Petition was under consideration, one Mr Ashok Kumar Johri addressed a letter to the Chief Justice drawing his attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in Police Custody.

The same letter was also treated as Writ Petition and was listed along with the writ petition of DK Basu. On 14.08.87, the court made the order issuing notices to all the state governments and notice was also issued to the Law Commission of India requesting suitable suggestions within a period of two months. In response to the notice, affidavits were filed by several states including Assam, Haryana, Orissa, Manipur etc. Dr A.M Singhvi, Senior Advocate was appointed to assist the court.

  • The issue in the present case pertained to Custodial Torture and deaths by the police?
  • Are policemen arbitrary in arresting a person?
  • Are there any prescribed guidelines while making a arrest?

Issue Answered
  • Policemen are not to act arbitrarily while arresting a person. There are some guidelines that even a policeman has to follow.
  • Yes, the court had laid down a number of guidelines while arresting a person.

The court in this case said that, the locks-up deaths are to be reduced. It will directly take a toll on the belief of public in law and order. The Supreme court directed all the High Courts to check on the details and punishment that are being imposed on prisoners in the jails. They were asked to give the detailed list of all the persons who were arrested and who ever were in lock-ups.

Guidelines prescribed the Court
  1. The arrested person has the right to meet his lawyer.
  2. He has the right to medical examination for every 48 hours.
  3. The arresting person has to inform the relatives regarding his arrest.
  4. He has to be produced before the magistrate within 24 hours and this is also the fundamental right of an individual under Article 22 of the constitution.
  5. The arresting officer shall prepare the memo and has to be attested by at least one witness.
  6. An entry must be made regarding his arrest in the diary.
  7. A police control room should be set up in all the districts and in all the state headquarters and the information regarding the persons arrest has to be communicated to all the districts.
  8. All the documents including the memo of the arrest has to be sent to the magistrate.
  9. The arresting officer shall have the clear identification of his name, designation.
  10. The time, place, arrest and the place of custody have to be notifies to the interested person or the friend or the relative.
  11. The person arrested has to be made aware of his right to have someone notified on his behalf.
  12. The police officer making arrest should not handcuff any person routinely. The arrested person should not be handcuffed except where there is a clear danger of his attempts to escape or when he is so violent that he cannot be kept in custody unless his movement is stopped.
  13. The arrested person has a right to remain silent during police inquiry provided by Article 20(3) of the Indian constitution so that the police cannot extract any self-incriminating information against him.

Special Rights of women:

  • Females can be searched by only another female with strict regard to privacy and decency (Section 51 of Code)
  • Female suspects must be kept in a separate lock-up in the police station. They should not be kept where male suspects are detained
  • When a female is arrested for a non-bailable offence, even if the offence is very serious , the court can release her on bail Section 437 of code)

State of Maharashtra v Christian Community Welfare Council of India[2]

The Supreme Court has also dealt with the issue of arrest of women between dusk and dawn. Modifying the Bombay High Court order that no female person to be arrested without the presence of a lady constable and in no case in the night, the court held that all the efforts should be made to keep a lady constable present but strict compliance can cause practical difficulties to investigating agencies and create rom for evading the process of law by unscrupulous accused.

Therefore, the court ruled that while arresting a female person, all efforts should be made to keep a lady constable, but in the circumstances where the arresting officers are reasonably satisfied that such presence of a lady constable is not available or possible and the delay in arresting accused by securing the presence of a lady constable would impede the course of investigation, such officer for reasons to be recorded, be permitted to arrest a female person at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.

This position has now been incorporated in Section 46(4) under which in exceptional circumstances the woman police is required to obtain prior permission of Judicial Magistrate of First class within whose jurisdiction the offence is committed or arrest is made.

Nilabati Bahera v State of Orissa[3]

In the case, a letter was sent by Smt. Nilabati Behera to the Supreme Court stating that her twenty two year old son, Suman Behera had died in police custody after being inflicted with several injuries. The honourable court took suo moto action and converted it into a writ petition under article 32 of the Indian constitution. The petitioner claimed compensation for the violation of her son's fundamental right to life guaranteed under Article 21. The Orissa police had arrested Suman Behara for investigation involving the offence of theft and he was detained at the police outpost. The very next day, his dead body was found near the railway track. The lacerations on his body indicated towards an unnatural death.

It was found that a doctor before the court deposed that the injury was caused by a blunt object, which may have been lathiblows. All the injuries found on his body could not have been caused by train accident. The court also drew the distinction between the liabilities of the State in public law as opposed to private law. It clearly mentioned that that a proceeding under Article 32 before the Supreme Court or any High Court is a remedy available in public law and the principle of sovereign immunity does not apply in case of public law. It is only a defence in private law based on tort.

Hence, the court awarded a compensation of Rs.1,50,000 to the petitioner and a sum of Rs.10,000 to be paid to the Supreme Court Legal Aid Committee. The Supreme Court also ordered the State of Orissa to initiate criminal proceedings against those who killed Suman Behara.

State of Madhya Pradesh v Shyamsunder Trivedi &Ors[4]

Nathu Banjara was tortured at police station, Rampura during the interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The defence set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10:30 p.m after interrogation itself and about 7:00 a.m. a death report was recorded at the police station, Rampura. One of the respondent said that he had found one unknown person near a tree by the side of the tank rigging with pain in his chest and as soon he reached near him the said person died.

If a detained person runs from the custody and found dead, then who was to be held responsible for the death?

The accused Trivedi Sub-Inspector is, was found guilty being a public servant framing incorrect writing and record with intent to save persons responsible for beating the deceased Nathu Banjara and causing his death in the Police Station, Rampura and is also found guilty of giving false information to screen offenders from legal punishment. As such, he is convicted of the offences punishable under sections 218 and 201 of the Indian Penal Code. He is sentenced to two years' rigorous imprisonment for each of the two offences. The sentences shall, however, run concurrently.

