Law and You >Procedural Laws > BNSS > Procedure of Arrest under BNSS (Ss. 36- 37, 43 – 46, 49-54, 60-62)
The procedure of arrest under the Bharatiya Nyaya Sanhuita, 2023 (BNSS), is a crucial aspect of the Indian criminal justice system. It lays down the legal framework that governs how and when a person can be lawfully apprehended by the police or other authorities. Arrest is a significant measure that directly affects an individual’s liberty, and therefore, it must be exercised with strict adherence to procedural safeguards and constitutional rights. The BNSS provides detailed provisions for arrest with and without a warrant, the duties of the arresting officer, and the rights of the arrested person. These procedures aim to prevent arbitrary or unlawful arrests while enabling law enforcement agencies to perform their duties effectively. Understanding the procedure of arrest the BNSS is essential for ensuring transparency, accountability, and the protection of individual rights in the administration of criminal law.
Procedure of Arrest and Duties of Officer Making Arrest:
S. 36 BNSS:
Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest.
Section 36 of the BNSS outlines the procedure for arrest and the duties of the arresting officer. The officer making the arrest must have a visible and clear identification, making it easy to identify them. A memorandum of arrest must be prepared. It should be attested by at least one witness, who can be a family member of the arrested person or a respectable member of the locality where the arrest is made. The person arrested must also countersign the memorandum. The arrested person must be informed of their right to have a relative or friend named by them informed of the arrest, unless the memorandum is already attested by a family member.
This section serves as a safeguard against illegal arrests and detentions by ensuring proper procedure and documentation. It aims to prevent abuses of power and ensure transparency in the arrest process.
Designated Police Officer:
S. 37 BNSS:
The State Government shall—
(a) establish a police control room in every district and at State level;
(b) designate a police officer in every district and in every police station, not below the rank of Assistant Sub-Inspector of Police who shall be responsible for maintaining the information about the names and addresses of the persons arrested, nature of the offence with which charged, which shall be prominently displayed in any manner including in digital mode in every police station and at the district headquarters.
Section 37 of the BNSS mandates the establishment of police control rooms at both the district and state levels. The State Government must establish a police control room in every district. These control rooms act as the primary point of contact for citizens in the district seeking police assistance. The State Government must also establish a police control room at the state level. This control room serves as a central hub for coordinating police operations across the state and can access information from all district control rooms.
The names and addresses of arrested persons, along with the name and designation of the arresting police officers, must be displayed on a notice board outside the district control rooms. The state-level control room collects and maintains a database of arrest details, including the nature of the offense, for the information of the public.
S. 43 BNSS:
Arrest How Made:
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State.
Section 43 (1) provides for as to how arrest is to be made. According to the section whether the arrest to be made is with warrant or without warrant, it is necessary that in making such arrest, the police officer or other person making the arrest actually touches or confines the body of the person to be arrested unless there be a submission to custody by word or action. However, an oral declaration of arrest without actual contact or submission to custody will not amount to arrest.
Proviso attached to S. 43(1) lays down that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
The BNSS has vested the police with the following powers for effecting an arrest:
The police may use necessary force to arrest a person if the person to be arrested resists the arrest or attempts to evade the arrest under Section 46(2) BNSS. However, the power to use necessary force for making an arrest shall not extend to causing the death of a person who is not accused of an offence punishable with death or with imprisonment for life under Section 46(3) BNSS. The person arrested is not to be subjected to more restraint than is necessary to prevent his escape as set out in Section 46 BNSS.
(2) The police should not handcuff Accuse in normal circumstances. Under Section 43(3) of the BNSS the police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State.
S. 45 BNSS:
Pursuit of Offenders into Other Jurisdictions:
A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.
Section 45 of the BNSS allows a police officer to pursue a person they are authorized to arrest without a warrant, even into other jurisdictions within India. This section grants the police the power to chase and apprehend an individual regardless of the geographical boundaries they cross.
No Unnecessary Restraint:
S. 46 BNSS:
The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
Section 46 BNSS dictates that a person being arrested should not be subjected to more restraint than is necessary to prevent their escape or to ensure their custody. This means that while a person is being arrested, they should not be subjected to excessive force or unnecessary restrictions. Thus, the section emphasizes that the arrestee should not be subjected to more restraint than what is absolutely needed to ensure their apprehension and to prevent them from escaping. The law prioritizes minimal restraint to ensure the arrest is carried out efficiently while respecting the rights of the individual being arrested. The purpose of restraint is to ensure the person is held in custody and is not able to escape the lawful authority.
S. 49 BNSS:
Search of Arrested Person:
(1) Whenever,—
(i) a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; and
(ii) a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.
