SECTION 41 CRPC

Introduction:
The Code of Criminal Procedure, 1973 (CrPC) is a crucial legal document in India that
governs the procedural aspects of criminal law. Section 41 of the CrPC outlines the powers of
police officers to make arrests without a warrant under specific circumstances. This provision
is pivotal in maintaining law and order while ensuring individual rights and due process.
Section 41 CrPC:
Before understanding and analyzing the section with case laws it is important to first have an
overview of the entire provision as stated in CrPC. Section 41 talks about grounds where the
police have power to make an arrest without warrant.
1) Any police officer may without an order from a Magistrate and without a warrant,
arrest any person—
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely: -
(i) the police officer has reason to believe on the basis of such complaint, information,
or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary: -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or
tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required
cannot be ensured, and the police officer shall record while making such arrest, his
reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not
required under the provisions of this sub-section, record the reasons in writing for not
making the arrest.
(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to
more than seven years whether with or without fine or with death sentence and the
police officer has reason to believe on the basis of that information that such person
has committed the said offence.
(c) who has been proclaimed as an offender either under this Code or by order of the
State Government; or
 (d) in whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an offence
with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of
the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of
his having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under section
356(5); or
(i) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested
and the offence or other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant by the officer
who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable
offence or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.
Analyzing the Section:
Looking carefully at Section 41 CrPC, any police officer may without any order from
Magistrate and without any warrant arrest a person who commits a cognizable offence in the
presence of a police officer. The word ‘may’ to be focused upon here signifying that if such
an offence is committed before a police officer, they will either have the option to make an
arrest that time itself without getting a warrant or wait for the issuance of one. Further it was
held in the case of Amarawati V. State of UP (2005) that no police officer is strictly bound to
arrest someone under Section 41(1) and the word ‘may’ cannot be read as ‘must’.
In the case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. (2022), the
Hon’ble Supreme Court observed that even for a cognizable offence, an arrest of the accused
is not mandatory and that an arrest in offences punishable with imprisonment below seven
years or extending to seven years can only be made if the IO is satisfied that there is a reason
to believe that the accused committed the offence and that there is necessity for such an
arrest.
Section 41(1) (b) of the Code permits any police officer to make an arrest of anyone who is
suspected, based on a reasonable complaint, any reliable information acquired, or the
presence of reasonable suspicion, of committing a cognizable offence punishable by
imprisonment for a term of seven years or less, with or without a fine once conditions such as
preventing the suspect to commit any further offence, to properly investigate the offence, to
prevent the tampering or disappearing of evidences related to the offence, to prevent the
suspect from inducing, threatening anyone having relation with the case so as to make them
not to disclose the facts relevant to either the court or police officer, or to ensure that the
person is present before the Court whenever required which otherwise the IO has reasonable
belief would not happen – provided that the police officer in all cases where the arrest of the
person is not needed under this sub section shall record the reasons for not making the arrest
in writing. One thing to note here that, it is not enough to make an arrest under this sub
section merely on the basis of a reasonable complaint or credible information. Two other very
important factors are that the police should have proper reason to believe that such a person
has committed the offence and that arrest was necessary due to the conditions as already
mentioned.
Section 41(1) (ba) entails the power of police officer to arrest any person suspected of
committing a cognizable offence punishable with imprisonment of 7 or more years with or
without fine or with death penalty, on the basis of a credible information against the person
and the police also has reason to believe on the basis of such information that such a person
has indeed committed the offence.
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.
The term ‘proclaimed offender’ is elucidated under Section 82 of the Code as any person
absconding or concealing himself so that an arrest warrant issued against him cannot be
executed. So, if any police officer discovers such a proclaimed offender, he may arrest him
without requiring a separate arrest warrant.
Section 41(1)(d) 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. Further Section 41(1)(e) gives power to make an arrest without warrant
against anyone who obstructs the officer while they are executing their duty or those who has
escaped or attempts to escape from lawful custody. 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, or taking
permission from his/her seniors. Section 41(1) (g) provides any officer power to make an
arrets without warrant any such person who is suspected of doing an act outside India which
constitutes an offence when done in India. Section 41(1)(i) states 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. It also states
the officer who shall make the arrest must be first satisfied from the requisition made that the
person can be lawfully arrested without a warrant by the officer who has issued the
requisition for the offence committed.
Section 41(2) states that subject to the provisions of Section 42 no person who has committed
any non-cognizable offence or any credible information or reasonable suspicion exists against
that person of committing such an offence, shall be arrested without order of Magistrate or
warrant.
