Burhanuddin Patanwala CRPC TEE

THE CODE OF CRIMINAL PROCEDURE
A COMPARATIVE ANALYSES OF LAWS OF ARRESTS AND

WARRANTS IN INDIA AND OTHER COUNTRIES.
BY
BURHANUDDIN PATANWALA (81022019035)

ROLL NO-A030
B.B.A LL.B
2ND YEAR 4TH SEM
UNDER THE GUIDANCE OF
DR. SAURABH CHATURVEDI

1
KIRIT P. MEHTA SCHOOL OF LAW
TABLE OF CONTENTS
ABSTRACT.........................................................................................................................................3
ACKNOWLEDGEMENT..................................................................................................................4
SCOPE OF RESEARCH AND RESEARCH METHODOLOGY..................................................5
REVIEW OF LITERATURE.............................................................................................................6
CHAPTER 1........................................................................................................................................7
INTRODUCTION...........................................................................................................................7
CHAPTER 2........................................................................................................................................8
ARRESTS UNDER INDIAN LAW................................................................................................8
2.1)................................................................................................................................................8
Types of Arrests...........................................................................................................................8
2.2)................................................................................................................................................9
Rights of the arrested..................................................................................................................9
CHAPTER 3......................................................................................................................................13
LAW OF ARREST IN OTHER COUNTRIES...........................................................................13
3.1)..................................................................................................................................................13
United Kingdom.............................................................................................................................13
3.2)..................................................................................................................................................16
CANADA........................................................................................................................................16
CHAPTER 4......................................................................................................................................19
WARRANTS UNDER INDIAN LAW.........................................................................................19
4.1)..................................................................................................................................................19
TYPES OF WARRANTS..............................................................................................................19
CHAPTER 5......................................................................................................................................22
WARRANTS IN OTHER COUNTRIES.....................................................................................22
5.1)......................................................................................................................................................22
United Kingdom................................................................................................................................22
5.2)..................................................................................................................................................23
Canada...........................................................................................................................................23
CHAPTER 6......................................................................................................................................24
CONCLUSION AND ANALYSES...............................................................................................24
BIBLIOGRAPHY..............................................................................................................................26
2
ABSTRACT
A majority of political systems around the globe aspire to live in a state of freedom from
governmental restriction. However, the difficulty across the globe is the same: it is to bring in
the same additional capital from anywhere in the world to increase production. A life and
liberty which is bestowed upon citizens in the form of a freedom and is underlined by the
Constitutional provision outlined in Article 21, is instead given to citizens only as a favour
because the police abuse their already enormous criminal procedural powers outlined in the
Code of Criminal Procedure enacted by the Parliament in 1973. Many controversial issues
have been analysed and debated in detail since the government continues to infringe on
citizens' personal liberties and constitutional rights using the protections granted to them for
the 'protection of the public'. A record of these occurrences is present in the media and in the
courts; they are both outlets for news and locations where matters pertaining to peace and the
protection of society are pursued. In India, the statutes are seemed be to framed brilliantly yet
corruption still does not cease to exist. One solution could be a thorough research of
procedure followed while dealing with the mechanisms of temporarily violating one’s
fundamental rights, in other countries. Although some fluctuation and biases will be visible
because of the difference in population between India and other countries. This study focuses
on presenting a detailed comparative analyses between of laws governing the mechanisms if
arrest and warrants in India and other countries. A chapter wise, chronological analyses has
been provided in this research article.
3
ACKNOWLEDGEMENT
I am really honoured to work under the guidance of Professor Dr Saurabh Chaturvedi and
would like to manifest my gratitude with the utmost sincerity to her for giving me this
opportunity to make a research paper on a very crucial topic related to The Code of Criminal
Procedure, 1973, as well as for sharing her precious time and further would like to share my
immense gratitude to her for educating me about the topic as well as providing me with
immense amount of knowledge. As the phenomenon of incarcerating and sanctioning an
individual is very sensitive and important one as a budding law student. He has focussed on
the holistic development of my sphere of knowledge in this regard and to be a better and
responsible citizen as well as a human. My classmates and family too have been constantly
supportive and motivational, thus I would like to thank and acknowledge them from the
bottom of my heart. Last but not the least, major appreciation and gratitude to my University,
NMIMS School of Law, Navi Mumbai.
4
SCOPE OF RESEARCH AND RESEARCH METHODOLOGY
This research paper seeks to put light on the topic of “A Comparative Analyses Of Laws Of
Arrests And Warrants In India And Other Countries.”
This Research is performed in order to analyse the Laws governing arrest and warrants in
India, UK and Canada. As the aforesaid is used to temporarily deactivate the fundamental
rights of the citizen involving liberty, this topic is very critical in understanding the
jurisprudence of our nation compared to the other great nations. Thus, the chapters have been
divided accordingly with each chapter containing an important topic and the content
regarding Uk and Canada has been put under the category of “other countries” in order to
convey the content with a more efficiency to the reader. The relevant Sections and Case laws
have been discussed and included wherever necessary and applicable.
Methodology applied to conduct the research is of doctrinal analysis and descriptive method.
The information and data gathered is primarily of secondary nature. Collection of data has
been done from various state level and international level publications and other sources like
websites, books, journals, articles, etc.
Aims of the paper:
 To provide the detailed analyses of the laws governing arrest and warrants under
Indian law.
 To thoroughly analyse the laws governing arrest and warrants under the English Law
and Canadian Laws
 To provide a comparative analyses of the Indian Law of arrest and warrants with the
UK and Canadian Law of arrest and warrants.
5
REVIEW OF LITERATURE
 (Nigram, 1962) In this article, the author provides a comparative analyses of the due
process of law followed in India and USA. This article has been very helpful as the
author has described the entire procedure set by the law in India. The author has
provided a detailed analyses of the Gopalan Case, which serves as a major landmark
case whenever one wants to dwell on the topic of due process of law followed in
India. This article concludes that personal liberty is a much broader sphere than
defined in our statutes as compared to states. Liberty involves every sphere of one’s
life that he is free to do. Which involves, eating at his own leisure, sleeping,
entertainment, etc. However, our statues treat liberty as two dimensional only.
 (Hall, 1999)This article has been helpful with a historical point of view as the author
provides the origin of criminal procedure in the UK. History is a teacher and thus in
order to learn and decipher the statutes governing the law of arrest and warrants in the
UK, this article has been of a major help.
 (William Renwick Riddell, 1912) This article is thoroughly based on the Criminal
Procedure Code of Canada. The author has provided a detailed study of all important
aspects a person from another country needs to understand the criminal procedure
followed in Canada, right from the history of the code which originates from the
English law as Canada was under the rule of the British, to the Canadian Charter of
Rights, The author has conveyed a plethora of knowledge.
 (Macleod, 1994) In this book, the author has analysed the police powers in Canada to
sum up the root of racialisation, which is cancerous to the Canadian Charter, as well
as Canada as a democracy. The problem has been well presented with a sufficient
amount of Canadian case laws.
CHAPTER 1
INTRODUCTION
6
“There is no greater tyranny than that which is perpetrated under the shield of the law
and in the name of justice.”
- Charles-Louis de Secondat, baron de la Brède et de Montesquieu, The Spirit

