INTRODUCTION

It is a common conception that the police does not have the power to arrest someone without a
proper warrant in their name. However, there are some exceptions to this rule under Section 41
of the CrPC, that envisions the circumstances under which an arrest can be made without a
warrant. These exceptions were made keeping in consideration the need for such power in times
like emergency or instances of necessity. Although, rights of an arrested is protected under
Article 20, 21 and 22.

ARREST: MEANING
The word "arrest" has neither been defined in the Code nor in the Indian Penal Code
nor in any other enactment dealing with criminal offences. Simply speaking, arrest
means taking of a person in custody under legal authority. Arrest is a restraint of the
liberty of a person in order to compel obedience to the order of the Court of Justice or
to prevent the commission of a crime or to ensure that a p
suspected of a crime may be forthcoming to answer it.

Arrest" may be defined as "the execution of the command of a court of law or of

a duly authorised officer"

The terms 'arrest and "custody are not synonymous. In every arrest, there is
but vice versa is not true. Custody may or may not amount to arrest. The
with an arrester taking a person in his custody and continues until such
person is released.

BY WHOM ARREST BE MADE?

Arrest may be made by a (i) police officer; or (ii) magistrate; or (iii) private person.
Let us consider the relevant provisions in detail.

(a) By Police Officer

Sections 41 and 42 confer very wide powers on a police officer to arrest any person
without a warrant and without an order from a magistrate. These provisions
however, are not exhaustive and an arrest can be made under other special laws: ee
under the Arms Act, Explosives Act. Indian Railways Act, Income-tax Act,
Preventive Detention Laws, etc

A police officer may arrest without warrant

(1) Any person who commits a cognizable offence in his presence:

(2) Any person against whom a reasonable complaint has been made of
credible information has been received, or a reasonable suspicion exists
that he has committed a cognizable offence punishable with imprisonment
up to seven years;

Proviso to clause (b) of Section 41(1) as inserted by the Code of Criminal

Procedure (Amendment) Act, 2010 states that were in such cases
a police officer does not effect arrest, he shall record reasons for not
doing so.

(3) Any person against whom credible information has been received that he
has committed a cognizable offence punishable with imprisonment for
years and the police officer has reason to believe that such person has committed the said
offence;
(4) any proclaimed offender
(5) any person in possession of anything reasonably suspected to be stored
property:
(6) any person obstructing a police officer in the execution of his duty or
escaping or attempting to escape from lawful custody:
(7) any deserter from the Armed Forces:

(8) any person concerned in any offence committed outside India, which if
committed in India would have been punishable as an offence:

(9) any released convict committing breach of any rule (relating to previously
convicted offenders)

(10) any person for whose arrest a requisition has been received;
(11) any person who in the presence of a police officer has committed a non
cognizable offence and refuses to give his true name and address:

(12) any person designing to commit a cognizable offence which cannot

otherwise be prevented,

(13) any person whose suspension or remission of sentence has been cancelled
by the Government:

Though Section 41 of the Code confers very wide powers on the police of
arresting persons without warrant, they can be exercised strictly in accordance with
law . Being an encroachment on the personal liberty. the provisions must be
construed strictly and arrest can be made only when the conditions laid down therein
are satisfied. It is necessary in exercising such a drastic power to be cautious and
circumspect. A person cannot be arrested at the mere whim of a police officer. It is
not a matter of caprice and arrest would be illegal unless the circumstances specified
in any of the clauses of Section 41 exist. This is further clear from sub-section (2)
of Section 41 as amended by the Amendment Act, 2008 which provides that subject
to the provisions of Section 42 relating to arrest on refusal to give name and
residence, no person shall be arrested in non-cognizable offence except under a
warrant or order of a magistrate. When the legality of arrest without a warrant is
challenged in a court of law, the burden is on the police officer to satisfy the court
that such arrest was lawful and reasonable grounds existed. Again, the use of word
"may in Section 41(1) suggests that a police officer has discretion to arrest
without a warrant.
This section authorises the police in India to arrest any person without warrant on
a charge of cognizable offence committed outside India.

Section 42 authorises a police officer to arrest any person without warrant only if
such person (a) (i) commits a non-cognizable offence in the presence of a police
officer: or (ii) is accused of committing such offence; and (b) on demand by such
officer (i) refuses to give his name and address; or (ii) gives his name and address
which such police officer has reason to believe to be false.
Since the object of arrest under this provision is to ascertain the identity of the
person, if the police officer is aware of the name and address of such person, no
arrest can be effected. Likewise, as soon as the name and address of the person is
ascertained, he should be released on bail."

(b) By Magistrate

A Magistrate (Executive or Judicial) may arrest without warrant

(i) any person who commits an offence in his presence:

(ii) any person for whose arrest he is competent to issue a warrant.
There is a distinction between sub-section (1) and sub-section (2) of Section 44
Under sub-section (1), the magistrate is empowered to arrest a person who has
committed an offence in his presence and also to commit him to custody, whereas
sub-section (2) empowers the magistrate only to arrest a person who is suspected of
having committed an offence. The power to commit the offender to custody is not
conferred. The omission of power to commit such suspect to custody is not accidental
but deliberate

(c) By Private Person

A private person can arrest without warrant

(1) any person who commits a non-bailable and cognizable offence in his
presence; or
(ii) any person who is a proclaimed offender.
The principle underlying this section is that for the sake of preservation of the
peace, any individual who sees it broken may restrain the liberty of him whom he
sees breaking it, so long as his conduct shows that the public peace is likely to be end
angered by his acts

The provision is extraordinary in nature inasmuch as it enables a private person

arrest a person in certain circumstances and therefore, it must be construed strictly
the manner so as not to enlarge the power of private individuals to arrest a person.
The offence must be non-bailable and cognizable and not bailable or non
cognizable. The words 'in his presence clearly indicate that the crime must have
been committed before his eyes. These words cannot be read as 'in his opinion' or on
suspicion' or on 'information or on belief". Such knowledge, therefore, must be
personal knowledge. The right of arrest by a private person under Section 43 must
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be exercised simultaneously with the commission of the offence. The provision is
merely enabling and does not make it obligatory on the part of a private person to
make an arrest without warrant. Moreover, a private person must make over such
person to a police officer or take him to the nearest police station.

Conclusion
Keeping in consideration the above-mentioned factors, it is imperative that arrest of the person
should not merely be on suspicion on accused’s complicity in the crime. It is important that the
police officer is satisfied that the said arrest is based on some sort of investigation and shall make
sure that as soon as the arrest is made, the station diary is updated accordingly. These protections
of rights are laid under Article 21 and 22(1) of the Constitution. All this was observed by the
Apex Court in the case of Joginder Kumar[i]. Further, in another case[ii], Court confirms that
arrest made by the PO has to be done with great sensitivity, while keeping in consideration all
the facts and circumstances, as per the case requires. Although, the court also confirms that the
Police need not obtain leave from the Court to make such arrest. In the end, it is important for the
police while making arrest of a woman, they have to comply by the rules laid down in State of
Maharashtra v. Christian Community Welfare[iii], that such arrest has only to be done with the
presence of a female constable, and has to keep the time of the day in consideration. The Apex
Court clarified and laid down that in case a female officer may not be present, then the officer
may be justified in making such arrest, except that they have to give proper reasons, such as that
the arrest may have caused delay in investigation, or was extremely necessary in the said
circumstance, and hence the court may look into the matter. This is necessary to keep the
interests of women intact.