Tag Archives: arrest with warrant

ARREST, PART-1: Definition, Authorities authorized, and Types, CODE OF CRIMINAL PROCEDURE, 1973

MEANING

The word, “Arrest” has not been defined in this Code.

However, some judgments have surly brought its meaning in much clearer picture.

CASE 1: State of Haryana V Dinesh Kumar (2008) 3 SCC 222

  • The Apex Court observed that the expression arrest has not been defined, under:
    • The Code of Criminal Procedure, 1973 or
    • The Indian Penal Code, 1860 or
    • Any enactment dealing with criminal offence.
  • The Supreme Court cited the meaning under Halsbury’s Laws of England, the word arrest when used in its ordinary sense, means-
  • ‘the apprehension or restrain or the deprivation of one’s personal liberty.’
  • An arrest:
    • consists of taking into custody of another person under authority empowered by law;
    • for the purpose of:
      • holding or detaining him to answer a criminal charge and
      • preventing the commission of a criminal offence;
    • with essentials of:
      • intent to arrest, under authority and
      • seizure or detention, under law.

DEBATABLE QUESTION HEREBY-

If mere, taking into custody of a person by an authority empowered to arrest, amounts to arrest. Does the term arrest and custody synonymous?

The question got clarified by another case-

CASE 2: Directorate of Enforcement V Deepak Mahajan AIR 1994 Sc 1775

  • It was noted that “custody’ and ‘arrest’ are not synonymous terms.
  • Taking a person into custody is followed after the arrest.

AUTHORITIES AUTHORISED TO MAKE OUT THE ARREST

  • Police officer (with warrant- sec. 70- 81, or without warrant- 41, 42, 43, and 46) or
  • The Magistrate (section 44) or
  • A private person (Section 43).

TYPES OF ARREST

I. Arrest with warrant

II. Arrest without warrant

I. ARREST WITH WARRANT

SECTION 41: WHEN POLICE MAY ARREST WITHOUT WARRANT

(1)Any police officer may arrest any person without:

  • A Magistrate’s order and
  • A warrant

(a)Who commits, a cognizable offence in the presence of a police officer; or

(b)Against whom-

  • there has been-
    • a reasonable complaint or
    • a credible information or
    • a reasonable offence,
  • regarding committing a cognizable offence, punishable with:
    • imprisonment, not less than 7 years or which may extend to seven years and
    • whether with or without fine.

CONDITIONS TO THE APPLICABILITY OF SITUATION (b):

(i)If the police officer has reasonable believe, regarding an offence being committed, based upon such:

  • complaint,
  • information, or
  • suspicion.

(ii)If the police officer is satisfied that such arrest is necessary-

(a)to prevent such person from committing any further offence; or

(b)to have proper investigation of the offence; or

(c)to prevent such person from causing the evidence of the offence to:

  • disappear or
  • tamper (in any manner); or

(d)to prevent such person:

  • from- inducing, threatening or promising,
  • to- person acquitted with facts.
  • to dissuade him,
  • from disclosing, facts
  • to the Court or police officer; or

(e)to ensure such person’s presence in the Court whenever required.

And the police officer shall record his reasons in writing, while making such arrest.

PROVIDED:

  • For not arresting when not required, herein:
  • the police officer shall write reason for not making the arresting.

(ba)Against whom, there has been credible information,

  • regarding committing cognizable offence, punishable with:
    • imprisonment, more than 7 years, whether with or without fine, or
    • death sentence,
  • the police officer has reason to believe such information that such person has committed the said offence.

