When Can Police Legally Arrest You Without a Warrant?

Author: Vandana Vyas, College of Law for Women, AMS (Osmania University)

Introduction

In India, over 75% of the prisoners consists of under-trial prisoners, underscoring the frequency and significance of arrests, including arrests without a warrant in criminal cases. This issue is important because arrests impact fundamental rights, and liberty of the citizens. This blog will discuss the legal grounds under Indian law for police to arrest a person without a warrant, and the circumstances that justify such arrests.

Meaning:

The term arrest is derived from the French word ‘Arrester’ which means ‘to stop or to stay’. According to The Legal Glossary, Government of India, “Arrest means the restraining of the liberty of a person in-order to compel obedience to the court of justice or to prevent the commission of a crime or to ensure that a person charged or suspected of a crime may be forthcoming to answer it.”

There are two types of arrests:

Arrests with warrants issued by the courts, and
Arrests without warrants.

Legal Framework Governing Arrests Without Warrant

Section 35, 39, 170, and 176 of BNSS, 2023 (section 41, 42, 151, and 157 of Cr. P. C.) deals with the situations when a police officer may make an arrest without a warrant.

A police officer can arrest without a magistrate’s order, if:

The person commits a serious crime (called a cognizable offence) right in front of a police officer.
Against whom reasonable complaints are made or credible information has been received or reasonable suspicion exists that he has committed an offence punishable up-to seven years or more, if the following conditions are satisfied:
The police officer has reason to believe that such person has committed the crime,
The officer must believe the arrest is necessary to:
Stop the person from committing more crimes,
Help with the investigation,
Stop the person from destroying or tampering the evidence,
Stop him from threatening or influencing witnesses’
Ensure the person will come to the court whenever needed.

Note: The officer must write down the reasons for such arrest. Also, a police officer is supposed to write down the reasons for not arresting (when not required).

If the person is suspected of an even more heinous crime (punishable with more than 7 years or death), and the police believe that the person has committed it, they can be arrested without a warrant.
Police can also arrest if the person:

Has been officially declared an offender (by this Sanhita or by State Government),
Is found with stolen property,
Obstructs police officer’s duty or tries to escape,
Is suspected of deserting Armed Forces of the Union,
Is involved in any act outside India that would be an offence punishable in India,
Is a released convict, and breaks the rule made under section 394(5),
Has been requested by another police officer to arrest for certain reasonable reasons.

4. As per section 39, for non-cognizable offences, a person could not be arrested without a warrant or magistrate’s order.

5. Where the arrest is not required under section 35(1), police can issue a notice asking the person to appear before the police. The person must comply with such notice.

6. If the person ignores the notice or refuses to give their identity, police can arrest them with court orders if any.

7. Offence punishable with less than 3 years and in case of elderly person, police must take permission from the Deputy Superintendent of police before arresting.

8. Section 170 of BNSS, allows a police officer to arrest a person as preventive arrest without a warrant or magistrate’s order in-order to stop the commission of cognizable offence.

9. Section 176 of BNSS, allows such arrest during investigation if necessary for effective evidence collection.

In all the above stated situations, police can make an arrest without a warrant. But these are not exhaustive. There are even other acts like Arms Act, Explosives Act, etc., which deal with such arrests and grants such powers to police officers.

Case Laws

Dr. D.K Basu v. State of West Bengal, 1997.

The Supreme Court in this case dealt with the issue of custodial violence and gave some guidelines which provided various rights for a person on arrest. Which are:

Right to be informed about the reason for arrest.
Right to hire an advocate of his choice.
Right to inform his/her family and friends about his arrest.
Right to medical examination.
Right to get all the necessary documents to be registered by the police.
Right to be presented before a magistrate within 24 hours of arrest.
Right of not to give any self-incriminating information to the police (as per article 20(3) of Indian Constitution).

All the above stated rights were issued in-order to protect the rights of the arrested person, whether it be an arrest with warrant or arrest without warrant.

State of Maharashtra v. Christian Community Welfare Council of India, 2003.

This is a landmark case which dealt with the arrest of females.

In this case the apex court held that a woman cannot be arrested without a lady constable, she cannot be arrested after the sunset and before the sunrise. However, under exceptional circumstances, a female can be arrested without a lady constable or during the night time with the permission of the judicial magistrate of first class.

Conclusion

A key component in India's criminal justice system is section 35 of BNSS, which provides the power to police officers to make warrantless arrest in certain situations. The protection of the individual rights provided by the constitution and upheld by the judiciary must however be balanced with this authority.

In the end, warrantless arrests are meant to provide a safer society, but they should never come at the cost of personal liberty. Clear rules, transparency, and accountability are what make this power to work fairly. Therefore, Power is just, only when bound by fairness.