BNSS - Sec 35: When police may arrest without warrant
Sec 41: (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—1[(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offence 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, namely:—
(i) the police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or
tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot
be ensured, and the police officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under
the provisions of this sub-section, record the reasons in writing for not making the arrest.];
(ba) against whom credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than seven years whether
with or without fine or with death sentence and the police officer has reason to believe on the basis of
that information that such person has committed the said offence;]
(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 therefrom that the person might lawfully be
arrested without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or
against whom a complaint has been made or credible information has been received or reasonable
suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a
Magistrate.]
CrPC (Amendment) Act, 2008 [clause 5] - This clause amends section 41 relating to power of police to arrest without warrant. It amends clauses (a) and (b) of sub-section (1) so as to provide that the powers of arrest conferred upon the police officer must be exercised after reasonable care and justification and that such arrest is necessary and required under the section. Amendment is also made in sub-section (2) of section 41 so as to provide that subject to the provisions of section 42 relating to arrest on refusal to give name and residence, no person shall be arrested in a non-cognizable offence except under a warrant or order of a Magistrate.
COMMENT
This section enumerates the categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. General provisions contained in Chapter IV and especially section 41(1)(d) of the code will have to be read in conjunction with the provisions contained in sections 155 and 156. If section 155(2) prohibits a police officer from investigating a non-cognizable offence without an order of the Magistrate, then in respect of such an offence a police officer cannot exercise the powers contained in section 41(1)(d). Section 41 is a depositary of general powers of the police officer to arrest, but this power is subject to certain other provisions contained in the Code as well as in the special Statute to which the Code is made applicable. The powers of the police to arrest a person without a warrant are only confined to such persons who are accused or concerned with the offences or are suspects thereof. A person who is alleged to have been in possession of an illicit are once upon a time can neither be called presently an accused not a suspect thereof.
SCOPE
The section is not exhaustive. There are various other Acts, eg, Arms Act, 1959, Explosives Act, 1884 etc, which also confer such powers on police officers. The words "police officer" are not defined in the Code. Apart from police officers, Magistrate and private individuals have also been empowered to arrest a person under certain circumstances. Power of arrest has also been conferred upon certain officers of other departments under various laws other than Code of Criminal Procedure such as Custom Officers, Officers of Enforcement Directorate, Narcotic Officers, etc. The Supreme Court laid down that taking of a person into judicial custody is followed after the arrest of the person by the Magistrate on appearance or surrender. In every arrest, there is custody but not vice versa and "custody" and arrest are not synonymous terms.
This section is not controlled by section 55 which requires a written order when the arrest is without a warrant. It is not incumbent upon a superior officer of the police to comply with the formalities mentioned in section 55.
Clause (b) - "Credible information" or "a reasonable suspicion" - Information or suspicion upon which an arrest can be made by a police officer must be based upon definite facts and materials placed before him, which the officer must consider for himself, before he can take any action. It is not enough for arrest of a person under this section that there was likelihood of cognizable offence being committed in the future. The existence of a warrant is equivalent to credible information, and it matters little that the warrant is not entrusted to the police officer.
When an arrest is made under suspicion, the police have to carry out the investigation without unnecessary delay and the Magistrate has to be watchful as the power of arrest without warrant under suspicion is liable to be abused. The Supreme Court has held that in cases relating to dowry harassment, police officers should not automatically make arrests. The practice of mechanically reproducing in case dairy all or most of the reasons contained in section 41 of the Code for affecting arrest should be discouraged and discontinued.
[Clause (c)] "Any person who has been proclaimed as an offender"- The expression "proclaimed offender" has been defined in section 42(2) (ii).
[Clause (i)] "Requisition"- The word requisition is quite general and covers a telephonic message. A police officer can order the arrest of a person by means of a telephonic message. This clause not categorically uses the words "whether written or oral".
Arrest of female person - For the arrest of a female person, 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 investigation cannot be afforded, the arresting officer can himself effect the arrest for lawful reasons at any time of the day or night, even in the absence of a woman constable.
Medical examination after arrest - Directions were issued by the High Court for getting the accused person medically examined at the time of arrest or during his police custody. The Supreme Court modified the directions in view of its own earlier decision.
Section 41A - Notice of appearance before police officer - —(1) [The police officer shall], in all cases
where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a
notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the
terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of
the opinion that he ought to be arrested.
[(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to
identify himself, the police officer may, subject to such orders as may have been passed by a competent
Court in this behalf, arrest him for the offence mentioned in the notice.]
