When the Police May Arrest Without a Warrant

(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years, whether with or without fine, or with death, and the officer has reason to believe on the basis of that information that he has committed it;

(d) who has been proclaimed as an offender, either under the Sanhita or by order of the State Government;

(e) in whose possession anything is found which may reasonably be suspected to be stolen property, and who may reasonably be suspected of having committed an offence with reference to it;

(f) who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;

(h) who has been concerned in, or against whom a reasonable complaint has been made or credible information received or a reasonable suspicion exists of his having been concerned in, an act committed outside India which would be an offence in India, and for which he is liable under an extradition law or otherwise to be apprehended or detained in custody in India;

(i) who, being a released convict, commits a breach of a rule made under section 394(5);

(j) for whose arrest a requisition has been received from another police officer, written or oral, provided the requisition specifies the person and the offence or other cause, and it appears that the person might lawfully have been arrested without a warrant by the officer who issued it.

The necessity test in section 35(1)(b), which is what the paper asks about

Read clause (b) again slowly. It applies to an offence punishable with imprisonment which may be less than seven years or which may extend to seven years. That is the great bulk of ordinary crime. For that class, a reasonable complaint or credible information or reasonable suspicion is not enough on its own. The officer must also satisfy two conditions:

(i) he has reason to believe, on the basis of that complaint, information or suspicion, that the person has committed the offence; and

(ii) he is satisfied that the arrest is necessary for one of five purposes:

• (a) to prevent the person from committing any further offence; or
• (b) for proper investigation of the offence; or
• (c) to prevent him from causing the evidence to disappear or tampering with it in any manner; or
• (d) to prevent him from making any inducement, threat or promise to a person acquainted with the facts, so as to dissuade him from disclosing them to the Court or the police officer; or
• (e) because unless he is arrested his presence in Court whenever required cannot be ensured.

And then the two recording duties, which are what turn the test into something that can be checked:

The officer shall record, while making the arrest, his reasons in writing.

And the proviso: a police officer shall, in all cases where the arrest of a person is NOT required under this sub-section, record the reasons in writing for not making the arrest.

That second duty is unusual and students often miss it. The officer has to write down his reasons either way. So the file shows a decision was taken, and the Magistrate can see it.

Sub-section (2) completes the picture from the other side: subject to section 39, no person concerned in a non-cognizable offence, or against whom a complaint or credible information or reasonable suspicion exists of his being so concerned, shall be arrested except under a warrant or order of a Magistrate.

Sections 35(3) to (6): the notice of appearance

This is the old section 41A, moved bodily into section 35, and it is the alternative to arrest.

Sub-section (3). In all cases where the arrest of a person is not required under sub-section (1), the police officer shall issue a notice directing the person against whom a reasonable complaint has been made, or credible information received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as the notice specifies.

Sub-section (4). Where such a notice is issued, it is the duty of that person to comply with its terms.

Sub-section (5). Where he complies and continues to comply, he shall not be arrested in respect of the offence referred to in the notice, unless the police officer, for reasons to be recorded, is of the opinion that he ought to be arrested.

Sub-section (6). Where he fails to comply at any time, or is unwilling to identify himself, the officer may, subject to any orders of a competent Court, arrest him for the offence mentioned in the notice.

So the scheme is: no necessity, no arrest; notice instead; comply and you stay free; fail to comply and the protection falls away.

Section 35(7): the new bar, and it is examinable

No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.

This sub-section has no counterpart in the old Code. Three conditions must coexist: the offence carries less than three years; and the person is infirm or above sixty; and then the arrest needs the prior permission of an officer not below Deputy Superintendent of Police.

Notice that it is a permission requirement and not an absolute bar. An infirm person may be arrested for such an offence, but a rank above the station house officer must have said so first.