of the Laws
Criminal Procedure is a very complicated process where each step is of major importance
when it comes to the incarceration of an individual where the rule of law is superior to any
other entity. Rights and duties are complimentary and one cannot be protected if the other is
not executed.
Against some beliefs, criminal procedure does not really begin in the court, it begins the
moment someone has taken cognisance of an omission of commission of crime. It would be
barbaric for the law enforcement agencies to just grab someone from the streets, his/her home
and detain the said person stripping away the legal rights stated in The Constitution. Due
process of law must be followed by all the authorities involved which involves the judiciary
as well. The origins go back to the 1215, where the Magna Carta stated that "No freeman
shall be arrested or imprisoned or disseized, or outlawed or exiled or in any way molested;
nor will we proceed against him, unless by the lawful judgement of his peers or by the law of
land.”1 Thus, mechanisms such as arrests and warrants is the answer to the dilemma of
protecting ones rights as well as following the due process of law.
Under The Code of Criminal Procedure, 1973 Chapter VI deals with summons, warrants, etc
while Chapter V deals with the procedure of arresting the criminal(s). There have been many
incidents in India as well as throughout the world, where unlawful arrests using void and
invalid warrants have been reported. This asks the question whether the law is lacking or the
system is. Comparative analyses of the laws prevailing in India of arrest and warrants to that
of the laws adopted by different countries such as Canada and UK might help to decipher the
issues prevailing regarding arrest and where their roots too.
1
K.K. Nigam, Due Process Of Law: A Comparative Study Of Procedural Guarantees Against Deprivation Of
Personal Liberty In The United States And India, 4 Journal of The Indian Law Institute 99-135, 99-100 (1962).
7
CHAPTER 2
ARRESTS UNDER INDIAN LAW
Generally, a person who violates a law is arrested or detained by a proper procedure as

established in the Code of Criminal Procedure2(hereinafter referred to as the Cr PC).
However, the CrPC, which governs arrests, does not specify the term “arrest.” But arrest
generally means that an individual loses certain rights and the liberty to freely move around.
When a suspect is detained, they are brought into the care of a legal entity with the authority
to apprehend the person. The individual is arrested to prevent any more progression of
criminal activity, further, they are requested to respond to the allegations levelled against
them. “Arrest” implies “a detention or forcible restraint; an exercising of the power to deprive
an individual of their liberty; the taking or holding of a person in custody by lawful authority,
particularly in reaction to a criminal charge,” according to the Legal Dictionary by Farlex.
Under Indian law, Chapter V (Sections 41 to 60) of the CrPC discusses the arrest of an
individual, but it does not describe the exact term “arrest” anywhere.
2.1)
Types of Arrests
There are two types of arrests as described in the CrPC:
● An arrest made following the orders of a Magistrate.

● An arrest without an order yet with a legal reason to provoke detention.
Arrests under a statutory clause for such arrest can be conducted by a private individual,
police department official, or a regular citizen or the Magistrate. Sections 41-46 elaborates on
who can arrest an individual. The CrPC prevents representatives of the Armed Forces from
being arrested on any of the steps taken in carrying out their official tasks, with the exception
of the permission of the Government of India.
● Section 413: Section 41 lists the various types of situations in which a police officer
may apprehend a person without a judge’s order and order. Some of them include, a
prisoner discharged and infringes his or her release agreement, obstructs a police
officer who is discharging his or her duties, tries to avoid lawful detention, has robbed
2
The Code of Criminal Procedure, 1973.
3
8
property or is a state criminal, anyone who has performed a cognizable offence, is

declaring him or her a deserted citizen from any Union Army, etc.
● Section 424: If a person who is to be arrested refuses or denies giving their name or
residence then a police officer can arrest that person for an offence that is non-
cognizable.
● Section 435: A private person can arrest or be arrested by another private individual if
they are a convicted criminal or commits a non-bailable or a cognizable offence in
their presence.
● Section 446: The Magistrate has the authority under Clause 2 of the Code for arresting
an individual for who they are qualified to issue a warrant and competent thereof. The
Magistrate has the right to detain a person who has committed an offence before them
and also to put them under detention as specified in Article 44(1) of the Code of
Criminal Procedure.
● Section 457: The CrPC prevents representatives of the Armed Forces from being
arrested on any of the steps taken in carrying out their official tasks, with the
exception of the permission of the Government of India.
● Section 468: The process of arrest without and with a warrant is described in this
section. Section 46(4) is for the Special protection for females as it prohibits women’s
arrest after and prior to sunset, except under exceptional circumstances where a
woman policeman can arrest her after making a written report obtaining prior
authorisation from the concerned first-class magistrate, in whose competence the
offence is committed or where the local jurisdiction where the offence is committed
falls in.
2.2)
Rights of the arrested
The justice framework in India is set up around the ‘innocent until proven guilty’ framework.
An unlawful detention may be an infringement of Article 21 of the Indian Constitution,
according to which “no human being shall be deprived his right to life and personal freedom,
4
5
6
7
8
9
except where defined by statute.” The process must not be arbitrary or authoritarian and be
equitable and unambiguous. That is why the people arrested have certain rights which shall
not be violated and are set up to avoid any exploitation from the people in power.
1. Right to know the arrest grounds

