PROCEDURE OF ARREST WITHOUT WARRANT UNDER CRPC

ABSTRACT

The practice of making arrests without a warrant as per the provisions of the Code of Criminal Procedure 1973 is one of the dominant features of Indian criminal law. The arrest procedure under CrPC embodies a critical aspect of balancing the state has responsibility toward making security a reality and upholding an individual’s fundamental right to liberty. Even as arrest forms an important and necessary tool for law enforcers to ensure obedience and to uphold the Rule of Law, it ought to be exercised with extreme caution lest the liberty of man is subjected to arbitrary and capricious deprivation. This is maintained through specific provisions and safeguards incorporated within the CrPC, as well as judicial oversight. This includes the situations that call for these powers and seeks to identify the sources of law that permit such arrests, for example, sections 41, and 42 of the CrPC. It reviews the process in which constitutional norms are protected such as the requirements of informing the arrested person of the charges against him which has to be done within 24 hours. The individual’s rights follow this. Moreover, this also discusses relevant case law, judicial decisions, and specific arrests that changed how such principles were applied. In addressing cases of abuse, it is important to note that understanding the cases is necessary but does not undermine the significance of such abilities.

KEYWORDS

Arrest, warrant, cognizable offense, non-cognizable offense, Detain, Complaint, Custody, Bailable, Non-Bailable.

INTRODUCTION

To put it another way, an arrest is one of the stages in the process of being held in custody by the state. An arrest is never defined in the 1973 Criminal Procedure Code or the Indian Penal Code of 1860. This definition has never been incorporated in any law relating to criminal offenses. The only evidence concerning the procedure of arrest is placed in the section of the CrPC titled ‘How an arrest is made. The first is based on obtaining a warrant before effecting the arrest. The second is an arrest made without a warrant (section 41 and section 42), The third is on arrest of a private person (section 43) and The fourth is on arrest by the magistrate (section 44), Whether the arrest is aiming to firstly prevent individuals from possibly committing offenses or prevent them from committing additional crimes whether in the process of being investigated or after being convicted of law violation arrest assists law enforcement in completing these tasks in a more systematic approach therefore criminal justice system is immensely reliant on. One must be put in legal protection due to the fear of committing a criminal act, arrest is a process where someone assumes the person is going to commit a crime and stops him or her from doing so. “Arrest” can mean “make inactive,” “bring to a stop,” “catch suddenly and engagingly,” or “the taking or detaining in custody by authority of law,” according to the dictionary. While it is almost always correct to state that when a person is to be arrested, under all normal circumstances, he is taken into custody, this action however is aimed at ensuring that the accused refrains from doing an action. Four core aspects govern an arrest: Authority to Arrest, Purpose to Arrest, Detention, or Seizure of the Arrestee, and comprehension of the arrestee.

TYPES OF OFFENCES UNDER CRPC

Under certain conditions, which were mainly distinguished by the type of offense— cognizable or non-cognizable—the CrPC allowed arrests without a warrant. This distinction greatly impacted the police’s ability to arrest people.

Cognizable Offenses

Police officers are given the right to arrest individuals without a warrant in case of cognizable offenses and violate Section 41 of the Code of Criminal Procedure. In case the police force can start an investigation as well as detain the suspect with or without the magistrate’s permission, then it becomes a cognizable offense. Robbery, murder, and other actions that immediately endanger public safety or order are examples of such horrible crimes.

An important element in establishing the legality of a warrantless arrest is the existence of “reasonable suspicion.” It means the belief that the officer must have real evidence, reliable information, or verifiable complaint of a competent person instead of being mere surmises or intuition. Detaining someone requires reasonable suspicion that an offense has been committed, which ensures that arrests are made according to objective criteria and not left just to an individual value judgment.

Non-Cognizable Offences

In contrast, non-cognizable offenses are generally lower in severity and call for a more subdued response from law enforcement. These include an array of offenses, including simple assaults, defamation, or annoyance of the public. Sometimes, magistrates have to authorize or guide police officers to initiate an inquiry or make an arrest. This legal safeguard places a check on police power, ensuring individuals cannot become too implicated in petty crime. An immediate action here would indicate the urgency for preventing further criminal activities, collecting vital evidence, or securing the appearance of the accused before the Court in consideration of the gravity of the non-bailable offense. For instance, an act intended for organized crime, repeat offenders, or national security may warrant urgent action without any legal authorization.

LEGAL PROVISIONS GOVERNING ARREST WITHOUT WARRANT

A police officer may be arrested without a magistrate’s prior approval under certain provisions of the CrPC.

