RESEARCH PAPER

ARREST OF OFFENDER UNDER CRPC

NAME: ADITYA RAO

PRN : 1182220208

SUBJECT -CRIMINAL PROCEDURE CODE

GUIDE -
ABSTRACT

The power to arrest possessed by the Police under the Code of Criminal Procedure, 1973 (2 of
1974) (‘CrPC’) is of a thorough nature and has been sought to be modulated through various
judicial and legislative devices. Section 41A was first introduced by the Code of Criminal
Procedure (Amendment) Act, 2008 (5 of 2009), which provided that in all cases where the arrest
is not required u/s 41(1) of the CrPC, the investigating officer ‘may’ issue a notice of
appearance, which by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010) was
made mandatory as ‘shall’. The procedure u/s 41A of CrPC therefore is not contemplated at the
stage of preliminary inquiry to receive self-inculpatory material from a proposed accused. Self-
incrimination at the pre-FIR stage is unknown to criminal law and is illegal. The purpose of this
paper is to explore the real position of law with respect to procedural justice at the stage of
investigation and to suggest legislative changes to streamline the same.

KEYWORDS: Section 41A, Code of Criminal Procedure, Notice of Appearance, Arrest,

arbitrary exercise of power, investigation, processual justice
1. INTRODUCTION

Arrests lie at the core of our way of thinking about police and law enforcement agencies.
We often measure the success of the criminal justice system by the number of arrests made by
police officers during investigation.

Most critics of the criminal justice system agree that arrests are important to ensure
public safety and order, thus arguing that the power of police to arrest is largely sacrosanct. 1 All
those who criticise arrest are making a point about abuse of arrest power by the police.2

It is necessary to analyse whether the costs of arrests are proportionate to the ends it
serves. Many laws which authorise arrest largely remain unexamined. Maybe because of the
constitutional doctrines which regulate arrests, the power to arrest is taken for granted.

In considering the issue of arrest, we assume that arrests are not too costly; rather, arrests
are crucial to meet the law enforcement goals. But these assumptions are preposterous and far
from truth. Arrests are more harmful than they seem, not only to the individuals who are arrested
but also to their communities and to the society as a whole.

2. CONCEPT OF ARREST

The word ‘Arrest’ derives from the French word “Arreter” which means “to stop” or
“stay” and signifies a restraint on a person’s movement. In common parlance, the word arrest
means the “apprehension or restraint or the deprivation of one’s liberty”.3

1
See Kelkar, R. V. "Law of Arrest: Some Problems and Incongruities." Journal of the Indian Law Institute 22.3
(1980): 314-321, Sankaran, S. R. "Curbing the Power to Arrest." Economic and Political Weekly (2009): 12-14.
SANKARAN, S. R. "Amendment to an Amendment: To Arrest or Not to Arrest." Economic and Political
Weekly (2010): 17-18.
2
See Kamboj, N. S. "Police Custodial Death: A Growing Abuse to Human Rights in India." Journal of the Indian
Law Institute 36.3 (1994): 372-377., Wani, M. Afzal. "Tracheotomy of Infernality in Arrest and Detention Laws: A
Gender Perspective." Journal of the Indian Law Institute (2011): 227-253.
3
B. Uma Devi, Arrest, Detention and Criminal Justice System, Oxford University Press, New Delhi, 2012.
 It is “some kind of stopping of a person by authority of law”, primarily made “for the
purpose of bringing a prosecution against the person arrested”. 4 In arrest, a person is deprived of
his freedom, at least, until there is a judicial review of the arrest.

In 1964, a study conducted by the Human Rights Committee on the right of person free
from arbitrary arrest, detention and exile defined arrest as, “The act of taking a person into
custody under the authority of the law or by compulsion of another kind and includes the period
from the moment he is placed under restraint up to the time he is brought before an authority
competent to order his continued custody or to release him.”

