Chapter 5 of the Criminal Procedure Code,1973 provides for the arrest of persons (Section 41 to 60). Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty. Arrest of a person may be desirable for securing attendance of an accused at trial, as preventive measure, for obtaining correct name and address, for removing obstruction to police etc. The Criminal procedure Code contemplates arrest in two ways:
- Arrest with a warrant
A warrant for arrest may be issued by a Magistrate after taking cognizance of any offence. Here the distinction between a summons and a warrant case may be relevant. If the case in which the cognizance has been taken is a summons case, a summons shall be issued to the accused person in the first instance for his attendance in Court, and if the case is warrant case, a warrant for the arrest of the accused may normally be issued for causing the accused to be brought before the court. The code however gives discretion to the Magistrate under section 44 to depart from this general rule if the circumstances so demand in a particular case. For instance, if at any time the magistrate has reason to believe that the accused has absconded or would not obey the summons, he may issue a warrant for his arrest.
In practise, however, the Magistrate has hardly any occasion to issue a warrant of arrest if he has taken cognizance of a cognizable offence on a police report, because the police report is submitted to the Magistrate after the police has completed the investigation into the offence and during the investigation, the police has power to arrest without a warrant. Further, the police has a legal duty to apprehend every person whom it is legally authorised to apprehend. These provisions lead to the arrest and production, there would be no occasion in practise for issuing a warrant after taking cognizance of a cognizable offence on a police report.
Cognizance of any offence can be taken by a magistrate not only upon a police report but also (1) upon receiving a complaint, or (2) upon information received from any person other than the police officer, or (3) upon cognizance has been taken on a police report in respect of a non-cognizable offence, the magistrate may issue a warrant for arrest.
- Arrest without a warrant
Powers to arrest without a warrant are mainly and widely conferred on the police, and in some circumstances on the general public also. Under Sections 41, 42, 151 CrPC, a Police officer may arrest without warrant. The Code of Criminal Procedure (Amendment) At, 2008 has brought in substantial changes in the law relating to arrest. Clause (a) and (b) of Section 41(1) of the Code has been amended to redefine the situations in which a police officer may arrest without a warrant
- Where a person has committed a cognizable offence in the presence of a police officer
- Where a reasonable complaint has been made or a credible information has been received that a person has committed a cognizable offence punishable with imprisonment for a term extending up to seven years. In such cases, the police officer shall satisfy himself that the arrest of the person is necessary to prevent such person from committing any further offence, causing evidence of the offence to disappear or tampered with, or make inducement, threat or promise to any witness, so as to dissuade him from disclosing such facts to the court, or to the police.
- Where a credible information has been received that a person has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death sentence.