By- Abdul Noor
Crimes have to be prevented. Every law enacted anywhere in the world is with the aim to prevent people from committing crimes. But mere enactment of law doesn’t prevent crime. For this there should be something that makes the people to refrain from doing this illegal act, or in short punishment. When people understand that such acts leads to certain punishment it helps in preventing crimes. Arrest is a common term associated with punishment. It is so common that even those who doesn’t know what punishment their illegal acts results in, knows it clearly that they would end up arrested for sure.
The police can arrest a person in two ways. The first one being arrest with a warrant. In this case the arrest is done with the permission of the respectable court. The second way of arresting is without a warrant. There are certain conditions under which the police are allowed by the law to arrest without any warrant from the court.
Arrest in simple terms is the seizing of a person by the legal authority. A person usually gets arrested if he or she is suspected or observed committing a crime. Is arrest necessary? Of course it is. It is the best possible way to caution the person who committed the crime and also to punish him for that. Ultimately arresting a crime committed person sends the message to the society to refrain from unlawful acts.
Arrest is not defined in anywhere in the code of criminal procedure. But the procedure of the arrest is given in the code of criminal procedure. Chapter 5 of the criminal procedure code of India deals with arrest of a person under section 41 to 60. It is to be noted that arrest is not only done in case of criminal offences but also in civil offences.
ARREST WITHOUT WARRANT
An arrest is usually done by the police with the permission of the court, i.e. the warrant. But in certain situations it becomes necessary for the police to make the arrest without such permission from the court. It is not practical for the police to wait for the court to give permission to arrest certain person who had done a serious crime. If they did wait for the warrant for every arrest it would help the criminals to escape. India has enacted laws for the wellbeing of its citizens not its criminals. If the authority helps the criminals this way what is the purpose of other people following laws.
When is arrest without warrant allowed?
Basically offences are of two types. Cognizable offences and non-cognizable offences. Cognizable offences are non bailable offences as they are more serious offences. For example section 300 of the Indian penal code which deals with murder is cognizable offence and is non bailable. While non cognizable offences are bailable as they are not as grievous as cognizable offences. Crimes of cheating or forgery are all examples of non cognizable offences. These offences are not serious crimes and are of course bailable.
According to the criminal procedure code, it is possible for the police officer to make an arrest without a warrant if the crime committed by the suspect is a cognizable offence. The reason for this is that when a cognizable offence has taken place, it is not possible for the police officers to wait for the court to grant permission for the arrest as it will require large amount of time as it is a huge process. For example, if a crime of kidnapping is reported then it is necessary for the police officers to make the arrest as soon as possible rather than waiting for the court to grant warrant for the same. If they did wait, it may help the criminals to get away and also it may cause more harm to the victim.
A police officer can arrest a person without a warrant under certain conditions. The criminal procedure code of India put forward the conditions to arrest a person without warrant under section 41.
1. A person who has been involved in a cognizable offence such as murder, rape, theft or is suspected to be involved in committing such cognizable offence which are punishable with imprisonment of 7 or more years or more or if such a complaint against him is received stating that the person to be involved in these cognizable offences can be arrested without warrant by the police officer.
2. A person can be arrested by the police officers without a warrant if this person has a possession of any kind of house breaking weapon and has no lawful explanation for it and the burden of proving any excuses if he has any, will be on the person.
3. If a person is proclaimed as an offender under any acts given in the code of criminal procedure or under any order by the state government or any law in force in the country then that person can be arrested without a warrant from the court.
4. If a person obstructs a police officer from doing his duty or tries to escape or did escape from a lawful custody then he can be arrested by a police officer without a warrant.
5. If a person has been concerned in any law or a reasonable complaint has been received against him or a credible information has been received stating that the person had been involved in committing an act at any place outside of India, if committed in India would have been punishable as an offence and for which the person is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody. Then that person can be arrested without any warrant.
6. If a person is suspected of being a deserter from any of the Armed Forces of the union, then that person can be arrested without a warrant by the police officer.
7. A person can be arrested without warrant if that person being a released convict violates any rule mentioned under sub-section (5) of section 356.
