Detailed Analysis of Arrest of Person and Arrest Without Warrant

Detailed Analysis of Arrest of

Person and Arrest without
Warrant

This article is written by Ashish Sharma of Rajiv Gandhi National University of

Law, Patiala. The author has discussed the intricacies pursuant to the arrest of
a person.
Detailed analysis of arrest without warrant from Subodh Asthana
Introduction
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 rule 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 section 60.
Persons Authorised to Arrest

Code of Criminal Procedure empowers three people to issue the process of
arrest. They are as follows:
 A police officer with or without a warrant.

 A magistrate.
 A private person.
Meaning of Term Arrest

We use the term ‘arrest’ quite often in our day to day business. Normally we
see a person who does or has done something against the law to be arrested.
The term arrest can be defined as, “a seizure or forcible restraint, an
exercise of power to deprive a person of his or her liberty”. In the criminal
arrest of a person is an important tool for bringing an accused before the court
and prevent him from escaping.
Thus after an arrest, a person’s liberty is under full control of arrester. But
every deprivation of liberty or physical restraint should not be interpreted as the
arrest. Only the deprivation of liberty by a legal authority in a professionally
competent and skilful manner amounts to arrest.
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 the 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. For example, removing a minor girl from a brothel. Arrest should not
be confused with custody because both have different meanings. 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 without a Warrant

Yes, a person can be arrested by police officers or any private person without
warrant ordered by the court. Particularly the police officers may arrest a
person without a warrant under certain conditions. The conditions to arrest a
person without warrant mentioned under Section 41 of the Code of Criminal
Procedure are as follows.
 A person who is concerned with any cognizable offences such as

murder, rape, theft etc. can be arrested without a warrant. Cognizable
offences are the offence, for which a police officer in accordance with the
first schedule of CrPC or guided by any other law for the time being in
force, can arrest without warrant.
 Cognizable offences are those offences which are very serious in nature.
Example unnatural offences, rape, kidnapping etc. If any cognizable
offence has been committed, a police officer can investigate without the
magistrate’s permission.
Section 154 of CrPC provides that, “under a cognizable offenses, if the police

officer receives any information relating to the commission of a cognizable
offence, if given orally shall be reduced to writing and be read over to
informant, whether given in writing shall be reduced to writing and shall be
signed by the informant and substance shall be entered in a book to be kept by
officer in form prescribed by state government”.
Section 154 provides further that, “if any person aggrieved by a refusal on the
part of the officer in charge of police station, may send the substance of such
information by post to Superintendent of Police, who is satisfied that such
information discloses any commission of cognizable offences, shall either
investigate himself or direct an investigation to be made any police officer
subordinate to him”.
 Who has been in possession of any housebreaking weapon without any

lawful excuse?
 Who has been proclaimed as an offender either under CrPC or any other
order by State government or any law in force?
 Who obstructs any police officer while performing his duty or who have
escaped or make attempts to escape from lawful custody.
 Who has been concerned in any law or against whom a reasonable
complaint has been made or credible information has been received, of his
having been 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.
 Who is reasonably suspected of being a deserter from any of the Armed
forces of Union?
 Who, being released as a convict, commits a breach of any rule
mentioned under sub-section 5 of section 356 i.e. the state
government may be notification make rules to carry out the provisions of
this section relating to the notification of residence or change of or
absence from, residence by released convicts.
 For whose arrest any 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 therefrom
it appears that the person must be lawfully be arrested without a warrant.
The police also have the power to arrest a person if he denies giving his correct
name and residential address or the police have a reason to believe that the
furnished information is wrong. Police are empowered under section 42 of the
Code of Criminal Procedure to arrest a person to identify the actual place of
residence. Provisions in section 42 are:
“(1) When any person who, in the presence of police officer has committed or
has been accused of committing a non-recognizable offence refuses on demand
of such officer, to give his name and residence or gives a name or residence
which such officer has reason to believe to be false, he may be arrested by such
officer in order that his name or residence may be ascertained”.
The police officers are empowered by virtue of section 151 of the Code of
Criminal Procedure to arrest a person to prevent the commission of cognizable
offences. Provisions under section 151 are:
“(1) A police officer knowing of design of any cognizable offence may arrest the
person so designing it, without any orders from a magistrate and without a
warrant, if it appears to such officer that the commission of offence cannot be
prevented otherwise.
(2) No person arrested shall be detained in custody for a period exceeding

