Power of Police Officer to Arrest and its Recent Amendment- Will it Help or hinder the Criminal Justice System



The recent amendment to section 41 of the Code of Criminal Procedure (henceforth ‘the Code’), brought about by The Code of Criminal Procedure (Amendment) Bill, 2008 has been objected to by many scholars on grounds of being inordinate. In pursuance of this, the 177th National Law Commission, India report proposed that certain portions of the new law should undergo Fundamental Rights scrutiny since this new law by its very nature seems to compromise with the citizen’s Fundamental Rights[1].

The law in question, as it stands now states that –

“Any police officer may, ‘without’ an order from a Magistrate and ‘without’ a warrant, arrest any person…[2]

As a result of the recent amendment, the power of the police with respect to arrests has been significantly mitigated thereby leading to a compromise in the existing legal framework across the country thereby increasing the risk of commission of crimes. Analysing the amendments, it can be stated that, the increased independence that the police now enjoys leaves scope for misuse and abuse of powers by corrupt police officers. Under the amended law, now while in one situation the police may issue summons through notice, in another similar situation the police has the discretion to arrest[3].

As stated by Hon’ble Justice B.N. Aggarwal, “Discretion will amount to give the police a handle[4].”


     Under the mandate laid down by the Indian Penal Code[5], most of the serious offences are punishable with a maximum imprisonment upto seven years. Thus under the new system, the criminals will enjoy a greater degree of freedom since now the police only has the power of serving notice for appearance. This would give substantial amount of time to the criminals to escape or maybe in certain situations where he has strong powerful connections may also get completely exempted by unjustly delaying the due process of law.

     The newly introduced amendment will have a great degree of influence over societal peace and tranquillity along with the legal enforcement structure in the country. If the power to arrest criminals gets diluted like this and subsequently increases the degree of freedom of criminals, then this will have far-reaching effect over the security and protection of the society[6].

Despite the dilution brought about in the existing system by the 2009 amendment, there subsist directions laid down by the Supreme Courts on various occasions which the police is duty bound to follow thereby leading to a contradictory situation. These mandates were introduced in order to ensure that the police does not abuse its power while carrying out its functions.

Under the new law, a police officer is at liberty to arrest any person without any order from a concerned Magistrate or/and in the absence of a warrant, when there is a commission of a cognizable offence in the presence of that officer and there is a duly filed complaint against that specific individual. This also extends to a situation where even in the absence of any complaint, the police has substantial information with respect to the same or, where the officer suspects that the person in question has committed an offence which is punishable with an imprisonment upto seven year or less than seven years and the officer has satisfactory reason to believe that the arrest is required in order to maintain law and order in the society.

This power of the police also extends to those situations where the offence in question is liable for fine or can be punished with a death sentence, and the police officer has sufficient information to reasonably believe that the commission of the offence has taken place and accordingly the arrest is required[7].

From the above discussion, it can be concluded that, under the extended ambit given to the police, only ‘reason to believe’ that the commission has taken place will suffice in order to give effect to such arrest, thus prioritizing the discretionary power of the police. The power conferred upon the police has been extended to a great extent. Investigative powers of police falls within the ambit of plenary powers whereas with respect to filing of First Information Report (FIR) is absolute in nature as is the case when the functions are carried out based on information provided by private individuals which has been laid down under section 154 of the Code. The police has been given the power to carry out raids under section 94 of the Code, seizure of documents under section 12 of the Code, and also the power to freeze documents in case of cognizable offences. However, the widest scope among all these remains to be the power to arrest under section 41 of the Code[8].

Given the present context, the only remedy available to an ordinary citizen is his right to be produced before the concerned jurisdictional magistrate within 24 hours of his arrest, which is provided to him under section 57 of the Code[9]. Besides all this, the police has the additional power to seek police remand under section 167 of the Code[10] in order to carry out the required investigation of the accused.

Under the ambit of criminal law jurisprudence, there remains high possibility of the accused having to compromise with his right to personal liberty which mainly gets affected at three stages. The first being the stage of arrest in pursuance of the FIR lodged against him by any concerned authority or person. The second being the stage of his remand in police custody, in cases where he has been denied bail by any competent court, having jurisdiction over the matter at hand. The final being the post appeal stage where his appeal for bail does not get granted during the period of pendency[11].

The amended section 41 of the Code has such a wide ambit that police officers have been coffered with unrestrained power of arrest. Where the police officer according to his discretionary power feels that immediate arrest is not a necessity, then under those circumstances he can send a notice for appearance under section 41 A of the Code[12].


In the case of Joginder Kumar v. State of Uttar Pradesh[13], the Supreme Court stated that the power vested upon the police to arrest “should be exercised only after a reasonable satisfaction is reached after some investigation with regard to the person’s complicity in the crime as the need to affect arrest.” However, this does not satisfy the subjective standards of satisfaction of the officer in charge of investigation.