8. If a requisition is received for the arrest of a person from another police officer given this requisition specify the person to be arrested and the reason for the arrest and it seems to be lawful to make such an arrest without a warrant then that person can be arrested by a police officer without a warrant.
Some sections of the criminal procedure code also provide situations where a person can be arrested without a warrant. They are:
· Arrest on refusal to give name and residence (section 42)
If any person, in the presence of a police officer had committed or is accused of committing any non-cognizable offence refuses to provide his name and residence on the demand of the officer or gives a name and residence which the officer has reasons to believe is false, then that person can be arrested without warranty by the officer as his name or residence may be ascertained.
When the name and residence of such person is ascertained then the person should be released on his executing a bond with or without surety or sureties, to appear before a magistrate if required. If the person is not resident in India then the bond of that person must be secured by a surety resident in India.
If within 24 hours of the person’s arrest, the name and residence is not ascertained or the person fails to execute a bond or could not arrange sufficient surety if required then such person should be produced before the nearest magistrate having the jurisdiction.
· Arrest by a private person without warrant (section 43)
When a person commits a non bailable cognizable offence in front of any private person, then this private person can cause this crime committing person to be arrested by a police officer or in absence of a police officer, the private person can himself arrest the crime committing person without any delay even though there is no warrant for the arrest. The private person can do this on the basis of his knowledge.
But if the private person fails to follow the procedure after the arrest then this private person can be prosecuted under section 342 of IPC for the offence of wrongful confinement.
· Arrest to prevent the commission of cognizable offences (section 151)
A police officer can arrest a person who he finds to be aiming or preparing to commit a non bailable cognizable offence without a warrant from the court. The police officer must be sure that such an offence by this person cannot be prevented other than by arresting him.
Such arrested persons must be produced before the court within 24 hours of the arrest.
The need for arrest without warrant
It can be said that arrest without warrant is a necessity. It is important that the police have an option for arresting suspects who had committed a cognizable offence without warrant. If all the arrests, even the arrests for grievous crimes were to be done only after the warrant from the court it would lead to a very ineffective law system. If this was the case, rather than protecting the citizens the legal system would be protecting the criminal. It is mandatory that the people who committed a grievous crime to be punished as soon as possible. For this to happen, arrest without warrant is necessary. Also if a person who had just committed a grievous crime like murder, if not arrested immediately has high chance of escaping. If the police were to wait for the court to grant the permission, they may better let the suspect leave than making a try after he has escaped.
Procedure involved during an arrest without warrant
When a complaint against a non-cognizable crime is given at any police station, the police officer is required to register it. The police officer is required to file the first investigation report (FIR) according to this complaint. This FIR is then required to be submitted before the court within 24 hours of the FIR registration. Then the court will grant the police permission to investigate the case. Also if needed, the court will grant the permission for the arrest of persons associated with the crime. Then only the police officer could arrest them.
But this is in case of a non-cognizable offence. It is bailable and it is also not a serious crime. The procedure is completely different for the arrest without warrant. Arrest without warrant is only done in case of a cognizable offence. A cognizable offence is non bailable and is a very serious crime.
When a complaint against a cognizable offence is received the police officers are required to file the First Investigation Report and it should be submitted before the court within 24 hours of filing the FIR. But it is not necessary for the police officers to wait for the warrant from the court to arrest the suspects. The police can start investigating just after filing the FIR. Also they can make arrests as soon as possible without waiting for the permission from the court. But the FIR should be submitted within 24 hours of filing it. Also the arrested person, who were arrested without a warrant must be produced before the magistrate within 24 hours of the arrest.
This helps the police officers to arrest the suspects as soon as possible and prevent them from escaping.
Misuse of arrest without warrant
Arrest without warrant is a necessity in all terms. If every arrest by a police officer were to be made only after the court grant permission or the warrant to arrest then it would be a chance for the culprits to escape. What we need is to prevent commission of crime. For this, there is a need for the people to understand that certain acts are punishable. The best way to bring this awareness is by punishing the people who did the crime, so that others won’t repeat it. The people who have committed a crime should be arrested and it is fair for the court to give permission to do so. But in some circumstances it is not practical to wait for the court for such permission. During those circumstances it becomes necessary for the police officers to make an arrest without a warrant. This helps in preventing the escape of the suspects.
