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Arrest of Persons with and without Warrant under the Criminal Procedure Code, 1973

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Arrest of Persons with and without Warrant

ARREST OF PERSONS WITH AND WITHOUT WARRANT (SEC. 41-60)

SECTION 41 – WHEN POLICE MAY ARREST WITHOUT WARRANT 

Introduction –  Section 41 & 42 specify the circumstances under which the police has the power to make arrests without warrant. 

Object – The object of conferring such power to arrest without warrant on police is as follows :-

  1. Where a serious (cognizable) offence has been committed or
  2. In non-cognizable cases, to ascertain the name & address of the offender perpetrating the crime or
  3. Forestalling the impending crimes as a preventive measure.  

Any police officer may arrest without any order from a magistrate and without a warrant, arrest a person :-

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  1. Who commits a cognizable offence in the presence of a police officer or
  2. Against whom a reasonable suspicion or credible information exists that a person has committed a cognizable offence which is punishable with imprisonment for a term which may extend to seven years, but only if the following conditions are satisfied :-
  • The police officer has reason to believe that such person has committed the said offence 
  • The police officer is satisfied that such arrest is necessary –
  1. To prevent the person from committing any further offence or
  2. For proper investigation or
  3. To prevent disappearance or tampering of evidence
  4. To prevent threatening of witnesses
  5. To ensure his presence in the court when required

However, if the police officer is of the opinion that arrest is not required under this sub-section, he shall record the reasons for the same. 

The information or suspicion on which the arrest is to be made must be based upon definite facts and materials placed before the police officer. 

  1. Against whom a credible information exists that a person has committed a cognizable offence which is punishable with imprisonment for a term which may extend to more than seven years or with death sentence. 
  2. Who has been declared a proclaimed offender or
  3. Who is reasonably suspected to be in possession of stolen property and is also suspected of having committed an offence in respect of such property or
  4. Who obstructs a police officer from discharging his duty or attempts to escape from lawful custody. 
  5. Who is reasonably suspected of having deserted the armed forced of the union
  6. Against whom credible information exists etc. of having committed an offence outside India which also is an offence in India and for which he is liable to be detained in custody in India under the law relating to extradition. 
  7. Who has breached the concerned rules while on release as a convict.
  8. For whose arrest any request has been received from another police officer. However, the offence shall be one for which the person might lawfully be arrested without a warrant. I has been held in State of Maharashtra v. CCW Council of India., that a request can be through a telephonic message as well. 

Furthermore, a person concerned in a  non-cognizable offence is not to be arrested without an order of a magistrate. 

Section 41-A : NOTICE OF APPEARANCE BEFORE POLICE OFFICER 

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  1. This section provides that if an arrest does not fall u/s 41, then a notice has to be served by a police officer to a person against whom reasonable suspicion etc. exists that he has committed a cognizable offence to appear before him at the prescribed place. 
  2. The person upon whom the notice has been served shall comply with the same.
  3. If he continues to comply with the notice, then shall not be arrested unless the police officer is of the opinion that he ought to be arrested.
  4. If the person fails to comply with the notice or is unwilling to identify himself then the police officer may arrest him for the offence mentioned in the notice. 

Section 41-B : PROCEDURE OF ARREST AND DUTIES OF OFFICER MAKING ARREST

Identification of Police officer

The police officer making arrest must have accurate, visible and clear identification of his name. 

Duties of Police Officer 

  1. Preparation of Memo :- He shall prepare a memorandum of arrest which shall be attest by atleast one witness ( either member of family of person arrested or respectable member of locality ). The same shall be countersigned by the person arrested. 
  2. Intimation :- He shall inform the person arrested that he has a right to inform his relative or a friend about his arrest, unless a memo of arrest has been attested by a member of his family. 

Section 41-C : CONTROL ROOM AT DISTRICTS

Establishment of Police Control Room

The state govt. shall establish police control room :-

  1. In every district and
  2. At state level.

Duties of State Govt. 

  1. The state govt. shall have a notice board outside control room in every district which displays :-
  • Names & addresses of the persons arrested and
  • The name and designation of police officers who made the arrests.
  1. At police headquarters of the State, it shall maintain a database of the general public, persons arrested, nature of the offence with which they are charges.

Section 41-D : RIGHT OF ARRESTED PERSON

  1. This provision highlights the right of the arrested person to meet an advocate of his choice during the interrogation, though not throughout interrogation. 

SECTION 42 – ARREST ON REFUSAL TO GIVE NAME & RESIDENCE

Section 42 (1) – This clause provides that a person may be arrested if he/she

  1. Refuses to give his name and residence or
  2. Gives a name or residence which the officer has reason to believe to be false.