Section 49 of the BNSS deals with the search of arrested persons. It outlines the circumstances under which a police officer can search a person who has been arrested, either under a warrant or without a warrant, and place in safe custody any articles found on the person, excluding necessary wearing apparel.
If a person is arrested under a warrant (with or without bail provisions), or without a warrant, or by a private person under a warrant and cannot be bailed out, the police officer (or the private person making the arrest) can search the person. The search will include any articles found on the person (other than necessary wearing apparel). These articles will be placed in safe custody. The officer or private person must provide a receipt to the arrested person for any articles taken into possession.
When a female is arrested and needs to be searched, the search must be conducted by another female, with strict adherence to decency.
In essence, Section 49 BNSS empowers law enforcement to search a person after arrest, but it also emphasizes the importance of due process and protecting the dignity of the arrested person, particularly when it comes to female arrests.
S. 50 BNS:
Power to Seize Offensive Weapons:
The police officer or other person making any arrest under this Sanhita may, immediately after the arrest is made, take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Sanhita to produce the person arrested.
Section 50 of the BNSS outlines the power to seize offensive weapons when making an arrest. The officer or person making the arrest can take any offensive weapons from the arrested person and must deliver them to the court or officer before whom the arrested person is to be produced. This section ensures that dangerous weapons are removed from the scene and properly handled within the legal framework.
The primary function of Section 5o BNSS is to authorize the seizure of any offensive weapons found on the person being arrested. The seized weapons must be delivered to the court or officer before whom the arrested person is to be produced, ensuring they are properly handled and accounted for within the legal process. This section is designed to ensure public safety and maintain order by removing potentially dangerous weapons from the arrested person’s possession.
Examination of Accused by Medical Practitioner at Request of Police Officer:
S. 51 BNSS:
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of any police officer, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
(3) The registered medical practitioner shall, without any delay, forward the examination report to the investigating officer.
Explanation:
In this section and sections 52 and 53,
(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;
(b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 (30 of 2019) and whose name has been entered in the National Medical Register or a State Medical Register under that Act.
Section 51 BNSS concerns the medical examination of an arrested person. It allows a registered medical practitioner, at the request of a police officer (not below the rank of sub-inspector), to examine the arrested person to gather evidence related to the alleged crime. The examination can include various tests, including blood, semen, DNA profiling, and other scientific techniques. The purpose is to obtain evidence related to the commission of an offense by examining the arrested person. The examination must be conducted by a registered medical practitioner, or under their supervision. Reasonable force may be used during the examination to obtain the necessary evidence.
When examining a female, the examination must be conducted by or supervised by a female registered medical practitioner. Section 51 BNSS provides a legal framework for collecting forensic evidence from an arrested person to aid in the investigation and prosecution of criminal cases.
S. 52 BNSS:
Examination of Person Accused of Rape by Medical Practitioner:
(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometres from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of any police officer, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without any delay, examine such person and prepare a report of his examination giving the following particulars, namely:—
(i) the name and address of the accused and of the person by whom he was brought;
(ii) the age of the accused;
(iii) marks of injury, if any, on the person of the accused;
(iv) the description of material taken from the person of the accused for DNA profiling; and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without any delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 193 as part of the documents referred to in clause (a) of sub-section (6) of that section.
Section 52 of the BNSS deals with the medical examination of a person accused of rape or attempt to commit rape. It allows a registered medical practitioner, under certain conditions, to examine the accused and use reasonable force to do so. The purpose of this examination is to gather evidence related to the commission of the offence.
Section 53A is designed to facilitate the investigation of rape and attempt to rape cases by providing for the medical examination of the accused. The police officer must have reasonable grounds to believe that the examination will yield evidence.
A registered medical practitioner employed by a government or local authority hospital can conduct the examination. If no such practitioner is available within 16 kilometers, any other registered medical practitioner can be requested by a police officer not below the rank of a sub-inspector. The medical practitioner must prepare a detailed report, including the reasons for their conclusions, and forward it to the investigating officer. The investigating officer must then forward the report to the Magistrate as part of the documents related to the case, according to section 193 of the BNSS.
Examination of Arrested Person by Medical Officer:
S. 53 BNS:
(1) When any person is arrested, he shall be examined by a medical officer in the service of the Central Government or a State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made:
Provided that if the medical officer or the registered medical practitioner is of the opinion that one more examination of such person is necessary, he may do so:
Provided further that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person not available, by a registered medical practitioner soon after the arrest is made.
As soon as the person is arrested, Police officer effecting the arrest shall make a mention of the existence of non-existence of any injury(s) on the person of the arrestee in the register of arrest. If any injuries are found on the person of the arrestee, full description and other particulars as to the manner in which the injuries were caused should be mentioned in the register, which entry shall also be signed by the Police officer and the arrestee. At the time of release of the arrestee, a certificate of the Police officer shall be issued to the arrestee.
