CRPC 5

POWERS OF THE POLICE AND AID TO

THE MAGISTRATE AND POLICE (36-40)
• Section 36 – Powers of superior officers of police
• Police officers superior in rank to an officer in charge of a police station
may exercise the same powers, throughout the local area to which
they are appointed, as may be exercised by such officer within the
limits of his station
• Section 37 – Public when to assist Magistrates and police
• Every person is bound to assist a Magistrate or police officer
reasonably demanding his aid-
• in the taking or preventing the escape of any other person whom such
Magistrate or police officer is authorised to arrest; or
• in the prevention or suppression of a breach of the peace; or
• in the prevention of any injury attempted to be committed to any
railway, canal, telegraph or public property
• Section 38 – Aid to person other than police officer,
executing warrant
• When a warrant is directed to a person other than a
police officer, any person may aid in the execution of
such warrant, if the person to whom the warrant is
directed be near at hand and acting in the execution of
the warrant
• Public to give information of certain offenses (Section 39) -
• Chapter IV Powers Of Superior Officers Of Police Section 39 (1) of the Code of Criminal Procedure
Provides that, every person, aware of the commission of , or of the intention of any other person to commit,
any offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely -
• (i) sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in
Chapter VI of the said Code);
• (ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquility specified in
Chapter VIII of the said Code);
• (iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
• (iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs,
etc.);
• (v) sections 302, 303 and 304 (that is to say, offences affecting life);
• (vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in
order to the committing of the theft);
• (vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);
• (viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);
• (ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against property);
• (x) sections 449 and 450 (that is to say, offence of house-trespass);
• (xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and
• (xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank
notes),shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the
person so aware, forthwith give information to the nearest Magistrate or police officer of such commission
or intention.
• Duty of officers employed in connection with the affairs of a village to
make certain report (Section 40) -
• According to Section 40 (1) of the Code of Criminal Procedure 1973, Every
officer employed in connection with the affairs of a village and every
person residing in a village shall forthwith communicate to the nearest
Magistrate or to the officer in charge of the nearest police station,
whichever is nearer, any information which he may possess respecting-
• (a) the permanent or temporary residence of any notorious
receiver or vendor of stolen property in or near such village;
• (b) the resort to any place within, or the passage through, such
village of any person whom he knows, or reasonably suspects, to be a
thug, robber, escaped convict or proclaimed offender;
• (c) the commission of, or intention to commit, in or near such
village any non-bailable offence or any offence punishable under section
143, section 144, section 145, section 147, or section 148 of the Indian
Penal Code(45 of 1860);
•
• (d) the occurrence in or near such village of any sudden or unnatural death or of any death
under suspicious circumstances or the discovery in or near such village of any corpse or part of a
corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or
the disappearance from such village of any person in circumstances which lead to a reasonable
suspicion that a non-bailable offence has been committed in respect of such person;
• (e) the commission of, or intention to commit, at any place out of India near such village
any act which, if committed in India, would be an offence punishable under any of the following
sections of the Indian Penal Code,(45 of 1860) namely, 231 to 238 (both inclusive), 302, 304,
382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450, 457 to 460 (both inclusive), 489A,
489B, 489C and 489D;
• (f) any matter likely to affect the maintenance of order or the prevention of crime or the
safety of person or property respecting which the District Magistrate, by general or special order
made with the previous sanction of the State Government, has directed him to communicate
information.
• In this Section (40) 'village' includes village-lands and the expression 'proclaimed offender'
includes any person proclaimed as an offender by any Court or authority in any territory in India
to which this Code does not extend, in respect of any act which if committed in the territories to
which this Code extends, would be an offence punishable under any of the following sections of
the Indian Penal Code,(45 of 1860) namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435,
436, 449, 450 and 457 to 460 (both inclusive)
• The words "officer employed in connection with the affairs of the village" means a member of
the panchayat of the village and includes the headman and every officer or other person
appointed to perform any function connected with the administration of the village.
 ARREST OF PERSONS (41 TO 60)
• Arrest by the police without a warrant (Section 41: CrPC)
• Section 41 of the Code of Criminal Procedure (the Code from hereinafter) contains the law
for arrest by the police without a warrant. A long list has been provided. Following are some
of the items from the list:
• When a person commits a cognizable offense in the presence of a police officer
• The cognizable offense is defined in section 2(c) of the Code. When a particular offense is
designated as such in Schedule I of the Code as a cognizable offense, it is called a cognizable
offense. Cognizable offenses are usually offenses that are serious in nature.
• 2. When a reasonable complaint is made against a person or credible information has been
received, or a reasonable suspicion exists that such person has committed a cognizable
offense punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine if the following conditions are
satisfied:
• the police officer has reason to believe based on such complaint, information, or suspicion
that such person has committed the said offense;
• the police officer who is arresting is satisfied that the following conditions have been fulfilled-
• To prevent such person from committing any additional crime; or
• For proper facilitation of the investigation of the crime; or
• To stop such person from causing the proof of the crime to disappear or tampering with such
evidence in any manner; or
• The person so being arrested is a proclaimed offender by the Central or the State
Government.
