It is essential to balance interests of accused i.e. not to be arrested unless guilt proved in fair trial and the societal interests. In case of conflict, decision can be made by judge only, who is known for his abilities and being impartial. But certain situations require people not having judicious mind such as police etc. to make arrest w/o warrant, to prevent absconding amongst other things, or where preventive action is necessary in form of immediate arrest. However, rights such as presenting him before Magistrate within 24 hrs. and other natural justice principles are still guaranteed to accused.

Basic Provisions
By virtue of S. 41, Police has been conferred with wide powers to arrest in certain situations in absence of order or warrant from a Magistrate. It is important first to make distinction as to what offences would amount to cognizable and non cognizable. First schedule of CrPC deals with this aspect and envisages that generally, serious offences come under cognizable category where seriousness is determined by the punishment described w.r.t. the same.

Offences having sentence not lesser than 3 years are therefore generally cognizable and less serious ones with punishment less than 3 years are generally non cognizable with certain exceptions.

Following are instances where arrest can be made w/o warrant:

• S. 41(1)(a): Cognizance offence committed by someone in front of police.
• S. 41(1)(b): When there is prevalent, either reasonable complaint or info. of credible nature or some reasonable suspicion, regarding an offence of cognizable nature having imprisonment upto 7 years, and if following two conditions are satisfied, police is authorised to proceed with arrest w/o warrant:
   
  1. On basis of which, there exist a reason for believing that the person has committed the offence.
  2. And that arrest is required for either securing his court presence, or for proper investigation, or preventing him from further committing any offence, or preventing him from tampering or making evidence disappear, or preventing him from making threats or inducement or promise in order to dissuade a person from disclosing the facts he is aware about regarding the case, in front of court or police. The reasons are to be recorded in writing.
• S. 41(1)(ba): Arrest person when there exist credible info. before police, regarding a cognizable offence having imprisonment of 7 years or more, on basis of which there is reason for believing that he has committed that offence.
• S. 41(1)(c): Person who is proclaimed offender by virtue of CrPC or order of State govt and includes who's held absconding or in hiding or blocking warrant execution etc. by court.
• S. 41(1)(d): Person in whose possession a property stolen found in addition to him being reasonably suspected of an offence committed related to same property.
• S. 41(1)(e): Person obstructing police officer from doing his duty or who has escaped or attempted to escape from legal custody
• S. 41(1)(f): Suspected deserter from armed forces
• S. 41(1)(g): When credible info. or reasonable complaint or suspicion exists, against a person regarding an act committed outside India, and the same is offence in India in addition to him being liable for apprehension, from the lens of extradition or some other law.
• S. 41(1)(h): State govt. is authorised by virtue of S. 356(5) to make rules when it comes to convicts released after serving sentence of 3 years or more, regarding change of his residence or absence from residence be notified. If that rule is breached, he is liable to be arrested w/o warrant.
• S. 41(1)(i): On requisition received in either oral or written form, by another police officer with due mention of whom to arrest, grounds and offence in same.

S. 42 grants authority to police, to arrest a person who is either accused of committing a non-cognizable offence, or has in front of police done the same, w/o warrant, if the accused denies to give name and address, or if given the same being suspected to be false. This can be done for obtaining required info. The necessity for this purpose is that police were not aware about name and address previously1.

Preliminary Inquiry
There are situations where the info. doesn't disclose clearly a cognizable offence and rather needs an inquiry to be made, to ascertain if there is disclosure of the same. The object behind is to ascertain credibility of info. and whether its needed or not will depend on circumstances of case and if required, shall be entered into General Diary.

Certain situations such as commercial/corruption cases, matrimonial disputes or where there was delay in initiating criminal prosecution etc. are where this inquiry is common and must be completed in time bound manner. For instance when S.498A of IPC comes into picture by virtue of a complainant who alleges whole groom's family, it becomes necessary that certain essentials are fulfilled as laid down in cases such as Arnesh Kumar case before arresting accused family straight forward, merely because it has power to do so.

The terms used such as reasonable and credible in above-mentioned provisions differ as per facts as well as circumstances of case2. These have connection to the mindset of officer who in first place receives info. and this info. should afford material of such nature, that can be construed to be suffice, in order to come to an independent judgment to be exercised, for purpose of making arrest 3.

This power to arrest cannot be exercised on a mere chance of something that can be proved against accused afterwards the arrest. When it is alleged that a certain arrest is unlawful, burden of proof lies upon police officer to prove that he had reasonable grounds which lead to suspicion and if found malicious or excessive in nature, can be liable to be punished u/S 220 of IPC.

Other Important Aspects
S. 41-B mandates the police officer making arrest to have a visible and clear name identification, prepare arrest memo. duly signed by atleast 1 independent witness in addition to signature of person being arrested. If it's not attested by family member, a relative or member must be informed regarding arrest of his choice. S. 41-D makes it obligatory to let arrested person meet advocate of his choice who shall remain present at time of investigation though not for whole time.

Guidelines regarding arrest of judicial officers have been laid down by SC4 and comprises that whenever immediate arrest is needed, only technical/formal arrest is to be effected. He shall not be taken to police station w/o prior order from Distt. or Session Judge and communication to family and legal advisors be done with immediate effect. No interrogation to be made or memo. shall be drawn or medical to be done in absence of his legal adviser.

In case of female to be arrested, it shall be done in presence of female constable only and not between dusk and dawn. In situation where, unavailability of female constable or delay in arresting can impede investigation, with due recording of reasons, may be permitted to arrest5 and was later envisaged in S. 46(4) for such an arrest after getting authorization from Judicial Magistrate of 1st class having jurisdiction.

Recommendations
SC has been pained to see on various occasions that purpose behind amendment in S. 41 i.e. to prevent arbitrary arrest is not being fulfilled. It held that power to arrest is not absolute6 and laid certain guidelines to be followed in cases related to S. 498A of IPC and even where, offence is cognizable, non-bailable but punishment lesser than 7 years. It said that police need not arrest accused immediately post complaint and should satisfy itself, whether essentials laid down in S. 41(1)(b)(ii) are fulfilled or not.

Hence, it is essential to conduct a preliminary trial. This list of essentials should be filled and presented before magistrate, when further detention is sought amongst recording of other reasons. If arrest not required, proceed with serving of notice to appear before it as per S. 41A. These guidelines amongst other directions issued to magistrates and State govt. etc. in this landmark case shall be followed by heart, as this will reduce significantly, the anticipatory bail cases and unnecessary burden upon judicial system.

End-Notes:

1. Gopal Naidu v. King Emperor, ILR (1923) 46 Mad 605
2. Kajal Dey v. State of Assam, 1989 Cri LJ 1209(Gau).
3. Tribhuwan Singh v. R., AIR 1949 Oudh 74.
4. Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.
5. Rajkumari v. SHO Noida, (2003) II SCC 500.
6. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.