Arrest of an Accused: Its Legal Provisions

What is meant by arrest?

Arrest is the formal taking of a person to lock up. It is being done to prevent the accused from tampering evidence, induce threat to the witnesses and keeping away from court proceedings when required. These things can be solved by enforcing some conditions on the accused.

In arrest, the police officer is not expected to act in a mechanical manner. Some tangible proof must exist about the commission of an offence, when a police officer initiates arrest of an accused. Due diligence must be exercised by the police officer when putting an accused under arrest.

In the UK the Police are to pay damages if their exercise of power in regard to the arrest is wrong whereas in India the CrPC does not have enough provisions to prevent wrongful or false arrests. The police can remand an accused in custody for 90 days without filing a charge report and the court can keep him in jail almost indefinitely. There is no much restraint on police in India in regard to arrest.

Police have power to arrest in a cognizable case

In a cognizable offence, the Police Officer has statutory power to arrest an accused without warrant if he is satisfied that:-

  • it is necessary for proper investigation,
  • to prevent the arrestees from tampering with evidence,
  • to prevent them from influencing / intimidating witnesses or
  • to ensure their presence in the court.

But during the arrest the officer has to apply his mind and ensure that the conditions laid down in Section 41 of the Criminal Procedure Code, 1973 (CrPC) and the Guidelines laid down by the Supreme Court (SC) in Arnesh Kumar v State of Bihar  are strictly followed.

Lodging an FIR – based on a credible information or reasonable suspicion founded on some definite fact in regard to the commission of a cognizable offence – is essential for arrest and consequent detention in custody.

Section 41 CrPC says arrest is discretionary

The statutory provision that authorizes a police officer to arrest an accused is Section 41 of the CrPC. The term “may arrest “used in the section denotes that the power of arrest is discretionary.

Arrest of a person can cause incalculable harm to his reputation which he has built up over the years. Therefore, except in heinous offences and in unnecessary circumstances, arrest must as far as be avoided.

Unduly long pre-trial detention occurs in many criminal cases. The accused have to languish in jail for long. Some of them will be found not guilty and set free at the end. Magistrates have a due role in such a state of affairs. An accused, who has been arrested by Police, can be detained in prison beyond 24 hours only with the authorisation of the court.

Therefore, the Supreme Court in Arnesh Kumar V State of Bihar & another cautions the magistrates that the power to authorize detention is a solemn function that needs to be exercised with great care and caution.  But many of the subordinate court verdicts show that the courts do not exercise the function with utmost seriousness it deserves. In many cases the detention is authorised by the magistrate in a routine, casual and cavalier manner. This is a serious flip side of the problem.

Registration of FIR is mandatory but arrest is not

In short, what the law states as of now is that when any piece of information disclosing the commission of a cognizable offence reaches a police officer no discretion is left to him except registering an FIR against the accused. While exercising the power of arrest, the officer must apply his mind and decide whether the person accused need to be arrested or not. Even if an FIR is lodged arrest is not a prerequisite.

In Lalithakumari case, the Supreme Court unequivocally declared the parameters of registering an FIR removing every trace of doubt. Similarly, a verdict from the Supreme Court for re-examining the laws relating to arrest is urgently needed. Unnecessary arrests and pre-trial detention in many a case goes against the constitution and the rule of law itself.

Arrest not essential in every cognizable case

A police officer is not bound to arrest an accused in every case when a cognizable offence is committed and an FIR is lodged.

Arrest is not a punitive measure. It is a discretionary power for the police officer to exercise as it leads to curtailment of fundamental rights and loss of liberty. Arrest without application of mind is mere abuse of power. There must be some compelling reasons to arrest an accused who committed a cognizable offence.

Arrest of a person is not directly linked to the registration of FIR. The judgement of the Constitutional Bench of the SC in Lalithkumari case states that the registration of FIR and arrest are entirely different concepts operating under different parameters. The power to arrest is a lucrative source of money for the police.

Police misusing arrest can be punished

If a police officer misuses his power of arrest, he can be tried and punished under Section 166 of the Indian Penal Code. Therefore, a police officer should apply his mind independently while taking a decision on arresting anyone.

Police officer should ignore the vociferous public outcry for arrest that goes wholly against what is stated in the statue book. Arrest and detention of the accused in custody is treated by people in general as a procedural punishment for the accused. Many a time the arrest and the ordeal under it comes out as a severe punishment for the accused than the prescribed punishment itself.

Sixty percent of arrests are unnecessary

Indian laws on arrest, pre-trial detention and charge framing are in shambles or irreparable disorder. Those laws are of colonial origin. The Law Commission of India in its 177th report, by citing the statistics provided in the Third Report of the National Police Commission, points out that sixty percent of the arrests were unnecessary or unjustified.

A major section of jail inmates was those unnecessarily arrested. Due to procedural tangles some of them are forced to languish in jail for long even without knowing the charge on which they were arrested – as charge framing by the court takes place pretty long after the arrest.

Not to arrest in every cognizable & non-bailable offence

In Arnesh Kumar V State of Bihar & another, the Supreme Court said, “We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so”.

Arrest is in fact an encroachment on the freedom and liberty of the person so arrested. It infringes his fundamental right granted by the constitution which can be restricted only in a limited manner. Therefore, the power of arrest is to be exercised only with great caution and suspicion but not on vague surmises. Investigation can proceed without arrest if an FIR is registered.

In India, it is a problem that the power to arrest rests with the Police while the power to frame the charge is with the magistrate at a later stage. In the UK both are done by the police itself.

Situations in which Police can Arrest without warrant

A police officer can outright arrest a person, alleged to have committed a cognisable offence, without a warrant in certain circumstances and by following some stipulations. He can make preventive arrest also without a warrant in some other situations.

