Law and You >Procedural Laws > BNSS > Arrest of a Person Without Warrant (Ss. 35 and 39 BNS)
The concept of arrest of a person is a critical element in the administration of criminal justice. Governed primarily by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), an arrest signifies the act of taking a person into custody under legal authority, usually on suspicion or accusation of committing a criminal offense. It is a coercive measure used by law enforcement agencies to ensure the presence of an accused during the investigation, trial, or to prevent the commission of a crime.
Chapter V of the BNSS (Sections 35 to 62) comprehensively lays down the legal framework for arrest, including the circumstances under which a person may be arrested, the procedure to be followed by the arresting officer, and the rights of the arrested individual. The BNSS distinguishes between arrests with a warrant and arrests without a warrant, granting police officers discretionary powers in certain situations while also prescribing safeguards to prevent misuse of such authority.
The Constitution of India, particularly Articles 21 and 22, guarantees protection to individuals against arbitrary arrest and detention, emphasizing the principles of due process and personal liberty. Judicial pronouncements, such as in DK Basu v. State of West Bengal, have further reinforced these protections by mandating guidelines to ensure transparency and accountability during the process of arrest.
Understanding the provisions related to arrest under the BNSS is essential not only for law enforcement and legal professionals but also for citizens to be aware of their rights and obligations under the law. This article aims to provide a detailed overview of the arrest process by police without warrant under Section 35 of the BNSS, analyzing both statutory provisions and judicial interpretations that shape the legal landscape.
What is Arrest?
There can not be charge sheet without arrest. The term “arrest” refers to an act of being taken in to custody of a person to be charged with a crime. It is derived from the French word “arreter” means “to stop or stay” and signifies a restraint of the person. In other words, it refers to apprehension of a person by legal authority resulting in deprivation of his liberty. The term arrest is not defined in the Code. The code only provides the procedure for effecting the arrest and the circumstances in which arrest can be made.
If the person to be arrested resists or tries to evade the arrest, then the person making the arrest is empowered to use all necessary means for the purpose of effecting the arrest. For such resistance or evading the arrest the person to be arrested may be convicted under Section 262 or Section 263 of the BNS. Means for the purpose of arresting the accused force can be used against him but this force should be reasonable force and be in proportion to resistance and necessary for the purpose of making the arrest. Unnecessary and unreasonable force should not be used.
It is to be noted that “arrest” and “custody” are not synonymous terms. In all arrests there is custody and not otherwise. Arrest consists of seizure or touching of a person’s body with a view to restrain him, whereas custody consists of submission of a person to the custody by word or action. The police are empowered under BNSS to arrest a person in both cognizable case and non-cognizable case. In cognizable case, the police can arrest a person without a warrant from a competent Magistrate. However, to arrest a person in non-cognizable case, the police have to obtain a written warrant of arrest from a competent Magistrate under Section 174 BNSS. Any person belong to one or more of the categories of persons specified in Section 109 or 110 of CPC can be arrested.
In the State of U.P. v. Deoman Upadhaya, AIR 1960 SC 1125 case, where the accused approached a police officer investigating the offence. He offered to give information leading to the discovery of fact having a bearing on the charge which might be made against him. Supreme Court held that he had submitted to the custody by action within the meaning of sub-section (1) of this Section (S. 35 BNSS).
Need for Arrest of a Person:
The arrest of a person is a vital tool in the enforcement of criminal law. It serves multiple essential purposes in the administration of justice and maintaining public order. The primary need for arrest arises when there is reasonable suspicion or credible information that a person has committed a cognizable offense. The objective is not to punish the individual but to secure their presence for investigation, trial, or to prevent the continuation or commission of a crime. Key reasons justifying the need for arrest include:
- To Ensure Presence during Trial: Arrest helps ensure that the accused does not abscond or evade the legal process, allowing the courts to proceed with a fair trial.
- For Proper Investigation: In certain cases, the presence of the accused is crucial for effective investigation, including interrogation, recovery of evidence, or identification in a test identification parade (TIP).
- To Prevent Further Offense: Arrest may be necessary to stop the accused from committing further offenses, especially in cases involving repeat or dangerous offenders.
- To Maintain Public Order: Arrest helps prevent breach of peace or law and order situations, particularly in cases involving communal tension, political unrest, or violent crimes.
- To Protect the Accused or Public: At times, arrest is necessary to protect the accused from mob justice or to protect the public from potential harm.
However, the power of arrest must be exercised judiciously and not arbitrarily. The Supreme Court has emphasized that arrest is not mandatory in every case and should be the exception, not the rule, especially for offenses punishable with less than seven years of imprisonment.
