Maharashtra National Law University, Aurangabad

Code of Criminal Procedure Project

On

Arrest without Warrant – Duties and Powers of the Arresting

Authorities

Submitted By:

SOUMIKI GHOSH

Roll No. 2018/BALLB/10

[B.A. LL.B (H). 4th Year, VIIth Semester]

In

October, 2021

Under The Guidance Of

Dr. Abdul Hakeem & Mr. Amol Joshi

Faculty of Code of Criminal Procedure

1
DECLARATION

I hereby declare that the project work in the B.A.LL.B (Hons.) Sem VII Code of Criminal
Procedure Project entitled ― “Arrest without Warrant – Duties and Powers of the Arresting
Authorities” submitted at Maharashtra National Law University, Aurangabad is an authentic
record of my work completed under the supervision of Dr. Abdul Hakeem sir & Mr. Amol
Joshi sir. This work has not been submitted for any other degree or diploma. I am solely
responsible for the information contained in my Project work. This work has not previously
been submitted to any other university, and it is not copied from any book or website.

SOUMIKI GHOSH

2018/BALLB/10

Maharashtra National Law University, Aurangabad

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INDEX

TOPICS PAGE NO.

Introduction 4
Significance of the study 5
Importance of the topic 5
Objectives of the study 5
Methodology 5
Scope and Limitations of the Study 5
Subject Matter 6-13
Conclusion 14
List of Cases 15
Bibliography 16

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INTRODUCTION

The word arrest implies deprivation of personal liberty under some real or assumed legal
authority. A kidnapper or abductor restraining and confining a person is not arresting him;
but when a police officer in the apparent exercise of his powers takes another person into his
custody he is said to arrest that person although that arrest might not necessarily be a lawful
one. Most of the cases of arrest without warrant are in relation to cognizable offences.
Section 41 (1) of the Code of Criminal Procedure empowers a police-officer to arrest without
a warrant any person “who has been concerned in any cognizable offence, or against whom a
reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been so concerned.” Further any police officer
knowing of a design to commit any cognizable offence may, in order to take preventive
action, arrest without a warrant the person so designing.

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SIGNIFICANCE OF THE STUDY

The study is helpful to understand the ins and outs of the clause of arrest without warrant and
the procedure the arresting authorities follow. It also analyses the relevant sections of CrPC
regarding arrest without warrant.

IMPORTANCE OF THE TOPIC

The topic is important with respect to the aspect of right to life and personal liberty. Arrest
without warrant has particular significance in terms of arresting procedure and criminal
juridical process.

OBJECTIVE OF THE STUDY

This research project attempts to explain the current laws and the relevant judicial decisions
regarding arrest without warrant. The objective is to find out, understand and elaborate the
applicability of the laws. It also tries to understand the features and objectives of the relevant
sections and analyses the rights and duties of the arresting authorities while making an arrest
without warrant.

METHODOLOGY

The research is descriptive and qualitative. The techniques comprised of utilizing different
textbooks, journals, research papers, database and websites. Various books on CrPC helped to
understand the topic. Secondary and Electronic resources have been used to gather
information and data. SCC online and Manupatra have been used to look up on relevant
cases.

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RELEVANT SECTIONS

Wide powers have been conferred on the police for making arrests without warrant under
circumstances mentioned in Sections 41 and 42. These sections read as follows:

“When police may arrest without warrant-

41. (1) Any police officer may without an order from a Magistrate and without a warrant,
arrest any person —

[(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less than seven years or which may
extend to seven years whether with or without fine, if the following conditions are satisfied,
namely —

(i) the police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence;

(ii) the police office is satisfied that such arrest is necessary — (a) to prevent such person
from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be
ensured, and the police officer shall record while making such arrest, his reasons in writing.

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Provided that a police officer shall, in all cases where the arrest of a person is not required
under the provisions of this sub-section, record the reasons in writing for not making the
arrest.”

“(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to more than
seven years whether with or without fine or with death sentence and the police officer has
reason to believe on the basis of that information that such person has committed the said
offence;]1

(c) who has been proclaimed as an offender either under this Code or by order of the State
Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with
reference to such thing; or  53 

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule, made under sub-section (5)
of Section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the offence

1
Sub-ss. (a), (b) and (ba) have been inserted by Act 5 of 2009 (w.e.f. 1-11-2010) and the provision to S. 41(a)–
(b) was inserted by Act 41 of 2010 (w.e.f. 1-11-2010).

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or other cause for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.

2
[(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable
offence or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be arrested except
under a warrant or order of a Magistrate.]”

“Arrest on refusal to give name and residence-

42. (1) When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable 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.

(2) When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a Magistrate if so
required:

Provided that, if such person is not resident in India, the bond shall be secured by a surety or
sureties resident in India.

(3) Should the true name and residence of such person not be ascertained within twenty-four
hours from the time of arrest or should he fail to execute the bond, or, if so required, to
furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having
jurisdiction.”