A cognizable case is a case in which the police officer, as per its definition under Section 2 (c) CrPC has inherent power to arrest a person. A cognizable case starts with a registration of First Information Statement (FIR).

When a cognizable offence occurs in the presence of the officer

A Police Officer can arrest without warrant a person who commits a cognisable offence in the presence of the police officer himself.

Such arrests occur without lodging a FIR. The purpose of this arrest is to impede the continuation of the offence.

When allegation is for an offence punishable with 7 years or less  

A person accused of offence punishable with imprisonment for seven years or a lesser period can be done only under certain conditions, but not on his satisfaction that he has committed such an offence, alone.

The officer can arrest such a person, against whom a reasonable complaint or credible information, or a suspicion exist in regard to commission of a cognisable offence punishable with imprisonment for seven years or a lesser period, under the Section 41 (1) (b) CrPC, only in the following two conditions:

  1. The police officer has reason to believe that such person has committed the offencebased on that complaint, credible information or suspicion, and;
  2. the Police officer must further satisfy himself that such arrest is necessary, to prevent such person from committing any further offence, for proper investigation of the offence, to prevent such person from causing the evidence to disappear or tampering with the evidence in any manner, to prevent such person from making any inducement, threat or promise to any person so as to dissuade him from disclosing such facts to the court or the police, and as unless such person is arrested his presence in the court cannot be ensured (Section 4141 (1) (b (ii) (a) to (e)) CrPC ).

When a police officer arrests a person in this regard, he has to state the facts and record his reasons for the arrest. Arrest of accused without recording the reasons is not only illegal but also violation of Article 21 of the Constitution.

In case he is not making arrest in this regard, he must record his reasons, for not arresting.

In other words, the police officer, before making arrest, should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from that the police officer has to be further satisfied that the arrest is necessary for one or more purposes envisaged under Section 41 (1) (b) (ii) (a) to (e) of CrPC.

Police should produce a checklist before the Magistrate

The police officer producing the accused before the Magistrate should furnish a checklist stating the reasons which necessitated the arrest as per the above sub clause. The Magistrate should peruse the checklist and record his satisfaction before authorising the detention of the accused. Failure to record such reasons by the police officer and the Magistrate may attract departmental action. The police officer can be subjected to contempt proceedings, as stated in Arnesh Kumar v State of Bihar ( AIR 2014 SC 2756).

Accused punishable with up to 7 years can be issued notice

In a case an accused is implicated in an offence punishable with up to seven years, the arrest of the accused is not necessary at the initial stage.

Attendance of such a person may be secured by issuing a notice to him to appear before the police officer under Section 41A of CrPC. In such cases it is advisable to arrest the accused only after sufficient evidence has been collected.

If he fails to comply with the notice, he can be arrested subject to the orders of the Magistrate.

In case of a cognizable offence of more than 7 years

If the offence committed is the one punishable with more than seven years imprisonment the police officer can exercise his discretion in arresting the accused.

An arrest during the investigation of a cognizable case may be considered justified the case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.

Essential conditions of arrest

The essential conditions for arrest are:

  1. Commission of cognisable offence or reasonable complaint concerning it
  2. Reasonable suspicion founded on some definite facts but not bare suspicion or surmises
  3. Credible information likely to be believable and from reliable sources as to person’s involvement in the cognizable offence
  4. Exercise of personal satisfaction and judgement in making arrest

In Joginder Kumar v State Of U.P the Supreme Court held that it would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.

Police may arrest the following offenders too

The Police Officer may arrest without warrant the following categories of persons if:

  1. the person is a proclaimed offender under CrPC or by order of the State government
  2. the person possesses anything that can be reasonably suspected as stolen material is found and having committed an offence relating to such thing
  3. the person obstructs a police officer during execution of his duty or escape or attempt to escape from custody
  4. the person is suspected of having deserted the Armed Forces
  5. such a person is alleged to have committed an offence for which he is detained in custody in India under a law for extradition, based on a complaint, credible information or reasonable suspicion.
  6. such a person is a released convict committing a breach of any law under Section 356(5) CrPC.
  7. Such a person is one against whom a police officer of another state has made a written or oral requisition

Arrest in non-cognizable offence

A person concerned in a non-cognizable offence should not be arrested without a warrant, except under Section 42 CrPC.

But if a person commits a non-cognizable offence in the presence of the police officer, the officer can arrest him without a warrant.

If a person accused of committing a non-cognisable offence refuses to give his name of give false name and address, he may be arrested without a warrant (Section 42 (1) CrPC).


In short, the police officer has wide powers for making arrest without warrant when a reasonable complaint or credible information reaches him but it should be exercised cautiously. The police officer must have sufficient materials for exercising independent judgement at the time of making arrest. When legality of an arrest without warrant is challenged in the court the police officer must satisfy the court that he had reasonable grounds of suspicion.

Police Officer has enough discretion in making arrest without warrant. That must be exercised not at his sweet will, but when there is reasonably founded suspicion as to commission of a cognizable offence.

Malicious or excessive exercise of powers of arrest is punishable under Section 220 Indian Penal Code (IPC).

Additional reading

  1. K Rajasekharan : Police Officer’s Power to make Preventive Arrest
  2. Joginder KumarState Of U.P (AIR 1994SC 1349)
  3. Arnesh KumarState of Bihar (AIR 2014 SC 2756)
  4. D K BasuState of West Bengal (AIR 1997 SC 610)
  5. Lalita Kumari v Government of U.P.& Ors
  6. Mohammed Zubair v State of NCT of Delhi & Others [ 2022 (2) KLD 487 (SC)