Section 41 of the Criminal Procedure Code authorises the arrest of any person by a Police Officer without a warrant and without an order from a Magistrate in respect of the following eleven classes of persons:
(i) Any person who has been concerned in any cognizable offence, or if a reasonable complaint has been made against him, or if credible information has been received or a reasonable suspicion exists of his having been so concerned; or
(ii) Any person who has in his possession, without any lawful excuse, any implement of house-breaking; or
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(iii) Any person who has been proclaimed as an offender, either under the Criminal Procedure Code or by any order of the State Government; or
(iv) Any person in whose possession anything is found, which may reasonably be suspected to be stolen property, or
(v) Any person who obstructs a Police Officer while in the execution of his duty, or any person who has escaped, or attempts to escape from lawful custody; or
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(vi) Any person who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(vii) Any person who is concerned in any act committed at any place outside India, which if committed in India, would be punishable as an offence, and for which he is liable to be apprehended or detained in custody in India under the law of extradition; or
(viii) Any person who is a released convict, and who has committed a breach of any rule made under S. 356(5) of the Code; or
(ix) Any person for whose arrest any requisition (whether written or oral) has been received from another Police Officer for the arrest of that person;
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(x) When non-cognizable offence is committed in the presence of a Police Officer and the person committing the offence refuses to give his true name and residence;
(xi) Any person who is a robber, thief, house-breaker, habitual receiver of stolen property, habitual kidnapper or abductor. (However, an arrest under this clause can be made only by an Officer-in-charge of a Police Station.)
It will be seen that the above provisions confer a very wide power on a Police Officer. Such a power can, therefore, be exercised only as provided in the section, and it is further necessary to be cautious and circumspect in exercising the power. (Charu,—44 Cal. 86)
However, this section is not exhaustive, as there are other Acts, as for instance, the Explosives Act, the Arms Act, etc., which confer similar powers on Police Officers.
The reference to a Police Officer in this connection obviously is to an Officer who is a member of the Police force enrolled under the Indian Police Act, 1861. Thus, a village Chowkidar is not a Police Officer within the meaning of this section. (Purna,—41 Cal. 17)
If the person to be arrested is covered by any of the above clauses, the Police Officer can arrest the person without a warrant, even if the Police Officer is not in his uniform. (Mahadeo,—21 A.L.J. 791)
The Courts have cautioned that in cases where there is some personal enmity between the Police Officer and the arrested person, a very high standard of evidence would be required to prove that the Police Officer acted in good faith in arresting such a person. (Tribhawan, — 50 Cr. L.J. 578)
In one case, a police constable asked a man not to create any disturbance on a public road. When the man declined to do so, the constable demanded his name and the address, which were not furnished. Thereupon, the constable arrested the man and took him to the Police chowky, and detained him there until his name and address were ascertained.
The Court held that, in the circumstances, the constable had lawfully exercised his powers under this section. (Goolab Rasual, —B.L.R. 597) However, in another case, when two Police Officers arrested a man without a warrant, for being drunk and creating disturbances on a public road, and confined him in the Police Station, although one of the Police Officers knew his name and address, it was held that the Police Officers’ action was not justified. (Gopal Naidu, —46 Mad. 605)
As regards clause (ix) above, formerly, there was some doubt whether the “requisition” referred to in this clause and to be in writing before it could be validly acted upon. Now, under the present Code, this controversy has been settled by the addition of the words, “whether written or oral”. Thus, even a telephone message is now covered. (Maharani of Nabha v. Province of Madras—1942 Mad. 696)