Introduction

It is no hidden fact that crimes are increasing every year. In the year 2020,
India’s crime rate was 314.3%, which was an increase of 73.1% compared to
the previous year. But there was a decline in the crime rate in 2021. Such a
record-high incidence of crimes needs to be curbed, and such crimes must be
properly investigated. For these reasons, the police need certain
extraordinary powers to quickly arrest someone suspected of committing a
crime without wasting precious moments while waiting for an arrest warrant.
This is where Sections 41 and 41A of the Code of Criminal Procedure, 1973,
come into play. These provisions bestow such powers on the police.

Section 41 CrPC
In accordance with Section 41, any police officer may arrest any of the
following people without a warrant or a court order:

1. Who commits a cognizable offence in the presence of a police

officer.
2. Who is the subject of a legitimate complaint, credible information, or
a credible suspicion that he has committed an offence that is
punished by imprisonment for a term that may be less than 7 years
or that may extend to 7 years, with or without a fine.

The following requirements must be met

1. Based on the complaint, information, or suspicion, the police officer

has grounds to suspect that the subject has committed the specified
offence.
2. The police department is convinced that such an arrest is required
for the following purposes:

1. To stop the offender from committing other crimes; or

2. For a thorough inquiry of the offence, or
3. To stop the offender from destroying or otherwise tampering with
the evidence of the crime; or
4. To forbid such a person from offering any enticement, threat, or
promise to anybody who is aware of the case’s facts in an effort to
discourage him from telling the court or the police officer about
those facts; or
5. Because it is impossible to guarantee that such a person would
appear in court as needed unless he is arrested;
While making the arrest, the police officer must write down his justification.
But there is an exception that a police officer must always document the
reasons in writing for not making an arrest, when doing so is not required
under the terms of this subsection.

Section 41(2) of the Code of Criminal Procedure

Section 41(2) of the Code prohibits any police officer from making an arrest
without an arrest warrant. It provides that, except under the provisions
of Section 42 (arrest on refusal to give name and residence) of the Code,
nobody suspected of committing a non-cognizable offence can be arrested
without a warrant or a magistrate’s order.

Arrest under Section 41 CrPC

As aforementioned, Section 41 of the Code enumerates the scenarios when
any police officer may make an arrest without a warrant. Though the said
Section seems to vest great powers on the police officers, such powers are
not unlimited or unrestricted. In the case of Ajit Singh v. Sham Lal and
Others (1981), it was held that a person accused of possessing an illicit arm
at one point in time can neither be called presently an accused nor a suspect
thereof. So, defining the scope of Section 41(1) of the Code, the powers of
the police to arrest a person without a warrant are only confined to persons
who are accused or concerned with the offences or are suspects thereof.

When police may arrest without a warrant

As enumerated under Section 41 of the Code, the following are the
circumstances when a police officer can arrest any person without getting an
arrest warrant. In other words, the following are the people who may be
arrested without a warrant of arrest from the appropriate magistrate.

Person committing a cognizable offence in a police officer’s

presence
Firstly, under Section 41(1)(a) of the Code, any police officer may arrest
anyone who commits a cognizable offence in his presence. In the said
provision, the term “may” denotes the discretionary power of the police
officer. Any police officer who personally witnesses someone committing a
cognizable offence has the power to either arrest him then and there without
waiting for a magistrate to issue a warrant to arrest him or wait for the
issuance of an arrest warrant. As the Court held in the case of Amarawati v.
State of Uttar Pradesh (2005), no police officer is strictly bound to arrest
someone under Section 41 (1) of the Code.
Person suspected of committing a cognizable offence
punishable with imprisonment for seven years or less
Section 41(1)(b) of the Code provides that any police officer may arrest
anyone-

 Who is suspected of committing a cognizable offence punishable

with imprisonment of seven-year or less, with or without a fine, on
the basis of a reasonable complaint, any credible information
received, or the existence of reasonable suspicion.

In a recent judgement by the Delhi High Court in Pradeep Kumar Tiwari v.

State of NCT of Delhi (2022), it was observed that, when a reasonable
complaint has been made, credible information has been obtained, or a
reasonable suspicion exists that a person has committed a cognizable offence
punishable with imprisonment for less than seven years or which may extend
to seven years with or without a fine, the police may act against that person
and effect his arrest, according to Section 41(1)(b) CrPC.

Person suspected of committing a cognizable offence

punishable with imprisonment for more than seven years, or
death
Section 41(1)(ba) of the Code extends the power of a police officer provided
under Section 41(1)(b) of the Code. It provides that any police officer can
arrest any person who is suspected of committing any cognizable offence
punishable with imprisonment of seven years or more, with or without a fine
or death.

Proclaimed offender
Section 41(1)(c) of the Code provides that any police officer may arrest any
proclaimed offender. The offender may be proclaimed either by the Code or
by any order of the state government.

Person suspected to be possessing any stolen property

Section 41(1)(d) of the Code gives any police officer the power to arrest
without a warrant anyone who possesses anything which is reasonably
suspected to constitute stolen property. Further, reasonable suspicion must
exist of the suspect that he has committed any offence with regard to the
stolen property.
It was observed in the case of Avinash Madhukar Mukhedkar v. the State of
Maharashtra (1983), it is true that Schedule I of the Criminal Procedure Code
describes the type of offence, whether it is cognizable or not. However,
where the offence is committed in violation of any other legislation, Section
41(1)(d) must be regarded as an exemption to Schedule I of the Criminal
Procedure Code.

