25% OFF on all LCI Courses. Offer valid till 5th Oct. Use Code: DUS25
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Chandravadia Jignesh (Rajkot)     21 January 2010

Police Officer Arrest Without Arrest Warant

Dear Sir,

            Please give me advice about that if any police officer arrest any person without any FIR and any arrest warant than what we can do against that officer and any police officer have any right to call any person without any search warrant



Learning

 25 Replies

Meenakshi (Lawyer)     21 January 2010

It depends if its a cognisable offence then there is no need of an arrest warrant.

cognizable offences are as follows:

Murder, robbery, theft, rioting, and counterfeiting are some examples of cognizable offences.on-cognizable offences are those criminal infractions, which are relatively less serious. Examples of non-cognizable offences include public nuisance, assault and mischief. The police cannot register criminal cases or cause arrests with regard to non-cognizable offences. In all such cases, the police have to secure permission from a magistrate or judge for registration of a criminal case.



a cognizable offence is one in which the police is empowered to register a FIR, investigate and arrest an accused involved in cognizable crime without a court warrant. As defined in Cr.PC, a non-cognizable offence is one in which police can neither register a First Information Report (FIR) nor can investigate or effect arrest without the express permission or directions from the court. .

 

Chandravadia Jignesh (Rajkot)     21 January 2010

Thank you

S. Bharath (Advocate and Arbitrator Formerly Civil Judge)     21 January 2010

Meenakshi is right. So before you contemplate an action be sure to find out if the offence involved is cognizable or not; and if it is cognizable, whether the police hold a warrant of arrest from the Magistrate.


(Guest)

Sir,

The question is whether the police officer can arrest without any FIR.

MY ANSWER IS "NO". Without FIR police officer cannot arrest.

However police officer can detain a person for investigation for 24 hours without an FIR.

If the period of detantion exceeds 24 hours illegality commences.  Hence when the police takes into custody any person, they normally register an FIR by the time of completion of 24 hours and then treat him as arrested after registration of FIR.

But if police has no intention of registering FIR, then the person cannot be detained for more than 24 hours.  Hence well wishers of the person has to keep proper tag as to the time when he was called to the police station and how long he was detained, if the period exceeds 24 hours one should immediately put on record or inform the concerned police that he would be hauled up for the illegality in which case the concerned police officer would be checked from commiting illegality.

I


(Guest)

Jignesh in one case - In a civil matter my client was repeatedly called to the police station to pressurise him to reach a settlement with his opponent.

One day police called him at about 2 o clock in the afternoon and continued his detention till the next date. On the next day at 1 o clock in the afternoon on behalf of the detained person a letter was delivered to the police station placing on record that he was detained at 2 o clock on the previous day and that the period of 24 hours is getting over.  In the letter we pointed out that if he wants to continue detention after 24 hours then he should register FIR against that fellow and arrest him.

As the police officer did not have any material to register FIR. He released the person before the expirty of the 24 hours and thereafter there was no more harrasment to the person concerned.

This is how one has to tackle such situation.

Aftab4u (PVT EMPLOYEE)     21 January 2010

Dear experts,

The question is whether the police officer can arrest without any FIR.

MY ANSWER IS "NO". Without FIR police officer cannot arrest.

However police officer can detain a person for investigation for 24 hours without an FIR.

If the period of detantion exceeds 24 hours illegality commences.  Hence when the police takes into custody any person, they normally register an FIR by the time of completion of 24 hours and then treat him as arrested after registration of FIR.

But if police has no intention of registering FIR, then the person cannot be detained for more than 24 hours

the above reply has given by one of our experts my question is :

1. If the police should not keep the person beyond 24 hours then how to prove coz nor they will give any info on writing that they have kept the person in their custody.

 

2. if they arrest the person on holidays for eg : second saturday , then the person should  be in their custody for second saturday , sunday and if any festival falls on monday then for 3 days he should be there in the custody. what will be the next step whe need to take.

 

Aftab

 

 


(Guest)

First of all I must clarify that I do not claim myself to be an "expert".  I am only sharing my personal experience.  Proof you have to build up. That is why I mentioned you must keep a proper tag of the time he was taken into custody.  You must immediately put on record by writing letter to the police station by registered post to place on record that so and so was taken into custody by the police if name of the police is available mentioned it and send it by registered post to the police station. That will become a proof.  If you are reading the newspaper you will come to know how encounter police of Mumbai was nailed by one of the relatives of a detainee.  As soon as his relative was arrested, he had sent a telegram to the police commissioner which has become a proof to arrest the concerned police officer. Even if a person is arrested on a holiday he would be produced before a holiday magistrate within 24 hours.