In these terms arrest without warrant is a necessary. It actually does well to the legal system of the nation. But arrest without warrant is also used in a negative way. Certain police officers use arrest without warrant as a method to hurt people. There are many cases reported where people are victims towards this police brutality. As the police has the authority to arrest in certain situations without any warrant they use this to arrest innocent people by fabricating cases against them. As the arrest does not need warrant, they don’t need any permission from the court to do so. By fabricating a cognizable case against innocent people the police are able to arrest them and keep them in the police custody. It is to be noted that arrest without warrant is to be used in only certain situations as given in the criminal procedure code which helps in the working of the nation and not for unleashing police brutality on innocent people.
There are many cases under which such misuse of arrest without warrant has been discussed by the courts.
In the case D.K. Basu v. State of West Bengal, D.K. Basu, the executive chairman of legal aid service wrote a letter to the chief justice of India regarding news published in the Telegraph which was related to death in lock up and custody. The chief justice of India considered it as a writ petition. During the same time, one Mr, Ashok Kumar Johri wrote a letter to the chief justice of India regarding the death of Mahesh Bihari of Pilkhana, Aligarh in police custody.
This case questioned the custodial torture and deaths by police and whether the police are arbitrary in arresting certain persons. The police are never arbitrary in arresting people. The court asked to produce the details of everyone who where ever arrested and put up in jail. The court also asked to check on the punishment given in jail. It was in this case the court provided guidelines while arresting a person.
In the other case of Joginder Kumar v. State of Uttar Pradesh and others, the petitioner was called up by the police for some inquiry. His friends and brother who accompanied him was informed that the petitioner will be release by evening that day. But he was taken to a police station the next day for further inquiry. On the third the petitioner’s family filed a writ of habeas corpus in the Supreme Court of India. The Supreme Court ordered the state of Uttar Pradesh and SSP to immediately produce the petitioner before the court and asked to answer why the petitioner were detained illegally without any valid reason. The court also asked why the arrest of the petitioner weren’t recorded in the police diary and also why he was not produced before the magistrate within 24 hours of his arrest.
In this case the court held that no arrest could be made just because the police have the power to do so. The court saw that the power to arrest and the justification of why the person is arrested are two things. The police officer who arrests without a warrant should have a clear justification to why such an arrest is made.
The court also held that except in cases of serious offences the police should try maximum to avoid arrests and issuing notice to attend the station House and not to leave the station without permission would be enough. The court further held that a person cannot be arrested due to mere allegation of crime against the person. The court also held that it was the duty of the magistrate to whom the arrested person is produced to check whether the arrest made is reasonable and all the requirements are followed in the arrest.
What to do?
It is necessary to make sure that misuse of arrest without warrant does not take place. If people who are meant to protect us start to hurt us using the laws meant for our well being, how will we live with peace?
The only thing that could be done to prevent this misuse is making the people aware that the authority placed in the police officers to arrest without warrant has to be exercised for good use not to hurt innocent people. The people should also be made aware of the guideline put forward by the Supreme Court while making an arrest.
Arrest without warrant is given in the criminal procedure code of India. It is not possible for every arrest to be done only after the court grants the permission to do so. There are situations where the police can’t be made to wait for the warrant. In case of cognizable offences which are way more serious and is non bailable, the criminal procedure code allows the police to arrest the person who committed such crime without any warrant. This is made with an aim to make the legal system smooth. Arrest without a warrant helps in preventing the suspects from escaping also speed up the case procedures.
But it is also to be noted that arrest without warrant is also used by the police in a completely different way to unleash their brutality on innocent people. Due to the unawareness of people of their arrests this is widely misused around the country. Although we have the guidelines to be followed while arresting, unawareness of this still helps in the misuse of arrest without warrant by the police. Such police brutality must be prevented at all costs.
Rather than misusing arrest without warrant it must be used efficiently in order to assure perfect functioning of the legal system of the nation.
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