THIS ARTICLE HAS BEEN WRITTEN BY ARKAPRIYA GHOSH FROM JOGESH CHANDRA CHAUDHURI LAW COLLEGE, CALCUTTA UNIVERSITY

Table of Contents

INTRODUCTION

CODE OF CRIMINAL PROCEDURE: WHAT’S IT ABOUT?

The Code of Criminal Procedure (CrPC) is a comprehensive legal document that outlines the procedures and processes to be followed during the investigation and trial of criminal offenses in India. Enacted in 1973, the CrPC serves as a procedural guide for the criminal justice system, ensuring fair and just proceedings. Here are key aspects of what CrPC encompasses:

Investigation Process:

CrPC delineates the powers and responsibilities of law enforcement agencies during the investigation of criminal cases.

It establishes the procedures for conducting searches, seizures, and arrests.

FIR (First Information Report):

The CrPC outlines the process of filing an FIR, which is the initial complaint or report made to the police about a cognizable offense.

It dictates how the police should record and investigate information provided in the FIR.

Arrest and Detention:

CrPC defines the conditions under which a person can be arrested, both with and without a warrant.

It outlines the rights of an arrested person, including the right to be informed of the grounds for arrest.

Bail and Remand:

The code provides guidelines for granting bail to accused individuals.

It details the circumstances under which a person can be remanded to police or judicial custody during the investigation.

Court Proceedings:

CrPC sets out the procedures to be followed by the courts during the trial of criminal cases.

It includes rules for the appearance of the accused, recording of evidence, examination of witnesses, and submission of arguments.

Judgments and Orders:

The code covers the pronouncement of judgments and issuance of orders by the courts.

It defines the types of judgments, including conviction, acquittal, and sentencing.

Appeals and Revision:

CrPC outlines the mechanisms for filing appeals against court decisions.

It provides for the revision of judgments by higher courts.

Miscellaneous Provisions:

CrPC includes provisions related to the transfer of cases, the withdrawal of prosecutions, and the powers of the police and magistrates.

Protection of Accused and Witnesses:

The code incorporates provisions to safeguard the rights and interests of accused individuals and witnesses.

It includes measures to prevent intimidation and harassment.

Execution of Sentences:

CrPC specifies the procedures for the execution of sentences, including arrest and imprisonment.

Interplay with Other Laws:

It coordinates with other substantive criminal laws, such as the Indian Penal Code (IPC), to ensure a comprehensive legal framework.

In summary, the Code of Criminal Procedure is a crucial legal instrument that governs the procedural aspects of criminal cases in India. It provides a structured and transparent framework for the investigation, trial, and adjudication of criminal offenses, with a focus on ensuring justice, fairness, and the protection of individual rights.

HOW IS CRPC AND THE PROVISIONS RELATED TO ARRESTING WITHOUT WARRANT RELATED?

The Code of Criminal Procedure (CrPC) in India includes various provisions that govern the process of arrest, both with and without a warrant. These provisions collectively define the circumstances under which a person can be arrested without a warrant and establish the procedures to be followed. Here’s how CrPC and its provisions related to arresting without a warrant are interconnected:

Section 41 – Power to Arrest:

Section 41 of the CrPC provides the general power to the police to arrest a person without a warrant under certain circumstances.

It outlines situations where a police officer can arrest, including the commission of a cognizable offense.

Section 42 – Arrest on Refusal to Give Name and Address:

This section authorizes the police to arrest without a warrant when a person refuses to disclose their name and address.

The provision ensures that individuals cannot avoid accountability by withholding their identity.

Section 43 – Arrest by Private Persons:

Section 43 allows private individuals to make arrests without a warrant in specific situations, such as witnessing the commission of a cognizable offense.

It empowers citizens to take immediate action in preventing or addressing criminal activities.

Section 151 – Arrest to Prevent the Commission of Cognizable Offenses:

This section grants the police the authority to arrest without a warrant if they believe a person is likely to commit a cognizable offense.

It is a preventive measure to stop potential criminal activities.

Section 46 – Arrest how made:

Section 46 specifies the manner in which an arrest is to be made, including the use of force if necessary.

It ensures that arrests are carried out with due regard for the rights and safety of both the arresting officers and the individuals being arrested.

Section 50 – Person Arrested to be Informed of Ground of Arrest:

This section mandates that a person arrested without a warrant must be informed of the grounds for their arrest.

It protects the arrested person’s right to know the reason behind their detention.

Section 57 – Person arrested not to be detained more than 24 hours:

Section 57 imposes a limitation on the duration of detention without a warrant, emphasizing the need for prompt legal proceedings.

Prevents arbitrary or prolonged detention without judicial scrutiny.

These provisions collectively create a legal framework that balances the power of law enforcement with the protection of individual rights. They outline the circumstances and procedures under which arrests without a warrant can occur, ensuring that such actions are justified, lawful, and subject to legal scrutiny. The interconnected nature of these provisions in CrPC helps maintain a fair and accountable criminal justice system.

SECTIONS DEALING WITH PROVISIONS WHICH ALLOWS ARREST WITHOUT WARRANT ARE AS FOLLOWS:

Here’s a concise overview of the provisions relating to arrest without a warrant under the Code of Criminal Procedure (CrPC):

Section 41: Power to Arrest:

Police officers can arrest without a warrant under certain circumstances.

