B.A. LL.B. (Five Years) Sem 7 Criminal Law II 2017 Dec Question Paper with Solutions

2. A private person, in two narrow cases under section 43.
3. A Magistrate, for offences committed in his presence, under section 44.

Part 1: the police

The grounds, grouped. Section 41(1) allows any police officer to arrest without a Magistrate's order or warrant in these situations.

1. Offences seen or reported. A cognizable offence committed in his presence. Or a cognizable offence of which there is a reasonable complaint, credible information or reasonable suspicion. The necessity test applies where the offence carries seven years or less. For graver offences, credible information and reason to believe are enough.
2. Status of the person. A proclaimed offender. A released convict who breaks the rules on notifying his residence. A suspected deserter from the armed forces.

2. Section 151. An officer who knows of a design to commit a cognizable offence may arrest to prevent it, if it cannot otherwise be prevented. The detention may not exceed twenty-four hours.
3. Section 432(3). A convict whose suspended or remitted sentence is cancelled for breach of a condition may be arrested.

Non-cognizable offences (section 41(2)). Apart from section 42, no arrest without warrant or a Magistrate's order.

Limits on the police power

The Supreme Court has repeatedly separated the existence of the power from the justification for using it. An arrest is lawful only if the conditions of section 41 are applied with care to the case. It must not be used as punishment or harassment.

Part 2: arrest by a private person (section 43)

The only two cases. Any private person may arrest, or cause to be arrested, a person who:

1. in his presence commits an offence that is both non-bailable and cognizable; or
2. is a proclaimed offender.

Force. A private person, like a police officer, may use all means necessary if the person forcibly resists or tries to evade arrest (section 46(2)). But this does not justify causing the death of a person not accused of an offence punishable with death or life imprisonment (section 46(3)).

The manner of arrest (sections 46, 49 and 60)

1. Touch or submission (section 46(1)). The person arresting must touch or confine the body of the person, unless he submits by word or action. A woman's submission on oral intimation is presumed, and only a woman officer should touch her, unless circumstances require otherwise.
2. Night arrest of women (section 46(4)). Save in exceptional circumstances, with a first class Magistrate's prior permission, no woman is arrested after sunset and before sunrise.
3. No more restraint than necessary (section 49). The person arrested must not be subjected to more restraint than is needed to prevent his escape.
4. Escape (section 60). If a person escapes from lawful custody, the person from whose custody he escaped may pursue and arrest him anywhere in India.

The leading cases

Facts. In Mohammed Zubair v. State (NCT of Delhi), decided on 20 July 2022, a fact-checking journalist was arrested by the Delhi Police over his tweets. Several more FIRs on similar allegations followed in Uttar Pradesh, keeping him in custody.

Held. "The existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly." Police must apply their minds to the conditions in section 41 before arresting. "Arrest is not meant to be and must not be used as a punitive tool." He was granted interim bail in all the FIRs.

Why it bears. It shows the limits within which the police power under section 41 must be used.

Facts. In Siddharth v. State of Uttar Pradesh, decided on 16 August 2021, a stone supplier was among eighty-four persons named in an FIR registered seven years earlier. He had joined the investigation, and the charge-sheet was ready. He was then issued an arrest memo, because the trial court would not accept a charge-sheet unless the accused was produced in custody.

Under the Sanhita

From 1 July 2024, sections 35 to 41 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replace sections 41 to 44. Section 40, replacing section 43, requires the private person to hand over the arrested person "without unnecessary delay, but within six hours". Section 35(7) needs a Deputy Superintendent's permission to arrest an infirm person or one above sixty for an offence punishable with less than three years. Section 43(3) allows handcuffing for listed serious offences, and section 170 replaces section 151.

Conclusion. A police officer may arrest without warrant in the situations listed in section 41 and a few other provisions. He is bound by the necessity test, the notice of appearance and the courts' insistence on restraint, as Mohammed Zubair and Siddharth show. A private person may arrest only one who commits a non-bailable and cognizable offence in his presence, or a proclaimed offender. He must hand that person to the police without unnecessary delay, after which the police re-arrest or release him. A Magistrate may arrest for offences committed before him.