Sir, in what situations can the police arrest someone without bringing a warrant from the court?
In Indian criminal jurisprudence, the power of arrest without a warrant is a critical yet sensitive aspect of policing. As an advocate, I must emphasize that while the police are empowered to arrest without a warrant in specific circumstances, such powers are not absolute and must be exercised within the boundaries laid down by law.
The primary legislation that governs arrest is the Code of Criminal Procedure, 1973 (CrPC)—specifically Sections 41 to 60. It lays down the conditions under which the police may arrest a person without first obtaining a warrant from a magistrate. The nature of the offence, the urgency of action, and the potential risk to society or evidence play crucial roles in such decisions.
- Cognizable Offences (Section 41 CrPC)
The police may arrest without a warrant in cases of cognizable offences. These are serious offences where the police are empowered to register an FIR and begin investigation without prior approval from a magistrate. Examples include murder, rape, kidnapping, theft, dacoity, and rioting.
Under Section 41(1), the police may arrest without a warrant if a person:
- Is accused of a cognizable offence punishable with more than 7 years of imprisonment or with death, and there is a reasonable belief based on the complaint or credible information.
- Has committed a cognizable offence in the presence of the police.
- Is a proclaimed offender.
- Possesses stolen property or instruments of crime.
In these cases, the police do not need prior judicial approval, but they must record reasons in writing justifying the arrest, especially post the 2010 amendment to Section 41.
- Arrest Without Warrant in Non-Cognizable Offences
In cases of non-cognizable offences (less serious offences like public nuisance, defamation, etc.), the police cannot arrest without prior permission from a magistrate unless the accused:
- Has failed to comply with a summons or notice under Section 41A CrPC,
- Has attempted to evade arrest or has tampered with evidence or witnesses.
Section 41A was introduced to reduce unnecessary arrests and mandates that a notice of appearance be issued before arresting a person for offences punishable up to 7 years, unless the conditions mentioned above are met.
- Preventive Arrest (Section 151 CrPC)
Police can arrest without a warrant under Section 151 CrPC if they have knowledge that a person is about to commit a cognizable offence, and such an arrest is necessary to prevent the commission of that offence.
However, such an arrest should not exceed 24 hours unless the person is produced before a magistrate, failing which it becomes unlawful.
This provision is often used in situations involving potential communal tensions, unlawful assemblies, or during preventive policing before political events or protests.
- Failure to Identify or Provide Correct Details (Section 42 CrPC)
If a person refuses to give their name or address or provides false information, and is suspected of a non-cognizable offence, the police may arrest them without a warrant under Section 42 CrPC.
Once identity is verified, the person must be released on a bond or bail unless further action is required.
Practical Advice to Individuals
As an advocate, I advise that if you or someone you know is being arrested without a warrant:
- Remain calm and ask for the reason of arrest.
- Ask whether the offence is cognizable or non-cognizable.
- Insist on being informed of your rights—including the right to call a lawyer and inform a family member.
- Do not resist arrest, as this could escalate the situation and lead to additional charges.
- If the arrest seems illegal or abusive, your lawyer can approach the Magistrate Court or High Court for immediate relief, including filing a Habeas Corpus petition.
While the CrPC grants significant powers to the police to arrest without a warrant, it also sets strict conditions and procedures to prevent misuse. These legal safeguards are essential for protecting citizens’ fundamental rights under Articles 21 and 22 of the Constitution. As citizens and as legal professionals, we must stay vigilant and informed to ensure that due process of law is always followed.
Understanding these provisions helps individuals assert their rights and also assists legal professionals in ensuring that justice is not just done, but seen to be done.