(c)A person, proclaimed as an offender:

  • under this Code, or
  • by the State Government’s order; or

(d)In whose possession, anything reasonably suspected to be stolen is found, and

  • with reference to such thing, he may reasonably be suspected of having committed an offence; or

(e)A person who:

  • obstructs the police officer to execute his duty or  
  • escaped or attempts to escape, from lawful custody; or

(f)A person 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,

  • there has been:
    • reasonable complaint or
    • credible information or
    • reasonable suspicion,
  • regarding him committing an act, at any place outside India,
    • if, committed in India:
      • punishable as an offence, under any law relating to extradition or otherwise, and
      • liable to be apprehended or detained in custody in India; or

(h)Who, being a released convict, commits a breach of any rule, under section 356(5); or

(i)For whose arrest, written or oral requisition has been received from another police officer.

PROVIDED:

  • Requisition specifies:
    • person to be arrested or
    • the offence or
    • other cause to arrest.
  • hereby, appears person might be:
    • lawfully arrested without a warrant,
    • by the officer who issued the requisition.

(2) As per section 42:

  • non-cognizable offence offender,
  • against whom, there has been:
    • reasonable complaint or
    • credible information or
    • reasonable suspicion,
  • shall not be arrested,
  • except, under a warrant or a Magistrate’s order.  

SECTION 42: ARREST ON REFUSAL TO GIVE NAME AND RESIDENCE

(1)SITUATION:

  • Any person, in presence of the police officer,
  • committed or accused to be committed, non-cognizable offence,
  • on demand of his name and residence,
  • either refuses, to give or gives, which the police officer has reason to believe it to be false.

CONSEQUENCES:

  • He may be arrested, by such police officer to may ascertain his name and residence.

(2)SITUATION:

  • On ascertaining such person’s true name and residence.

CONSEQUENCE:

  • He shall be released, on execution of:
    • Bond,
    • With or without warrant sureties (if required, to appear before the Magistrate).

PROVIDED

  • SITUATION: Such person is non-resident of India.
  • CONSEQUENCE: Bond is to be secured by surety or sureties, resident in India.

(3)SITUATION:

  • True name or residence, not been ascertained, within 24 hours, from arrest, or
  • he fail to execute bond or furnish sufficient sureties, if required.

CONSEQUENCE:

  • He shall be, forthwith be, forwarded to the nearest Magistrate, having jurisdiction.

SECTION 43: ARREST BY PRIVATE PERSON AND PROCEDURE ON SUCH ARREST

(1) SITUATION:

  • Any person or any proclaimed offender,
  • in presence of, any private person,
  • Commits, non-bailable and cognizable offence.

CONSEQUENCE:

  • Private person:
    • may arrest or cause to arrest,
    • shall or cause to make over, the arrested person to (without unnecessary delay):
      • a police officer, or
      • the nearest police station, for custody purpose (in absence of a police officer) .

(2) SITUATION: Under reasonable believe such person comes under sec. 41.

CONSEQUENCE: A police officer shall re-arrest him.

(3) SITUATION:

  • Under reasonable believe, he:
    • committed, non-cognizable offence, and
    • refuses, to give his name or residence, on demand of the police officer, or
    • gives, name and residence but under, reasonable believe of the police officer, is false.

CONSEQUENCES:

  • He shall be dealt under section 42.

EXCEPTION:

  • Under no sufficient reasonable believe of him committing any offence,
  • he shall be released at once.

SECTION 46: ARREST HOW MADE

(1)The police officer or other person, while making arrest,

  • shall, actually touch or confine the body, of the person to be arrested.
  • UNLESS: There is submission to the custody by word or action.

PROVIDED

SITUATION: Where, a woman is to be arrested.

CONSEQUENCE:

  • Unless:
    • Circumstances indicates to the contrary her submission on oral intimation on arrest shall be presumed, and
    • Circumstances otherwise require or the police officer is a female, the police officer shall not touch her for making her arrest.

(2)SITUATION:

  • Such person on:
    • resisting the endeavor to arrest him, or
    • attempting to evade the arrest.

CONSEQUENCES:

  • Such police officer or other person,
  • may use all means, necessary,
  • to effect the arrest.

(3)Nothing under this section, gives right to cause death,

  • of person, who is not accused of an offence, not punishable with death or imprisonment for life.

