All About Warrantless Arrest [Arrest without a Warrant] By Divyansh Sachdeva


Dear CC Readers,

Making the title Crystal clear, warrantless arrest in simple words is an arrest without a warrant.

"When police officer makes a warrantless arrest, no judge has a chance to determine ahead of time whether the police have a reasonable cause to make an arrest, still for a suspect to remain in custody following an arrest; the police must promptly satisfy a judge or Magistrate that they had probable cause to make an arrest. The Supreme Court has ruled that warrantless police conduct may comply with the Fourth Amendment so long as it is reasonable under the circumstances. The exceptions made to the Fourth Amendment's warrant requirement reflect the Court's reluctance to unduly impede the job of law enforcement officials."

Basically, these kinds of arrest are okay only if some kind of probable cause exists except if a police officer arrests a suspect for a misdemeanour not committed in the officer’s presence.

Now adding details in the points:

  • Certain provisions have been provided in the Criminal Procedure Code, 1973 w.r.t Constitution of India to better understand the worth of the warrantless arrest.

  • Article 21 of the constitution states “No person shall be deprived of his life and personal liberty except procedure established by law”.

  • Whereby a person is arrested, his personal liberty is affected but there are some guidelines in Cr.P.C under the procedure established by law to arrest a person without warrant and such arrest does not affect the personal liberty of the person arrested.

  • Generally, an officer cannot make an arrest without a warrant issued by the magistrate but Section 41 of the code of criminal procedure empowers a police officer to arrest a person without a warrant.

  • It has been categorised into nine cases mentioned below under sub- section (1) of Section 41.

Which runs as follows:-

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

  • Who commits a cognizable offence in the police officer’s presence; or
  • Against whom a reasonable complaint has been made or credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term may be less than seven years or which may extend to seven years with or without fine as a case may be; or
  • Who has proclaimed as an offender either under this code or by order of the state government; or
  • In whose possession anything is found which may reasonably be suspected to be stolen property and suspected of having committed an offence with reference to such thing; or
  • Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
  • Who obstructs an officer while in the execution of his duty or who has escaped or attempt to escape from lawful custody; or
  • Who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received, any act committed at any place outside which if committed in India would have been punishable 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
  • Who commits a breach of any rule made under Sub-Section (5) of Section 365; or and
  • For whose arrest any requisition has been received orally in written 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.

"A police officer in charge of a police station may as a preventive measure arrest without warrant any person belonging to one or more of the categories of persons specified in Section 109 or Section 110 i.e. persons taking precautions to conceal their presence with a view of committing a cognizable offence, habitual robbers, housebreakers, thieves, etc. and persons habitually indulging in the commission of certain social and economic offences."

Now, here arises a question:

Whether a private person can make a Warrantless Arrest?

Yes, a private person can arrest a suspect without a warrant. Section 43 of Cr.P.C states that any private person may arrest without a warrant.

  • If any person commits a non-bailable and cognizable offence in his presence; or
  • Any proclaimed offender;
  • If there is a reason to believe that such a person comes under the provisions of Section 41, a police officer shall re-arrest him
Such a private person arresting another shall without delay handover the arrested person in custody to the nearest police station.

Further, resolving a new query,

Whether a Magistrate can make a Warrantless Arrest?

Under Section 46, Magistrate either an executive or judicial can arrest a person on the satisfaction of the following condition:

  • An offence committed by that person in presence of the Magistrate
  • An offence committed by that person within local jurisdiction if the Magistrate
On satisfaction of the above-mentioned condition either he or order any person to make an arrest the offender.

Powers of Arrest under Section 151 of Cr.P.C

  • Section 151 of Cr.P.C provides for an arrest to prevent the commission of cognizable offences. This statutory provision empowers the police to arrest any person, without orders from a Magistrate and without a warrant, “if it appears to such officer” that such person is designed to commit a cognizable offence and that the commission of offence cannot be prevented otherwise.

  • Even if where accused is a police officer and he is as the offender and he is guilty of committing cognizable offence police to have to act impartially. Having regard to principles of equality before law and justice to all in dealing with culprits especially a police officer who is guilty of committing an offence a police officer who is guilty of committing an offence a police officer can arrest them.

    This principle was upheld in Sahadeviah vs. N. Srinivasa Chari, by High court of Andhra Pradesh.

  • Several of us now hereby wishes to clear out the new raised query

  • Whether the police can make a warrantless entry into any dwelling to arrest the person?

  • Police officers generally need to obtain arrest warrants before arresting suspects in their dwellings. If necessary, another officer can be posted outside a home to prevent a suspect’s escape during the time it takes to obtain a warrant.

However, warrantless in-home arrests are valid under certain circumstances if “exigent circumstances” exist that make it impracticable for the police to obtain a warrant. Examples of exigent circumstances are where, a police officer who:

  • Is in hot pursuit of a fleeing suspect who runs into a house or apartment will not generally be required to break off the chase and obtain a warrant.
  • Believes that someone in the home is in danger and gains entry for that reason may then arrest the owner with no warrant.
  • Is let into the home by someone answering the door may make the warrantless arrest.
Synopsis:

The bare perusal of the aforementioned legal provision contemplates that the legislative intent is to prevent the commission of a non-bailable and cognizable offence.

Sources: indiankanoon[dot]org

Click here to read the disclaimer


Write a Comment