a. In Section 55 CrPC, the subordinate officer must communicate to him the
content of the order in writing which is issued, indicating the crimes and other
reasons for detaining if a police officer has authorized the subordinate to
apprehend someone without a warrant.
b. Section 50 of the CrPC states that any police officer or someone authorized
to apprehend an individual without a warrant must notify the accused person
of the offense for which they are arrested and for other reasons. The police
officer has a responsibility and he cannot reject it.
c. In accordance with section 50A of the CrPC, an arrested person shall inform
one friend or relative or any other person in his or her interests of the arrest of
that arrest.
d. Article 22(1) of the Constitution also states that, without informing the
ground of detention, no police officer should arrest any citizen.
e. It is understood by Section 75 of CrPC that an officer serving the warrant can
report the substance to the individual detained and present him a warrant if it
necessary.
2. Right to being produced before a Magistrate without unprecedented delay:
Section 76 of CrPC requires the arrested to be produced within 24 hours, Article
22(2) of the constitution requires the arrested to be produced before a magistrate
within 24 hours and Section 55 of the CrPC states that a person arrested without a
warrant should be produced before a police officer incharge or a magistrate without
unnecessary delay.
3. Right to bail: If a person is arrested without a warrant, other than non-cognizable
offences, then under Section 50(2) of CrPC a police officer has to inform that being
released on bail is his right, and make arrangements for safeguards on his behalf.
4. Right to a fair trial: There is no particular section which is given in the CrPC but it
is derived from precedents and Article 14 of the constitution. In the case of
10
Hussainara Khatoon & Ors vs Home Secretary 9, the right to a speedy trial was
recognised.
5. Right to consult a lawyer: Sections 41(D) and 303 of CrPC and Article 22(1) clarify
that an arrested person has the right to consult and be defended by a lawyer.
6. Right to free legal aid: Section 304 of CrPC states that the court may appoint a
lawyer to the arrested if the accused cannot appoint a pleader and Article 39A
obligates the state to provide legal aid so as to ensure justice. This right has also been
explicitly stated in the case of Khatri And Others vs State Of Bihar & Ors 10 and in the
case of Sukh Das vs Union Territory of Arunachal Pradesh 11 it was stated that “The
right of an indigent accused cannot be denied even when the accused fails to apply for
it”.
7. Right to remain silent: The principle of self-incrimination is mentioned in Article
20(2) of the constitution stating that no person can be forced to be a witness against
themselves. This was further proven in the case of Nandini Satpathy vs Dani 12 that
“No one can force any person to give any statement or to answer questions and the
accused person has a right to keep silence during the process of interrogation.”
8. Right to be examined by a medical practitioner: Section 54 of the CrPC states that
where the person arrested alleges that an investigation into their body would lead to a
disapproval of the fact of the crime being committed by them or that it would lead to
some evidence which would imply some other person committing a crime against
them, the court shall, on their request, order that the accused person be examined
medically.
This case is a landmark judgment in D.K. Basu vs. the State of West Bengal 13 since it insists
“on the rights of a person accused and even obliges the police to carry out such actions.” The
court further claims that if the police officer failed to ulfil his duties, both he and the
departmental acts are held responsible for contempt of the court. Any Supreme Court with
authority will institute such a case.
9
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, Patna [1979 AIR 1369].
10
Khatri And Others vs State Of Bihar & Ors [1981 SCC (1) 627].
11
Sukh Das vs Union Territory of Arunachal Pradesh [1986 AIR 991].
12
Nandini Satpathy vs Dani (P.L.) And Anr [1978 AIR 1025].
13
Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P [1997 1 SCC 416].
11
While numerous attempts to defend the arrested from abuse and inhumane punishment,
custodial deaths and police atrocities continue to occur. Thus, 9 directives for protecting an
accused and amending different parts of CrPC were developed in the Supreme Court some of
the amendments in the CrPC were Sections 41D, 41B, 41C.
In a guidance note by the Law Commission published in 2001, it was indicated that the
number of unneeded and uncalled-for arrests makes up more than half of all arrests. And
further, the country’s total spend on jails can be attributed to such arrests. The Apex Court in
the case of Joginder Kumar v. State of U.P held: “The National Police Commission in its
Third Report mentioning the power of arrest as one of the primary causes of police corruption
noted that the National Police Commission itself found that only 23% of arrests are being
recorded.”14 Practices like these led to the passing of a modification to the Criminal Code in
2009, which went into effect in 2010 and had a profound impact on the way police agencies
exercised their authority when it came to criminal charges with a sentence of less than seven
years. Article 41 (A-C) was tasked with the responsibility of safeguarding this amendment
and all changes that were made in the course of that amendment, including introducing a
number of other restrictive requirements and formalities. Offences such as violence,
abduction, fraud, forgeries, etc could be on the list.
Another judgement by the Apex Court, which is the case of Arnesh Kumar v. State of Bihar
is an important precedent when it comes to arrest made by the police in dowry cases or
offences with max 7 years imprisonment with or without fine. This was a two-judge bench
which summarized issues regarding arrest as:
“Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so
also the police. There is a battle between the lawmakers and the police and it seems that the
police have not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come
out of its colonial image despite six decades of Independence; it is largely considered as a
tool of harassment, oppression and surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been emphasized time and again by the
courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance
so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of
the lucrative sources of police corruption. The attitude to arrest first and then proceed with
14
Joginder Kumar v. State of U.P, (1994) Supreme Court Cases 260.
12
the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or
act with oblique motive.”15
CHAPTER 3
LAW OF ARREST IN OTHER COUNTRIES
3.1)
United Kingdom
In UK, the common law, delegates the power to arrest an individual to anyone for a large
number of offences. However, this was replaced by the statutes enacted by the parliament;
which delegates the power to arrest for a specified number of offences. Regardless of the
statutes, there are some exceptions in which, no procedure of protocol is required in order to
make an arrest, the best example would be when one outrages the public decency.16
Similar to The Code of Criminal Procedure, the power of arrest, as per the Parliament, has
been given in The Police and Criminal Evidence Act, 1984. Lords of the House of Commons
considered the proposal of setting up a full-time police force to be at odds with freedom in
politics, and therefore voted against it. Sir Robert Peel played a crucial role in the founding of
the first modern police force, the Metropolitan Police Force, six years later in 1829.
Following the introduction of modern law enforcement, law enforcement has continued to
evolve, and its capabilities have changed as well. The Police and Criminal Evidence Act
(often known as PACE) was enacted in 1984. Prior to the passage of this statute, there had
been friction. The Lord Scarman’s Report after the Brixton unrest in 1981 sought to change
the police’s procedures in order to prevent police excesses and unfairness. 17 Part 3 of The
Police and Criminal Evidence Act,1984 contains provisions on arrests.
Sec 24 of The Police and Criminal Evidence Act,1984 states- “(1) A constable may arrest
without warrant –
• Anyone who is about to commit an offence
• Anyone who is in the act of committing an offence