2
Subs. by Act 5 of 2009, S. 5(ii) (w.e.f. 1-11-2010).

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ANALYSIS

Clauses (a), (d) and (g) of Section 41(1) clearly show that the police have very wide powers
of making arrests without warrant in respect of cognizable offences. However, these powers
are not without limitations.3 The requirement of reasonability and credibility would hopefully
prevent the misuse of such powers. What is a reasonable complaint or suspicion or what is
credible information must depend upon the facts and circumstances in each case. 4 The word
“reasonable” brings in the requirement of honest belief based on facts. The words
“reasonable” and “credible” have reference to the mind of the police officer receiving
information, and such information must afford sufficient materials for the exercise of an
independent judgment at the time of making arrest.5 The police certainly have no power to
arrest persons without warrant on the chance of something being thereafter proved against
such persons. When the legality of an arrest without warrant is challenged in court, the
burden is on the police officer to satisfy the court that he had reasonable grounds of
suspicion.6 It may be noted that malicious and excessive exercise of the powers of arrest
under these sections would be punishable under Section 220 IPC.

The word “may” in Section 41(1) suggests that a police officer has discretion in making
arrest without warrant. Question may arise as to whether a police officer is entitled to obtain a
warrant of arrest from a Magistrate under the circumstances mentioned in Section 41. A
Magistrate can issue a warrant of arrest only after taking cognizance of an offence. 7 However
considering the import of Section 167 and Section 41 it might be inferred that a Magistrate
might issue a warrant even before taking cognizance of an offence but in the circumstances in
which a police officer can arrest without warrant under Section 41. 8 Further, a view has been
expressed that even if a police officer has been empowered by Section 41 to arrest without
warrant, this power is to be exercised in circumstances where the obtaining of a warrant from
a Magistrate would involve unnecessary delay defeating the arrest itself.9

3
Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172.
4
Kajal Dey v. State of Assam, 1989 Cri LJ 1209 (Gau).
5
Subodh Chandra Roy v. Emperor, ILR (1925) 52 Cal 319.
6
Emperor v. Vimlabai Deshpande, (1946) 47 Cri LJ 831 : AIR 1946 PC 123.
7
See supra, S. 204, para. 5.2
8
L. Ram Narain Singh v. A. Sen, AIR 1958 All 758.
9
Bir Bhadra Pratap Singh v. District Magistrate, Azamgarh, 1959 Cri LJ 685 : AIR 1959 All 384.

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The circumstances under which a police officer can effect arrest without warrant have now
been elaborately spelt out in the amended Section 41(1). The police officer acting on
suspicion of person in possession of implement for housebreaking should have at least
definite information that he is in possession of an implement of housebreaking before putting
that person under arrest.10

Clause (i) of Section 41(1) has been designed to facilitate 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. The clause, 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 such 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 officer sending the requisition.

It is pertinent to note that the exhaustive list of circumstances spelt out in Section 41(1) as
amended makes it effective in preventing illegal arrests by police officers. The new proviso
makes it obligatory for the police officer to adduce reasons if he decides not to arrest a person
covered under this provision.

Though Section 41(2) has been amended making no mention of persons covered under
Sections 109 and 110 of the Code, it appears that this does not adversely affect the power of
the police officer to effect arrest of such persons inasmuch as they are covered under the
provisions of Section 41(1).

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

The rampant misuse of the power to arrest most particularly in cases under Section 498-A
IPC made the Supreme Court to issue a slew of directions in Arnesh Kumar v. State of
Bihar11 to ensure that the power under Section 41 CrPC is exercised properly. These
directions are held to be applicable not only to cases under Section 498-A IPC but also to

10
Emperor v. Abdul Hamim, AIR 1942 All 74, 76.
11
(2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449.

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cases where the offence is punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years with or without fine.

It has been held that the State is liable to pay compensation when arrest was made without
following the procedure and in flagrant violation of Sections 41 and 41-A CrPC resulting in
curtailment of individual liberty.12

Sections 41-B to 41-D lay down the procedure for making arrest:

“41-B. 13[Every police officer while making an arrest shall —

(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification; (b) prepare a memorandum of arrest which shall be —

(i) attested by at least one witness, who is a member of the family of the person arrested or a
respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and  

(c) inform the person arrested, unless the memorandum is attested by a member of his family,
that he has a right to have a relative or a friend named by him to be informed of his arrest.]”
“Control room at districts-

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[41-C. (1) The State Government shall establish a police control room —

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the
control rooms at every district, the names and addresses of the persons arrested and the name
and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to
time, details about the persons arrested, nature of the offence with which they are charged
and maintain a database for the information of the general public.]”

“Right of arrested person to meet an advocate of his choice during interrogation-

12
Rini Johar v. State of M.P., (2016) 11 SCC 703 : (2017) 1 SCC (Cri) 364.
13
Ins. by Act 5 of 2009, S. 6 (w.e.f. 1-11-2010).
14
Ibid.

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41-D. 15[When any person is arrested and interrogated by the police, he shall be entitled to
meet an advocate of his choice during interrogation, though not throughout interrogation.]

The Supreme Court has had occasion to lay down the following guidelines for the police
while arresting a judicial officer: (a) A judicial officer should be arrested for any offence
under intimation to District Judge or the High Court.