SECTION 41

Unwarranted Arrest of a Police Officer: Section 41 of Section 41 of the CrPC contains the rules governing when a police officer may be taken into custody without a warrant. These consist of:

1. Any police officer may without an order from a Magistrate and a warrant, arrest any person;

who has been involved in any crime that is punishable by law, or who has been the subject of a legitimate complaint, reliable information, or a reasonable suspicion that he has been; or
If anyone possesses any tool used for breaking into a residence without a valid reason, the responsibility of establishing which justification is for that individual; or
who has been declared a criminal under this Code or by a state government decree; or
Whoever owns anything that could be thought to be stolen property and who could be thought to have committed an offense involving it; or
who has escaped or makes an effort to escape from lawful custody, or who obstructs a police officer while he is doing his duties; or
who has a plausible suspicion of deserting from any of the Union’s armed forces; or
who has been involved in, or against whom a legitimate complaint has been filed, reliable information has been obtained, or there is a reasonable suspicion that he has been involved in, any act that was committed outside of India that would have been illegal if it had been committed there, and for which he could be arrested or held in custody in India under any extradition laws or other laws; or
who violates any regulation established under Sub-Section (5) of Section 356 while a convicted felon has been released; or for whose arrest any written or verbal requisition has been received from another police officer, so long as the requisition identifies the subject of the arrest, the offense, or another reason for the arrest, and it seems that the officer issuing the requisition may lawfully arrest the subject without a warrant.

2. In the same vein, any police station officer may arrest or cause to be arrested any individual who fits into one or more of the groups listed in sections 109 or 110.^[1]

SECTION 41 A

It talks about notice of appearance before a police officer states the following:

1. If there is a legitimate complaint, reliable information, or suspicion that someone has committed a crime that is punishable by law, a police officer is required under Section 41(1) to issue a notice compelling the person to appear before them (or at another designated location). This is applicable when section 41(1) does not require a person to be arrested.

2.It would be the responsibility of such a person to whom that notice is issued to follow its provisions.

3. A person shall not be detained for the offense enumerated in the notice if he or she receives it and abides by its directions unless the police feel they have good reason to hold them, which will be recorded.^[2]

SECTION 42

Arrest for failing to provide a name and place of residence

1. If a person has committed or is suspected to have committed a non-cognizable offense in the presence of a police officer and refused to give his name and residence when demanded, or given a name and residence the officer has reason to believe to be false, the officer may arrest him to ascertain his identity.

2. After the determination of a person’s true name and place of abode, he shall be discharged on his executing a bond with or without sureties, to appear before a magistrate when required:

The bond must be secured by one or more Indian-resident sureties if the individual in question does not reside in India.

3. He will be sent immediately to the closest magistrate with jurisdiction if his real identity and place of residence cannot be determined within twenty-four hours of the arrest or if he does not execute the bail or, if necessary, provide adequate sureties.^[3]

SECTION 43

Private person’s arrest and the process involved:

Any private individual has the right to arrest or cause someone to be arrested if they commits a non-bailable and cognizable offense in his presence. They must promptly turn over the person they have arrested to a police officer, or if one is not present, they must take the person or cause him to be taken to the closest police station.
A police officer will re-arrest a person if there is plausible suspicion that they violate section 41.
Under section 42 if the policeman is satisfied that there exists cause for thinking that he has committed a non-cognizable offense and without offering a satisfactory reason for refusing or, offering a name and address to the request of a policeman he withholds his name and residence, or gives a name and address, whereby there is good ground to presume he is giving a false one he will be let go immediately.^[4]

SAFEGUARDS AGAINST ABUSE OF POWER

In accordance with the Code of Criminal Procedure (CPC), arrests made without a warrant must conform to certain conditions and safety nets regarding individual rights. An arresting authority is not allowed to detain an accused in custody for more than 24 hours without a warrant, really except for the time to be spent travelling to the Magistrate’s Court. To be frank, an arrested person has a right to know the reason for his arrest, his legal rights, and whether he can avail bail, considering the offense has that provision. The authorities must also notify the designated friends or relatives of the arrested individual about the place of detention. Under Section 41, arrests without a warrant are conditioned with sufficient cause to prevent arbitrariness in arrest. Also, during arrest, the police officer must identify himself or herself as a member of the police force through proper identification. It is the courts that monitor the compliance of Sections 41 and 41-A of the CrPC, and failure to do so may lead to the accused being granted bail. These provisions aim to ensure to keep personal freedom safe and yet ensure that the enforcement is within the law.