• When the person being so arrested is in possession of the stolen property and
who may reasonably be suspected of having committed an offense with reference
to such thing.
• When the person being so arrested obstructs a police officer while in the
execution of his duty.
• When the person being so arrested has escaped or attempted to escape from
lawful custody.
• When the person being arrested is reasonably suspected of being a deserter from
any of the Armed Forces of the Union.
• Who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists,
of his having been concerned in, any act committed at any place out of India
which, if committed in India, would have been punishable as an offense, and for
which he is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India.
• When the person being arrested is a released convict, commits a breach of any
rule under subsection (5) of section 356.
• A requisition is made or received from any other police
officer. The requisition must specify the person to be
arrested with the crime that was committeed by him.
The requisition may be in writing or be oral.
• For all the above situations, the police have the power
to make arrests. In all the other cases, a warrant is
required from the magistrate before making an arrest.
The section is not exhaustive. There are various other
Acts like Arms Act, Explosives Act, etc, which confer such
powers on police officers.
• The power to arrest is also given to public servants
under other statutes. The Custom Officers, Officers of
Enforcement Directorate, Narcotic Officers, etc also have
the right to arrest persons under different statutes.
• Section 41 is subject to other provisions as well. In the
State of Maharashtra v. Christian Community Welfare
Council of India [AIR 2004 SC 7], guidelines were laid
down for the arrest of female persons.
• It was said that the arresting authority should make all
possible efforts to assure the presence of a woman
constable.
• But if such presence cannot be assured and delay to
the investigation cannot be afforded, the arresting
officer can himself affect the arrest for lawful reasons at
any time of the day or night, even in the absence of a
woman constable. Reasons for doing so must be
recorded.
• The police officers have to follow certain procedures whilst
arresting a person. Following procedures need to be followed:
• Every police officer, who is making an arrest, shall mandatorily
have a precise, perceptible, and unambiguous recognition of his
name, which will assist in easy identification of the police officer.
The reason for the same is that there must be a clear
identification of the arresting police officer and to curb
personation of police officers.
• A memorandum of arrest shall be prepared by every police
officer making an arrest. The memorandum shall be signed by at
least one member of the family of the person who has been
arrested. If no family member is available, then it must be signed
by at least one respectable member fo the locality where the
arrest has been made.
• The memorandum so prepared must be signed by the person so
arrested
• It the duty of the police officer making the arrest to inform the person so arrested
that he has the right to inform of the arrest to his family members or family. But if
the memorandum above mentioned is signed by a member of the family, then the
police officer is not obligated to inform the person so arrested of the said right.
• The police officer making the arrest needs only to actually physically touch or
confine the body of the person so arrested, unless there is voluntary submission to
custody by the person being arrested by word or action. In simple words, if the
person being arrested voluntarily submits to custody, then there is no need to
physically touch or confine the person.
• A male officer is not to touch a female arrestee.
• If the person forcibly resists the endeavour to arrest him, or attempts to evade the
arrest, then then arresting police officer or any other person may use all means
necessary to make the arrest.
• When it is intended to arrest a woman after sunset and before sunrise, the woman
police officer must mandatorily obtain the previous permission in writing of the
Judicial Magistrate of the first class within whose jurisdiction the crime is
committed or arrest is to be made. This provision has been inserted by the Code of
Criminal (Amendment) Act, 2005.
• The person so arrested has to be taken to the nearest magistrate within 24 hours
of the arrest. This time excludes the time to travel.
• 43. Arrest by private person and procedure on such arrest.
• (1) Any private person may arrest or cause to be arrested any
person who in his presence commits a non- bailable and
cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over
any person so arrested to a police officer, or, in the absence of
a police officer, take such person or cause him to be taken in
custody to the nearest police station
• 44. Arrest by Magistrate.
• (1) When any offence is committed in the presence of a
Magistrate, whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to
arrest the offender, and may thereupon, subject to the
provisions herein contained as to bail, commit the offender to
custody.
• Procedure of arrest
• There is no complete code which provides the procedure
as a whole. Still, Section 46 explains how arrest is made.
• It is the only place that gives the meaning of arrest.
Section 46(1) provides that in an action of arrest the
police officer or the person making the arrest shall
actually touch or confine the body of the person arrested.
• In the case of women, her submission to the custody of
an oral intimation of arrest shall be presumed and unless
the police officer is female, she shall not be touched by
the police officer at the time of time. But in exceptional
situations, contrary to what is mentioned can be done.
• According to Section 46(2), the police are authorised to use
reasonable amount or means of force to effect the arrest in cases
where the person being arrested forcibly resists or attempts to evade
arrest.