      Applicability :- This section applies to a person :

  1. Who commits a non-cognizable offence in the presence of a police officer or 
  2. Who is accused of committing such an offence before such officer. 

However, the arrest has to be for ascertainment of name & residence. 

Section 42 (2) – The person is to be released if he executes a bond to appear before a magistrate :-

  1. If the name & address have been ascertained or
  2. Are otherwise known to the police officer. 

Section 42 (3) – In no circumstances such arrested person can be detained beyond 24 hours and shall be forwarded before a magistrate having jurisdiction. 

SECTION 43 – ARREST BY PRIVATE PERSON AND PROCEDURE OF ARREST

  1. Clause (1) – Provides that a private person can arrest a person 
  • Who in his presence commits a non-bailable and cognizable offence or
  • Who is a proclaimed offender.

However, he must without unnecessary delay make over such a person to the police officer or take him to the nearest police station. 

  1. Clause (2) – If such a person is liable to be arrested u/s 41, then he shall be re-arrested by the police officer.
  2. Clause (3) – Following persons shall be dealt u/s 42 :-
  • If there is a reason to believe that he has committed a non-cognizable offence and he refuses to give his name and residence to the police officer or 
  • Gives a name or residence which police officer believes it to be false.

However, if he is believed to have committed no offence, then he shall be set at liberty.  

SECTION 44 – ARREST BY MAGISTRATE

  1. Clause (1) – Provides that the magistrate (executive or judicial) has the power to arrest a person who has committed an offence in his presence and he can also commit such person to custody. 
  2. Clause (2) – Provides that the magistrate has the power to arrest a person who is suspected of having committed an offence. But the magistrate has not been given any power to commit him to custody. In this case committing of custody will have to be done in accordance with the provisions of Section 57 & 167 of the Code. 

SECTION 45- PROTECTION OF MEMBERS OF THE ARMED FORCES FROM ARREST

  1. Clause (1) – Provides that no person of the armed forces of the union is to arrested for anything done or purported to be done by him in discharge of his official duties except after obtaining the consent of the Central Govt.
  2. Clause (2) – Provides that the state govt. is also similarly empowered to extend the protection afforded above to a specified class of the Force maintaining public order. 

SECTION 46 – ARREST HOW MADE

S. 41 to S. 44 specify the circumstances in which the police officers, magistrates or private citizens are authorised to make arrests without warrant. S. 46 provides the manner in which the arrest can be effected by any such manner. 

Clause (1) – Since arrest is restraint of liberty of a person it can be effected by following means :

  1. By actually touching or confining the body of such person or 
  2. By his submission to the custody of the person making the arrest.

The submission to custody may be by express words or it may be indicated by conduct. 

Clause (2) – If there is forcible resistance or an attempt to evade the arrest, then the person making the arrest may use all necessary means for the same. 

It has been held that the term “all means” are very wide and it includes the taking of assistance from other for effecting an arrest. Also, resistance to lawful arrest is punishable under IPC. 

Clause (3) – However, right to cause death while using necessary means under clause (2) has not been conferred except where a person has been accused of an offence punishable with death or imprisonment for life. 

Clause (4) – No woman shall be arrested after sunset and before sunrise. But if exception circumstances exist in which an arrest of female has to be made irrespective of the time, then prior permission of JMIC within whose jurisdiction offence has been committed has to be taken. 

SECTION 47 – SEARCH OF PLACE ENTERED BY PERSON SOUGHT TO BE ARRESTED

S. 47 (1) – Facilitation of search by person in charge of place etc.

This clause provides that the person residing in or being in charge of a place shall permit free ingress and afford all reasonable facilities for search of the place to :-

  1. any person acting under a warrant of arrest or 
  2. any police officer having authority to arrest

who has a reason to believe that the person sought to be arrested is within that place.  

S. 47 (2) – Use of Force for obtaining entry etc.

If such facilities are denied or obstructions are put in the way of a police officer, then this clause permits the officer to use force for getting entry into the house for search. 

However, if the place to be searched is occupied by a female (not being the female to be arrested), who does not appear in public owing to some custom, then before entering such a place a notice is to be served to such a female that she is at liberty to withdraw and all allied facilities for withdrawing shall be provided. In case she resists, then the officer concerned may break open the place and enter it. 

S. 47 (3) – Right of Person Arresting

If the person arresting is detained therein, he may break open any door or window in order to liberate himself or any other person who had lawfully entered the place for the purpose of making an arrest. 

SECTION 48 – PURSUIT OF OFFENDORS INTO OTHER JURISDICTIONS

This section confers authority on a police officer to effectuate the arrest without warrant of the offender at any place in India. Therefore, arrest of a person by the police officer investigating the offence in pursuit of an offender is legal though it is made outside his circle. 

