When Can An Arrest Be Made ?

The law relating to the general arrest of individuals is codified in the provisions of the Code of Criminal Procedure (hereinafter referred to as “CrPC”). Replicating Section 41 of CrPC as below:

“41.When police may arrest without warrant.-

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) 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 offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.”

This section lists nine categories of cases where a person may be arrested without a warrant or an order from a magistrate. Provisions of Chapter IV and Section 41(d) of CrPC will have to be read in conjunction with Sections 155 and 156. As Section 155(2) prevents a police officer from investigating a non-cognizable offense without an order from a magistrate then he cannot exercise powers u/s 41(1)(d). Where the Magistrate orders investigation u/s 156(3) of the Code and the Police has registered an FIR, arrest should depend on the facts and circumstances of the case and should not be resorted to blindly in every case (Jagannath Singh v Ajay Upadhyay 2006 CrLJ 4274).

In the Landmark Supreme Court Judgement of Joginder Kumar v State of UP AIR 1994 SCW 1886, it was held that:

·        No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person.

·        No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.

·        Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom.

·        A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified.

·        Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave Station without permission would do.

An arrest is also recognized to be a part of the investigation and cannot be stayed. The arrest even if it is illegal does not affect the trial of the case. An accused cannot claim a right or a notice of hearing before an arrest is made.

The word “arrest” is not defined in the CrPC. In its ordinary sense, it means the restraint of one’s personal liberty. However, it is necessary that every arrest there must be a custody. If information relating to a cognizable offense is to the knowledge of a police officer, though he has the power to arrest, he can still refrain from arresting and he must exercise this power with caution and circumspection. A person is not liable to be arrested merely on the suspicion of complicity in an offense. If a person is handcuffed without there being any justification, it would violate the person’s fundamental rights.

Section 46 of CrPC replicated as below, details how the arrest must be made:

“46.Arrest how made.-

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.”

While arresting a female, the authority shall make all efforts to have a female constable present. But where the arresting officer is satisfied that the same is not possible and that the accused would impede the investigation if there is any delay in arrest, he may proceed to arrest her.

Finally, Section 60A of CrPC dictates that the provisions of the code relating to an arrest must be strictly adhered to unless any other law for the time being provides for arrest. Therefore we can clearly see that the police officer must be justified with good reasons before arresting someone.