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Report No. 177

Chapter III

Relevant provisions of the Cr.P.C. and their interpretation by the courts

Chapter five of the Code of Criminal Procedure, 1973 deals with the arrest of persons. Section 41 is the main section providing for situations when Police may arrest without warrant. It reads as follows:

"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 housebreaking; 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."

Section 42 specifies yet another situation where a police officer can arrest a person. According to this section if a person commits an offence in the presence of a police officer or where he has been accused of committing a non-cognizable offence and refuses, on demand being made by a police officer to give his name and residence or gives false name or residence, such person may be arrested but such arrest shall be only for the limited purpose of ascertaining his name and residence. After such ascertaining, he shall be released on executing a bond with or without sureties, to appear before a magistrate if so required. In case the name and residence of such person cannot be ascertained within 24 hours from the date of arrest or if such person fails to execute a bond as required, he shall be forwarded to the nearest magistrate having jurisdiction.

Section 43 speaks of a situation where an arrest can be made by a private person and the procedure to be followed on such arrest. Section 44 deals with arrest by a magistrat.- whether judicial or executiv.- of a person who has committed an offence in his presence; the magistrate can either arrest the person himself or direct another person to do so. Section 45 protects the members of the Armed Forces from being arrested under sections 41 to 44, except after obtaining the consent of the Central Government.

Sub-section (2) of this section empowers the State Governments to apply the provision in sub-section (1) to such members of the Force charged with maintenance of law and order, as may be specified in the Notification. Section 46 sets out the manner in which the arrest should be made. It says that the arresting officer "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". The section further says that if such person resists the arrest or attempts to evade the arrest, the police officer "may use all means necessary to effect the arrest".

Section 47 enables the police officer to enter a place if he has reason to believe that the person to be arrested has entered into that place or is within that place. The owner/occupier of such place is placed under an obligation to provide all reasonable facilities for search. If necessary, the police officer can break open doors/windows etc. for obtaining entry even without a warrant. Section 48 empowers the police officers to pursue a person, whom they are authorized to arrest without warrant, into any place in India beyond their jurisdiction.

Section 49 however provides that "the person arrested shall not be subjected to more restraint than is necessary to prevent his escape". Section 50 (which corresponds to clause (1) of Article 22 of the Constitution) creates an obligation upon the police officer to communicate to the person arrested full particulars of the offence for which he is arrested or other grounds for such arrest forthwith. It also provides that where a person is arrested for a bailable offence, without a warrant, the police officer shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

This section (and section 436) recognize the power of the police to arrest a person without a warrant in case of bailable offence. Of course, it follows from the definition of "cognizable offence" and of "noncognizable offence" in clauses (c) and (l) respectively of section 2 that such bailable offence has to be a cognizable offence. In other words, no arrest (without warrant) can be made by the police of a person accused of a bailable offence unless it is a cognizable offence.

Section 51 provides for search of arrested person, whether arrested under a warrant or otherwise, preparing a list of articles found on such person and giving a receipt to him therefor. Section 52 empowers the police officer to seize offensive weapons from the arrested person. The weapons seized shall be produced along with the person before the magistrate or other competent officer. Section 53 empowers the police officer to direct medical examination of an arrested person if he has reasonable grounds to believe that such examination will afford evidence as to commission of an offence.

Such medical examination shall have to be made only by a "registered medical practioner"; in case of a woman, such examination has to be done only by a female registered medical practitioner. Section 54 gives a corresponding right to the arrested person to request the magistrate before whom he is produced to direct his medical examination, if such examination "will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body". (Evidently, this includes a request for medical examination of his body, by the accused, where he alleges ill-treatment at the hands of the police.)

If such a request is made, the magistrate is bound to order such examination. Section 55 prescribes the procedure to be followed when a police officer deputes his subordinate to arrest a person without warrant. Sections 56 and 57 (which correspond to clause (2) of Article 22 of the Constitution), provides that the person arrested shall not be kept in the custody of a police officer for a longer period than is reasonable and that in any event such period shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate's court.

Of course if the magistrate permits the police officer to keep such person in his custody, he can do so beyond the period of 24 hours. Section 58 casts an obligation upon the officers in charge of police station to report to the District Magistrate of arrests made without warrant within their jurisdiction and of the fact whether such persons have been admitted to bail or not.

Section 59 says that no person arrested by a police officer shall be discharged except on his own bond or bail or under the special order of a magistrate. Section 60, which is the last section in the chapter, empowers the person having the lawful custody to pursue and retake the arrested person if he escapes or is rescued from his custody.

The other relevant and important provisions in this behalf are contained in Chapter Eleve.- Preventive Action of the Police. Section 149 says that "every police officer may interpose for the purpose of preventing and shall to the best of his ability prevent the commission of any cognizable offence". Section 150 says that every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate and to any other officer whose duty it is to prevent or to take cognizance of the commission of any such offence.

Section 151 is an important provision and confers a very vast power upon the police officers. Subsection (1) of section 151 says that "A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing if it appears to such officer that the commission of the offence cannot be otherwise prevented".

Sub-section (2) says that "no person arrested under sub-section (1) shall be detained in custody for a period exceeding 24 hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or of any other law for the time being in force". Section 152 is another important provision, particularly in the present-day context, where on the slightest pretext, people attack and damage public property like buses, railway property and other public properties.

The section empowers a police officer to interpose, of his own authority, to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation. Section 153 confers power upon the police officers to inspect weights and measures and to take proper action in that behalf.