SECTION 49 – NO UNNECESSARY RESTRAINT

The person arrested is not to be subjected to more restraint than is necessary to prevent his escape. 

SECTION 50 – PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST AND OF RIGHT TO BAIL 

Section 50 (1) – Duty to inform grounds of arrest

This clause provides that a police officer or any other person who effects any arrest of a person without warrant is under a duty to inform the arrested person :-

  1. Full particulars of the offence for which he is arrested or
  2. Other grounds for such arrest. 

A person is entitled to know the grounds of his arrest as it is one of the constitutional right guaranteed under Article 22(1) of the Constitution. Non-compliance with the same would amount to disregard of procedure established by law. 

Case Law :- Vikram v. State of UP

Held :- Counter affidavit, general diary entry, recovery memo or any other document may be given by the police in order to prove the intimation of grounds of arrest. 

Section 50 (2) – Duty to inform about right of bail

If a police officer arrests a person accused of a bailable offence without warrant, then he has to inform the person arrested about his right to be released on bail, in pursuance of which, the arrested person may arrange for sureties. 

SECTION 50 A – OBILGATION OF PERSON MAKING ARREST TO INFORM ABOUT THE ARREST ETC. TO A NOMINATED PERSON

  1. The person making an arrest under this code is to inform regarding the arrest and place where the arrested person is being held, to a person whom the arrested person wishes to be informed about. It is duty of the police officer to intimate the arrested person about this right as soon as he is brought to the police station.
  2. An entry has to be made in a book with respect to the person who has been informed about the arrest. 
  3. The magistrate before whom the arrested person is produced to ensure that there has been compliance with the above stated provisions. 

S. 41 B, 50 A, 54 when taken together lay down the procedure to regulate the arrest of a person and his legal rights at the time of arrest and thereafter. 

Case Law :- DK Basu v. State of West Bengal

Held :- Custodial torture is naked violation of human dignity. 

SECTION 51 – SEARCH OF ARRESTED PERSON

As per the terms of the section, if the arrested person is not released on bail, the police officer may search such person. 

  1. After search all the articles other than necessary wearing apparel found upon the arrested person is to be seized. However, it is obligatory to give the arrested person a receipt showing the articles taken in possession by the police. The object of this rule is to prevent the possibility of implanting an object to be shown in the search. 
  2. If the female is to be searched, the same shall be made by another female with strict regard to decency. 

Though the section does not require the search to be conducted in the presence of witnesses, but on the basis of rules made under the police act and decision in Rabindranath Prsuty v. State of Orissa., it can be clearly said that it is the duty of the officer making a search to obtain independent and respectable witnesses while making a search. 

SECTION 52 – POWER TO SEIZE OFFENSIVE WEAPONS

The person arresting under this code may take any offensive weapons which the person arrested has about his person and subsequently shall deliver the same to the court or the concerned officer. 

Case Law :- Madan Singh v. State of Rajasthan

Held :- The evidence of recovery of weapons need not necessarily be rejected on the ground that the seizure witnesses do not support the prosecution version. 

SECTION 53 – EXAMINATION OF ACCUSED BY MEDICAL PRACTITIONER AT THE REQUEST OF POLICE OFFICER

This section provides that :-

  1. When a request is made by a police officer not below the rank of sub-inspector
  2. Upon reasonable grounds which such officer bona fide entertains, 
  3. That an examination of the arrested person by a medical practitioner will afford evidence as to the commission of an offence
  4. Then the registered medical practitioner shall make such examination as is reasonably necessary to ascertain the facts which may provide evidence and 
  5. In doing so, he may use such force as is reasonably necessary. 

If the person to be examined is a female, then the examination shall be made by or under the supervision of a female registered medical practitioner. 

Examination includes the following :-

  1. Blood
  2. Blood -stains
  3. Semen
  4. Swabs in case of sexual offences
  5. Sputum and sweat
  6. Hair samples and finger nail clippings by the use of modern techniques etc. 

Case Law :- Neeraj Sharma v. State of UP

Held :- Taking samples of hair, nail etc.  do not offend Article 20(3) if there are reasonable grounds that such an examination will afford evidence. 

SECTION 53 A – EXAMINATION OF PERSON ACCUSED OF RAPE BY MEDICAL PRACTITIONER

Medical examination of person accused of rape etc.

  1. Clause (1) – This clause provides for medical examination of a person who has been accused of rape or an attempt to commit rape. The same shall be carried out by :-
  • Registered medical practitioner employed in a hospital run by govt. or local authority and
  • In the absence of above, a registered medical practitioner within the radius of 16 kilometres from the place where the offence has been committed. The medical practitioner is to perform the examination at the request of a police officer not below the rank of sub-inspector.