(4)No women shall be arrested after sunset and before sunrise.

EXCEPT

  • Woman police officer shall by, written report,
  • obtained prior permission of Judicial Magistrate of first class, within whose jurisdiction:
    • offence is committed or
    • arrest is to be made.

II. ARREST WITHOUT WARRANT

SECTION 70: FORM ON WARRANT OF ARREST AND DURATION

(1)Every warrant of arrest:

  • issued by a Court, under this Code, shall:
    • be written or signed by the presiding officer, of such Court and
    • bear the seal of the Court.

(2)Every such warrant shall remain in force, until:

  • cancelled by the Court, issued it or
  • It is executed.

SECTION 71: POWER TO DIRECT SECURITY TO BE TAKEN

(1)CASE:

  • Any Court issuing a warrant of arrest of any person,
  • may endorse directions on warrant,
  • regarding release of such person.

SITUATION:

  • Such person executes:
    • a bond, and
    • sufficient securities-
      • for attendance,
      • before the Court and
      • at a  specified time.

CONSEQUENCE:

  • The officer to whom warrant is directed shall:
    • take such security and
    • release, him from custody.

EXCEPT: The Court directs otherwise (anything else).

(2)The endorsement shall state-

(a)the number of sureties,

(b)the amount, in which they and such person are to be respectively bound, and

(c)the time at which he is to attend before the Court.

(3)SITUATION

Whenever, security is taken under this section.

CONSEQUENCE

The officer (to whom, warrant is directed) shall forward the bond to the Court.

SECTION 72: WARRANTS TO WHOM DIRECTED

(1)CASE: Ordinarily, warrant of arrest is directed to one or more police officers.

SITUATION: Court issue’s warrant:

  • requiring, immediate execution and
  • having, no police officer immediately availability.

CONSEQUENCE: Direct, such warrant, to any other person or persons, who shall execute the same.

(2)SITUATION: Warrant of arrest directed to more than one police officer or persons.

CONSEQUENCE: Such warrant of arrest may be executed by all or any one or more of them.

SECTION 73: WARRANT MAY BE DIRECTED TO ANY PERSON

(1)The Chief Judicial Magistrate or a Magistrate of the first class,

  • may direct warrant:
    • to, any person within his local jurisdiction,
    • for any person, who is evading arrest and is:
      • an escaped convict or
      • a proclaimed offender, or
      • accused of non-bailable offence.

(2)SITUATION:

  • Person, for whose arrest warrant is issued,
  • is in or enters on any land or other property under this charge.

CONSEQUENCE:

  • Such person, within local jurisdiction shall:
    • acknowledge, the receipt in writing and
    • execute, the issued warrant.

(3)SITUATION: Person, against whom such warrant is issued, is arrested.

CONSEQUENCE: Such person, shall be:

  • made over, with warrant,
  • to the nearest police officer, who shall take him before a Magistrate, having jurisdiction in the case.

SECTION 74: WARRANT DIRECTED TO POLICE OFFICER

SITUATION: A warrant directed to any police officer may also be executed by any other police officer.

CONSEQUENCE: Such any other police officer, is:

  • whose name is endorsed upon the warrant,
  • to whom warrant of arrest is directed or endorsed.

SECTION 75: NOTIFICATION OF SUBSTANCE OF WARRANT

  • The police officer or other person shall:
    • notify the substance, thereof to person to be arrested, and
    • show him the warrant, if so, required.

SECTION 76: PERSON ARRESTED TO BE BROUGHT BEFORE COURT WITHOUT DELAY

  • The police officer or other person,
  • executing a warrant of arrest, shall:
    • subject to, security provision under section 71,
  • without, unnecessary delay:
    • bring arrested the person, before the Court,
    • before which, he is required by law, to produce such person.

PROVIDED

  • Such delay, shall not exceed 24 hours,
  • executive of time necessary for the journey:
    • from, the place of arrest,
    • to, the Magistrate’s Court.