• Anyone whom he has reasonable grounds for suspecting to be about to commit an offence
15
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
16
Criminal Justice Act 2003, § 320, No. 44, Acts of Parliament, 2003 (UK).
17
Stuart Hall, From Scarman to Stephen Lawrence, 48 History Workshop Journal 187-197, (1999).
13
• Anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting that an offence has been committed,
he may arrest without warrant, anyone whom he has reasonable grounds to suspect of being
guilty of it. (3) If an offence has been committed, a constable may arrest without a warrant –
• Anyone who is guilty of the offence
• Anyone whom he has reasonable grounds for suspecting to be guilty of it.”18
In order to arrest an individual on the grounds stated above, the constable/police need to have
a rational cause and a valid reason behind the arrest. In order to understand the law, it is
elementary to understand the language of the act and thus it is important to throw some light
on the said “reasonable grounds”.
“Reasonable grounds” with respective to the act is very ambiguous as and a single universal
definition is not present. While trying the accused in the court of law the presence of
reasonable ground is of utmost importance and thus the burden of proof lies on the
prosecution. Unlike the terrorism provisions under English law, reasonable grounds under the
said act may depend on the circumstances of the case. In the case of O’hara v. Chief
Constable of RUC, Reasonable grounds can be defined in three parts:
(5) “Firstly, the officer must have formed a genuine suspicion in their own mind that they
will find the object for which the search power being exercised allows them to search,
for and
(ii) Secondly, the suspicion that the object will be found must be reasonable. This means that
there must be an objective basis for that suspicion based on facts, information and/or
intelligence which are relevant to the likelihood that the object in question will be found, so
that a reasonable person would be entitled to reach the same conclusion based on the same
facts and information and/or intelligence which indicates that members of a particular group
or gang, or their associates carry knives unlawfully or weapons or controlled drugs.”19
Race and stereotypes do not amount to reasonable grounds and to quote Iqbal Sacranie,
Secretary General of the Muslim Council of Britain,
18
The Police and Criminal Evidence Act,1984, § 24, No. 60, Acts of Parliament, 1984 (UK).
19
O’hara v. Chief Constable of RUC, [1997] AC 286.
14
“There have been far too many cases of wrongful arrests of British Muslims and
miscarriages of justice. The recently published MPA report on the Metropolitan Police’s
‘Stop and Search’ powers have revealed how they have been used unfairly and devastatingly
especially against Muslims. Just as an entire generation of young black people were
alienated through ‘Stop and Search’ practice, we are deeply worried that the same thing is
now occurring again, this time to young Muslim men. This cannot be allowed to go on”.20
Lord Clerk Whetley in the judgement of Dryburgh v. Galt where the accused was arrested for
being intoxicated by alcohol while driving, stated,
“Suffice it to say that the fact that the information on which the police officer formed his
suspicion turns out to be ill-founded does not in itself necessarily establish that the police
officer’s suspicion was unfounded. The circumstances known to the police officer at the time
he formed his suspicion constitute the criterion, not the facts as subsequently ascertained.
The circumstances may be either what the police officer has himself observed or the
information which he has received.”
Reasonable grounds of believing are stronger and more important than to suspect an
individual and these grounds are stated in Sec 24(5) from sub clause (a) to (f):
“(a) to enable the name of the person in question to be ascertained (in the case where the
constable does not know, and cannot readily ascertain the person’s name, or has reasonable
grounds for doubting whether a name given by the person as their name is their real name)
(b) Correspondingly; as regards to ascertaining the person’s address
(c) prevent the person in question: (i) causing physical injury to himself or any other person
(ii) suffering physical injury Student Notes
(iii) causing loss of or damage to property
(iv) committing an offence against public decency
(Subsection (6) states that this only applies where members of the public going about their
normal business cannot reasonably be expected to avoid the person in question), or (v)
causing an unlawful obstruction of the highway
(d) to protect a child or other vulnerable person from the person in question
20
Many Challenges, But British Muslims Look Ahead with Courage And Confidence
< http://www.mcb.org.uk/many-challenges-but-british-muslims-look-ahead-with-courage-and-confidence/ (Last
visited, Apr. 02 2021).
15
(e) to allow the prompt and effective investigation of the offence or of the conduct of the
person in question
(f) to prevent any prosecution for the offence from being hindered by the disappearance of
the person in question.”21
In order for these reasons to be fulfilled, certain conditions should be met. The essentials of
the investigation laid down by the act, The victim’s situation as well as the status of the
offender and the nature of the criminal act in discussion.
As per Section 24A of The Police and Criminal Evidence Act, 1984, A constable or some
other person may arrest an individual(s) however, certain conditions given in the act need to
fulfilled. These conditions can be summarised as:
 The Accused is in the act of committing a grievous crime such as rape, murder, etc or
the constable/any other person has sufficient reason to believe.
 The accused is guilty of a crime.
 Causing physical injury to one or himself, damaging someone’s property or running
away from a constable.
As per Section 28 of The Police and Criminal Evidence Act, 1984, The arrestee needs to be
informed the grounds of arrest and the mere fact that he is under arrest. This is necessary for
the arrest to be lawful.22
Sec 30 of the said act enables the constable to arrest a person at a place other than the police
station.23
3.2)
CANADA
The English colonizers introduced the English Law in Canada for crimes. However, The
French-Canadians were free to follow their own personal law in civil disputes. The provisions
of the statues governing criminal law in England, continued to be the criminal law in Canada,
except a few differences in the lower and upper parts of Canada. However, The British
America Act, 1867 established the Dominion of Canada and handed the regulation,
governance and implementation of criminal laws to The Parliament. Sir John Thompson, who
had previously served as a judge in Nova Scotia and had gone on to become the Prime
21
22
23
16
Minister of Canada, organised a legal code that resulted in many new criminal laws. Due to
the assistance of lawyers on both sides of the House, he was able to successfully advance his
interests. Ultimately, The Criminal Code 1892 became the law, which in turn was amended to
form The Criminal Code of 1985 which governs the criminal law regarding the offences and
procedure currently in Canada.24
Sec 25 of The Criminal Code, 1985 gives the power to use necessary force to the peace
officers or any person assisting the peace officer if the said authority needs to carry out the
duty required by the law if he/she has reasonable grounds of believe. Sub- section 3 to the
said act however states that, “A person is not justified for the purposes of subsection (1) in
using force that is intended or is likely to cause death or grievous bodily harm unless the
person believes on reasonable grounds that it is necessary for the self-preservation of the
person or the preservation of any one under that person’s protection from death or grievous
bodily harm.”25
If the Peace Officers/Police or anybody assisting them to carry out a lawful arrest, then, they
are protected by the law. In addition, If the person arrested has committed an indictable
offence, for which, a warrant is not required; or the person tries fleeing the site, If the force
used, could harm or kill the person, is absolutely required to save someone from imminent
death or fatal injuries; or the said amount of force is necessary from preventing the escape of
the arrestee, then the police as well as the person assisting them, are protected by the law. 26
In the judgement of Hill v. Hamilton-Wentworth Regional Police Services Board, The