twenty-four hours from the time of his arrest unless his further detention is
required by any other provisions of Code or any law for the time being in force”.
Process of Arrest
The police officers have to follow a set of rules while arresting any person. The
mode of arrest is mentioned under section 46 of the Code of Criminal
Procedure whether it is done with the warrant or without the warrant. In
arresting a person, the person so arrested should not be handcuffed unless the
police have obtained orders from a magistrate in this regard. Provisions of
section 46 are:
(1) In making an arrest the police officer or any other person making the same
shall actually touch or confine the body of a person to be arrested unless there
is a submission to the word by custody.
Provided that where a woman is to be arrested unless the circumstances

indicate to the contrary, her submission to custody on an oral intimation shall
be presumed and, unless the circumstances otherwise require or unless the
police officer is female, the police officer shall not touch the women for making
her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to

escape the arrest, such police officer or other people may use all reasonable
necessary means to effect the arrest.
(3) 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 life imprisonment.
Important Case Law

D.K. Basu v State of West Bengal(1)
Despite various to attempts to issue proper guidelines to eradicate the

possibility of committing torture by police officials, there were frequent
instances of custodial deaths and police atrocities. The apex court, in this case,
issued some guidelines which are to be followed under all cases of arrest or
detentions. Important guidelines are as follows:
 The person to be arrested must be informed of the grounds of arrest as

per Section 50 of CrPC and Article 22 of the Indian Constitution. It is a
fundamental right of an individual to be informed of the grounds of arrest.
It is the duty of the officer in charge to inform the person whether the
offence is Bailable or Non- Bailable. Bailable offences are the offence in
which it is the right of a person to be granted bail whereas in the non-
bailable offence it is at the discretion of the court.
 Under section 41 police have the power to arrest a person without a
warrant where an immediate arrest is needed and there is no time to
approach the magistrate and obtain a warrant. For example where a
serious crime has been perpetrated by a dangerous person and there are
chances of him being escaped unless immediately arrested. Later due to
misuse of powers conferred by police officers accorded to them, this
section got amended and put restrictions upon the power of officers such
as police officer must act reasonably while deciding whether the arrest is
necessary or not. The notice should be made if credible information is
received (section 41 a).
 The arrested person has a right to meet an advocate of his choice during
interrogation under section 41 D and section 303 of CrPC.
 The person so arrested has a right to inform his family member, relative
or friend of his arrest under section 50 of CrPC.
 The arrested person has a right not to be detained for more than 24
hours, without being presented before a magistrate to prevent unlawful
and illegal arrests. This right is also the fundamental right of an individual
under Article 22 of the Constitution.
 The arrested person has a right to remain silent during police enquiry
provided by Article 20(3) of the Indian Constitution so that police cannot
extract any self- incriminating information against him.
Conclusion
Up to now, we have discussed the power of arrest and the rights of an arrested
person. But by going through the data’s of Law Commission on Law of arrest we
will 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 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.
Reference
1. (1997) 1 SCC 416

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Detailed Analysis of Arrest of

This article is written by Ashish Sharma of Rajiv Gandhi National University of

Detailed analysis of arrest without warrant from Subodh Asthana

Persons Authorised to Arrest

 A police officer with or without a warrant.

Meaning of Term Arrest

Arrest without a Warrant

 A person who is concerned with any cognizable offences such as

Section 154 of CrPC provides that, “under a cognizable offenses, if the police

 Who has been in possession of any housebreaking weapon without any

(2) No person arrested shall be detained in custody for a period exceeding

Provided that where a woman is to be arrested unless the circumstances

(2) If such person forcibly resists the endeavour to arrest him, or attempts to

Important Case Law

Despite various to attempts to issue proper guidelines to eradicate the

 The person to be arrested must be informed of the grounds of arrest as

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