Professional Documents
Culture Documents
Sections 41 and 41A CRPC - Ipleaders
Sections 41 and 41A CRPC - Ipleaders
This article is written by J. Jerusha Melanie and Kishita Gupta. In this article, the authors
have explained the provisions of Sections 41 and 41A of the Code of Criminal Procedure,
1973, which deal with the arrests of people by the police without a warrant.
Table of Contents
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 1/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
1. Introduction
2. Explaining Sections 41 and 41A CrPC
2.1. Section 41 CrPC
2.1.1. Section 41(2) of the Code of Criminal Procedure
2.2. Section 41A of CrPC
3. What is an arrest under CrPC
4. Types of arrest
5. Arrest under Section 41 CrPC
5.1. When police may arrest without a warrant
5.1.1. Person committing a cognizable offence in a police officer’s presence
5.1.2. Person suspected of committing a cognizable offence punishable with imprisonment
for seven years or less
5.1.3. Person suspected of committing a cognizable offence punishable with imprisonment
for more than seven years, or death
5.1.4. Proclaimed offender
5.1.5. Person suspected to be possessing any stolen property
5.1.6. Person obstructing the execution of a police officer’s duty
5.1.7. Person who escapes or attempts to escape from lawful custody
5.1.8. Suspected deserter from any armed forces of the Union
5.1.9. A person suspected to have committed an offence outside India
5.1.10. A released convict breaching any rule made under Section 356(5) of CrPC
5.1.11. Person requested by another police officer to be arrested
6. Notice of appearance under Section 41A CrPC
6.1. Guidelines on issuing a notice of appearance
7. Conclusion
8. Frequently Asked Questions (FAQs)
8.1. Can a police officer arrest me without an arrest warrant?
8.2. What does ‘credible information’ mean under Section 41 of the Code of Criminal
Procedure?
8.3. Can a police officer arrest a suspect on behalf of another police officer?
9. References
Introduction
It is no hidden fact that crimes are increasing every year. In the year 2020, India’s crime
rate was 314.3%, which was an increase of 73.1% compared to the previous year. But
there was a decline in the crime rate in 2021. Such a record-high incidence of crimes
needs to be curbed, and such crimes must be properly investigated. For these reasons,
the police need certain extraordinary powers to quickly arrest someone suspected of
committing a crime without wasting precious moments while waiting for an arrest
warrant. This is where Sections 41 and 41A of the Code of Criminal Procedure, 1973,
come into play. These provisions bestow such powers on the police. Let’s dive into the
article to know more about the two Sections and how they are relevant to the Indian
criminal justice system.
Section 41 CrPC
In accordance with Section 41, any police officer may arrest any of the following people
without a warrant or a court order:
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 2/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
1. Based on the complaint, information, or suspicion, the police officer has grounds to
suspect that the subject has committed the specified offence.
2. The police department is convinced that such an arrest is required for the following
purposes:
3. To stop the offender from destroying or otherwise tampering with the evidence of the
crime; or
4. To forbid such a person from offering any enticement, threat, or promise to anybody
who is aware of the case’s facts in an effort to discourage him from telling the court or
the police officer about those facts; or
While making the arrest, the police officer must write down his justification. But there is
an exception that a police officer must always document the reasons in writing for not
making an arrest, when doing so is not required under the terms of this subsection.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 3/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
1. The police officer must issue a notice ordering anyone against whom a reasonable
complaint has been made, credible information has been received, or a reasonable
suspicion exists that they have committed a cognizable offence to appear before them
or at such other location as may be specified in the notice, in all circumstances where
the arrest of a person is not required under the terms of Section 41(1).
2. It is the responsibility of the individual to whom such a notice is issued to abide by the
notice’s provisions.
3. If the individual receives the notice and complies with it, he will not be arrested for
the offence mentioned in the notice unless the police officers believe that he should be
detained for reasons that will be recorded.
4. Subject to any orders that may have been issued in this regard by a competent Court,
the police officer may, at any time, make an arrest for the offence specified in the
notice if the person in question refuses to comply with the provisions of the notice or
refuses to identify himself.
