PROCEDURE FOR ARREST WITHOUT WARRANT
Updated: Dec 13, 2020
By B. Sandeep Harish, III year B.A.,LL.B., The Central Law College, Salem
The term arrest means ‘apprehension of a person by the legal authority so as to effect deprivation of his liberty’. The person’s liberty was controlled under the arrester after the arrest. In criminal law, an arrest is a tool to bring an accused before the court and to prevent him from absconding. Hence not each physical restraint can be termed as an arrest. An arrest of an individual comprises taking the person in the custody of an authority empowered by the law for detain the person to answer the criminal charges and to prevent the commission of a criminal wrong.
Two types of arrest
1. Arrest made in pursuance of a warrant issued by a magistrate
2. Arrest made without any warrant nut in accordance with some legal provision permitting such an arrest
Who can arrest?
An arrest can be made by a magistrate, police officer or any private person, like me and you also arrest any person but the arrest should be made according to the procedure mentioned under the Cr.P.C. Section 45 of Cr.P.C exempts the person in the armed forces from being arrested for anything done by them in the release of their official duty except behind obtaining the consent of the government.
According to the section 43 of Cr.P.C says that a private individual can conduct the arrest of any person specifically when the arrested individual is determined to be an offender by committing a cognizable offence and a non-bailable offence or proclaiming in the presence of the arresting individual. And according to the section44 of the Cr.P.C says that the magistrate, regardless of being judicial or executive, may conduct any arrest without a warrant.
Arrest by a police officer
Section 41 (1) to 151 of Cr.P.C says a police officer can arrest another person without any warrant; under section 72 to 74 of Cr.P.C; under any written order of the officer in power under section 55 and 157; under the order of the magistrate under section 44 in a non-cognizable offence under the section 42 of Cr.P.C. Section 36 of the Cr.P.C any superior officer may arrest under the section. An officer-in-power of the police station the officer arrested under section 41(2) and 157 of Cr.P.C.
Cr.P.C Section 41, 42,151 clearly says a police officer can arrest without any warrant and involve some following conditions these are
1. Who has been concerned in any cognizable wrong
2. Who has in possession, without, lawful excuse, of any housebreaking weapon
3. Who has been proclaimed as an offender both by order of the state government or under Cr.P.C
4. Who is a possession of the stolen property
5. Who obstructs a police officer while in the execution of his duties or who has escaped, the lawful custody
6. Who has been a concern in any law related to extradition
7. Who is reasonably suspected of being a deserter from any of the armed force of the union
8. Who being a released convict committing a breach of rule under section 356 of CrPC
9. For whose arrest any requisition has been received from another police officer specify the person to be arrested and the wrong and other cause for which the arrest is to be made.
Procedure of arrest
Section 46 of the Cr.P.C says the mode of arrest is mentioned without a warrant. In making an arrest the police officer or other person makes the same actual confines or touches the body of the person to be arrested unless there will be a submission to the custody by action or word. When the police arrest a person in execution of a warrant of attestation obtained from the magistrate, the person so arrested shall not be handcuffed unless the police have obtained an order from the magistrate in this regard.
As per section 46(1) the person being arrested consents to the submission to the custody by any actions or words, the arrester shall confine or touch the body of the person to be arrested.
Section 46(2) provides that if any person attempts to evade the arrest or the endeavour to arrest, such another person or police officer may use all means necessary to cause of arrest. If the person tries to run away, the police officer may take action to prevent his escape and in doing so, he can use physical force to immobilize the accused. Section 46(3) there is no right to affect the death of the person who is not accused of an offence punished with imprisonment for life or death. And section 49 of the arrested person must not be subject to more restraint than is necessary to prevent him from escaping.
Due to the concerned of violation of rights of women section 46(4) a new provision was inserted that forbids the arrested of women after the sunset and before sunrise, except in some circumstances, in which case of arrest can by any women police officer after making a written report and obtain prior permission from the concern judicial magistrate of the first class.
As we go through the provisions of the Cr.P.C, it clears that the arrest lies as a power to the police officers who are being instructed to make it, or the magistrate who can just be based on his views, can make it. Many people are not aware that an ordinary person can arrest a person but only when he witnesses him doing an act forbidden by the law.