Supreme Court of Canada laid out a test called ‘The Reasonable Police Officer Test’ where
the Court stated that:
“A police officer commits a civil fault where his/her conduct departs from that of a normally
prudent, diligent and competent police officer.”27
The provisions related to the power of arrest without a warrant and the limitations on the
same are stated in Sec 494 and 495 of The Code.28
24
William Renwick Riddell, Criminal Procedure in Canada, 3 Journal of the American Institute of Criminal
Law and Criminology 28-31, 28 (1912).
25
The Criminal Code, 1985, § 25, No. 46, Acts of Parliament, 1985 (CA).
26
Id.
27
Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.
28
The Criminal Code, 1985, No. 46, Acts of Parliament, 1985 (CA).
17
Sub-Section 1 of Sec 494 states that anyone can arrest someone who is in the act of
committing a serious/indictable offence such as murder, rape etc or someone who seems to be
on the run from the police.29
Sub-Section 2 of Sec 494 gives the owner, pledgee, bailee, etc of a property can arrest a
person who has committed any offence regarding properties like stealing, damaging, etc.
Any authorized personnel, such as the airport authorities, are lawfully vested the power to
arrest persons committing crimes on their turf. This can be illustrated by the case of R. v.
Asante-Mensah, where a taxi driver was arrested under the TPA act for trespassing and
scooping fairs.30
Section 495 of The Code gives the power to the peace officer/police to arrest without a
warrant on the following omission of acts by the arrestee:
1. Indictable offence or in the process of committing one.