Aftab4u (PVT EMPLOYEE)     21 January 2010

Dear Anil kumar JI,

 

Thanks for ur reply , ur suggestion regarding the process to approach to go further is surely going to help us... sir this is called the experience and thats why i called " Experts "

 

Aftab


(Guest)

Thanks Aftab.

Adesh Kumar Sharma (Senior Associate Lawyer)     21 January 2010

Dear Ms. Meenakshi,

That before giving any opinion on the quarry involved herein for discussion, I would like to suggest you to go through the provision of Section 2 (sub section C)  and  (Sub section L) of the Code of Criminal Procedure Code 1973, which is read hereunder:

Section 2 ( c) "Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under and other law for the time being in force, arrest without warrant.

Section 2 (L)   "Non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant.

I am here no to comment on your opinion, but to correct you being a friend, that there is no need to obtain any prior permission from the Court or any Magistrate, to registered an FIR, whether it is Cognizable offence or Non-cognizable Offence. What a police officer has to do in the both the cases, he is under obligation to reduced the substance of information in writing given by informant. The basic difference between the registration of FIR in Cognizable and non- Cognizable Offences, that in cognizable offence the police officer can initiate investigation without informing the concerned magistrate having jurisdiction over the said police station, but in non- Cognizable offence, he has to register the FIR on information given by the informant, however no police officer can investigate the non- Cognizable case without the order of the magistrate having jurisdiction over the police station and to try the case.

You please read Section 154 and 155 and other relevant section of the Code of Criminal Procedure Code 1973, then you will come to know the basic difference of this issue involved herein, the same is reproduced hereunder:

Section 154.  Information in cognizable cases.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

Section 155.  Information as to non-cognizable cases and investigation of such cases.

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable

Section 156.  Police officer's power to investigate cognizable cases.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

157. Procedure for investigations.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may by general order, prescribe in this behalf, to proceed, to the spot, to investigate circumstances of the case, and, if necessary to take measures for the discovery of the offender:

Provided that-

(a) When information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the office in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) If it appears to the officer in charge of a police station that there is sufficient ground for entering off an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the information, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case of cause it to be investigated.

 

I hope, this would resolve the above captioned quarry.

 

Thanking You.

 

 

 

   

 


(Guest)

It is not only in Cognisable case police can arrest without arrest warrant. Section 41 Cr.p.c. specifies 8 other instances when police can arrest without warrant.  Though section 41 Cr.p.c. specifies the 9 instances when arrest can be made without warrant. Police practically arrests without warrant in circumstances other than those mentioned in section 41 Cr.p.c. on one pretext or the other without any difficulty.  However in view of S.57 of Cr.p.c. and article 22 of the constitution if the detention is longer than 24 hours, in such cases, the police will be in a difficult situation.

Feroz M Shafeeque (Police Officer)     21 January 2010

Sec 155(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.

If the information received by the officer in charge is of non cognizable nature, FIR will not be registered, instead it will be entered in the General Diary (daily diary) kept at the police station for recording the chronological happenings in the police station. Instead of directing the informant to the court, the officer in charge can receive the complaint and himself submit it to the court for order of investigation.

 

I do not know whether police have power for detention. In my view all detentions are arrest. All other detentions without producing before the magistrate or granting bail within 24 hours are illegal custody (Sec 59 CrPC).

 

I think Anil kumar menon's client was subjected to illegal custody (neglecting the fact that police has no role in civil matters).

 

Apart from the 9 instances described in Sec.41 CrPC police can make arrest without warrant in cases of non cognizable offences u/s 42 CrPC. These are offences like public nuisance where the offender refuses to reveal his correct address or the police officer believes that the address provided by him is false. So in this case police can arrest any person committing trivial offences and detain him till verification of his address(subject to the max limit of 24 hours).

 

The thread starter was asking about arrest without FIR. In most of the suo-motu cases the arrest is without FIR. For eg. offences u/s185 MV Act, NDPS Act and many other special and local laws the the FIR is registered later at police station  after arrest and preparation of mahazzar at scene of occurrence.

 

1 Like

(Guest)

As I understood the thread starters query, it was with reference to illegal detention and what is the remedy  in case of illegal detention and how to prove the illegal detention.

Feroze - What is mentioned by you in the last para is the ground reality.  But I consider such FIR's as not FIR but 161 Cr.P.C. statements which would be hit by the bar of 162 Cr.P.C.

 

Meenakshi (Lawyer)     22 January 2010

Dear Adesh Kumar,

              I would really appreciate if you mark the mistakes that i have made in my comment........Because i dont see any mistakes honestly and if anybody does pls feel free to inform......


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads



Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query