3. LAW OF ARREST IN INDIA

The general law of arrest is found in chapter five of the Code of Criminal Procedure,
1973 (CrPC). CrPC does not purport to be an exhaustive or unqualified law on arrest. There are
two types of arrest as designed in the Code of Criminal Procedure: Arrests made in pursuance of
a warrant issued by a Magistrates; and arrests made without such warrant but made in
accordance with some legal provision permitting such arrest.

Apart from the Code of Criminal Procedure, various provisions for arrest without warrant
can be found in other legislations also. Police Act 1861, Arms Act 1959, Explosive Act 1884,
Indian Railways Act 1989 are few examples wherein arrest could be made without warrant.

A warrant of arrest involves a written order which is issued and signed by a Magistrate,
thereby commanding a police officer or some other person specifically named, to arrest the body
of the accused person named in it.

In case of arrest without warrant, the decision to make arrest is made by persons other
than magistrates, i.e., by police officers or private citizens. These people many times do not have
the judicious mind and detached outlook. Yet, the Code allows them to make the arrest-decisions
themselves without obtaining warrants of arrest from the Magistrates, looking into the exigencies
of situation.

4
Glanville Williams, “When is an Arrest?” 54 The Modern Law Review 408, 408 (1991)
 Extensive powers have been conferred on the police for making arrests without warrant
under circumstances mentioned in sections 41 and 42 of the Code, 1973. Section 41 is the main
section providing for situations when Police may arrest without warrant.

As per section 41 (1) (a) of CrPC, Police officers can arrest a person without warrant
when someone commits a cognisable offence in the presence of a police officer. More so, section
41 divides the cognisable offences in two categories: offences where punishment is upto seven
years of imprisonment and offences where punishment is more than seven years imprisonment or
death sentence. In India, as a rule of thumb, offences where the maximum punishment is up to
seven years, are not viewed as ‘heinous’ crimes, and, therefore, someone accused of such offence
is seen as posing a lower risk to society.

As per Section 41 (1) (b) of CrPC, 1973, “if a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists” of the commission of a
“cognizable offence punishable with imprisonment for a term which may be less than seven
years or which may extend to seven years with or without fine” 5, the arrest of an accused person
cannot be effected by the police officer only on his satisfaction that such person had committed
the offence punishable as aforesaid. Before making the arrest, a police officer has to further
satisfy himself that such an arrest is necessary,

a) “To prevent such person from committing any further offence; or

b) For proper investigation of the case; 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 the police officer; or
e) As unless such person is arrested, his presence in the court whenever required cannot be
ensured.”6

5
See, Sec 41 (1) (b) CrPC, 1973.
6
Ibid.
 Thus even if the police officer is satisfied about commission of an offence, still he cannot
arrest a person if there is no pressing need to arrest the accused. The Code has listed out five
circumstances which should be considered by the police officer before arresting an accused in a
cognizable offence punishable with less than seven years’ imprisonment.

The 2008 Amendment inserted Section 41 A in the CrPC which was further amended in
2010 to replace the word “may” with “shall”. As per section 41 A of the CrPC, if any police
officer requires the participation of any individual who is not required to be arrested under
Section 41 (1) of CrPC the police officer is duty bound to issue notice to an individual to appear
before him.

The individual to whom the notice is served is obliged to show up at the specified place and
time. The individual confirming the notice will not be arrested, except if in any case considered
fit by the police for which the official is duty-bound to record reasons in writing. The Supreme
Court in Arnesh Kumar case7 directed that issuing a notice of appearance under section 41A was
thoughtfully implemented.

Police officers should not arrest an individual unnecessarily, without any justifiable
grounds and the Magistrate should not authorise detention in a casual and mechanical manner.