Section 37: the control room and the designated officer

The State Government shall:

(a) establish a police control room in every district and at State level; and

(b) designate a police officer in every district and in every police station, not below the rank of Assistant Sub-Inspector of Police, who shall be responsible for maintaining the information about the names and addresses of the persons arrested and the nature of the offence with which they are charged, which shall be prominently displayed in any manner including in digital mode in every police station and at the district headquarters.

Clause (a) is the old section 41C. Clause (b) is new, and it converts a general obligation into a named officer's duty with a published output. Section 48(1), which is dealt with in [The Rights of an Arrested Person], then requires the arresting officer to inform that designated police officer in the district of every arrest.

The cases

Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.

Facts. A young advocate of twenty-eight was called to the Senior Superintendent of Police's office at Ghaziabad for enquiries and was kept there. His family was told he would be released in the evening. He was not produced before a Magistrate. His whereabouts could not be traced; he was then found in a Station House Officer's custody and later moved to an undisclosed place. His brother petitioned the Supreme Court under article 32.

Held. The existence of the power to arrest is one thing and the justification for exercising it is quite another. An officer must be able to justify the arrest and not merely point to the power. No arrest may be made in a routine manner on a mere allegation, and none without a reasonable satisfaction reached after some investigation, both as to the person's complicity and as to the need to arrest at all. A person is not liable to arrest merely on suspicion. Except in heinous offences, an arrest must be avoided where a notice to attend the police station would do. The Court also held that an arrested person has the right, on request, to have a friend or relative informed and to consult a lawyer privately; that the officer must tell him of that right when he is brought to the station; that an entry must be made in the diary of who was informed; and that the Magistrate before whom he is produced must satisfy himself that this was done. These protections flow from articles 21 and 22(1).

Why it matters here. Everything in section 35(1)(b)(ii) began as this judgment. The phrase "except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House" is the notice of appearance in section 35(3) before Parliament wrote it.

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Facts. A husband facing a complaint under section 498A of the Indian Penal Code and section 4 of the Dowry Prohibition Act apprehended arrest. The maximum punishment was three years and two years respectively, so both offences fell inside the class for which the old section 41(1)(b) required a recorded satisfaction. His application for anticipatory bail had failed and he came to the Supreme Court.

Held. For an offence punishable with imprisonment up to seven years an officer may not arrest automatically. He must first satisfy himself that one of the necessity grounds exists and record his reasons in writing. The Court directed that police officers be given a checklist of the sub-clauses; that the filled checklist and the reasons accompany the accused before the Magistrate; that the Magistrate authorise detention only after recording his own satisfaction on that material; that a decision not to arrest be forwarded to the Magistrate within two weeks; and that the notice of appearance be served within two weeks. Failure exposes the officer to departmental action and to contempt of court, and a Magistrate who authorises detention without recording reasons to departmental action by the High Court.

Why it matters here. This is the case that turned words into a procedure, and Parliament has now written the procedure into the statute. When you answer a question on section 35, Arnesh Kumar is what you cite for the recorded reasons and for the Magistrate's independent duty.

A worked example

Constable Pawar receives information at Vikhroli police station that Sanjay has committed an offence punishable with three years.

Which limb applies? Clause (b), because the punishment may extend to seven years and may be less.

What must Pawar do first? Two things. He must have reason to believe, on the basis of the information, that Sanjay committed the offence, under sub-clause (i). Then he must be satisfied that arrest is necessary for one of the five purposes in sub-clause (ii). Suppose the only witness is Sanjay's tenant, and Pawar has material that Sanjay has been pressing her not to speak. That is sub-clause (ii)(d).

What must he write? His reasons, in writing, while making the arrest.

Suppose instead there is nothing to suggest Sanjay will interfere, and he has a fixed address and a job. Then arrest is not required. Pawar must record in writing his reasons for not arresting, under the proviso to section 35(1)(b), and must issue a notice of appearance under section 35(3). If Sanjay complies and keeps complying, section 35(5) protects him from arrest for that offence unless Pawar records reasons for a change of mind.

Sanjay stops attending after the third date. Section 35(6) allows his arrest for the offence mentioned in the notice.