Further, many Indian courts have attempted to define the term “arrest,” such as in the
case of R.R. Chari v. the State of Uttar Pradesh (1951), where the term “arrest” was held
to be an act of being taken into custody to be officially accused of a crime. The Court
also held that an arrest includes the seizure of an individual.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 4/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
Whereas, in the case of State of Punjab v. Ajaib Singh (1995), the physical restraint used
on an abducted person while they are being recovered, taken into custody, and delivered
to the custody of the officer in charge of the closest camp without any allegations or
accusations of any actual or suspected or apprehended commission by that person of any
offence of a criminal or quasi-criminal nature or of any act detrimental to the State or
the public interest, delivering such person into the custody of the officer in command of
the closest camp in accordance with Section 4 of the Abducted Persons (Recovery and
Restoration) Act, 1949, does not constitute an arrest or detention under Articles 22(1)
and 22(2) of the Constitution.
Generally, the following are the main purposes for arresting someone:
To ensure that the accused attends the trial at the right time;
Under the Code, Chapter V (Sections 41 to 60) deals with the concept and procedure of
making an arrest.
Types of arrest
As afore-mentioned, Chapter V (Sections 41 to 60) of the Code deals with the concept
and procedure of making an arrest. It specifies two kinds of arrest:
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 5/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
On the other hand, Section 41(1) of the Code provides the circumstances when a police
officer can arrest without a warrant from an appropriate magistrate. Section 41(1) is an
exception to the general rule elucidated under Section 41(2).
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 6/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
Further, in the case of M.C. Abraham and Another. v. State of Maharashtra and Others
(2002), the Supreme Court observed that a police officer may make an arrest without a
warrant or a magistrate’s order under Section 41 of the Criminal Procedure Code. The
police officer has discretion in the decision to make an arrest under Section 41 of the
Criminal Procedure Code. The Supreme Court has noted that a police officer is not
obligated to act spontaneously and to always make an arrest as soon as a report is filed.
Further observation shows that the investigating officer may decide whether or not the
accused individual has to be arrested in appropriate circumstances after conducting some
investigation. A police officer is not always required to arrest an accused even if it is
claimed that he has committed a cognizable offence because the ability to make an
arrest is discretionary. The Supreme Court continued by noting that the power must be
used with caution because an arrest is inherently an infringement on the subject’s right
to privacy and does have an impact on the citizen’s standing and reputation. It depends
on the type of people who are accused of committing the cognizable offence and the
alleged nature of the claimed offence. Therefore, power must be used with prudence and
restraint.
The said Section also provides certain necessary conditions to be satisfied before
arresting the suspected person. The conditions are:
The police officer has reason to believe that on the basis of the suspicion, complaint,
or information, the suspect has probably committed the offence, and
To prevent him from either tampering or disappearing with the evidence relating to
the offence;
However, the police officer arresting a suspect under the said Section should record in
writing his reasons for making such an arrest.
In a recent judgement by the Delhi High Court in Pradeep Kumar Tiwari v. State of NCT
of Delhi (2022), it was observed that, when a reasonable complaint has been made,
credible information has been obtained, or a reasonable suspicion exists that a person
has committed a cognizable offence punishable with imprisonment for less than seven
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 7/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
years or which may extend to seven years with or without a fine, the police may act
against that person and effect his arrest, according to Section 41(1)(b) CrPC. However,
the police officer must also be ‘satisfied’ with the ‘presence’ of other requirements,
namely, that he has cause to suspect that the individual has committed the specified
offence based on the complaint, information, or suspicion. Second, he must be
‘confident’ that the arrest was ‘necessary’ to stop the person from committing any other
crimes, to allow for a thorough investigation of the crime, or to stop them from erasing
or otherwise tampering with the evidence of the crime. Additional justifications for an
arrest include preventing the suspect from coercing or threatening anyone who knows
the truth or that it is impossible to guarantee the suspect’s attendance in court when it is
necessary. Most importantly, the police officer must put his justifications in writing while
making the arrest.
The police officer must have reason to believe the suspicion based on the information
received.
It was observed in Cbi v. Surender Kappor Etc (2016) that, according to Section 467 of
the Indian Penal Code, forging a valuable document carries a life sentence or a maximum
penalty of ten years in jail. Therefore, in contrast to Section 41(1)(b) of the Cr.P.C., the
discretion to “not to arrest” is constrained under Section 41(1)(ba).
Proclaimed offender
Section 41(1)(c) of the Code provides that any police officer may arrest any proclaimed
offender. The offender may be proclaimed either by the Code or by any order of the state
government.
