Explain When Police May Arrest Without Warrent in the following Circumstances :
1) Introduction :
2) Meaning :
3) Definition :
4) Kinds of Arrest :
A) Arrest With Warrent.
B) Arrest Without Warrent.
5) When Police May Arrest Without Warrent in the following Circumstances : Section 35 Of BNSS :
6) Case law : Kaiser Otmar Vs. State of T.N.
7) Conclusion :
8) Important points :
1) Introduction :
1) Chapter V and Section 35 to 62 deals with the arrest of persons.This Chapter provides for the "Arrest without warrant", procedure of arrest, and right of arrested person, and what are the legal consequences of the non-compliance of the rules relating to the arrest.
2) Basically Arrest is of two types such as first one is arrest with warrant and second is arrest without warrent.
3) In arrest with warrent Basically, the magistrate is empowered to make and arrest decision on the information generally obtained from a police or the complainant.
4) Arrest in Non-cognizable offence, a police officer is required to obtain a warrent of arrest from a magistrate for the purpose to arrest a person. He cannot be arrested without a warrent.
5) In summons cases if the case is a summons case a summons shall be issued to the accused person in the first instance for his attendance in court; if after issuing of summons, an accused does not appear in the court, then the Magistrate can issue (bailable) "warrant of arrest" with a view to bring the accused before the court.
6) In warrent cases If the case is a warrant case a Magistrate may issue a warrant of arrest instead of a summons, for the purpose to bring the accused before the court. The Magistrate is having discretionary powers.
2) Meaning : 'Arrest' means the deprivation of a person of his liberty by legal authority or at least by apparent legal authority.
For instance When a police officer apprehends a pick-pocket, he is arresting the pick pocket, but when a dacoit apprehends a person with a view to extract ransom, the dacoit is not arresting that person, but wrongfully confining that person.
Secondly, every compulsion or physical restraint is not arrest, but when the restraint is total & deprivation of liberty is complete, that would amount to arrest.
3) Definition :
Arrest' means the deprivation of a person of his liberty by legal authority or at least by apparent legal authority.
4) Kinds of Arrest :
Arrest is of two types ;
A) Arrest With Warrent.
B) Arrest Without Warrent.
A) Arrest With Warrent :
Basically, the Magistrate is empowered to make an arrest decision on the information generally obtained from a police or the complainant.
i. Form of warrant of arrest
If the magistrate makes an decision to arrest he would issue a "warrant of arrest". A warrant of arrest is a written document/order signed, sealed and issued by a magistrate and addressed to a police officer or some other person specially named & commanding him to arrest the accused person named in it.
ii. Important Points
a. In non-cognizable offence
In case of non-cognizable offence, a police officer is required to obtain "a warrant of arrest" from a magistrate for the purpose to arrest a person. He cannot be arrested without a warrant.
It means, in the non-cognizable offences, the police officer should obtain "warrant of arrest", then he can arrest accused.
b. In summons case
If, the case is a summons case a summons shall be issued to the accused person in the first instance for his attendance in court; if after issuing of summons, an accused does not appear in the court, then the Magistrate can issue (bailable) "warrant of arrest" with a view to bring the accused before the court.
c. In warrant cases
If the case is a warrant case a Magistrate may issue a warrant of arrest instead of a summons, for the purpose to bring the accused before the court. The Magistrate is having discretionary powers.
B. Arrest Without Warrant. ( Answer of this point is in the 6 point) 👇
5) When Police May Arrest Without Warrent in the following Circumstances : Section 35 Of BNSS
Following provisions are relating to the "arrest without warrant".
BNSS ( Bhartiya Nagarik Suraksha Sanhita )
1) Who commits cognizable offence in presence of police officer.
2) Any person against whom credibal information has been received that he has committed cognizable offence punishable beyond seven years or punishable Death or life imprisonment.
3) Against whom a reasonable complaint has been made or credible information has been received that he has committed cognizable offence below seven years and police officer is satisfied that arrest is necessary for following purpose :
A) To prevent such a person from commiting any further offence.
B) For the proper investigation of the offence.
C) To prevent such person from causing evidence to disappear or tempring with evidence.
D) To prevent inducement, threat, or promise to witnesses.
E) When presence of that person before Court cannot be ensure without arrest.
4) Who Has been proclaimed offender.
5) To whose possession stolen property. Has been found.
6) Who obstructed police officers.
7) who has escape or attempt to escape from Lawful custody.
8) who is dester from armed Forces.
9) If any person committed offence outside india then he may be arrested if his liable for punishment as per indian law of he may be arrested for purpose of extradition.
10) If any released convict commits a breach of rule or condition.
11) Any person whose arrest is require by some another police officer or (requisition Has been issued by some another police officer.
12) As per section 39 if any person
Committed Non-cognizable offence in presence of police officer and refuses to give His Name and address then police officer may arrest.
13) Without Warrent until His true Name And resident is uncertain.
14) He shall be release on Bond or Bail Bond.
15)If He is Not residents in india then Bail Bond shall be secured by Surety residents india.
15) If true Name and address is Not ascertain or Bail bond is Not executed within 24 Hours then such a person shall be forward Nearest Magistrate.
6) Case law : Kaiser Otmar Vs. State of T.N. [1981 Mad LW (Cri.) (Mad. HC)]
The Madras High Court held that "Preventing a person from making his movements & from moving according to his will, in pursuance of any legal authority amount to arrest of such person."
In a free society, a law does not permits the detention of any person without legal sanction. The right of personal liberty is a basic humart, right recognized by the United Nations in its Universal Declaration of Human Rights as well as our Constitution recognizes it as a fundamental rights
Article 21 provides "No person shall deprived of his life or personal liberty except according to procedure established by law."
Further, the procedure contemplated by this Article must be "right & just and fair" and not arbitrary, fanciful or oppressive.
It means, the arrest of a person must be made in accordance with the procedure established by law. Otherwise if an arrest without fair procedure amounts to illegal arrest or unlawful detention.
7) Conclusion : So , here we are discussed about when Police May Arrest Without Warrent a person without order of Magistrate all such conditions and provision we had discussed here and all important points we had cover and discussed.
In all such conditions a police officer can make arrest without warrent.
8) Here are some important points :
Some Important Points
For effecting an arrest;
i) The procedure of arrest must be right, just & fair. It shall comply with the provisions of Art. 21 & 22 of Indian Constitution.
ii) The judicial officer shall not be arrested without the prior order or permission or directions of the District & Sessions Judge or of the Chief Justice of High Court.
iii) The Supreme Court ruled that -
"no woman may be arrested after sunset and before sunrise except, in exceptional circumstances."
The Bombay High Court gave directions that
"The male police officer should not arrest a woman without the presence of a lady constable."
A woman should be arrested only by the woman/lady police officer.
iv) Where a person is arrested by police with or without warrant, unless the police has also obtained orders from the Magistrate, the person so arrested shall not be handcuffed. [In Citizens for Democracy Vs. State of Assam, (1995) 3 SCC 743]
This blog is written by :
Adv. Sagar Dattatray Panchal.
For all such notes and legal update please read my blog daily for university and all exams these notes are very important.
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