(b) In case of necessity for immediate arrest only a technical or formal arrest may be effected.
(c) The fact of such arrest should be immediately communicated to the District and Sessions
Judge of the district concerned and the Chief Justice of the High Court.

(d) The judicial officer so arrested shall not be taken to a police station, without the prior
order or directions of the District and Sessions Judge of the concerned district, if available.
(e) Immediate facilities shall be provided to the judicial officer for communication with his
family members, legal advisers and judicial officers, including the District and Sessions
Judge.

(f) No statement of a judicial officer who is under arrest be recorded nor any panchnama be
drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of
the judicial officer concerned or another judicial officer of equal or higher rank, if available.
(g) Ordinarily there should be no handcuffing of a judicial officer.”

These guidelines are not exhaustive.16 The Supreme Court has added that if the arrest and
handcuffing are found to be unjustified the police officer would be guilty of misconduct and
personally liable for compensation or damages as may be summarily determined by the High
Court.

The Supreme Court has also dealt with the issue of arrest of women between dusk and dawn.
Modifying the Bombay High Court’s order that no “female person to be arrested without the
presence of a lady constable and in no case in the night”, the court held that all efforts should
be made to keep a lady constable present but strict compliance can cause practical difficulties
to investigating agencies and create room for evading the process of law by unscrupulous
accused.17 Therefore, the court ruled that while arresting a female person, all efforts should be
made to keep a lady constable, but in the circumstances where the arresting officers are
reasonably satisfied that such presence of a lady constable is not available or possible and the
15
Ibid.
16
Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 : 1991 Cri LJ 3086.
17
R.V. Kelkar, Criminal Procedure, 6th Ed., 2014, Eastern Book Company.

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delay in arresting caused by securing the presence of a lady constable would impede the
course of investigation, such officer for reasons to be recorded, be permitted to arrest a
female person at any time of the day or night depending on the circumstances of the case
even without the presence of a lady constable.18 These guidelines given by the Supreme Court
have now been incorporated in Section police is required to obtain prior permission of
Judicial Magistrate of First Class within whose jurisdiction the offence is committed/arrest is
made.19

Section 42 is clear in itself. 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 residence. However, if his
name and address were previously known to the police officer, he cannot be arrested and
detained under this section.20

18
State of Maharashtra v. Christian Community Welfare Council of India, (2003) 8 SCC 546 : 2004 SCC (Cri) 27,
30.
19
Ins. by S. 6, Code of Criminal Procedure (Amendment) Act, 2005. It has been brought into force from 23-6-
2006.
20
Gopal Naidu v. King Emperor, ILR (1923) 46 Mad 605, 625.

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CONCLUSION

Sometimes, the exigencies of the circumstances may require a person to be arrested without
warrant if such person is reasonably suspected to have committed a serious (cognizable)
offence. The law of arrest deals with the authorities by whom, and the manner and
circumstances in which, a person maybe arrested, i.e. maybe deprived of his personal liberty.
The right to personal liberty is a basic human right and a corner-stone of our social structure.
Article 21 of the Indian Constitution enlists it as a Fundamental Right. Its deprivation is a
matter of grave concern. Therefore, law should permit an arrest only in such cases where it is
absolutely necessary. On the other hand, if a person by his conduct has proved to be a danger
or a grave risk to the society should not be allowed to misuse his personal freedom and to
inflict more harm on the society. The state agencies should be adequately empowered by law
to arrest such a person promptly so that he is adequately dealt with according to law. The law
of arrest has to dovetail two conflicting demands, namely, it should not as far as possible
interfere with the individual’s right to personal liberty on the one hand; and it should give
enough powers to the state authorities to make prompt arrests of persons creating dangers or
serious risks to the society on the other. The balancing of these conflicting demands of
individual liberty and societal safety is far from easy but all the same important.

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LIST OF CASES

 State of Maharashtra v. Christian Community Welfare Council of India, (2003) 8 SCC

546 : 2004 SCC (Cri) 27, 30.
 Gopal Naidu v. King Emperor, ILR (1923) 46 Mad 605, 625.
 Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 : 1991 Cri LJ
3086.
 Rini Johar v. State of M.P., (2016) 11 SCC 703 : (2017) 1 SCC (Cri) 364.
 Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449.
 Bir Bhadra Pratap Singh v. District Magistrate, Azamgarh, 1959 Cri LJ 685 : AIR
1959 All 384.
 Emperor v. Abdul Hamim, AIR 1942 All 74, 76. Joginder Kumar v. State of U.P.,
(1994) 4 SCC 260 : 1994 SCC (Cri) 1172.
 Kajal Dey v. State of Assam, 1989 Cri LJ 1209 (Gau).
 Subodh Chandra Roy v. Emperor, ILR (1925) 52 Cal 319.
 Emperor v. Vimlabai Deshpande, (1946) 47 Cri LJ 831 : AIR 1946 PC 123.
 L. Ram Narain Singh v. A. Sen, AIR 1958 All 758.

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BIBLIOGRAPHY

 R.V. Kelkar, Criminal Procedure, 6th Ed., 2014, Eastern Book Company.

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