Now change one fact: Sanjay is sixty-four and the offence carries two years. Section 35(7) applies, because the punishment is less than three years and he is above sixty. Pawar cannot arrest him without the prior permission of an officer not below Deputy Superintendent of Police.

And change it again: the offence carries ten years. Now clause (c) applies instead of clause (b). Credible information plus reason to believe is enough, and the five necessity grounds and the recording duty in clause (b) do not apply to it.

Distinctions

What this does NOT mean

Section 35 does not oblige the police to arrest. It empowers them. In clause (b) cases it positively requires them not to, unless necessity is made out.

The seven year line is about the punishment the offence carries, not the sentence expected. The words are "punishable with imprisonment for a term which may be less than seven years or which may extend to seven years".

Section 35(7) is not a bar on arresting the elderly. It is a requirement of prior permission from a Deputy Superintendent of Police, and it applies only where the offence carries less than three years and the person is infirm or above sixty.

A notice of appearance is not bail. The person was never in custody. Bail is release from custody, section 2(1)(b).

And Arnesh Kumar did not abolish arrest in dowry cases. It required the officer to justify the arrest and the Magistrate to apply his mind before authorising detention.

Quick revision

• Section 35(1) has ten grounds, clauses (a) to (j).
• Clause (b) is the important one: offence punishable up to seven years, plus reason to believe, plus satisfaction of necessity on one of five grounds, plus reasons recorded in writing.
• The five grounds: further offence; proper investigation; disappearance of or tampering with evidence; inducement, threat or promise to a witness; presence in Court cannot otherwise be ensured.
• The proviso: where arrest is not required, the officer must record his reasons for not arresting.
• Section 35(2): no arrest without warrant in a non-cognizable case, subject to section 39.
• Section 35(3) to (6): notice of appearance; duty to comply; protection while complying; arrest on non-compliance or refusal to identify himself.
• Section 35(7), new: offence under three years plus infirm or above sixty equals prior permission of a Deputy Superintendent of Police.
• Section 37: police control room in every district and at State level; a designated officer not below Assistant Sub-Inspector in every district and police station, maintaining and displaying the names, addresses and offences of persons arrested.
• Joginder Kumar: power and justification are different things. Arnesh Kumar: checklist, reasons, and the Magistrate's own recorded satisfaction.

Test yourself

1. State the five grounds of necessity in section 35(1)(b)(ii). To prevent further offences; for proper investigation; to prevent disappearance of or tampering with evidence; to prevent inducement, threat or promise to a person acquainted with the facts; and because his presence in Court cannot otherwise be ensured.

2. An officer decides not to arrest a suspect in a five year offence. Does the Sanhita require anything of him? Yes. The proviso to section 35(1)(b) requires him to record in writing his reasons for not making the arrest, and section 35(3) requires him to issue a notice of appearance.

3. A man of sixty-five is suspected of an offence punishable with two years. What must happen before he is arrested? The prior permission of an officer not below the rank of Deputy Superintendent of Police, under section 35(7).

4. What is the effect of complying with a notice under section 35(3)? Under section 35(5) he shall not be arrested in respect of the offence referred to in the notice while he complies and continues to comply, unless the officer, for reasons recorded, is of opinion that he ought to be arrested.

5. State the holding in Joginder Kumar in one sentence. The existence of the power to arrest is one thing and the justification for its exercise is quite another; no arrest may be made routinely on a mere allegation, and an officer must reach a reasonable satisfaction, after some investigation, both as to complicity and as to the need to arrest.

6. What did Arnesh Kumar require of the Magistrate? To peruse the report and checklist furnished by the police officer and to authorise detention only after recording his own satisfaction, failing which he is liable to departmental action by the High Court.

7. May a police officer arrest for a non-cognizable offence? Not without a warrant or order of a Magistrate, under section 35(2), except in the narrow case of section 39 where the person refuses to give his name and residence.