An average individual gets chills when they hear the phrase “arrest by police.” This kind of reaction isn’t caused by a fear of the police; rather, it’s the result of ignorance about the law about when the police can make an arrest. Many questions come up, such as “Can police arrest someone based only on their whims and fancies?” “What is the law regarding arrests made with or without a warrant?” “When can a police officer make an arrest without a warrant?” and so on. This blog post aims to clear up any confusion regarding the circumstances in which police may make an arrest without a warrant under Section 41 of the Code of Criminal Procedure (‘CrPC’).

What is Section 41 CrPC? A Quick Explanation

The Code of Criminal Procedure, Section 41, specifies the conditions under which an arrest without a warrant may be made by a police officer. It is crucial that we comprehend the true meaning of a warrant in order to comprehend this. The phrase is typically applied to an official statement that gives authorization to accomplish something. A warrants case is defined legally as “a case relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding two years” in Section 2(x) of the Criminal Procedure Code. Therefore, only major offences that warrant such a punishment may warrant an arrest by a police officer. Comprehensive guidelines have been supplied under the to prevent police personnel from acting arbitrarily while they are arresting somebody under Code of Criminal Procedure, 1973.

Section 41 CrPC: 9 Points for When Arrest is Necessary under CrPC Sec 41

  1. Section 41(1)(a) gives police officers the authority to make an arrest without a warrant when someone commits a crime while they are in the presence of the police.
  2. CrPC Sec. 41(1)(b): This section permits police to make an arrest upon receiving a reasonable complaint or information, or if there is a reasonable suspicion that an offence that is punishable by imprisonment for a term of less than seven years, or seven years if certain conditions are met, has been committed. According to Section 41(1)(b)(i), there are additional requirements for making an arrest, including the police officer needing to have reasonable suspicion—based on information, complaint, or suspicion—that the offence in question has been committed.

Section 41(1)(b)(ii) of the Code of Criminal Procedure provides an extra set of requirements that satisfy the police officer about the need for an arrest under the following circumstances:

A. To stop additional offences

B. For proper investigation

C. To stop evidence from being tampered with

D. To avoid using coercion, threats, or promises to discourage anyone from sharing information

E. When the person needs to be arrested in order to guarantee their appearance in court

In any event, if an arrest is not necessary, the police must document their reasoning in writing. Apart from the aforementioned, Section 41(1)(ba) of the CrPC stipulates that an arrest can be conducted in case police have reasonable suspicions or get reliable information of a crime that carries a sentence of more than seven years or the death penalty.

  1. If a person has been declared an offender by the Criminal Procedure Code or a State Government decision, they may be arrested under CrPC Sec. 41(1)(c).
  2. Section 41(1)(d): Under this article, an individual may be arrested if they are discovered in possession of stolen property or similar items.
  3. Section 41(1)(e): This provision calls for the arrest of anyone who obstructs a police officer while they are performing their duties or who flees or makes an attempt to flee from detention.
  4. Section 41(1)(f): A person may be taken into custody if there is reason to believe they are a deserter from the Army.
  5. Section 41(1)(g): A person may be arrested in me if the police acquire reasonable evidence that someone has committed an offence outside of India that is also punishable if committed in India.
  6. Section 41(1)(h): This clause gives police officers the authority to make an arrest if a formerly incarcerated person violates Section 356(5) of the CrPC.
  7. Section 41(1)(i): The police may make an arrest following the specified procedure if they receive a requisition from another police officer identifying the person to be detained and the specific reason for the arrest. According to CrPC Section 41(2), an arrest for a non-cognizable offence by the police is only permitted with a warrant or a magistrate’s order, subject to Section 42 CrPC.

Significant rulings on CrPC Sec. 41

Harmony between Public Order and Individual Liberty

In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the Court stopped police officials from making needless arrests of the accused and stopped magistrates from approving arbitrary or mechanical detention. When utilising their authority under Section 41 CrPC, which permits police to make arrests without a warrant, the Court recommended that the authorities find a balance between the rights of the individual and the needs of society.

Unlawful Arrest in Non-Recognisable Offence

When discussing arrests made without a warrant under Section 41 of the CrPC, especially for crimes that are cognizable, the topic of whether a police officer can make an arrest without a warrant for a non-cognizable offence comes up.

The Criminal Procedure Code of 1973, Section 41(2), limits the arrest power of police officers for non-cognizable offences. It is abundantly evident from the ruling in Om Prakash v. Union of India, (2011), 14 SCC 1, that police officials are not authorised to make an arrest without a warrant for crimes that are not immediately recognised. Therefore, unless the facts and circumstances of the case merit it in accordance with Section 41 CrPC, a police officer is not permitted by law to arrest someone who is committing a crime without a warrant.

Adherence to CrPC Sections 41 and 41A to the letter

The Supreme Court required the courts to confirm that they were complying with the pertinent requirements of Sections 41 and 41-A of the Criminal Procedure Code in Satender Kumar Antil v. CBI, (2022) 10 SCC 51. With the words “Any non-compliance would entitle the accused to a grant of bail,” it reaffirmed the significance of adhering to the aforementioned provisions.

Recording Reasons for Arrest under CrPC

Do you believe that a police officer has the right to arrest anyone for any reason at the discretion of the officer? That is untrue, as the Supreme Court ruled in Hema Mishra v. State of U.P., (2014) 4 SCC 453, that police officers are required by Section 41(1) to document their reasons for making an arrest or, in some cases, not making one at all. The Court went on to say that in cases where an arrest is not made in accordance with Section 41(1) CrPC, the police officer is required to compel the accused person to appear in person in accordance with Section 41-A. If the person being accused refuses to identify themselves after receiving notice under Section 41-A, they may be arrested.

How Can a Judicial Officer Be Arrested?

Any accused individual detained by the police must appear before a judge according to criminal law. But what occurs if an arrest is necessary for a judge?

The Court took notice of the peculiar incident in Nadiad, where a Chief Judicial Magistrate (CJM) was handcuffed, trapped, and arrested before being displayed, and ensured that similar incidents would not happen again. In Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406, the Supreme Court established rules that State governments and High Courts must abide by while apprehending Judicial Officers.

Adv. Khanak Sharma

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