2. In the act of committing any offence.
3. Dodging a warrant of arrest or committal within the territorial jurisdiction of set out.
Apart from The Criminal Code, 1985, The Canadian Charter of Rights and Freedom, which
protects the rights of the citizens is an important act when it comes to the power of arrest as
well as the rights of an arrestee in Canada.31 This charter establishes and protects many rights
and the crucial ones regarding the current discussion are:
1. The right to remain silent when questioned by the police.

2. The right to be told why you have been arrested or detained.
3. The right to be told that you can hire and instruct a lawyer.
4. The right to be told about the availability of duty counsel and legal aid.
5. The right to speak with a lawyer, in private, as soon as possible.
In Canada, racialisation has led to a classification system and as Anderson quotes, “In doing
their job, the police often become willing parties to this colour-coding of the public
environment… a young black male is a suspect until he proves he is not.”32
29
Id.
30
R. v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38.
31
Department of Justice, https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/learn-apprend.html, Gov of
Canada (Last visited, Apr.05 2021).
32
Scort Wortley & Akwasi Owusu-Bempah, The Usual Suspects: Police Stop And Search Practices In Canada,
Taylor & Francis Online, https://www.tandfonline.com/doi/abs/10.1080/10439463.2011.610198 (Last visited,
Apr. 06 2021).
18
CHAPTER 4
WARRANTS UNDER INDIAN LAW
Warrants can be called the legal instruments through which the police officer or any person
authorized by the law to perform a certain duty can, temporarily violate the rights given by
the Constitution such as the right to liberty and movement mentioned given by Article 21.
The Code of Criminal Procedure, 1973 governs and regulates the criminal procedure which
includes the nature, types and procedure for issuance of warrants. However, the term
“warrant” is not defined in The Code. As per the Oxford Dictionary, a warrant can be defined
as “A document issued by a legal or government official authorizing the police or another
body to make an arrest, search premises, or carry out some other action relating to the
administration of justice.”33
Under the Indian law, warrants come under the category of mechanisms used to compel
appearance of the accused. The Scope of the Warrant under The Code is limited to India. 34 A
Police Officer(s) or any other suitable person as per The Code, can be handed the warrant to
be executed by the same by The Court with the seal of the said court visible on the warrant.
Also, the warrant cannot be barred by anytime limit unless the respective court cancels the
same.35 Even though, the warrant has not been defined, through the language of Form No. 2,
it can be observed clearly that the warrant is a direction to a certain person to compel the
accused by arresting him/her. This person can be a police officer, a magistrate or any officer,
to whom they are superior.36 As per The Hon’ble Supreme Court of India, A warrant can be
issued at any particular time as per the need, which means, even before the officer has taken
cognisance of the case or even while investigating the case.37
4.1)
TYPES OF WARRANTS
Although, The CRPC does not specify any particular type, the warrants can be classified into
Bailable, Non Bailable and Search Warrants.
33
Lexico, https://www.lexico.com/definition/Warrant (Last Visited, Apr. 05 2021).
34
The Code of Criminal Procedure, 1973, §77, No. 2, Acts of Parliament, 1974 (India).
35
36
Jagdish Narain v Emperor, AIR 1940 All 178.
37
State Vs. Dawood Ibrahim Kaskar, AIR 1997 S.C. 2494.
19
Through Sec 71 of The Code, bailable warrants can be explained. The warrant must contain
an endorsement saying that if the individual mentioned in the warrant enters into a surety
bond with adequate sureties for his or her attendance before the court, the officer to whom the
warrant is handed should take the required security and allow the defendant to be released
from jail. When issuing a warrant, the endorsement shall state the number of sureties, their
financial obligation, and the hour at with which the individual who was served with the
warrant is obligated to come before the court. To send the warrant to the court, the officer
who has it must also communicate the bond.38
Non-bailable warrant, on the other hand, is a very grave and serious warrant, it is issued if the
gravity of the case is far beyond a normal case like battery, it issued for serious cases such as
murder, rape, dacoity. As the name suggests, the arrestee cannot issue a bail, which exactly is
the motive behind issuing such a warrant. Any escaped criminal, proclaimed criminal, or
anybody suspected of a non-bailable offence may be ordered to be apprehended by a warrant
issued by the Chief Judicial Magistrate or a First-Class Magistrate within their authority.
Section 73(3) stipulates that, when someone is arrested, he must be brought before a
Magistrate who has jurisdiction in the case unless bail is accepted with all the conditions
given under Section 71.39 The Supreme Court of India, in the case of Inder Mohan
Gowswamy and anr v. State of Uttaranchal and other, held that, Normally, a non-bailable
warrant is not issued when a perpetrator’s whereabouts can be adequately assured. It is also
maintained that when an arrest warrant is issued, the person involved is asserting a personal
liberty infringement. When an individual is arrested and incarcerated, he or she is deprived of
his or her most important right. Thus, in order to prevent being held in contempt of court, the
courts must exercise extraordinary caution when issuing non-bailable warrants. Apex court
made an additional ruling when it found that an arrest warrant must be issued if summoning
and bailable order are unlikely to accomplish that goal. It’s possible that the individual trying
to show up in court or the authorities could not be able to locate the person who was served
with a summons, and this could result in threats to life. The Hon’ble Supreme Court found
that it was sometimes necessary to restrict freedom in the interest of the general public and
the state, only then did non-bailable warrants become permissible.40
38
39
40
Inder Mohan Gowswamy and Anr. Vs. State of Uttaranchal and other, (2007)12 SCC 1.
20
A Search Warrant is necessary when an investigating officer needs to search one’s property
for the sake of the investigation. Sec 93 of The Code, lays out the procedure for the issuance
of a search warrant.41 It states is sub-section 1 that, “The Court;
a) Where any Court has reason to believe that a person to whom a summons or order
under section 91 or a requisition under Sub-Section (1) of section 92 has been, or
might be, addressed, will not or would not produce the document or thing as required
by such summons or requisition, or
b) where such document or thing is not known to the Court to be in the possession of any
person, or
c) where the Court considers that the purposes of any inquiry, trial or other proceeding
under this Code will be served by a general search or inspection, it may issue a
search-warrant; and the person to whom such warrant is directed, may search or
inspect in accordance therewith and the provisions hereinafter contained.”42
In the Sub-Section (2), It is clearly specified by The Code, that if the court has mentioned in
the warrant, the scope of search, then the officer in charge of executing the search should stay
in that scope.43 The post and telegraph authority have more jurisdiction than the magistrate
and DM when it comes to issuing a search warrant for the objects in custody of the former.44
The warrants are issued on the basis of some essentials. Warrants cannot be generalized and
the same has been held in the English case of Money v. Leach. 45 The warrant needs to have
the valid identity of the arrestee, mode must be in writing, signature of the presiding officer
and the seal of the court issuing it, the offence must be stated, person executing the offence
must be named and the magistrate’s authority must be indicated.
The seal is a really important part of the warrant and the absence of which invalidates the
warrant making it void, unless, a provision allows the same. 46 However, the endorsements
would not need to have the seal.47 Jail authorities can refuse a warrant without the arrestee’s
age.48
41
42
Id.
43
Id at Sub-Section (2).
44
Id at Sub-Section (3).
45
Money v Leach, 1 WB 555.
46
Re Phips, 11 WR 730 (Eng); Re James Hastings, 9 Bom HCR 154; Alter Caufman v Govt of Bombay, (1894)
ILR 18 Bom 636; Mahajan Sheikh v Emperor, (1914) ILR 42 Cal 708.
47
Kandan Narayanan v State, AIR 1952 TC 459.
48
Sanjay Suri v Delhi Administration, AIR 1988 SC 414 [LNIND 1987 SC 883].
21
CHAPTER 5
WARRANTS IN OTHER COUNTRIES
5.1)
United Kingdom
The Magistrates Court Act of 1980 was introduced by Parliament to consolidate the
procedures governing the magistrates’ courts in England and Wales, based on the Law