Joginder Kumar v State of Uttar Pradesh and Ors[5]

This is a petition under Article 32 of the Constitution of India. The petitioner, Joginder Kumar, a young lawyer was called to the office of the SSP, Ghaziabad in connection with some inquiries. He was accompanied by friends and his brother, who were told by the police that he would be released in the evening. But Joginder kumar was taken to a police station with the assurance that he would be released the next day. Next day, too he was not released as the police wanted his help in making further inquiries.

When his family went to the police station on third day, they found that he had been taken to an undisclosed location. In effect, Joginder kumar was illegally detained over a period of five days. His family had to file a habeas corpus writ petition with the Supreme court to find out his whereabouts. The court issued notice to the state of Uttar Pradesh and to the SSP to immediately produce Joginder Kumar and answer why he was detained for five days without a valid reason and why his detention was not recorded by the police in its diary and why he was not produced before a magistrate.

  • Can an individual be detained on grounds not clarified?
  • Can an individual be taken to any unknown premises other than police station for investigation?

The court held that no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of its quite another. The police officer must be able to justify the arrest apart from his power to do so. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. There must be some reasonable justifications in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

Except in heinous crime, an arrest must be avoided if a police officer issues notice to person to attend the station House and not to leave the station without permission would do. There are inherent rights under Article 21 and 22(1) of the constitution and require to be recognised and scrupulously protected and for effective enforcement of these fundamental rights, the court issued guidelines. Held
It was ruled that, an arrest cannot be made on a mere allegation of offence against a person or in a routine manner. Constitutional rights of a person mandate that he shall not be arrested on simple suspicion of complicity in an offence. It cannot be made without a reasonable justification reached after some investigation is made as to the genuineness of the complaint. It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produces, to satisfy himself that these requirements have been complied with.

Arrest on refusal to give name and residence (Section 42)
When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer to give name and residence of such officer, and if given of which such officer has a reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
  • When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if required. Provided that if such person is not resident in India, the bond shall be secured by a surety resident in India.

  • When it is not ascertained within 24 hours from the time of arrest or should he fail to execute the bond, or if so required, to furnish sufficient sureties, he shall forwarded to the nearest Magistrate having jurisdiction.

Arrest by private person without a warrant (Section 43)

Any private person may arrest or cause to be arrested any person in his presence commits a non-bailable and cognizable offence, or any proclaimed offender and without unnecessary delay, shall be made over any person cause to be arrested to a police officer, or in the absence of a police officer, to take such person or cause him to be taken in custody to the nearest police station. He can do on the basis of his own knowledge and seen by his own eyes. If the private person making arrest under this section fails to follow the after arrest procedure as prescribed in this section, he can be prosecuted for the offence of wrongful confinement under Section 342 of IPC.[6]

Arrest by Magistrate ( Section 44)

When an offence 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 irrespective of the nature of offence. Even if no such offence is committed in the presence of such Magistrate, but if the Magistrate is competent to issue a warrant for the arrest of any person, and the person is present before him, he can arrest such person. If a person arrested by a Magistrate under this section is detained beyond 24 hours and is not produced before another Magistrate for obtaining an order of remand to custody under section 167(1), his detention would be illegal.[7]

Protection of members of the Armed Forces from arrest. (Section 45)

This section was incorporated to save the members of armed forces. It says that no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression Central Government occurring therein, the expression State Government were substituted.

Arrest how made. (Section 46)

In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

Arrest to prevent the commission of cognizable offences (Section 151)

A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

No person arrested shall be detained in custody for a period exceeding 24 hours from the time of his arrest unless his further detention is required or authorised under any provisions of his code or any other law for the time being in force.

Here we reach to the end of our study related to arrest. As we go through the sections, it can be fairly derived that arrest lies as a power to the police officers who are being instructed to make it, or the magistrate who can just on the basis of his views, can make it. However, there must be few issues lying when it comes to an arrest made by a private person. Because not many people would be aware of the fact that Criminal Procedure Code under its code provides an ordinary individual to arrest a person but, only when he witnesses him of doing an act forbidden by the law.

But, in addition to that the arrested person is also given quite a few rights to cope up with any unfairness that might happen to him while in detention.

We have discussed how person can be arrested without warrant. But by going through the data of Commission on Law of arrest we realise that due to the unawareness of people about their rights how this power to secure the peace in the society is being misused.

The arrest of a person has a demoralising and diminishing effect in on his personality. The person so arrested becomes outrageous, alienated and hostile. So there should be a balance between the security of a state and individual freedom.

Recommendations And Suggestions
The only thing that can be done firstly, would be to inform people more about their rights and duties and to make them aware of the fact that they have the power to stop wrongs in the society or the people doing wrong by handling them to the authorities.

And also, notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country. Very often this power is utilized to extort monies and other valuable property or at the instance of an enemy of the person arrested.

Even in case of civil disputes, this power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent the person in detention should be also updated of the rights available to him, just to cope with any sort of unfairness act being happen to him.
Hence, there is required to be a provision to apply a safeguards into that matter.

  • Code of criminal procedure- S.K. KAPOOR
  1. (1997) 6 SCC 642
  2. (2003) 8 SCC 546
  3. (1993) 2 SCC 746
  4. (1995(3) Scale, 343)
  5. (1994) 4 SCC 260
  6. Remembrancer of Legal Affairs v Bagirath Mahto, AIR 1934 Cal 610
  7. Swami Hariharanand Saraswati v Jailor, AIR 1954 AII 601

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