Grounds include the commission of a cognizable offense, refusal to give personal information, and suspicion of being involved in a cognizable offense.

Section 42: Arrest on Refusal to Give Name and Address:

Authorizes arrest when a person refuses to disclose their name and address.

Essential to prevent the person from absconding and to establish their identity.

Section 43: Arrest by Private Persons:

Allows private individuals to arrest without a warrant under specific conditions, such as witnessing the commission of a cognizable offense.

Section 44: Arrest by Magistrate:

Empowers magistrates to order an arrest without a warrant if they believe an offense has been committed in their presence.

Section 151: Arrest to Prevent the Commission of Cognizable Offenses:

Grants authority to police officers to arrest without a warrant if they believe that a person is likely to commit a cognizable offense.

Section 157: Procedure for Investigation:

Mandates that if a police officer receives information about a cognizable offense, they must register a First Information Report (FIR) and investigate the matter.

Section 41A: Notice of Appearance before Police Officer:

Introduces the concept of a “notice of appearance” instead of arrest in certain cases.

Aims to prevent unnecessary arrests and protect individual liberties.

Section 46: Arrest how made:

Describes the manner in which an arrest is to be made.

Use of force is allowed if the person resists or attempts to evade the arrest.

Section 50: Person Arrested to be Informed of Ground of Arrest:

Ensures that a person arrested without a warrant is informed of the grounds of arrest.

Protects the individual’s right to know why they are being arrested.

Section 57: Person arrested not to be detained more than 24 hours:

Limits the duration of detention without a warrant to 24 hours.

Prevents arbitrary or prolonged detention.

Section 58: Person arrested to be taken before Magistrate without delay:

Requires the arrested person to be brought before the nearest magistrate without unnecessary delay.

Section 41(1A): Safeguards against arbitrary arrest:

Imposes specific conditions for the arrest of a woman.

A woman cannot be arrested after sunset and before sunrise, except in exceptional circumstances.

JUDICIAL INTERPRETATIONS AND AMENDMENTS:

Courts play a crucial role in interpreting and applying these provisions.

Amendments may be made to enhance or modify the provisions based on evolving legal considerations.

The Supreme Court reviewed the power of arrest in Arnesh Kumar v. State of Bihar79 and laid down following guidelines:

Arrests must not be automatic, but the police officer must satisfy himself about the necessity for arrest by asking- why arrest? Is it really required? What purpose it will serve? What objective it will achieve?;

The police officer must be equipped with a check list contained in specified sub-clauses under s. 41 (1) (b) (ii). This checklist must be forwarded to the Magistrate along with reasons and material that necessitated arrest when the accused is produced before the Magistrate for further detention. The Magistrate while authorizing the detention shall peruse the report furnished by the police officer and only after recording its satisfaction the Magistrate may authorize detention;

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

Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action;

The Magistrate must apply his mind when authorizing detention beyond twenty-four hours as provided under s. 167 of Cr.PC. The detention must not be ordered in a callous manner, the Magistrate shall record his own satisfaction that the terms of section 41 (1) (b) of Cr.PC have been complied with.

Further, to ensure that a person who is not arrested is available for investigation, s.41A was inserted in the Code by the aforementioned amendment which provides that where a police officer who decided that he must not arrest a person, may require the person to appear before him at a specified place by issuing a notice. If the person does not comply with the terms or is unwilling to identify himself, the police officer may arrest him for the offence mentioned in the notice.80

It is desirable as well as necessary to meet the requirement of existing legal provisions under the criminal law justice as well as the Constitution of India that whenever the police officer arrests a person accused of non-bailable offense he must inform such accused that he is entitled to access free legal aid and may also apply for being released on bail. The officer shall also inform him about the procedure, as far as possible in the language that the accused person so understands.

The Supreme Court of India has observed in the case of Joginder Kumar v. State of Uttar Pradesh,77 that the power of arrest should not be exercised in a routine manner. The Supreme Court also held that no arrest should be made without conducting an investigation as to the bona fides of a complaint, reasonable belief of a person’s complicity, and the need to arrest.

The guidelines given in the Joginder Kumar’s case (Supra) have acquired statutory shape upon the enactment of the Cr.P.C. (Amendment) Act, 2008 (5 of 2009). The Section 41 of Cr.P.C., 1973 was amended to limit the power of arrest for cognizable offences for which punishment is seven years or less. The amendment further postulates that the police officer shall record in writing his reasons for making or not making the arrest. The lawfulness of the arrest without warrant, in turn, must be based upon ‘probable cause’. It depends upon the facts and circumstances within the officer’s knowledge, and information which must be reasonable as well as trustworthy.

CASE LAWS:

[ARNESH KUMAR GUIDELINES]

Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014

No Contempt Action Against Police Officer Arresting Without Warrant, If Proper Explanation Given To Magistrate

In a recent ruling by the Gujarat High Court, it was held that contempt of court proceedings cannot be initiated against a police officer for arresting an accused without a warrant, without prior notice under Section 41A of the Criminal Procedure Code (CrPC), if the officer provides a valid explanation before the magistrate.

CONCLUSION

In conclusion, the provisions in the CrPC regarding arrest without a warrant are designed to balance law enforcement needs with individual rights. They provide a framework for lawful arrests while incorporating safeguards to prevent arbitrary or unjustified detention. The evolving nature of legal interpretations and possible amendments ensures the continued relevance and effectiveness of these provisions in the criminal justice system.