COMMENT
Where the arrest was not made by following the procedure of arrest and section was not followed, the Supreme Court treated it as violation of Article 21 and granted a sum of Rs. 5,00,000 towards compensation to each of the petitioners to be paid by the State within three months hence.
Arrest of a person even in case of cognizable offences is not mandatory where the offence is punishable with maximum sentence of seven years imprisonment. The provisions of section 41A make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under clause (u) of sub-section (1) of the amended section 41. But unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under section 41A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary and unwarranted arrest and the right to personal liberty.
BNSS Sec 36: Procedure of arrest and duties of officer making arrest
Sec 41B - Procedure of arrest and duties of officer making arrest - Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a
respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that
he has a right to have a relative or a friend named by him to be informed of his arrest.
41C. Control room at districts.—(1) The State Government shall establish a police control room—
(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to time, details
about the persons arrested, nature of the offence with which they are charged and maintain a database for the
information of the general public.
BNSS Sec 38: Right of arrested person to meet an advocate of his choice during interrogation
41D. Right of arrested person to meet an advocate of his choice during interrogation.—When any
person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.]
CrPC (Amendment) Act, 2008 [Clause (6)] - This clause inserts new sections 41A, 41B, 41C and 41D. Section 41A provides that the police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence to appear before him. Section 41B lays down the procedure of arrest and duties of officer making arrest. Section 41C requires the State Government to establish a police control room in every district and at the State level. where the names and addresses of the persons arrested, nature of offences with which they are charged, and the name and designation of the police officers who made the arrest are to be displayed. Section 41D makes provisions for right of the arrested persons to meet an advocate of his choice during the interrogation, though not throughout interrogation.
BNSS Sec 39: Arrest on refusal to give name and address
Sec 42 - Arrest on refusal to give name and address - (1) When any person who, in the presence of a
police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on his
executing a bond, with or without sureties, to appear before a Magistrate if so required:
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties
resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from
the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
A step little short of arrest is the ascertainment of the name and residence of a person. The section applies only to a person (1) who commits a non-cognizable offence in the presence of a police officer, or (2) who is accused of committing such offence before such officer. If the name and address are ascertained or are otherwise known to the police officer, the person is to be released on his executing a bond to appear before a Magistrate. If the person does not give his name or residence or gives a name and residence which the police officer believes to be false, he may be taken into custody pending the ascertainment. He can on no account be detained beyond 24 hours but should be placed before a Magistrate.
BNSS Sec 40: Arrest by private person and procedure on such arrest.
Sec 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.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the
demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
COMMENT
A private person is entitled to arrest or cause to be arrested any person (1) who in his view commits a non-bailable and cognizable offence, or (2) who is a proclaimed offender. He must without unnecessary delay make over such person to a police officer, or either take him or cause him to be taken to the nearest police station. If such person is liable to be arrested under section 41, he shall be rearrested by the police officer. If he is believed to have committed a non-cognizable offence, his name and residence are to be ascertained. If he is believed to have committed no offence, he is to be set at liberty.
"In his presence" - These words cannot be extended to mean "in his opinion" or "in his suspicion". Where, therefore, an individual seeing a person fleeing with a knife in his had pursued by others, tries to arrest him, his exercise of power of arrest cannot be brought under this section.
BNSS Sec 41: Arrest by magistrate
Sec 44: Arrest by Magistrate
There is a subtle difference between clause (1) and clause (2) of section 44. Under clause (1), the Magistrate has been given the power to arrest a person who has committed an offence in his presence, as well as to commit him to custody. Under clause (2), the Magistrate has power to arrest a person who is suspected of having committed an offence but has not been given any power to commit him to custody. The omission of this power to commit such suspect to custody is not accidental but deliberate. In the latter case, committing to custody will have to be done in accordance with section 57 and 167 of the code.
BNSS Sec 42: Protection of members of the Armed Forces from arrest
Sec 45: Protection of members of the Armed Forces from arrest - (1) Notwithstanding anything contained in section 41 to 44 (both inclusive), no member of the Armed forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central government.
(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression State Government were substituted.
Comment
This provision seeks to protect members of the Armed forces from arrest where they do or purport to do something in the discharge of their official duties. They can, of course, be proceeded against after obtaining consent of the Central Government. The State Government is also similarly empowered under sub-section (2) to extend the protection afforded in sub-section (1) to specified class of members of the Force maintaining public order.
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