The term ‘proclaimed offender’ is elucidated under Section 82 of the Code as any person
absconding or concealing himself so that an arrest warrant issued against him cannot be
executed. So, if any police officer discovers such a proclaimed offender, he may arrest
him without requiring a separate arrest warrant.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 8/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
It was observed in the case of Avinash Madhukar Mukhedkar v. the State of Maharashtra
(1983), it is true that Schedule I of the Criminal Procedure Code describes the type of
offence, whether it is cognizable or not. However, where the offence is committed in
violation of any other legislation, Section 41(1)(d) must be regarded as an exemption to
Schedule I of the Criminal Procedure Code.
A reasonable complaint.
Credible information.
A reasonable suspicion.
Recently, in a case that involved extradition, Section 41(1)(g) came into play. It was
observed by the Madras High Court in Mr. Mohan Karnaker Chandra v. the Inspector of
Police (2008) that it is very evident that extradition proceedings can only be started
against someone who is accused of committing an offence outside of India because an
offence that is committed in India is also punished there. Therefore, in light of Section
41(1)(g) of the Criminal Procedure Code, it is the responsibility of the prosecution to
prove to the court at the time of arrest and production that the person has committed
any crime outside of India that would be punishable as a crime if committed in India.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 9/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
Reasonable suspicion;
Credible information, or
Reasonable complaint.
The said Section reads, “when such a notice is issued to any person, it shall be the duty
of the person to comply with the terms.” So, a notice of appearance legally binds the
suspect to comply with the conditions of the notice. Further, as long as the suspect
continues to comply with the terms of the notice, the police officer can not arrest him,
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 10/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
In the case of Dr. Rini Johar and Another v. the State Of M.P. (2016) the Supreme Court
observed that according to Section 41A CrPC, the police officer must issue a notice
directing the accused to appear before him at a specific location and time where the
arrest of the individual is not necessary by Section 41(1) CrPC. The law requires such an
accused to come before the police officer, and it further stipulates that if the accused
complies with the requirements of the notice, he must not be detained unless the police
officer determines that the arrest is required for reasons that must be documented. The
condition precedent for arrest outlined in Section 41 of the Criminal Procedure Code must
also be met at this point, and the Magistrate will conduct the same level of examination.
The Supreme Court judgement in Arnesh Kumar v. the State of Bihar (2014) made a
significant observation on the arrest by the police officers as per CrPC. The Court
observed that a person accused of an offence punishable by imprisonment for a term
that may be less than seven years or that may extend to seven years with or without a
fine cannot be arrested by a police officer unless the officer is satisfied that the person
has committed the offence, according to Section 41 of the Criminal Procedure Code
(CrPC), which was cited by the court in its analysis of the provision. In addition, it has
been ruled that a police officer must be convinced before making an arrest in these
situations that the arrest is necessary to stop the offender from committing any
additional crimes, to allow for a thorough investigation of the case, to stop the accused
from destroying or otherwise tampering with the evidence, or to stop the offender from
offering a witness anything in exchange for his or her testimony. Additionally, the police
officer must be convinced that the arrest is required for one or more of the objectives
defined in subclauses (a) through (e) of clause (1) of Section 41 CrPC.
Recently, in the judgement of Mukesh Khurana v. State of NCT Delhi (2022), the Delhi
High Court held that the Supreme Court’s positions have been included in the revised
Criminal Procedure Code, particularly with the addition of Section 41A CrPC and changes
to Section 41A CrPC. Therefore, even when detaining someone for a crime carrying a
maximum sentence of seven years in prison, the police must first issue a notice and only
make the arrest if the noticee or suspect refuses to cooperate. Of course, there are other
circumstances under which a police officer may make an arrest, as specified in Section
41(1)(a) and (b) of the Criminal Procedure Code.
The power to release someone on anticipatory bail is extraordinary in nature, and while
this was previously stated in Shri Gurbaksh Singh Sibbia v. the State of Punjab (1980)
and reiterated in Siddharam Satlingappa Mhetre v. the State of Maharashtra (2011), it
would not justify the conclusion that the power must be exercised in exceptional cases
only.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 11/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
1. The state governments must give directions to the police officer to abide by the
requisites mentioned under Section 41 of the Code;
2. The police officers must be provided with a checklist of the sub-clauses of Section 41
of the Code, which should be duly filled in and forwarded to the Magistrate to prove
why the arrest without a warrant was necessary;
3. The notice of appearance should be served on the suspect within two weeks from the
date of the institution of the case.
