Section 41 of CrPC - Arrest Without Warrant

Section 41 of CrPC- Arrest Without Warrant | Explanation

Section 41 of crpc talks about “when police may arrest without warrant”. In this article we will focus on arrest without warrant and in which circumstances police can arrest any person without warrant.

What Bare Act Says:-

Section 41. When police may arrest without warrant.

1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or

c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or

i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

Arrest with or without a warrant

Magistrate taking cognizance of an offence can issue a warrant for the arrest of the accused as provided by Section 204 read with Section 87. Arrest probably is the most effective method of securing the attendance of the accused at his trial though for other reasons it is not quite desirable to use it in each and every case.

Arrest may be necessary not only for the purpose of securing the attendance of the accused at the time of trial, but it may become necessary as a preventive or precautionary measure in respect of a person intending to commit a cognizable offence, or a habitual offender or an ex-convict, or a person found under suspicious circumstances [see Sections 151, 41(2) read with Sections 110, 41(1)(b), 41(1)(b) and (d)]. 

Arrest may sometimes become necessary for obtaining the correct name and address of a person committing a non-cognizable offence (Section 42 of Crpc).

A person obstructing a police officer in discharge of his duties is liable to be arrested to put a stop to such obstruction [Section 41 of Crpc (1)(e) of Crpc]. So also a person escaping from lawful custody is liable to be arrested and re-taken in custody.

Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty. The Code contemplates two types of arrests:

  • arrest made in pursuance of a warrant issued by a magistrate: and
  • Arrest without such warrant but made in accordance with some legal provision permitting such arrest.

How arrest warrant issued under section 41 of Crpc

A warrant of arrest is a written order issued and signed by a magistrate and addressed to a police officer or some other person specially named, and commanding him to arrest the body of the accused person named in it.

The decision to issue or not to issue a warrant involves a balancing of social interests with those of the individual accused. If the accused person is likely to abscond and disobey a summons, social interests would demand that he be arrested and detained so that he can be effectively put on his trial.

Arrest Without Warrant

On the other hand, the accused person would claim that he should not be subjected to arrest and detention before his guilt is established in a fair trial. The Code rightly assumes that these conflicting claims can be best settled if the decision regarding arrest is made by a judge the judge being a person known for his ability and impartiality.

In Case of arrests without warrant

In case of arrests without warrant the decision to make arrest is no doubt made by persons other than magistrates and courts i.e. by police officers, private citizens, etc. These persons may not have the judicious mind and detached outlook, and yet because of the exigencies of certain situations the Code allows them to make the arrest-decisions themselves without obtaining warrants of arrest from the magistrates.

In Case of Serious crime deone by dangerous Person

In a case where a serious crime has been perpetrated by a dangerous person and there is every chance of the person absconding unless immediately arrested, it would be certainly unwise to insist on the arrest being made only after obtaining a warrant from a magistrate under section 41 of Crpc.

Preventive action may sometimes be necessary in order to avert the danger of sudden outbreak of crime, and immediate arrest of the trouble-maker may be an important step in such preventive action.

Sometimes, the police officer may not arrest the main accused due to influence, even though his co-accused might be arrested under section 41 of crpc.

The Delhi High Court in such a case opined that the discretion of the investigating agency to arrest does not mean whim, fancy or wholly arbitrary exercise of discretion. Sometimes the police denies the arrest to enable him to keep the accused in his custody for investigation. In such cases on complaint the magistrate can make inquiry and pass appropriate orders.”

Though the Code allows a person to be arrested without warrant under certain circumstances, it does not allow such arrested person to remain in custody for more than 24 hours from the time of arrest -section 41 of crpc. Further detention of the arrested person shall be illegal unless permitted by a competent judicial Magistrate.

If the person is prepared to give security for his attendance in court for his trail, he might be released on bail under certain circumstances.

SECTION 41

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This article i written with the reference of R.V Kelkar’s Criminal Procedure Code. This above written content is solely owned by the author of the book and we don’t claim any rights on this content.

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