CASE LAWS

The Supreme Court tasked the courts in Satender Kumar Antil v. CBI, (2022) 10 SCC 51, with ensuring that the pertinent requirements of Sections 41 and 41-A of the Criminal Procedure Code was being followed. With the words, “Any non-compliance would entitle the accused to grant of bail,” it reaffirmed the significance of adhering to the former provisions.^[5]
In the case of Hema Mishra v. State of U.P., (2014) 4 SCC 453, it was stated that Section 41(1) requires police officers to present their reasons for making an arrest or, in some situations, not making one. The Court also clarified that a police officer must compel a notice of appearance under Section 41(1) CrPC if an arrest is not made. The Court also clarified that in cases where Section 41(1) CrPC does not result in an arrest, the police officer must compel the accused to appear by issuing a notice of appearance under Section 41-A. Arrest may result from the alleged accused’s refusal to identify himself after receiving notification under Section 41-A.⁶
In Delhi Judicial Service Assn. v., the State of Gujarat, (1991) 4 SCC 406, the Supreme Court established rules that State governments and High Courts must adhere to while making arrests of judicial officers.^[6]
In the landmark case of Arnesh Kumar v. State of Bihar (2014), the Supreme Court of India ordered to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorize detention in such cases.^[7]
State of West Bengal v. D.K. Basu (1997)- This historic ruling created procedural protections for arrests, including the need that arresting police be identified and that arrest records be kept up to date.^[8]
In the case of Joginder Kumar v. State of U.P. (1994), The Supreme Court has ruled against making frequent or unjustified arrests. It emphasized that the arresting officer must give a reason for the arrest^[9].
In the case of Lalita Kumari v. Government of U.P. (2013), The court decided that an arrest should only be made following a thorough investigation and a reasonable suspicion, even if a formal complaint must be filed for acts that are punishable by law

CHALLENGES AND MISUSE IN ARREST WITHOUT WARRANT

Warrants are therefore great equipment in the hands of arrest officers for effecting arrests without warrants. But such a power brings with it enormous responsibilities, and its misuse could translate into infringement of fundamental rights, erosion of public confidence, and an increase in systemic injustices. Below are the major challenges and misuse issues against this provision of the CrPC:

The misuse of arresting powers without warrants as enshrined in Section 41 of the CrPC is another area of concern, which frequently leads to arbitrary exercise of power and violations of rights on a large scale. Police officers are given the authority to act under this section of law in well-defined parameters. However, the discretion that it imparts is often exercised unchecked and leads to abuse. The arbitrary arrests usually emanate from vague suspicion, personal vendettas, or societal biases, usually affecting the underprivileged communities the most. A person can be put into detention either legally manipulated and procedural loopholes along with the biases within the society. It can use this abusive power to settle personal grievances, intimidate dissidents, or serve political goals. The consequences of such arrests are heavy on the individual and include emotional trauma, suffering economic losses, and emotional strain and damage to reputation. Very short detentions are enough to stigmatize someone, affecting personal relationships and future employment. If this goes unchecked, it undermines public faith in the legal system and reduces reliance on the rule of law. There are numerous other issues, including lack of awareness and lack of training of law enforcement officials, which inhibit the enforcement of safeguards attached to warrantless arrests. Most officers in the rural or smaller towns are not adequately conversant with the sections under the CrPC, especially Sections 41 and 41A. For example, in the case of arrests for petty offenses, the issuance of notice under Section 41A before arrest is not practiced because of ignorance or procedural lapses. Initial training is mostly not sufficient, and ongoing education on the changes in the law is scant. This knowledge gap extends to the citizens as well; many do not know their rights, such as the Rights of the arrested, might be right to inform about the arrest, or right to communicate with a family member. The knowledge deprivation paves way for further misuse of power by authorities, as people will not easily hold them accountable. Law enforcement should also be very well trained sensitized on the power exercise arrestees should exercise so that there should be proper usage of this power, within the framework of law.