SECTION 77: WHERE WARRANT MAY BE EXECUTED

A warrant of arrest may be executed at any place in India.

SECTION 78: WARRANT FORWARDED FOR EXECUTION OUTSIDE JURISDICTION

(1)SITUATION:

  • A warrant executed outside local jurisdiction of the Court, issuing it.

CONSEQUENCE:

  • Such Court may;
    • instead of, directing the warrant to the police officer, within it’s jurisdiction,
    • forward it, to Executive Magistrate, or District Superintendent of police, or Commissioner of Police:
      • within local limits of whose jurisdiction it is to be executed,
      • shall endorse his name, thereon cause it to be in manner, hereinbefore, if practicable.

(2)The Court issuing warrant under section 78(1), shall forward:

  • the warrant,
  • substance of the information against the person to be arrest, and
  • such documents (if any):
    • may be enable the Court acting under section 81,
    • to decide whether bail, should be granted or not.

SECTION 79: WARRANT DIRECTED TO POLICE OFFICER FOR EXECUTION OUTSIDE JURISDICTION

(1)SITUATION:

  • Warrant directed to the police officer to be executed beyond local jurisdiction of the Court, issuing it.

CONSEQUENCE:

  • Such police officer,
  • shall take, such warrant,
  • for endorsement to:
    • an Executive Magistrate, or
    • the police officer, not below the rank of an officer in- charge of police station:
      • within local limits,
      • of jurisdiction, where warrant  is to be executed.

(2)Such Magistrate or police officer,

  • shall endorse his name thereon,
  • which shall be sufficient authority, to the police officer, who is:
    • to execute the directed warrant and
    • to take assistance of local police, to execute such warrant (if required).

(3)SITUATION:

  • With reason to believe that occasion got delayed,
  • by obtaining, endorsement of Magistrate or police officer, within whose local jurisdiction, warrant is to be executed,
  • will prevent such executive.

CONSEQUENCE:

  • Police officer (to whom, warrant is directed), may execute it:
    • without, such endorsement in any place,
    • beyond, local jurisdiction, of the Court, issued it.

SECTION 80: PROCEDURE ON ARREST OF PERSON AGAINST WHOM WARRANT ISSUED

SITUATION:

  • A warrant of arrest is executed outside the district in which it was issued.

CONSEQUENCE:

  • Arrested person shall be taken before:
    • Executive Magistrate or District Superintendent of Police or Commissioner,
    • of police, within local limits of whose, jurisdiction arrest was made.

UNLESS

  • The Court, issuing warrant:
    • is within 30 kilometres, of the place of arrest or
    • nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of police, within local limits whose jurisdiction arrest is made or
    • security is taken under section 71.

SECTION 81: PROCEDURE BY MAGISTRATE BEFORE WHOM SUCH PERSON ARRESTED IS BROUGHT

(1) SITUATION:

The person arrested appears to be the person intended by the Court, issued the warrant.

CONSEQUENCE:

  • The Executive Magistrate or District Superintendent of Police or Commissioner of Police,
  • shall direct his removal in custody to such Court.

PROVIDED

In order to release such person on bail, according to offences:

BAILABLE OFFENCE-

  • Either such person is ready and willing to give bail to satisfaction of:
    • Executive Magistrate or
    • District Superintendent of Police or
    • Commissioner of Police or
  • direction has been endorsed under section 71 on the warrant and
  • such person is ready and willing to give the security,
  • required by such direction of Executive Magistrate or District Superintendent of Police or Commissioner of Police shall:
    • take such bail of security as the case may be, and
    • forward bond to the Court (issued warrant).

NON- BAILABLE OFFENCE-

  • It shall be lawful for:
    • Chief Judicial Magistrate under section 437 or
      • Sessions Judge,
  • of district, in which arrest is made,
  • to consider information and document,
  • to release such person on bail.

(2) Nothing under this section prevents police officer from taking security under section 71.