Reasonable force may be used on the arrested person for the purpose of examination. 

Preparation of report

  1. The medical practitioner has to prepare a report of examination which shall specify :
  • Name and address of the accused and of the person by whom he was brought
  • Age of the accused, 
  •  Marks of injury on the accused
  •  Description of material taken from accused for DNA profiling, and 
  • Other material particulars.
  1. The report shall give reasons for each conclusion arrived at. 
  2. The exact time of commencement and completion of the examination shall also be noted in the report. 
  3. The registered medical practitioner shall without delay forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173.

This section provides statutory sanction to the medical examination of a person accused of sexual offence. The object of the section is to obtain scientific evidence. 

SECTION 54 – EXAMINATION OF ARRESTED PERSON BY MEDICAL OFFICER

Medical Examination of person arrested

Clause (1) provides that a person arrested shall be examined by a medical officer in the service of a Central or State govt. If he is not available, then by a registered medical practitioner. The examination shall be carried out soon after arrest. 

If the arrested person is a female, then the examination shall be made by or under the supervision of a female medical officer. If she is not available, then by a female registered medical practitioner.

The examination of the arrested person is mandatory and not a matter of discretion. 

Preparation of record

A record shall be prepared by the medical officer who is examining. He/she shall specify 

  1. Injuries or marks of violence and
  2. Approximate time of such injuries

A report of such examination is to be furnished to the arrested person or person nominated by such arrested person. 

SECTION 55 – PROCEDURE WHEN POLICE DEPUTES SUBORDINATE TO ARREST WITHOUT WARRANT

Arrest by subordinate officer

This section provides that where an= officer in charge of a police station requires an officer subordinate to him to make an arrest without a warrant of any person, then he shall deliver an order in writing to that effect.  The order shall be delivered to the subordinate officer specifying :-

  1. The person to be arrested and
  2. The offence or cause for which the arrest is to be made.

The subordinate before making the arrest shall notify to the person to be arrested the substance of the order. 

SECTION 55  A – HEALTH AND SAFETY OF THE ARRESTED PERSON

The person having the custody of an accused is under a duty to take reasonable care of the health and safety of the accused. 

SECTION 56 – PERSON ARRESTED TO BE TAKEN BEFORE MAGISTRATE OR OFFICER IN CHARGE OF POLICE STATION

This section provides that where a person has been arrested by a police officer without a warrant, the police officer shall without unnecessary delay take or send the person arrested before a 

  1. Magistrate having jurisdiction in the case or 
  2. The officer in charge of the police station. 

Article 22(2) of Constitution provides that the arrested person shall be produced before the magistrate within 24 hours. 

SECTION 57 – PERSON ARRESTED NOT TO BE DETAINED MORE THAN 24 HOURS

Detention not beyond 24 hours

This section provides that where a person has been arrested by a police officer without a warrant, the police officer can keep him in his custody for a period not longer than 24 hours. 

Production before magistrate

Before the expiration of 24 hours, the arrested person has to be produced before the nearest magistrate. Consequently, the magistrate u/ s 167 can order the detention for a period not exceeding 15 days on the whole. However, the 24 hour period is exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court. 

Case Law :- Kultej Singh v. Circle Inspector

In this case the apology of the police officials for not producing the arrested person within 24 hours had been accepted by the court, as they had to go to another place in connection with another case where communal riots had broken and FIR testified the same. 

SECTION 58 – POLICE TO REPORT APPREHENSIONS

Duty to Inform DM or SDM

This section provides that the officer in charge of a police station is to report to the District Magistrate or Sub-divisional Magistrate, as the case may be, about the cases of all persons who have been arrested without warrant within their limits, irrespective of the fact as to whether they have been admitted to bail or otherwise. 

SECTION 59 – DISCHARGE OF PERSON APPREHENDED

This section provides that no person who has been arrested by a police officer is to be discharged except :-

  1. On his own bond or
  2. On bail or
  3. Under the special order of the Magistrate.

SECTION 60 – POWER, ON ESCAPE, TO PURSUE AND RETAKE

  1. Clause (1) – Provides that if a person escapes or is rescued from lawful custody, then the person from whose lawful custody he escaped or was rescued may immediately pursue and arrest him in any place in India
  2. Clause (2) – Provides that such person will have all the powers conferred by S. 47 to search any place where the escaped person may have taken any shelter. 

SECTION 60 A – ARREST TO MADE STRICTLY ACCORDING TO THE CODE

It provides that arrest shall be made only in accordance with the provisions of law.


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