Chapter Twelve of the Code also contains certain provisions relevant in this behalf. Section 154 creates an obligation upon an officer in charge of a police station to record every information received by him relating to the commission of a cognizable offence. If he refuses to so record, the person giving the information can send the same by post to the Suprintendent of Police who shall, if satisfied that such information discloses the commission of a cognizable offence, either investigate the case himself or direct an investigation to be made by a police officer subordinate to him.

Section 155 deals with information regarding non-cognizable cases and the further steps to be taken by the police officer in that behalf. Section 156 deals with the police officer's power to investigate cognizable cases. Subsection (1) says that "Any officer in charge of a police station may without the order of a magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station, would have power to inquire into or try under the provisions of chapter 13".

Sub-section (2) says at the same time that "No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". Sub-section (3) empowers the magistrate empowered under section 190 to order investigation into a cognizable offence. Section 15.- 'Procedure for investigation.- prescribes the procedure which should be followed during the course of investigation.

It says that if the officer in charge of a police station receives information of the commission of an offence which he is empowered to investigate under section 156 and if he has reason to believe the said information, he shall send a report of the same to the concerned magistrate and shall proceed to the spot to investigate the facts and circumstances of the case and "if necessary to take measures for the discovery and arrest of the offender". He is also empowered to depute one of his subordinate officers for the purpose instead of going himself.

Two other provisions of the Code of Criminal Procedure which require to be noticed, in view of the fact that they are referred to in sub-section (2) of section 41, are sections 109 and 110. Section 109 provides for an Executive Magistrate calling upon a person to show cause why he should not be directed to execute a bond with or without sureties for his good behaviour for a period not exceeding one year, if he believes on the basis of information received by him, that the person is "taking precautions to conceal his presence with a view to committing a cognizable offence".

Section 110 empowers the Executive Magistrate to call upon a person to show cause why he should not be ordered to execute a bond with sureties, for his good behaviour for a period not exceeding three years if he receives information that the person is a habitual offender. (Section 110 mentions the nature of offences as well.) After due inquiry, orders have to be passed under section 117.

In a number of sections referred to hereinabove, the expression "cognizable offence" occurs frequently. What is a "cognizable offence"? one may ask. The expression is defined in clause (c) of section 2 in the following words: " "Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant".

A few more definitions may also be noted. "Bailable offence" and "non-cognizable offence" are defined in clauses (a) and (l), respectively as follows: "Bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence". ""Non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant"". The Schedule to the Code contains a table indicating which of the several offences in the Indian Penal Code, 1860, are cognizable or non-cognizable and which of them are bailable or non-bailable.

Pausing here for a moment, we may notice the basis/criteria upon which the offences in IPC have been categorized into cognizable and non-cognizable. Cognizability in the Code is not premised upon the quantum of punishment prescribed or the gravity of the crime but upon the need to arrest the person immediately for one or the other relevant purposes viz., to prevent the person from committing further offences, the need to reassure the public that they can feel reassured about the effectiveness of the law and order machinery, the need of investigation and may be, in some instances, the need to protect the offender from the wrath of public and so on.

It is for this reason that a close nexus is maintained between cognizability and arrestability. So far as the other categorization viz., between bailable and non-bailable offences, is concerned, it appears by and large to be based upon the gravity of the offence (which necessarily means the quantum of punishment prescribed therefor) and the need to keep the offender incarcerated pending investigation and trial. This aspect has to be kept in mind in view of the oft-repeated criticism that the distinction between cognizable and non-cognizable offences as also the categorization between bailable and non-bailable offences is illogical and is not based upon any consistent or acceptable logic.

It may be mentioned at this stage that the CrPC is not the only enactment providing for arrest of an individual. There are other enactments too. But the main enactment is the CrPC and the principles underlying are applicable to other statutes as well, subject to such modifications or special rules as may be provided in that behalf by such other enactment.

The aforementioned review of the relevant provisions of the Code discloses conferment of a vast, sometimes absolute and on some other occasions, an unguided and arbitrary power of arrest upon police officers. Significantly, however, none of the provisionsin the Code confers the power "to stop and search" a person (without arresting him first), which power is conferred upon them by enactments of some countries. Section 51 says that a police officer may search the person, after he is arrested and make a list of articles found upon him.

Arrest of a person without warrant and without an order from a magistrate seriously invades the liberty of a citizen and is indeed a grave matter. The normal protection which is available to a person when he is arrested under a warrant is not available in case of arrest without warrant. In case of arrest under a warrant, a judicial authority has applied his mind to the facts and circumstances of the case and has thought it fit to direct that the person be arrested, whereas in the case of an arrest without warrant by the Police, the matter rests more in the realm of the police officer's subjective satisfaction.

As far back as 1952, a Constitution Bench of the Supreme Court referred to this aspect in State of Punjab v. Ajaib Singh (AIR 1953 SC page 10). The following observations of the Supreme Court are relevant. (The reference in the judgment is to the provisions of the Code of Criminal Procedure, 1898, then in force.):

"Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a Court and arrests otherwise than under such warrants. As to the first category of arrest, Ss.75 to 86 collected under sub-heading "B-Warrant of Arrest" in chap.5, Criminal P.C., deal with arrests in execution of warrants issued by a Court under that Code. Section 75 prescribes that such a warrant must be in writing signed by the presiding officer. Form No.2 of sch.5 to the Code is a form of warrant for the arrest of an accused person.

The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence. Form No.7 of that Schedule is used to bring up a witness. The warrant itself recites that the Court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. The point to be noted isthat in either case the warrant ex facie sets out the reason for the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence. In short, the warrant contains a clear accusation against the person to be arrested."

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