• Recently what we saw in the Hyderabad Rape case(2019) can be a
good example. The police officer using the power under this provision
used an amount of force to prevent the accused from escaping.
Whether the amount of force applied was reasonable or not is a
question which will be inquired by the court.
• Section 46(3) does not give the right to cause the death of the person
who is not accused of an offence. The punishment in such cases is
death or imprisonment for life.
• Section 46(4) says that except in certain conditions a woman cannot
be arrested after sunset and before sunrise and where such
exceptional conditions exist, the woman police officer by making a
written report can obtain the prior permission of the Judicial
Magistrate with the local jurisdiction to make an arrest.
• Additional powers for effecting arrest search of place
• Section 47 of CrPC provides for the search of place entered by
place sought to be entered. It further provides that the person
having the warrant has the duty to enter the premises of the
person being arrested. If the person is not able to easily
ingress the premises or is not allowed to enter, then they have
the authority to break open the door. It is done to take the
person by surprise.
• But if there is any female occupying the premises then the
person arrested has to give notice to that female to withdraw
and shall afford every reasonable facility for withdrawing and
they may break the apartment.
• Any police officer or person making the arrest is authorised to
break open the door in order to liberate himself if he is
detained in that process.
• Right to be informed of the grounds of arrest
• Article 22 of the Constitution expressly provides Protection to an
accused against arrest and detention
• Article 22(1) says that no person who has been arrested shall be
detained in custody without being informed of the grounds of
arrest and nor shall be denied the right to be consulted and
defended by a lawyer of choice.
• Section 50(1) CrPC also mentions that every police officer or any
other person arrested without a warrant has the duty to inform
all the particulars of the offence to the accused forthwith
(immediately). The time duration between which it is essential to
inform the accused should be reasonable. If the police officer or
the person arresting skips this right then the accused can move
to the court under Article 32. The petitioner would be entitled to
a writ of Habeas Corpus which can result in their release.
• Right to be released on bail
• Section 50(2) CrPC provides that “where a police officer arrests any
person other than a person accused of a non-bailable offence without
warrant, he has the duty to inform the arrested person that he is
entitled to be released on bail and he may arrange for sureties on his
behalf.” This will certainly be of help to people who may not know about
their rights to be released on bail in case of bailable offences. As a result,
this provision may to an extent, improve the relationship of the people
with the police and reduce the discontentment against them.
• Right to be produced before a magistrate
• Article 22(2) of the Constitution provides that every person who is
arrested should be presented before the nearest Magistrate within 24
hours of such arrest, excluding the time of journey from the place of
arrest to the place of magistrate. No person will be detained in custody
of the police beyond the said period without the authority of the
magistrate.
• 53. Examination of accused by medical practitioner at the request
of police officer.
• (1) When a person is arrested on a charge of committing an
offence of such a nature and alleged to have been committed
under such circumstances that there are reasonable grounds for
believing that an examination of his person will afford evidence as
to the commission of an offence, it shall be lawful for a registered
medical practitioner, acting at the request of a police officer not
below the rank of sub- inspector,and for any person acting in
good faith in his aid and under his direction, to make such an
examination of the person arrested as is reasonably necessary in
order to ascertain the facts which may afford such evidence, and
to use such force as is reasonably for that purpose.
• (2) Whenever the person of a female is to be examined under this
section, the examination shall be made only by, or under the
supervision of, a female registered medical practitioner
• S. 53 A
• Examination of person accused of rape by medical practitioner
• Description
• When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape
and there are reasonable grounds for believing that an examination of his person will afford evidence as
to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a
hospital run by the Government or by a local authority and in the absence of such a practitioner within
the radius of sixteen kilometers from the place where the offence has been committed by any other
registered medical practitioner, acting at the request of a police officer not below the rank of a sub-
inspector, and for any person acting in good faith in his aid and under his direction, to make such an
examination of the arrested person and to use such force as is reasonably necessary for that purpose.
• The registered medical practitioner conducting such examination shall, without delay, examine such
person and prepare a report of his examination giving the following particulars, namely;
• the name and address of the accused and of the person by whom he was brought,
• the age of the accused,
• marks of injury, if any, on the person of the accused,
• the description of material taken from the person of the accused for DNA profiling, and”.
• other material particulars in reasonable detail.
• The report shall state precisely the reasons for each conclusion arrived at.
• The exact time of commencement and completion of the examination shall also be noted in the report.
• The registered medical practitioner shall, without delay, forward the report of the investigating officer,
who shall forward it to the Magistrate
• 57. Person arrested not to be detained more than twenty-
four hours. No police officer shall detain in custody a
person arrested without warrant for a longer period than
under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of
a Magistrate under section 167, exceed twenty- four
hours exclusive of the time necessary for the journey
from the place of arrest to the Magistrate' s Court.