In DK Basu v. State of West Bengal[14], the Supreme Court laid down guidelines governing the procedure of arrest and the fundamental rights of the arrested person. The result of this judgement over the Code was significant and subsequently changes were brought about with respect to section 54 (medical examination of the arrested person by a professional and identification of the individual) and section 55A of the Code (laying down health and safety standards for the arrested individual).

A pertinent issue was raised by the Supreme Court in the case of Arnesh Kumar v. State of Bihar[15] which talked about the misuse of section 498A of the Indian Penal Code. The court accordingly directed the respective States to ensure that the power conferred upon the police did not get unjustly used. Rather than arresting the person at the first instance under section 41 of the Code, the court suggested that at the preliminary stage, a notice should be served under section 41A of the Code.

Justice Benjamin N Cardozo of the US Supreme Court had once stated that –

“The judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight — errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.[16]

 Going by the same principle, the wider ambit of section 41 of the Code also raises reasonable questions. After Justice Cardozo’s judgement, the Bail Reform Act of 1966[17] was brought into effect in the US. This gave the defendants (extending to non-capital punishments) a statutory right in cases where a parallel Constitutional right was absent – a right to get released on bond during the pendency of his trial. In India however, this concept evolved only after Justice Krishna Iyer gave his verdict in the case of Babu Singh v. State of Uttar Pradesh[18], whereby he raised the point that compromise with Article 21 of the Constitution led to a compromise with an individual’s liberty.


The criminal law structure is exclusive of the concept of restitution therefore the individual has to suffer the long-lasting effect of being detained in jail. The right to get bail in case of non-heinous offence is an individual’s constitutional right in this country. This becomes an essential factor in maintaining the concept of getting access to legal remedy at the earliest possible opportunity, and the accused must be given a chance to defend himself in the court of law within stipulated time. In cases where the accused is economically weak, the provision relating to furnishing personal bonds should be leniently dealt with. Where the decision of the case is likely to take a significant amount of time, in such situations the accused should be given the benefit of sentence suspension along with granting of bail. Also the fact that the accused is compelled to pay a large sum of money in order to get bail acts as an unsolicited obstruction to bail jurisprudence[19].

In the present scenario, we are eventually leading our paths towards the old unjustified system of Police Raj, since, after the latest changes the scope of an individual has become contingent upon the nature of charges brought against him. Considering the present scenario where a significant number of FIRs are concocted and bail pleas are highly unpredictable, most of the under-trial prisoners have to spend their days in correctional homes. The unique nature of the Constitution of India grants its citizens certain fundamental rights which cannot be compromised with under any circumstances whatsoever. Personal liberty falls under this inalienable category of fundamental rights. Keeping this factor in mind, it can be ascertained that the present provision under section 41 of the Code is flawed since the police cannot be granted the power to arrest without obtaining warrant from competent authority since this is violative of an individual’s right to personal liberty[20].

Therefore it can be concluded that, in the disguise of aiming to bring about constructive reforms in the criminal justice system, the new amendment is actually posing hindrance towards bringing about an effective legal structure by compromising with the citizen’s fundamental rights.

[1] Neeraj Arora, The recent amendments of the Cr.P.C., diluting the power to arrest Cheers to criminals, NeerajArora (Mar. 5, 2009), http://www.neerajaarora.com/the-recent-amendments-to-the-crpc-diluting-the-power-to-arrest-%E2%80%93cheers-to-criminals/.

[2] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).

[3] Supra note 1.

[4] Supra note 1.

[5] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

[6] Neeraj Arora, The recent amendments of the Cr.P.C., diluting the power to arrest Cheers to criminals, NeerajArora (Mar. 5, 2009), http://www.neerajaarora.com/the-recent-amendments-to-the-crpc-diluting-the-power-to-arrest-%E2%80%93cheers-to-criminals/.

[7] Police Discretion within Criminal Procedure, Law Teacher, https://www.lawteacher.net/free-law-essays/constitutional-law/police-discretion-within-criminal-procedure-constitutional-law-essay.php.

[8] Anupam Lal Das, Batting For Personal Liberty, The Pioneer (Nov. 21, 2017), http://www.dailypioneer.com/columnists/oped/batting-for-personal-liberty.html.

[9] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).

[10]The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).

[11]Supra note 8.

[12] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).

[13] Joginder Kumar vs State of Uttar Pradesh, (1994) 4 SCC 260.

[14] DK Basu vs State of West Bengal, (1997) 1 SCC 216.

[15] Arnesh Kumar vs State of Bihar, (2014) 8 SCC 273.

[16] Supra note 8.

[17] The Bail Reform Act, 1966 (U.S.).

[18] Babu Singh vs State of Uttar Pradesh, (1978) 1 SCC 579.

[19] Anupam Lal Das, Batting For Personal Liberty, The Pioneer (Nov. 21, 2017), http://www.dailypioneer.com/columnists/oped/batting-for-personal-liberty.html.

[20] Id.

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