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Report No. 152

5.3. Legal provisions as to arrest.-

The power to arrest a person is conferred by statute in a variety of situations. For the present purpose, the most relevant provision is contained in section 41(1) of the Code of Criminal Procedure, 1973, which provides that a police officer may arrest a person "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 having been so concerned."

The first part of the section is totally objective, because, if a person has been concerned in any cognizable offence, then the police officer may arrest him. What matters in the first part is the fact of having been concerned in a cognizable offence. The police officer's view of the matter is of no consequence. But, in regard to the remaining portions of section 41(1), one finds a combination of objective facts coupled with a certain amount of subjective evaluation.

The objective element in this part of section 41(1) is highlighted by its repeated use of adjectives, such as "reasonable" or "credible". But it is not necessary to establish objectively that the person proposed to be arrested has been concerned in a cognizable offence. Reasonableness of the complaint, or credibility of the information or reasonableness of the suspicion, would suffice, although these elements themselves could be the subject-matter of debate in concrete cases.

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