Commission’s findings. The Act applies civil and criminal court practises and processes as
well as justice scribe duties in magistrates’ courts. 49 The Magistrate’s Courts usually don’t
deal with indictable offences as those offences are tried in the Crown Court. However, the
procedure is initiated by the court and then transfers the case to the Crown Court.
Under Sec 1 of The Magistrates’ Court Act, The Justice issues a warrant of arrest against any
person who is under suspicion of committing an offence and such a warrant needs to be in the
mode of writing.50 Sub-Section 3 of the act, states that in order for the warrant to be issued,
the perp must be either 18 or above unless, he/she has committed a crime which is serious or
punishable with imprisonment or the his/her address is not available for a summons. Sub
Section 4A states that unless the Director of Public Prosecutions gives his consent, a
prosecutor cannot issue a warrant for a qualifying offence such as piracy, hijacking etc
outside of the UK or an abetment offence leading to a qualifying offence. 51 The justice of the
court may issue a warrant to the officer at any given time if, the offence can be classified as
an indictable offence. A single justice/judge is enough to grant a warrant.52
A search warrant is governed by many legislations in UK. The most common acts are the
Theft Act1968, The Misuse of Drugs Act 1971. A police officer needs to approach the
magistrate with the appropriate sections of the act along with Section 15 of The Police and
Criminal Evidence Act, 1984.53 The Divisional Court, in a case held that, It was emphasised
that all of the necessary supporting evidence to justify the warrant must be included in the
financial documentation provided. A record should be kept of any further information that the
49
Law Teacher, Magistrates Court Act 1980 https://www.lawteacher.net/acts/magistrates-court-act-1980.php
(Last Visited Apr. 07 2021).
50
Magistrates’ Courts Act, 1980, § 1, No. 43, Acts of Parliament, 1980 (UK).
51
Id.
52
Id.
53
Richard Stone, Impossible conditions for search warrants, 155 NLJ, 1710 (2005).
22
magistrate requires in order to verify that the warrant was valid. 54 In the case of R (Cabot
Global Ltd and Others) v Barkingside Magistrates’ Court and Another, The Police
confiscated computers, mobile phones etc from the scene where it was alleged that the
claimants were selling parts of a car which had been altered illegally. The claimants bought
the suit of judicial review challenging the search warrant’s legality as the police cannot
remove items and should instead ask for documents. The Court dismissed this appeal and
held that the term ‘materials’ in Sec 8 of The PaCE Act, 1984 has wider meaning to article
which could contribute in finding of incriminating evidence.55
5.2)
Canada
In Canada, similar to UK, many different acts and povisions include warrants. However, the
mostly common law of warrant is governed by The Criminal Code, 1985.
There are 5 types of warrants under Canadian Law, however the most important and relevant
to the current study are Arrest warrants and Search Warrant.
An arrest warrant issued by a court allows a peace officer to present the arrestee in the court
of law. Sec 511 of the code lays down the essentials required for an arrest warrant. The
warrant should contain the description including the name of the arrestee, the relevant offence
and sections, jurisdiction of the court. A judge in his own discretion may specify the duration
till which the warrant remains deactivated and if the arrestee shows up at the court on his
own, the warrant is said to be executed.56
In Canada, A peace officer can issue a warrant through telephonic means if the circumstances
do not allow him to be present in person or if the offence is serious nature that do not allow
the peace officer to be present in person, then under both the circumstances, the peace officer
can send the relevant and mandatory information such as the nature of the offence and the
circumstances disallowing the presence of the peace officer through the telephonic means and
the judge of the court of that jurisdiction can send the warrant through telephonic means. The
same is possible for issuing search warrants too.57
54
Redknapp v Comr of the City of London Police Department, [2008] EWHC 1177 (Admin).
55
R (Cabot Global Ltd and Others) v Barkingside Magistrates' Court and Another, [2015] EWHC 1458.
56
57
23
CHAPTER 6
CONCLUSION AND ANALYSES
Although, arresting an individual is not a punishment itself which has been acknowledged
universally. However, the dilemma and the question asked is not, whether arresting an
individual is a punishment given by the law, it is the conflict between the duties of those who
arrest and the rights of those who get arrested. Each country has their own set of codes where
the procedure has been encrypted, where each issue has been tried to addressed.
In India, The Code of Criminal Procedure, 1973 governs the criminal procedure. The
procedure of Arrest and the rights of the arrestee have been stated in another chapter which
makes the procedure of arrest in India very unique and peculiar. Section 41 to 46 lay down
the instances where police and stated individuals can arrest a person. Most notable feature is
the provision, which forbids the arrest of a woman after the sun has set and arrest is only
possible if a female member of the law enforcement arrests a woman herself. The rights of
the arrestee have been mentioned in various sections of The Code based on the articles of our
Constitution. Various cases such as the D.K.Basu case have contributed as precedents to
enhance the efficiency of police making legal arrest which cannot give any scope to the perp
of being acquitted on the basis of faulty procedure.
In UK, the law of arrest is similar to that of India and Canada, however, the Indian Law is
much more detail orientated with the rights and the process stated broadly in different
provisions. In UK, the precedents outnumber those of India, which could be a possible
explanation for the lack of detailed provisions. However, the language in which the law is
framed and easier for the lords to decipher and use the particular law to pass accurate
judgements. Canada, being a colony of UK has very similar laws regarding the arrest. The
most notable difference between Canadian law and England’s, is the Canadian Charter is
used along with the Criminal Code of Canada, this safeguards the citizens of Canada,
especially those prone to unlawful arrest on the basis of their race, caste and sex.
Thus, it can be concluded that the law of arrest is framed much better in India than UK and
Canada. However, the system is much better in UK and Canada as in India it has been
noticed that the abuse of power by the government and the law enforcement agencies is on a
much higher scale than the aforesaid countries. Population and lack of education are the
24
biggest reasons why India still witnesses such mishaps despite of such brilliant legal
framework.
Warrants under the Indian Law, too, are drafted brilliantly. The Code of Criminal Procedure,
1973 governs the laws regarding warrants which includes the types of warrants too, but not
precisely, nowhere in the code have, the warrants been defined, the language of the Code can
help the jurists analyse three different types of warrants. These are bailable, non-bailable and
search warrants. Although, the code has been framed brilliantly, some loopholes leave the
scope for the law enforcement agencies to abuse the power granted to them. Even though, it
has been stated that a bailable warrant is needed to arrest someone unless the act is of a
serious nature or is being committed in front of the officer, the code in its provision can
enable the officer for arresting a person who does not answer his questions regarding his
identity. Thus, many people have experienced unnecessary harassment by the law
enforcement agencies.
The law governing in England is rather confusing with different provisions in their own
capacity granted by the rule of law, have provisions for issuing warrants for different crimes.
This would not be a problem if only two or three statues include a warrant for the crimes they
govern and sanction. The Police and Criminal Evidence Act 1984 is the most common one
however the nature of the rest invalidate the authority of this statute resulting into many
conflicts and clashes within the different agencies. In Canada, warrants can be defined pretty
much the same as UK, however, the mode of issuing the warrants through telephones and
other electronic means diminishes the handicap of immobility within the peace officers.
In India, the adoption of telephonic means of issuing warrants, formally can create a vast
difference in reducing the arbitrariness by the police and other agencies. Although, the most
generic solution to improvising the laws would be through amendments being on the same
page as the world as it progresses and the awareness of the same among the masses.
25
BIBLIOGRAPHY
Statutes
 The Code of Criminal Procedure, 1973.

