Under Section 43 of the Code of Criminal Procedure, a private person can arrest any person, who has, in his presence, committed a non-bailable and cognizable offence, or any person who is a proclaimed offender. Any person so arrested must, without unnecessary delay, be handed over to a Police Officer or to the nearest Police Station.
If, however, there is reason to believe that he has committed a non- cognizable offence, and if refuses to give his name and address to the Police Officer (or, if he gives a name and address which appears to be false), such a person is to be dealt with S. 42, above.
If the Police Officer has reason to believe that such a person falls under any of the clauses of S. 41 (discussed above), the Police Officer must re-arrest him. If, however, there is no sufficient reason to believe that he has committed any offence, the person is to be released forthwith.
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The principle underlying this section was well-expressed in an English case as follows : “For the sake of preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is being endangered by his acts.” (Timothy—1835 4 L.J. Ex. 81)
Thus, if a person is drunk and disorderly, and is assaulting others, so that his conduct is a grave danger to the general public, he can rightly be arrested by a private citizen under this section. (Ramaswamy,—44 Mad. 913)
In this connection, it cannot be argued that this section applies only to those cases when the offence committed in the presence of the private person is a substantive offence, and that this power is not available when there is merely an attempt to commit an. offence. In fact, the section is equally applicable when the attempt is itself an offence, and such an attempt is made in the presence of the other person. (Dost Mohammad,—A.I.R. 1945 Lah. 334)
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Under this section, an arrest is justified even if the private person is under a bona fide impression that a non-bailable and cognizable offence, as for instance, abduction of a girl, is being committed in his presence, although it may turn out subsequently that the case is not one of abduction. (Anant Prasad,—27 Cr. L.J. 1378)
Finally, it may be noted that after making such an arrest, the person arresting must take the arrested person to a Police Officer or to the nearest Police Station. If he keeps the arrested person in his own custody, he would be guilty of the offence of wrongful confinement under S. 342 of the Indian Penal Code.