Libertatem Magazine

Note on Section 41, Criminal Procedure Code, 1973

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Explanation of  ‘Arrest without Warrant’ as per Section 41 of the Criminal Procedure Code, 1973

Introduction and Object

‘Arrest’ may be defined as an exercise of coerced control and power to strip an individual off of their liberty. In Criminal Law arresting an accused is a crucial measure for presenting him/her before the court and ensuring the prevention of their escape. The main objective is to secure and establish the foothold of administrative law. It acts as a notification or announcement to the public of a person who has committed a crime and also serves as a consequential deterrent to prevent similar crimes in the future.

Procedural Aspects under Section 41 of the Code

Section 41 of the Criminal Procedure Code[] enumerates the grounds based on which police officials can  arrest a person without a warrant:

  • When the individual has committed/been involved in or suspected to have committed/been involved in an offence cognizable in nature. (Cognizable offences are those which are extremely grave and have serious repercussions such as in cases of rape, abduction, etc.)
  • When the person is found to possess any house-breaking weapon without a valid permit or any legitimate justification.
  • When the individual is declared an offender under the Code or under an order issued by the state government.
  • When the person bars any police officer from carrying out his duty or when he/she tries to escape from the police’s lawful custody.
  • When the individual has committed/been involved in or suspected to have committed/been involved in a crime committed outside the territory of India.
  • When the person has deserted or is suspected to have deserted the Indian Armed forces.

Where a grave crime has been committed by a threateningly dangerous individual and there are possibilities of him escaping unless he/she is speedily arrested, it becomes imperative for the warrant to be forgone in such a situation. However, because of the abuse of powers bestowed upon police officials, these powers have been met with certain restrictions including the police officer ought to act with reason while pondering upon whether the arrest is necessary.

Judicial Precedents

  • In the case of DK Basu v. State of West Bengal AIR 1997 SC 610, the Apex court directed all the High Courts to oversee the penances being awarded to prisoners in cells and provide a detailed account of all individuals who had been arrested and were kept in lock-ups.
  • In the case of State of Maharashtra v. Christian Community Welfare Council of India AIR 2004 SC 7, the court held that when a woman is being arrested, a female constable should be present but if the situation is such wherein the same cannot be catered for and where the arresting officials are convinced that such presence of a lady constable is not absolutely required then the arrest can take place even without the presence of a female constable.
  • In the case of Joginder Kumar v. State of Uttar Pradesh and Ors 1994 AIR 1349, the Court observed that one cannot be arrested simply on the basis of just an allegation of commission of a crime. A citizen’s rights under the Constitution provides that he/she must not be arrested based on a frivolous doubt of complicity in a crime unless a legitimate inference has been drawn in the same regard after some amount of investigation and inquiry. The Court also directed the Magistrate, before whom the accused is produced, to ensure these requirements are followed through and are complied with till the end.


It is crucial to spread awareness and inform citizens about their rights and duties. It is also imperative to educate them about the fact that they carry the power to put an end to wrongs and injustices in society by diligently handing over criminals and wrong-doers to the authorities. Today, the power of arrest is often carried out in a wrong, illegal manner amidst numerous ongoing cases all across India. An individual who is detained is entitled to be updated on the rights available to him/her so that he/she can counter any manner of unfair and illegal acts happening against him/her. Therefore, it is extremely important for a provision to make these safeguards applicable in that instance and battle injustices.

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