A person arrested by the police without warrant or order from the LD.Magistrate

It is always heard by us that some person are arrested by the concerned Police authority without warrant or without any order of the Ld. Magistrate UNDER THE umbrella of “Investigation”. Even they are denied to meet any relative / advocate/s and/or any friend in order to initiate the process to get the relief against their arrest. The general population do not know regarding the process and its’ misuse and/or abuse.

I think everyone is familiar with the term ‘arrest’ and we use this term quite often in our day to day business and/or social affairs. Generally it is found that a person who does or has done something against the law to be arrested. The definition of the term arrest can be underlined as, “a seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty”. In the criminal proceedings, arrest of a person is an important procedure for bringing an accused before the Hon’ble court and prevent him from escaping.

Needless to say that, after an arrest, a person’s liberty is under full control of the authority by whom he has been arrested. But every deprivation of liberty or physical restraint should not be interpreted as the arrest. Only the deprivation of liberty by a legal authority in a professionally competent and skilful manner amounts to arrest.

The major purpose of arrest is to bring the person before a court and secure administration of law. An arrest also serves the purpose of notifying the society that a particular individual has committed an act which is against the society and act as a remark to deter crime in the future. However, even if a person against whom no accusation has been made can also be arrested for certain purposes like removal in safe custody from one place to another. Arrest should not be confused with custody because both have different meanings. 

It is propounded in a court of law that the penal provision is abused to an unimaginable extent, for in a cruel, ruthless and totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in. Thus, the abuse of the penal provision has vertically risen.

Such a situation brings in a social disaster that has the potentiality to vertically divide the society. The sense of sensitivity and the study of social phenomenon are required to be understood with objectivity. In such a situation, it is obligatory on the part of the legislature to bring in protective adjective law and the duty of the constitutional courts to perceive and scrutinize the protective measure so that the social menace is curbed.

LET us lit the fire and strive to know as “When police may arrest without warrant”. – As a general rule a Police cannot arrest an accused without warrant. However, there are certain exceptional circumstances enumerated in Law under which a Police can make an arrest without warrant.

As per section 41 of the Cr. P. C. (1) any police officer may without an order from a Magistrate and without a warrant, arrest any person—

*[(A) who commits a cognizable offence, in the presence of a police officer;

*(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.

 (c) 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;”’

*[sub-clauses (a) and (b) substituted by Code of Criminal Procedure Amendment act, 2008]

*[(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.” }

*[sub-clause (2) substituted by Code of Criminal Procedure Amendment act, 2008]

*Notice of appearance before police officer, Section 41A deals as follows: –

 (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.”

1*[Clause 41A Inserted by Code of Criminal Procedure Amendment act, 2008 and sub-clause (1) further modified by Code of Criminal Procedure Amendment act, 2010]

**[sub-clause (4) substituted by Code of Criminal Procedure Amendment act, 2010]

Section 41B deals with Procedure of arrest and duties of officer making arrest 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.

In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised.

[1]In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 Cr PC.”

[2]Social Action Forum vs Union of India and Ors. Minstry Law ... on 14 September, 2018 it is observed by the Hon’ble Supreme Court that “We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.” The directions issued in the said case are worthy to note:-

“11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”


26. The aforesaid decision, as is perceptible, is in accord with the legislative provision. The directions issued by the Court are in the nature of statutory reminder of a constitutional court to the authorities for proper implementation and not to behave like emperors considering the notion that they can do what they please. In this context, we may refer with profit to a passage from [3]Joginder Kumar v. State of U.P and others:-


“20. … 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 bona fides 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 person to attend the Station House and not to leave the Station without permission would do.”

[4]In D.K. Basu v. State of W.B., after referring to the authorities in Joginder Kumar (supra), [5]Nilabati Behera v. State of Orissa and others8 and [6]State of M.P. v. Shyamsunder Trivedi and others, the Court laid down certain guidelines and we think it appropriate to reproduce the same:-

“(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”

[7]In Lalita Kumari v. Government of Uttar Pradesh and others10, the Constitution Bench, referring to various provisions of CrPC, adverted to the issue of conducting a preliminary enquiry. Eventually, the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence and, thereafter, proceeded to state thus:-

“As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months‟ delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

From the aforesaid, it is quite vivid that the Constitution Bench had suggested that preliminary enquiry may be held in matrimonial/family disputes.

The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar (supra) are in consonance with the provisions contained in Section 41 Cr P C and Section 41-A Cr P C. Similarly, the guidelines stated in Joginder Kumar (supra) and D.K. Basu (supra) are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy.

An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution and section 57 of the Cr. P. C. to be produced before the magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. And always remember Bail is a rule, jail is an exception’ is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgement of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447). The legal doctrine, in this case, was laid down by Justice V. Krishna Aiyer, who based it on fundamental Rights guaranteed by the constitution of India.


The arrest of a person is directly concerned with his personal liberty ( [8]Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law) and other fundamental rights granted by our great constitution. The freedom of a person should not be curtailed on the basis of mare allegations and/or in the name of investigation.

When the implementation of law is abused by the law enforcing agency, the legislature introduces a protective provision as regards arrest. Needless to say, the courts have ample power to grant pre-arrest bail or popularly called anticipatory bail and even to quash the criminal proceeding totally to stabilize the lawful balance because no court of law remotely conceives of a war between the two sexes.

The courts remain constantly alive to the situation that though no war takes place, yet neither anger nor vendetta of the aggrieved section should take an advantage of the legal provision and harass the other side with influence or espousing the principle of sympathy.

The role of the law enforcing agency or the prosecuting agency is sometimes coloured with superlative empathy being totally oblivious of the sensation to make maladroit efforts to compete with the game of super sensitivity. It is the right , not only, of human being but also the whole living things to use, occupy and enjoy the nature and its’ gifts  by complying with the relevant provisions of  the concerned legislature given to maintain the law and order. So the legislature has been generated to make the life simple, social and remove the hindrances and hence the security agencies shall have to understand these cogent facts and prevent themselves from misusing and/or abusing the due process of law.

1 Section 6 of the Cr. P. C. Amendment Act 2008


[3] 1994 AIR 1349, 1994 SCC (4) 260


[5] 1993 SCR (2) 581


[7](2014) 2 SCC 1  WRIT PETITION (CRIMINAL) NO. 68 OF 2008

[8] Article 21 of the Constitution of India

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