When Police may Arrest without Warrant (S. 35 BNSS):
In section 35 of the BNSS, the circumstances are given in different sub-sections, when a person can be arrested by the police without warrants. This Section has a very important place in criminal law, as it contemplates the circumstances when a person can be arrested. There are 8 such circumstances mentioned in the Section. These nine circumstances can be remembered by a Code which I used to call – CP-SODERR (pronounced it like cp-soder). Every word of this code briefly represents a circumstance, when a person can be arrested without warrant.
- a person concerned in COGNIZABLE OFFENCE;
- a person who has been PROCLAIMED OFFENDER;
- in possession of STOLEN PROPERTY;
- a person who OBSTRUCTS A POLICE OFFICER;
- a person being a DESERTER FROM ANY OF THE ARMED FORCES;
- under any law relating to EXTRADITION;
- a person being a RELEASED CONVICT;
- and on REQUISITION for Arrest from another police officer.
1. Arrest of a Person Concerned in Cognizable Offence (S. 35(1) (a) to S. 35(1) (c))
S. 35(1)(a) BNSS:
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, who commits, in the presence of a police officer, a cognizable offence.
This Section only gives the discretionary power (Use of word may) to police to make arrest. It is not mandatory to make the arrest on the part of police officers in the circumstances mentioned in this section. The police officer shall record while making such arrest, his reasons in writing. The malicious and excessive exercise of the power of arrest under these Sections would be punishable under Section 258 of the BNS.
S. 35(1)(b) BNSS:
Any police officer may without an order from a Magistrate and without a warrant, arrest any 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 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;
This clause provides for the less serious offences which are punishable upto the imprisonment of seven years, in case of those offences the arrest can be made without warrant but only for the purposes mention in that clause and the police officer is also required to record the reason for making the arrest.
S. 35(1)(c) BNSS:
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, 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
Under this clause, the police officer is empowered to make the arrest without warrant only on the ground of credible information in case of the serious offences which are punishable with the imprisonment of more than seven years under clause. This clause gives a wide discretionary power and does not, like clause (b), provide the purposes only for which the arrest can be made and like clause (b) no reason is required to be recorded.
In Emperor v. Vimlabai Deshpande, AIR 1946 PC 123 case, the Privy Council observed Section 41(1) CrPC (S. 35(1) BNSS) confers a discretionary power on the police officer to decide whether in a given case arrest is required or not. Such exercise of power of arrest should be reasonable and to be exercised only in cases where the immediate arrest and the prompt action is needed. When the legality of an arrest is challenged, the burden is on the police officer to satisfy the Court that he had reasonable ground of suspicion.
In Joginder Kumar v. State of U.P., (1994) 4 SCC 260. case, the Supreme Court held that no arrest can be made because it is lawful for the police officer to do so. The existence of the power is one thing. The justification for the exercise of it is quite another. No arrest should be made without a reasonable satisfaction reached after some investigation about the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person his liberty is a serious matter.
In D.K. Basu v. State of West Bengal, AIR 1997 SC 610 case, the Supreme Court gave guidelines for the arrest of a person.
2. Arrest of a Person who has been Proclaimed Offender
S. 35(1) (d) BNS:
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, who has been proclaimed as an offender either under this Sanhita or by order of the State Government
According to S. 84(1) BNS, if any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
According to S. 84(4) BNS, where a proclamation published under sub-section (1) is in respect of a person accused of an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
When a person is declared proclaimed offender, he can be arrested by a police officer without warrant.
3. Arrest of a Person in Possession of Stolen Property (S. 35(1) (e)):
Any police officer may without an order from a Magistrate and without a warrant, arrest any person , 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.
According to S. 317(1) of the Bharatiya Nyaya Sanhita, 2023 property, the possession whereof has been transferred by theft or extortion or robbery or cheating, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen property.
This clause provides that a person, who is suspected to be in possession of stolen property or a person who is suspected to have committed an offence in relation to that property, can be arrested without warrant. In order to exercise the power under this clause, the suspicion of the police must be ‘reasonable’, i.e. founded on unsatisfactory replies of the person on interrogation as to his belongings on inquiries as might be proper in the circumstances, so that he may be said to have acted in good faith.
