B.A. LL.B. (Five Years) Sem 7 Criminal Law II 2020 Nov Question Paper with Solutions

How an arrest happens. Section 46 says the officer must touch or confine the person's body. No touch is needed where the person submits by word or conduct. So a person who walks into a court, surrenders and asks for bail is in custody and has been arrested in law.

Arrest and custody. Every arrest places a person in custody, but custody can arise without a formal arrest. A person who surrenders before a Magistrate is in the court's custody. That is why he can then ask for bail under section 439.

With a warrant and without one

A warrant is a written order of a court, signed and sealed, directing a named person's arrest (section 70). It is the normal route for less serious crime. For serious crime the law lets the police act at once, without waiting for any court. This is arrest without warrant, and section 41 is its main source.

The dividing line is the class of offence. A "cognizable offence" is one in which a police officer may arrest without warrant (section 2(c)). Column 4 of the First Schedule says, offence by offence, whether this is so. Murder, robbery, rape and theft are cognizable. Simple hurt, defamation and most offences against marriage are not.

5. Clause (d): a person found with suspected stolen property. The thing must reasonably look stolen, and the person must reasonably be suspected of an offence about it.
6. Clause (e): obstruction or escape. This covers a person who obstructs an officer doing his duty. It also covers one who escapes, or tries to escape, from lawful custody.
7. Clause (f): a suspected deserter. A person reasonably suspected of deserting any of the Armed Forces of the Union may be arrested.
8. Clause (g): an act done outside India. The act must be one that would be an offence if done in India. The person must also be liable to be held in India under extradition law or otherwise.
9. Clause (h): a released convict who breaks a rule. This refers to a convict who fails to notify his residence as required by rules under section 356(5).
10. Clause (i): a requisition from another officer. The request may be written or oral. It must name the person and the offence, and the requesting officer must himself have been able to arrest without warrant.

Non-cognizable offences and the notice

1. Section 41(2). No one may be arrested without warrant for a non-cognizable offence. A warrant or a Magistrate's order is needed, except under section 42.
2. Section 41A. Where arrest is not required under section 41(1), the officer "shall" issue a notice to appear. A person who obeys is not arrested unless the officer records reasons. A person who disobeys, or will not identify himself, may be arrested, subject to any court order.

Other powers to arrest without warrant

1. Section 42. A person who commits a non-cognizable offence before an officer may be arrested if he refuses his name and address, or gives false ones.
2. Section 151. An officer who knows of a design to commit a cognizable offence may arrest, if the offence cannot otherwise be prevented. Detention under this power cannot exceed twenty-four hours unless the Code or another law authorises more.

Held. Appearing in court and seeking bail is a surrender to custody. The view that no arrest had occurred "goes against the very grain of Sections 46 and 439 of the Code". The Court explained that submission by word or action is enough under section 46. Given the long confusion on the point, the candidates were not treated as having lied.

Why it bears. It shows what counts as an arrest, even without any physical seizure.

Facts. In Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260, decided on 25 April 1994, a young advocate was called to a senior police officer's office for enquiries and held there. His family could not find him, and he was not produced before a Magistrate.

Held. The existence of the power to arrest is one thing, and the justification for using it is another. No arrest should be made in a routine manner on a bare allegation. The officer must reach a reasonable satisfaction, after some investigation, both of the person's involvement and of the need to arrest.

Why it bears. It is the root of the necessity test now written into clause (b).

Under the Sanhita

From 1 July 2024, section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces section 41. Clauses (a) to (j) of its sub-section (1) keep the same ten situations, with the old clause (ba) now clause (c). Section 35(2) keeps the bar for non-cognizable offences. Sub-sections (3) to (6) now hold the notice that was section 41A. Section 35(7) adds a new limit for an infirm person or one above sixty. Such a person cannot be arrested for an offence punishable with less than three years without a Deputy Superintendent's permission. Section 170 replaces section 151.

Conclusion. Arrest is the lawful restraint of a person, and even a surrender in court counts, as Dinesh Kumar holds. A police officer may arrest without warrant only in the situations listed in section 41(1) and a few other provisions. For offences up to seven years, he must believe the person guilty and find arrest necessary, recording his reasons either way. Joginder Kumar and M.C. Abraham make clear that the power is a discretion to be justified, not a duty to be used in every case.