ARREST WITHOUT WARRANT

Introduction
Arrest means the deprivation of a person of his liberty by legal authority or by apparent legal authority.
It means preventing a person from making his movement and from moving according to his free will
amounts to arrest of such person. The exigencies of the circumstances may require a person to be
arrested without warrant if such person is reasonably suspected to have committed a cognizable
offence. Even in case of a non-cognizable offence immediate arrest without warrant may become
necessary to ascertain the name and address of the offender perpetrating the crime.

Who can arrest without warrant

Arrest without warrant can be made by police officers, magistrate or even by private persons in
emergencies.

1. Police officer

Wide powers have been conferred on the police for making arrest without warrant under
Section 41 and 42 of the Criminal Procedure Code.

Section 41- When police may arrest without warrant

This section clearly shows that the police have wide power of making arrest without warrant in
respect of cognizable offences. For making arrest it is essential that there is a reasonable
complaint, credible information or reasonable suspicion. The requirement of reasonability and
creditability would hopefully prevent the misuse of such powers. What is credible and what is
reasonable depends upon the facts and circumstances of each case.

The word “reasonable” brings in the requirement of honest belief based on facts and “credible”
have reference to the mind of the police officer receiving information. Such information must
afford sufficient materials for the exercise of an independent judgement at the time of making
arrest.
When the legality of an arrest without warrant is challenged in the court, the burden of proof is
on the police officer to satisfy the court that he had reasonable grounds of suspicion. Malicious
and excessive exercise of powers of arrest under these sections would be punishable under
Section under 220 IPC. The law certainly does not intend to give a license to every policeman
moving about on road to search any person at his sweet will merely upon some suspicion of his
own which may have no reasonable foundation at all.
Section 41 also facilitates the arrest of a person at a distance. A police officer may by sending a
requisition to another police officer can get wanted person arrested by such other police officer.
Such requisition can be made in writing or even through telephone or wireless. This, however,
requires that the requisition must specify the person to be arrested and the offence or other
cause for which the arrest is to be made. The police officer receiving requisition can arrest such
person without warrant only if it appears to him from the requisition that the person might
lawfully be arrested without warrant by the police officer sending the requisition.

The new provision makes it obligatory for the police officer to adduce reasons if he decides not
to arrest a person covered under this provision.

Section 41A stipulates that the police officer shall in all cases where he decides not to make
arrest, issue notice to the person complained against to appear before him to make necessary
inquiries. If he decides not to cooperate with the police officer, the police officer may get him
arrested after obtaining orders from the magistrate.

Section 42- Arrest on refusal to give name and address

If a person commits a non-cognizable offence in the presence of a police officer and refuses to
give his name and address when demanded by such officer, he can be arrested by such officer in
order to ascertain his name and address. However, if his name and address were previously
known to the police officer, he cannot be arrested and detained under this section. If the person
gives the name and address which the police officer believes to be false, the police officer may
arrest him and release him after he gives his name and address. If the person fails to give his
name and address, the police officer shall produce him before the magistrate within 24 hours of
arrest.

Section 151- Arrest to prevent the commission of cognizable offences

(1.) 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.

(2.) No person arrested under sub- section (1) shall be detained in custody for a period
exceeding twenty- four hours from the time of his arrest unless his further detention is required
or authorized under any other provisions of this Code or of any other law for the time being in
force.

Section 156- Police officer’s power to investigate cognizable case

 No proceeding of a police officer in any such case shall at any stage be called in question on the
ground that the case was one which such officer was not empowered under this section to
investigate.

2. Private Persons

Section 43 talks about private persons. It is in the general interest of a society that a person
committing a very serious offence should be immediately arrested and expeditiously dealt with
according to law. When a serious offence has been committed in the presence of several private
citizens and no police officer is anywhere near the scene of the offence, it would be totally
unreasonable to tell the private citizens witnessing the crime that they cannot arrest the
offender without obtaining a warrant from the magistrate or that they should do nothing except
to inform the police and magistrate and to wait for the police to take steps for arresting the
culprit.

This code therefore empowers a private citizen to make arrest without warrant. Such powers
can be exercised only in respect of an offence which is both non-bailable and cognizable and
only when the offence is committed in his presence.

If the private citizen making arrest under this section fails to follow the after arrest procedure as
prescribed in the section, he can be prosecuted for the offence of WRONGFUL CONFINEMENT
under SECTION 342 IPC.
But if the arrest is made under a BONAFIDE MISTAKE, he would be prosecuted by SECTION 79
IPC.

3. Magistrate

Section 43 talks about magistrate. As the magistrates are relatively responsible executive and
judicial officers with detached outlook, they have been given wider powers of arrest-

a. If any offence, irrespective of its nature and seriousness, is committed in the presence
of any executive or judicial magistrate, such magistrate can himself or with the help of
others arrest the person committing the offence;
b. Even if no such offence is committed in the presence of such magistrate, but if the
magistrate is competent to issue the warrant for the arrest of any person, and such
person is present before him, he can arrest such person.

If a person arrested by the magistrate is detained beyond 24 hours and is not produced before
another magistrate for obtaining an order of remand to custody, his detention is illegal. A judge or
magistrate personally interested in a case should not try it; a magistrate arresting the person should not
try the case himself.