Conclusion
Section 41 of the Code is both a boon and a bane. It is a boon because using the same,
the police officer will be able to arrest the suspect without wasting time waiting for the
warrant. In the absence of Section 41 of the Code, a police officer who witnesses with his
own eyes someone committing a cognizable offence will have to let go of the accused
even though he knows that he is the culprit. The time wasted in procuring the warrant
will probably result in the suspect escaping from the place of action. So, Section 41
provides ample discretionary powers to arrest any person without a warrant if he
considers the arrest quite pertinent and urgent. However, when not utilised judicially, the
exercise of the powers of a police officer vested under Section 41 may become chaotic.
Such powers are practically unlimited.
Further, Section 41A of the Code, which gives a police officer the power to serve a notice
of appearance on any suspect, may be severely misused. This is because it provides that
the notice can mandate the suspect to appear before the police officer at any ‘such other
place’. Using the term, the police officer may require the suspect to appear literally
anywhere, not just at the police station or headquarters. So, though Sections 41 and 41A
of the Code are advantageous to criminal procedures, there are certain loopholes in them
that may be misused by police officers. Hence, there is an urgent need to bring about
stringent rules as to the extent of application of the said sections.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 12/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
References
Pre-Arrest Notice: Section 41A of the Criminal Procedure Code (lawyersclubindia.com)
A Review Of Section 41A Of The Code Of Criminal Procedure, 1973 – The Law Brigade
Publishers (India)
Provisions pertaining to the Arrest of a Person under the Indian Penal Code, 1860
(ipleaders.in)
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and
various opportunities. You can click on this link and join:
https://t.me/lawyerscommunity
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal
content.
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 13/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
Do you want to build a career in the fastest growing specialisation and get jobs in Big Four, tech
companies, law firms, or with MNCs?
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 14/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
Register now
Name
Your Name
Email
Your Email
Country Code
Select your country Select your country
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 15/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 16/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 17/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
+269 - KM (Comoros)
+1869 - KN (Saint Kitts And Nevis)
+850 - KP (Korea Democratic Peoples Republic Of)
+82 - KR (Korea Republic Of)
+965 - KW (Kuwait)
+1345 - KY (Cayman Islands)
+7 - KZ (Kazakstan)
+856 - LA (Lao Peoples Democratic Republic)
+961 - LB (Lebanon)
+1758 - LC (Saint Lucia)
+423 - LI (Liechtenstein)
+94 - LK (Sri Lanka)
+231 - LR (Liberia)
+266 - LS (Lesotho)
+370 - LT (Lithuania)
+352 - LU (Luxembourg)
+371 - LV (Latvia)
+218 - LY (Libyan Arab Jamahiriya)
+212 - MA (Morocco)
+377 - MC (Monaco)
+373 - MD (Moldova, Republic Of)
+382 - ME (Montenegro)
+1599 - MF (Saint Martin)
+261 - MG (Madagascar)
+692 - MH (Marshall Islands)
+389 - MK (Macedonia, The Former Yugoslav Republic Of)
+223 - ML (Mali)
+95 - MM (Myanmar)
+976 - MN (Mongolia)
+853 - MO (Macau)
+1670 - MP (Northern Mariana Islands)
+222 - MR (Mauritania)
+1664 - MS (Montserrat)
+356 - MT (Malta)
+230 - MU (Mauritius)
+960 - MV (Maldives)
+265 - MW (Malawi)
+52 - MX (Mexico)
+60 - MY (Malaysia)
+258 - MZ (Mozambique)
+264 - NA (Namibia)
+687 - NC (New Caledonia)
+227 - NE (Niger)
+234 - NG (Nigeria)
+505 - NI (Nicaragua)
+31 - NL (Netherlands)
+47 - NO (Norway)
+977 - NP (Nepal)
+674 - NR (Nauru)
+683 - NU (Niue)
+64 - NZ (New Zealand)
+968 - OM (Oman)
+507 - PA (Panama)
+51 - PE (Peru)
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 18/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 19/20
21/05/2024, 18:01 Sections 41 and 41A CrPC - iPleaders
Phone
Your Phone
What do you do?
--Select --
I want to know more about the lawsikho courses
Yes
No
Save my seat
https://blog.ipleaders.in/sections-41-and-41a-crpc/ 20/20