Bail Provisions:
One of the most significant observations in the judgement of Satender Kumar Antil v. Central
Bureau of Investigation & Anr. (2022), done by Supreme court are that firstly bail is rule and
jail is the exception. Further, the Supreme Court also in the case of Nikesh Tarachand Shah v.
Union of India, (2018) observed that an accused person who enjoys freedom is in a much
better position to look after his case and to properly defend himself than if he were in custody
and that a presumably innocent person must have his freedom to enable him to establish his
innocence. It cannot be clearer that as far as the principles for grant of bail are concerned, the
Court has emphasized the need for the investigative agencies and Magistrates to ensure
greater procedural compliances and safeguard of the rights of the accused in a criminal
investigation, inquiry and trial.
Section 437 CrPC states that any person who is accused of or suspected of the commission of
any non-bailable offence is arrested and detained without a warrant and is brought before any
court other than Sessions or High Court he may be released on bail but not if there are
reasonable grounds stating that the person has committed an offence punishable with death or
life imprisonment or has committed a cognizable offence and had already been previously
convicted of any offence punishable with death or life imprisonment or imprisonment for
seven or more years or had been previously convicted on two or more occasions of a
cognizable offence punishable with imprisonment for 3 years or more but not less than 7
years. However, the same is not seen in case the offence is committed by a woman or an
infirm or person under 16 years of age.
The courts will also have to satisfy themselves whether Section 41 and 41A of CRPC is
complied or not as well as all the investigating agencies and their officers have to follow the
provisions of such sections, and if not then accused will be entitled to be granted a bail. If
police authorities fail to issue a notice or record reasons for such an arrest in writing in cases
of offence punishable by imprisonment up to 7 years then the accused will be entitled to bail.
Landmark Cases under Section 41 CrPC:
In the case of Om Prakash V. Union of India (2011) the court made it very clear that police
officers lack any authority to arrest someone for non-cognizable offences without a warrant
i.e., unless the facts and circumstances of the case are in compliance with section 41, no
arrest without a warrant can be made. Apart from this in the case of Hema Mishra V State of
UP (2014), Supreme Court observed Section 41(1) makes it compulsory for the police officer
to record reasons of arrest, or even for not arresting a person in a particular case. The Court
further explained that when arrest is not made under Section 41(1) CrPC, police officer has to
compulsorily issue a notice of appearance under Section 41-A to such accused. The
unwillingness of the alleged accused to whom notice under Section 41-A is issued to identify
himself, could be grounds for arrest.
One of the very important cases in the legal arena with respect to Section 41 CrPC is Arnesh
Kumar V State of Bihar (2014) where the ruling emphasised that arrests should not be
common, especially when the potential punishment is less than 7 years of imprisonment and
also instructed the police to carefully assess whether an arrest is truly necessary according to
Section 41. In this case, the person who brought the case was Arnesh Kumar, husband of
Sweta Kiran. Here the wife alleged that her in-laws have asked for dowry and when these
illegal demands were not met, she was forced to leave her marital home. Arnesh Kumar
denied the allegations, tried to secure an anticipatory bail but was unsuccessful. He
challenged his and his family’s arrest before the Supreme Court. It was observed by the court
that Section 498A of IPC (anti-dowry law) was being misused by the wives mainly because
the offence is non-bailable and cognizable and restricted the police authorities from simply
making arrests solely on the basis of complaints. It further held that every police officer must
maintain a checklist to see whether the arrest is in compliance with Section 41(1)(b)(ii) and
once arrest is made, the reasons for the same will be recorded. Also, if the police officer
decides not to arrest an individual then the accused should be served a notice of appearance
under Section 41A. Failure to follow any of these directions will attract contempt of court
against the concerned police officer by the appropriate High Court.
In 2021, during the second wave of the COVID-19 pandemic in India, the Supreme Court
emphasised that arrests should not be made in contradiction to the Arnesh Kumar Guidelines,
given the overcrowding of prisons. In November 2021, the Telangana High Court, while
addressing a petition, granted the petitioner the right to initiate legal proceedings against
police officials if they violated the procedure outlined in Section 41A CrPC and the Arnesh
Kumar guidelines. In August 2022, the Allahabad High Court held a police officer
accountable for contempt for disregarding the ‘Arnesh Kumar Guidelines’. The court
sentenced the police officer to 14 days of imprisonment.