Person obstructing the execution of a police officer’s duty

The power of a police officer to arrest any person who is obstructing the
execution of his official duty without a warrant.

Person who escapes or attempts to escape from lawful

custody
Section 41(1)(e) of the Code provides a much-needed power to any police
officer, that is, to arrest without warrant any person who has either escaped
or attempts to escape from lawful custody. Though the term “custody” is not
explicitly defined under the Code, Section 167 of the Code elucidates the
concept of custody. In general parlance, it refers to the detention of an
accused in pursuance of an investigation. Custody may be either judicial or
police custody.

Suspected deserter from any armed forces of the Union

Under Section 41(1)(f) of the Code, any police officer may arrest, without a
warrant, any person who is reasonably suspected to be a deserter from the
Armed Forces of the Union. The Armed Forces of the Union refers to the
three military forces in India, which are the Indian Army, Indian Navy, and
Indian Air Force. A deserter is a person who abandons his service or duty
without availing of leave.

A released convict breaching any rule made under Section

356(5) of CrPC
Section 356(5) of the Code deals with the provisions related to notifying the
change in the address of any person convicted more than once of certain
offences. It states that when a person is punished with imprisonment of at
least 3 years for certain offences, a Magistrate of Second Class can order him
to notify his change of residential address for a period of up to five years
after the term of imprisonment ends.
Person requested by another police officer to be arrested
When any police officer requests another police officer to arrest a specific
person for a particular cause, the officer to whom the requisition is made can
arrest the specified person without a warrant. Section 41(1)(i) of the Code
does not provide any conditions for accepting such a request. However, it
states that the police officer to whom the request is made may give consent
to such an arrest if it appears to him that the arrest can be lawfully made
without a warrant.

Notice of appearance under Section 41A

CrPC
Section 41A of the Code was added to the Code by the Code of Criminal
Procedure (Amendment) Act, 2008. It provides that when a police officer
cannot make an arrest under Section 41(1) of the Code of the person
suspected of committing a cognizable offence, he may issue a notice of
appearance to the suspect to make him appear before him at any specific
place and time.

The conditions for issuing such a warrant are:

 Reasonable suspicion;
 Credible information, or
 Reasonable complaint.
The said Section reads, “when such a notice is issued to any person, it shall
be the duty of the person to comply with the terms.” So, a notice of
appearance legally binds the suspect to comply with the conditions of the
notice. Further, as long as the suspect continues to comply with the terms of
the notice, the police officer can not arrest him, provided he considers it
necessary. Nevertheless, he should record his reasons for making such an
arrest despite the terms of the notice being fulfilled.

In the case of Dr. Rini Johar and Another v. the State Of M.P. (2016) the
Supreme Court observed that according to Section 41A CrPC, the police
officer must issue a notice directing the accused to appear before him at a
specific location and time where the arrest of the individual is not necessary
by Section 41(1) CrPC. The law requires such an accused to come before the
police officer, and it further stipulates that if the accused complies with the
requirements of the notice, he must not be detained unless the police officer
determines that the arrest is required for reasons that must be documented.
The condition precedent for arrest outlined in Section 41 of the Criminal
Procedure Code must also be met at this point, and the Magistrate will
conduct the same level of examination.

Recently, in the judgement of Mukesh Khurana v. State of NCT Delhi (2022),

the Delhi High Court held that the Supreme Court’s positions have been
included in the revised Criminal Procedure Code, particularly with the
addition of Section 41A CrPC and changes to Section 41A CrPC. Therefore,
even when detaining someone for a crime carrying a maximum sentence of
seven years in prison, the police must first issue a notice and only make the
arrest if the noticee or suspect refuses to cooperate. Of course, there are
other circumstances under which a police officer may make an arrest, as
specified in Section 41(1)(a) and (b) of the Criminal Procedure Code.

Guidelines on issuing a notice of appearance

In the case of Arnesh Kumar v. State of Bihar and Another (2014), the Apex
Court gave the following directions as to the issuance of a notice of
appearance by a police officer to any accused:

1. The state governments must give directions to the police officer to

abide by the requisites mentioned under Section 41 of the Code;
2. The police officers must be provided with a checklist of the sub-
clauses of Section 41 of the Code, which should be duly filled in and
forwarded to the Magistrate to prove why the arrest without a
warrant was necessary;
3. The notice of appearance should be served on the suspect within
two weeks from the date of the institution of the case.

Conclusion
Section 41 of the Code is both a boon and a bane. It is a boon because using
the same, the police officer will be able to arrest the suspect without wasting
time waiting for the warrant. In the absence of Section 41 of the Code, a
police officer who witnesses with his own eyes someone committing a
cognizable offence will have to let go of the accused even though he knows
that he is the culprit. The time wasted in procuring the warrant will probably
result in the suspect escaping from the place of action. So, Section 41
provides ample discretionary powers to arrest any person without a warrant
if he considers the arrest quite pertinent and urgent. However, when not
utilised judicially, the exercise of the powers of a police officer vested under
Section 41 may become chaotic. Such powers are practically unlimited.

Further, Section 41A of the Code, which gives a police officer the power to
serve a notice of appearance on any suspect, may be severely misused. This
is because it provides that the notice can mandate the suspect to appear
before the police officer at any ‘such other place’. Using the term, the police
officer may require the suspect to appear literally anywhere, not just at the
police station or headquarters. So, though Sections 41 and 41A of the Code
are advantageous to criminal procedures, there are certain loopholes in them
that may be misused by police officers. Hence, there is an urgent need to
bring about stringent rules as to the extent of application of the said
sections.