While the measures introduced in the CrPC in 2008 were hailed as being progressive,
some provisions of the amendment could not be brought into force till 2010, due to protests.
While an earlier amendment required the recording of reasons for making an arrest, the 2010
amendment requires justification for not arresting a person as well. It has been argued that to say
that reasons should be recorded for not arresting a person is to treat arrest as a normal
requirement and not as an exception. It would frustrate the entire objective of amending the law
on arrest in 2008.8

As per section 41 (1) (ba), CrPC, where a credible information is received by the police
of commission of cognizable offence punishable with more than seven years’ imprisonment or
with death sentence and the police officer has reason to believe on the basis of such information

7
(2014) 8 SCC 273.
8
S R Sankaran, Amendment to an Amendment: To Arrest or Not to Arrest, Economic and Political Weekly, Vol 45,
no. 17, April 24-30 2020, pp 17-18.
that such person has committed the said offence, he can arrest the accused without a warrant. The
police power to arrest is much easier to exercise when it comes to someone accused of
cognizable offences, where the maximum punishment is more than seven years’ imprisonment.
In such cases, the police must have ‘credible information’ that the person has committed such an
offence; beyond that, there are no further preconditions for arrest.

The 2008 Amendment also inserted Sections 41A, 41B, 41C and 41D. 41A dealt with
notice of appearance to the accused where arrest was not required, 41B laid the procedure of
arrest and the duties of the police officer making the arrest, 41C talked about the establishment
of a control room where information about arrests could be recorded and 41D made provisions
for an accused to meet his lawyer during interrogation. These provisions were directly based on
the guidelines given by the Supreme Court in D.K Basu9. A proviso to Section 46(1) was added
which provided that a police officer who was not female should not touch any female “unless the
circumstances indicated to the ordinary.”

There are several other situations covered in Section 41 where a police officer can arrest
without a warrant. This includes, when someone is declared a proclaimed offender, who has
some stolen property on their possession, is a deserter from Armed Forces, or is a convict who
has breached the terms of their parole etc.

Section 42 specifies yet another situation where a police officer can arrest a person. If a
person commits a non- cognizable offence in the presence of a police officer or where he has
been accused of committing a non-cognizable offence and refuses, on demand being made by a
police officer to give his name and residence or gives false name or residence, such person may
be arrested but such arrest shall be only for the limited purpose of ascertaining his name and
residence.

Section 43 speaks of a situation where an arrest can be made by a private person and the
procedure to be followed on such arrest. Section 44 lays down the power of arrest by Magistrate
where a person commits an offence in his presence.

9
Supra note 8
 The Magistrate can himself proceed to arrest the person, or alternatively direct another
person to do so. Section 47 enables the police officer to enter a place if he has reason to believe
that the person to be arrested has entered into that place or is within that place. Section 48
empowers the police officers to pursue a person, whom they are authorized to arrest without
warrant, into any place in India beyond their jurisdiction.

Apart from the powers of arrest endowed under the Code to apprehend a person who has
committed an offence, the Code also encapsulates arrest as a preventive mechanism. Under
section 149, every police officer may interpose for the purpose of preventing the commission of
a cognizable offence and shall do so to the best of his ability.

4. CONCLUSION

Constitutional restrictions on the state power to arrest have limited bearing on whether
the current scenario to heavily rely on arrest as a tool of policing is appropriate and legitimate.

Our traditional justification for arrests, that it is essential in criminal investigation and
for maintaining public order, at best supports very few arrests than we currently permit.

In terms of the Code of Criminal Procedure, the definition of cognizable 10 and non-
cognizable offences11 could be changed, wherein investigation could be conducted by police
officials without any order or direction of magistrate, but police cannot arrest a person without a
warrant of a Magistrate.

The additional conditions imposed on Section 41 (1)(b) that have to be satisfied before an
arrest can be made in case of offences where the punishment extends to seven years of
imprisonment should equally be made applicable for all cognizable offences irrespective of the
quantum of punishment for an offence.

10
See Section 2(c) and Sections 156(1) and 157 CrPC, 1973. In case of a cognizable offence, a police officer can
arrest the alleged offender without warrant and can investigate into such cases without any orders or directions from
Magistrate. Also, offences generally punishable with imprisonment for more than three years are categorized as
cognizable offences.
11
See Section 2(l); Offence punishable with imprisonment for less than 3 years or with fine only, are generally
categorized as non-cognizable offence.
 If those conditions are not satisfied, then the police cannot make an arrest without a
warrant. These changes may help to bring about a positive impact.