 The Police and Criminal Evidence Act,1984
 The Criminal Code, 1985,
 Magistrates’ Courts Act, 1980
Journal Articles
 K.K. Nigam, Due Process Of Law: A Comparative Study Of Procedural Guarantees

Against Deprivation Of Personal Liberty In The United States And India, 4 Journal of
The Indian Law Institute 99-135, 99-100 (1962).
 Stuart Hall, From Scarman to Stephen Lawrence, 48 History Workshop Journal 187-
197, (1999).
 William Renwick Riddell, Criminal Procedure in Canada, 3 Journal of the American
Institute of Criminal Law and Criminology 28-31, 28 (1912).
Books
 R.C Macleod & David Schniederman, Police Powers in Canada: The Evolution and
Practice of Authority, 356 (University of Toronto Press 1994)
 Richard Stone, Impossible conditions for search warrants, 155 NLJ, 1710 (2005).
Case Laws
 Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, Patna [1979 AIR
1369].
 Khatri And Others vs State Of Bihar & Ors [1981 SCC (1) 627]
 Sukh Das vs Union Territory of Arunachal Pradesh [1986 AIR 991].
26
 Nandini Satpathy vs Dani (P.L.) And Anr [1978 AIR 1025].

 Shri D.K. Basu,Ashok K. Johri vs State Of West Bengal,State Of U.P [1997 1 SCC
416].
 Joginder Kumar v. State of U.P, (1994) Supreme Court Cases 260.
 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
 O’hara v. Chief Constable of RUC, [1997] AC 286.
 Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.
 R. v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38.
 Jagdish Narain v Emperor, AIR 1940 All 178.
 State Vs. Dawood Ibrahim Kaskar, AIR 1997 S.C. 2494.
 Inder Mohan Gowswamy and Anr. Vs. State of Uttaranchal and other, (2007)12 SCC
1.
 Money v Leach, 1 WB 555.
 Re Phips, 11 WR 730 (Eng); Re James Hastings, 9 Bom HCR 154; Alter Caufman v
Govt of Bombay, (1894) ILR 18 Bom 636; Mahajan Sheikh v Emperor, (1914) ILR
42 Cal 708.
 Kandan Narayanan v State, AIR 1952 TC 459.
 Sanjay Suri v Delhi Administration, AIR 1988 SC 414 [LNIND 1987 SC 883].
 Redknapp v Comr of the City of London Police Department, [2008] EWHC 1177
(Admin).
 R (Cabot Global Ltd and Others) v Barkingside Magistrates' Court and Another,
[2015] EWHC 1458.
27

Burhanuddin Patanwala CRPC TEE

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THE CODE OF CRIMINAL PROCEDURE

A COMPARATIVE ANALYSES OF LAWS OF ARRESTS AND

BURHANUDDIN PATANWALA (81022019035)

UNDER THE GUIDANCE OF

DR. SAURABH CHATURVEDI

SCOPE OF RESEARCH AND RESEARCH METHODOLOGY

Aims of the paper:

- Charles-Louis de Secondat, baron de la Brède et de Montesquieu, The Spirit

Generally, a person who violates a law is arrested or detained by a proper procedure as

There are two types of arrests as described in the CrPC:

● An arrest made following the orders of a Magistrate.

property or is a state criminal, anyone who has performed a cognizable offence, is

1. Right to know the arrest grounds

• Anyone who is about to commit an offence

• Anyone who is in the act of committing an offence

• Anyone whom he has reasonable grounds for suspecting to be committing an offence.

• Anyone who is guilty of the offence

• Anyone whom he has reasonable grounds for suspecting to be guilty of it.”18

(b) Correspondingly; as regards to ascertaining the person’s address

(iii) causing loss of or damage to property

(iv) committing an offence against public decency

In the judgement of Hill v. Hamilton-Wentworth Regional Police Services Board, The

1. Indictable offence or in the process of committing one.

1. The right to remain silent when questioned by the police.

 The Code of Criminal Procedure, 1973.

 Magistrates’ Courts Act, 1980

 K.K. Nigam, Due Process Of Law: A Comparative Study Of Procedural Guarantees

 Nandini Satpathy vs Dani (P.L.) And Anr [1978 AIR 1025].

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