The main point is that hearkens the inefficiency exhibited in the implementation of the safeguards under the CrPC-the mandatory safeguard, such as the 24-hour rule regarding the appearance before a magistrate of an arrested person, which unfortunately does not work well in practice, particularly in remote areas, where magistrates are not easily available. So also a partial compliance exists with the rule regarding arrest record for identity of the arresting officer as given in D.K. Basu v. State of West Bengal by the Supreme Court. Most of the inefficiency is due to absence of accountability mechanisms. Scrutiny by Magna Charta magistrates and higher officers is rare regarding arrest procedures. For example, procedural omission, wrongful maintenance of arrest records or informing about rights regarding this are mostly fugitive lapses. This forbearance leads to an atmosphere of impunity within the system. These inefficiencies, however, stretch and drain the system so that their effects are felt in overcrowded prisons as a result of unwarranted arrests and delays of trials that overly burden the judiciary. Long-term detention has caused unemployment, emotional trauma, and added social marginalization to the already existing problems for those affected. A multipronged approach is needed to tackle these difficulties, including adequate training for law enforcement, strong accountability measures, and greater public awareness of citizens’ rights. Such measures would address these systemic flaws can public confidence in the legal system be restored, and the integrity of the rule of law upheld.

Human Cost of Challenges: Misuse of Power

The misuse of provisions for warrantless arrest rarely touches, if at all, persons whose conditions approach near the worst level of the economy. They are those who possess no means or influence to fight unlawful action by others. Arbitrarily arresting people along with their ignorance of rights and procedural deficiencies can lead one’s life to financial ruin and poor mental health with a waning trust in the justice system. It defeats the very purpose of the safeguards provided by the CrPC when law enforcement authorities do not check between the need for public safety and individual liberty. This needs to understand and humanize the consequences of such challenges by focusing on the lived experiences of those affected and their societal ramifications. Towards that end, there needs to be a collective effort to reform the system, improve accountability, and ensure that the power of arrest is used responsibly and equitably.

CONCLUSION

One of the most important tools in ensuring law and order is the process of arrest without a warrant under the Code of Criminal Procedure. Important aspects of this process include informing the arrested person of the grounds for his arrest, following the restrictions on detention time, presentation before a magistrate, and specific safeguards for women and children. All of these point out the importance of due process in the criminal justice system. Such clauses will weigh out the balance of holding personal liberty and granting immediate actions to law enforcement bodies. Checks and balances like judicial scrutiny, paperwork, and constitutional rights must be in place to prevent misuse.

The judiciary, through landmark decisions, has always emphasized the need for fundamental protections so that arrests are justified, clear, and commensurate with the crime committed. Given this scenario, training and sensitization of law enforcers will most probably increase public appreciation and respect for the rule of law. It can also make the arrested responsible and confident since it connects the public with the law enforcer.

In a word, the detention without warrant procedure encapsulates the essence of the rule of law by ensuring the protection of fundamental rights concerning the use of police authority. It can be a tool in the cause of justice so long as it is coupled with democracy and equality in conjunction with awareness and judicial control.

REFERENCES

SCC Online, Arrest by Police under CrPC Sec 41,https://www.scconline.com/blog/post/2023/05/31/arrest-by-police-undercrpc-sec-41-legal-research/ (last visited – 15 December 2024)
Devgan.in , CrPC: Arrest of Persons, https://devgan.in/crpc/chapter_05.php(last visited – 15 December 2024)
Citizens’ Rights Protection Council, Know your rights if you are arrested, https://www.crpc.in/know_your_rights.html (last visited – 15 December 2024)
Ipleaders Blog, Arrest of a person under CrPC,1973 https://blog.ipleaders.in/arrest-of-a-person/ (Last visited – 15 December 2024)
Drishti judiciary, Grounds of Arrest https://www.drishtijudiciary.com/currentaffairs/grounds-of-arrest (15 DECEMBER 2024)

[1] Criminal Procedure Code 1973, Section 41, Act no. 2 of 1974, Act of Parliament 1973 (India)

[2] Criminal Procedure Code 1973, Section 41A, Act no. 2 of 1974, Act of Parliament 1973 (India)

[3] Criminal Procedure Code 1973, Section 42, Act no. 2 of 1974, Act of Parliament 1973 (India)

[4] Criminal Procedure Code 1973, Section 43, Act no. 2 of 1974, Act of Parliament 1973 (India)

[5] Satender Kumar Antil vs CBI, (2022) 10 SCC 51 ⁶Hema Mishra v. State of U.P., (2014) 4 SCC 453,

[6] Delhi Judicial Service Assn. v. the State of Gujarat, (1991) 4 SCC 406,

[7] Arnesh Kumar vs State of Bihar (2014) 8 SCC 273

[8] State of West Bengal vs D.K. Basu, (1997) 6 SCC 6

[9] Joginder Kumar vs State of U.P. (1994) AIR 1349, 1994 SCC(4) 260

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