Friday, 3 June 2022

Power Of Police to Arrest Without Warrant

 Power Of Police to Arrest Without Warrant

By Shagun Mahendroo


Police have broad authority to arrest in certain cases under Section 41, even if there is no order or warrant from a Magistrate. It's crucial to first distinguish between what counts as cognizable and non-cognizable offences. The first schedule of the CrPC addresses this issue, stating that significant offences fall into the cognizable category, with seriousness assessed by the sentence prescribed in relation to the same.

Offenses punishable for more than three years are normally cognizable, while less serious offences punishable for less than three years are generally non cognizable, with a few exceptions.

The following are examples of arrests that can be made without a warrant:

S. 41(1)(a): Cognizance offence committed in front of law enforcement.

S. 41(1)(b): When there is a widespread, either reliable complaint or information, or some reasonable suspicion, of an offence of cognizable nature punishable by imprisonment for up to seven years, and the following two conditions are met, police are authorised to make an arrest without a warrant:

1)There is grounds to believe that the person has committed the crime based on this evidence.

2) And that arrest is necessary for either securing his court appearance, or for proper investigation, or for preventing him from committing any further crimes, or for preventing him from tampering with or destroying evidence, or for preventing him from making threats, inducement, or promise in order to dissuade a person from disclosing the facts he knows about the case in front of the court or the police. The justifications must be written down.

S. 41(1) (ba): Arrest a person if there is credible information before the police about a cognizable offence that carries a sentence of seven years or more, and there is grounds to believe that he committed that crime.

S. 41(1)(c): Person who is deemed an offender by virtue of the Criminal Procedure Code or a State government order, and includes those who are held absconding, in hiding, or obstructing the execution of a warrant, among other things.

S. 41(1)(d): Person in possession of stolen property who is also reasonably suspected of committing an offence linked to the same item.

S. 41(1)(e): Person who obstructs a police officer in the performance of his duties or who has escaped or attempted to flee from legal custody.

S. 41(1)(f): Armed forces deserter suspected.

S. 41(1)(g): When credible info. or reasonable complaint or suspicion exists, against a person regarding an act committed outside India, and the same is offence in India in addition to him being liable for apprehension, from the lens of extradition or some other law.

S. 41(1)(h): State govt. is authorised by virtue of S. 356(5) to make rules when it comes to convicts released after serving sentence of 3 years or more, regarding change of his residence or absence from residence be notified. If that rule is breached, he is liable to be arrested w/o warrant.

S. 41(1)(i): On requisition received in either oral or written form, by another police officer with due mention of whom to arrest, grounds and offence in same.

S. 42 gives police the ability to arrest a person who is either accused of committing a non-cognizable offence, or who has done so in front of police, without a warrant, if the accused refuses to reveal his or her name and address, or if the information given is suspected to be fraudulent. This can be done in order to collect necessary information. The need for this is due to the fact that the police were previously unaware of the suspect's name and address1.

Preliminary Investigation

In some cases, the information does not plainly disclose a cognizable offence, necessitating an investigation to determine if the same is disclosed. The goal is to determine the veracity of the information, and whether it is required or not will depend on the circumstances of the case, and if it is, it will be entered into the General Diary.

This inquiry is prevalent and must be performed in a timely way in certain scenarios such as commercial/corruption issues, marriage conflicts, or if criminal prosecution was delayed.

When S.498A of the IPC is invoked by a complainant alleging the entire groom's family, certain requirements must be met, as set forth in cases such as Arnesh Kumar, before the accused family can be arrested simply because the police have the authority to do so.

The terminology employed in the above-mentioned provisions, such as reasonable and credible, vary depending on the facts and circumstances of the case2. These are linked to the attitude of the officer who, first and foremost, gets information, and this information should provide material of such sort that can be perceived as sufficient in order to make an independent judgement to be exercised for the goal of making an arrest 3.



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