The much awaited New Criminal Laws are now in force, and there are so many doubts regarding the changes. Do you know what is the new rule for Arrest under Bharatiya Nagarik Suraksha Sanhita? Do Police Officers enjoy more power while arresting a person? Or is it vice versa? Hereunder, we have explained everything about arrest under BNSS Section 35, decoding every word and line so that it is easy to grasp. Go step by step and get a better understanding of law related to arrest without warrant.
What is the meaning of arrest in law?
Arrest in legal terms means “seizure or forceful restraint”. In other words, arrest of a person means depriving him/her of liberty and confining him/her in custody by someone authorised by law due to suspicion of committing an offence. The idea of arresting a person is to have his/her availability for presenting before the Court, and also make sure that the person does not interfere or tamper with the evidence which may be crucial for proving the case.
Arrest under Code of Criminal Procedure, 1973
Section 41 of the CrPC laid the law regarding “Arrest of Persons”. It clearly stated the circumstances when a person may be arrested without warrant. The provision has been adopted verbatim, taken as it is for arrest under Bharatiya Nagarik Suraksha Sanhita, 2023.
Also read – Punishments under Bharatiya Nyaya Sanhita
Arrest under Bharatiya Nagarik Suraksha Sanhita, 2023
As mentioned above, the provision regarding “arrest of persons” under the CrPC has been adopted under Section 35 of BNSS. However, there is a twist here. Section 41A of CrPC which provided for notice of appearance before Police Officer in case arrest is not required. The same has been discussed and explained below in detail. In addition, the last sub-section of Section 35 of BNSS is a new addition which was not there under CrPC. It requires prior permission from a Deputy Superintendent of Police or someone of higher rank, in case the punishment for offence committed is below 3 years and the person to be arrested is infirm or is above sixty years of age.
When police may arrest without warrant in BNSS?
The circumstances which empower the Police Officer to arrest under BNSS without a warrant or Court order is provided under Section 35 of BNSS. It further states the circumstances when the person may not be arrested but notice may be issued. Given below are the details about such provisions, explained in simple words for better understanding.
What is Section 35 of the BNSS?
“35. (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—”
Comment: The provision lays the procedure to be followed when arrest can be made by a Police Officer without warrant or orders by Magistrate.
“(a) who commits, in the presence of a police officer, a cognizable offence; or”
Comment: When cognizable offence (serious crime) has been committed in the presence of a Police Officer, he/she is empowered to arrest the person without warrant and initiate investigation.
“(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:—”
Comment: If a reasonable complaint/information/suspicion is there regarding commitment of a cognizable offence against a person, which is punishable with imprisonment of or less than 7 years, such a person may be arrested if one of the conditions mentioned under sub-clause (i) or (ii) of Section 35(1)(b) are satisfied.
“(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;”
Comment: If the police has reason to believe that the said person committed a cognizable offence, based on the complaint/information received, or existence of suspicion, he/she may arrest the person without warrant.
“(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; or “
Comment: If the Police Officer so concerned satisfied that arrest is necessary to prevent further offence/ proper investigation of the case/ preventing the said person from tampering the evidence/ prevent the said person from inducing or threatening persons related to the case or facts/ the presence before the Court cannot be ensured unless arrested such person is arrested, arrest may be made without warrant. The provision further states that the said Police Officer making an arrest in such a scenario has to reduce the reasons in writing. In addition, if the Police Officer has reasons for not arresting the said person, that too needs to be reduced in writing.
“(c) 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; or”
Comment: In case credible information is received against a person that he/she committed a cognizable offence punishable with more than 7 years of jail or death sentence, and the Police has reason to believe the same, he/she may arrest the person.
“(d) who has been proclaimed as an offender either under this Sanhita or by order of the State Government; or”
Comment: A person who has been a proclaimed offender under BNSS or State Government’s order may be arrested by the Police without warrant.
“(e) 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 “
Comment: If a person is found in possession of stolen property or suspected of committing an offence related to something, the police may proceed with arrest under Bharatiya Nagarik Suraksha Sanhita Section 35.
“(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or”
Comment: If a person obstructs or hinders the Police Officer on duty, or escapes/attempts to escape from lawful custody, he/she may be arrested without warrant.
“(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or”
Comment: A person who is suspected of being a deserter from Armed Forces may be arrested by the Police under Section 35 of BNSS.
“(h) 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”
Comment: The Police may arrest under BNSS Section 35 if a complaint/information is received or there is suspicion that a person committed an act outside India which is a punishable offence in India, and he/she is liable to be apprehended as per extradition law or others.
“(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 394; or”
Comment: If a released convict commits breach of rule which requires State Govt to keep a track of released convicts, he/she may be arrested without warrant.
“(j) 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.”
Comment: If a Police Officer receives a written or oral requisition from another Police Officer specifying arrest of a person and related offence, which reasons for a lawful arrest without warrant, he/she may proceed with arrest under Bharatiya Nagarik Suraksha Sanhita, 2023.
“(2) Subject to the provisions of section 39, 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.”
Comment: Unless the requirements of Section 39 of BNSS (Laying for arrest on refusal to give name and residence) are satisfied, no one should be arrested without a warrant or Magistrate order for a non-cognizable offence.
Note: The provision for arrest under BNSS Section 35 continues, but the provision hereunder for sub-section (3) to (6) were parts of Section 41A of CrPC. That is why they are covered under a separate sub-heading.
Notice of Appearance before Police Officer
“(3) The police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person 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, to appear before him or at such other place as may be specified in the notice. “
Comment: If the Police Officer is convinced that the arrest under Bharatiya Nagarik Suraksha Sanhita Section 35(1) is not required, he/she may issue a notice which directs the person concerned to appear before him or a specified place. It must be noted that such notice should be issued in furtherance of some complaint, credible information or reasonable suspicion regarding commitment of a cognizable offence..
“(4) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.”
Comment: For a notice issued under sub-Section (3) of Section 35 of BNSS, a person has duty to comply with its terms.
“(5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.”
Comment: For a person who complies with the requirements of notice under sub-Section (3) of Section 35 of BNSS, he/she is not to be arrested for the said offence unless the Police Officer opines for arrest, with reasons to be recorded.
“(6) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”
Comment: If a person fails to comply with the requirements under sub-Section (3) of Section 35 of BNSS, or does not identify himself, the Police Officer may proceed with arrest under BNSS Section 35 in furtherance of orders passed by a competent Court.
“(7) No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.”
Comment: This is a newly added provision for arrest under BNSS Section 35. It restricts arrest of an infirm or person above the age of 60 years without permission from a Deputy Superintendent of Police or an officer above the rank, in case of offence under BNS 2023 or otherwise punishable with 3 year imprisonment or less.