4. Arrest of a Person who Obstructs a Police Officer (S. 35(1) (f)):
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody
This clause provides that a person, who obstructs a police officer in the discharge of his duties, can be arrested without warrant. It is important to note here that obstructing a public servant in the discharge of his official duties is a non-cognizable offence under Section 221 of the BNS. But this clause provides that in case of obstruction to the police officer, arrest can be made without warrant. This clause also provides that a person who has escaped or attempts to escape, from lawful custody, can be arrested without warrant. It is important to note that it is not necessary that the escaped person must have committed a cognizable offence. The person, who escapes from lawful custody, can be convicted for such an action under Section 262 of the BNS.
5. Arrest of a Person being a Deserter From any of the Armed Forces (S. 35(1) (g)):
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.
The clause provides that a person who is reasonably suspected of being a deserter from any of the Armed Forces of the Union, can be arrested without warrant.
6. Arrest of a Person under any Law Relating to Extradition (S. 35(1) (h)):
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, 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.
This clause provides that a person, who has been concerned in or against a reasonable complaint has been made or a credible information has been received or a reasonable suspicion exits of his having been so concerned in the commission of an offence outside India, can be arrested without warrant. It is important to note that it is not necessary that the act done by the accused must be punishable as an offence in that foreign country and it is also not necessary that the offence must be cognizable one. This clause applies in case commission of any offence, whether cognizable of non-cognizable, committed outside India.
7. Arrest of a Person being a Released Convict (S. 35(1) (i)):
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, who, being a released convict, commits a breach of any rule made under sub-section (5) of section 394.
This clause provides that in case of violation of the conditions imposed under Section 394(5) relating to the notification of residence or change in, or absence from residence by the released convicts, arrest can be made without warrant.
8. Arrest of a Person on Requisition from another Police Officer (S. 35(1) (j)):
Any police officer may without an order from a Magistrate and without a warrant, arrest any person, 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.
The clause provides that when a requisition, written or oral, is received from another police officer for the arrest of a person, then he can be arrest without warrant. This provision is designed to facilitate the arrest of a person at a distance. However, the circumstances which justify the issue of such requisition are not mentioned in this Section.
Arrest without warrant in Case of Non-Cognizable Offence (S. 35(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.
Section 35(2) of the BNSS provides that no person accused of committing a non-cognizable offence can be arrest without warrant. However Section 39 BNSS provides a situation in which the police officer can arrest without warrant even in case of non-cognizable offence.
When an Arrest of a Person is not Required under Section 35 (1) of BNS:
Notice to the Person:
According to S. 35(3) of the BNSS, 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.
The Person must Comply the Terms of Notice:
According to S. 35(4) of the BNSS, 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.
No Arrest if the Person Complies:
According to S. 35(5) of the BNSS, 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.
Arrest if the Person Fails to Comply:
According to S. 35(6) of the BNSS, 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.
No Arrest in Case of Senior Person:
According to S. 35(7) of the BNSS, 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.
S. 39 BNSS:
Arrest on Refusal to Give Name and Residence:
(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses on demand of such officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on a bond or bail bond, to appear before a Magistrate if so required: Provided that if such person is not resident in India, the bail bond shall be secured by a surety or sureties resident in India.
(3) If the true name and residence of such person is not ascertained within twenty-four hours from the time of arrest or if he fails to execute the bond or bail bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
Section 39 provides a situation in which the police officer can arrest without warrant even in case of non-cognizable offence. This Section provides that when any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer for the purpose of ascertaining his true name and residence. As soon as the name and residence is ascertained, that person shall be released on his executing a bond. If the name and residence cannot be ascertained within 24 hours, then he is required to be produced before the Magistrate. However, the police officer must have reason to believe that the name or residence is false only then the power can be exercised under this Section. Where the person refuses to produce some document in his possession (e.g. a driving license), from which his identity could be verified, the police officer may be said to have reason to suspect that the name and address given by the person were false.
Conclusion:
The power to arrest a person without a warrant is a significant responsibility vested in the police under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), aimed at ensuring swift and effective action in the interest of justice. However, this power is not unfettered. It is governed by legal provisions, judicial precedents, and constitutional safeguards designed to protect individual liberty and prevent abuse of authority.
Section 35 of the BNSS outlines the specific circumstances in which a police officer may arrest without a warrant, particularly in cognizable offenses where prompt intervention is necessary. Nonetheless, in recognition of the potential for misuse, the law mandates that arrests must be based on reasonable satisfaction regarding the necessity of such action.
Therefore, while arrest without a warrant is a crucial tool for maintaining law and order, it must be exercised with caution, transparency, and accountability. Balancing the power of the state with the rights of individuals remains the cornerstone of a just legal system. Awareness of both the legal provisions and the rights of the accused is essential to ensure that the process of arrest upholds the principles of fairness, justice, and the rule of law.