Section 53 BNSS deals with the examination of an arrested person by a medical officer. It mandates that a medical examination be conducted soon after the arrest, ideally by a medical officer, and in their absence, by a registered medical practitioner. The examination must record any injuries or marks of violence, along with the approximate time of their infliction. In cases of female arrests, the examination must be conducted by or under the supervision of a female medical officer.
The medical officer or practitioner must record any injuries or marks of violence, along with their approximate time of infliction. The arrested person is entitled to a free copy of the medical examination report. If the arrested person claims that a medical examination will provide evidence to disprove their guilt or establish the guilt of another, they can request a medical examination, which the Magistrate must order unless it is deemed to be for vexation or delay.
S. 54 BNS:
Identification of Person Arrested:
Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit:
Provided that if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with and the identification process shall be recorded by any audio-video electronic means.
Section 54 of the BNSS deals with the identification of a person arrested on a charge of committing an offense. It empowers the court to direct the arrested person to undergo identification by another person or persons if the officer in charge of a police station considers such identification necessary for the investigation. This identification process can be conducted in a manner deemed fit by the court.
To facilitate identification of the accused by witnesses during the investigation of an offense. The officer in charge of a police station can request the court to direct the identification. The court having jurisdiction can direct the identification in a manner it deems fit. If the witness is mentally or physically disabled, the identification process must be supervised by a Judicial Magistrate to ensure comfort and appropriate methods. The identification process must be video-recorded if the witness is mentally or physically disabled.
The Supreme Court in Mukesh Singh v. The State case reaffirmed that the accused is mandated to participate in the identification process. The provision aims to balance the need for effective law enforcement with the constitutional protections against self-incrimination, as per the Supreme Court ruling.
S. 60 BNS:
Discharge of Person Apprehended:
No person who has been arrested by a police officer shall be discharged except on his bond, or bail bond, or under the special order of a Magistrate.
Section 60 of the BNSS dictates that no person arrested by a police officer can be discharged except under specific circumstances: on their own bond, on bail, or under a special order from a Magistrate. Essentially, it outlines the conditions under which an arrested person can be released.
Section 60 BNSS applies when a person has been apprehended by a police officer. The arrested person can only be discharged if they:
- Provide a bond, essentially promising to appear in court at a later date.
- Are granted bail, which typically involves posting a sum of money as a guarantee that they will appear in court.
- Receive a special order from a Magistrate (judge) allowing their release.
The purpose of Section 60 BNSS is to ensure that individuals arrested by police are not released without proper legal safeguards. It helps ensure that the accused will appear for trial and prevents them from potentially fleeing or influencing witnesses.
S. 61 BNS:
Power, on Escape, to Pursue and Retake:
(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.
(2) The provisions of section 44 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.
This section empowers any police officer, including those not on duty, to pursue and re-take escaped prisoners.
For example, a prisoner escapes from a police van while being transported to a prison. Any police officer, whether on duty or off duty, can pursue this prisoner, even if they are not the original arresting officer. They can enter private property, search vehicles, and use reasonable force to re-capture the prisoner. If someone is seen helping the escapee, the officer can also arrest them.
The Section grants the following powers:
- Powers to pursue: Any police officer can pursue an escaped prisoner within or outside their jurisdiction.
- Powers to re-take: They can use reasonable force to re-take the prisoner, even if the escape happened outside their jurisdiction.
- Powers to arrest helpers: The officer can arrest any person aiding the escape, even if they are not a police officer.
- Powers to search: They can search any person or place that they have reasonable grounds to believe is connected to the escape.
S. 62 BNS:
Arrest to be Made Strictly According to Sanhita:
No arrest shall be made except in accordance with the provisions of this Sanhita or any other law for the time being in force providing for arrest.
Section 62 of the BNSS mandates that arrests must be made strictly according to the provisions of the BNSS or any other relevant law. This ensures that arrests are lawful and follow established procedures.
Arrests must adhere to the specific legal frameworks outlined in the BNSS or other applicable laws. Section 62 prevents arbitrary or unlawful arrests by requiring adherence to legal procedures. It emphasizes the importance of a legal basis for any arrest, ensuring that arrests are not based on suspicion or conjecture.
Conclusion:
The procedure of arrest under the Bharatiya Nyaya Sanhita, 2023 (BNSS) is designed to balance the enforcement powers of the state with the protection of individual rights. It outlines clear guidelines for lawful arrest, including the requirement of a warrant in non-cognizable offences and the allowance for arrest without a warrant in cognizable cases. The BNSS mandates that the person being arrested must be informed of the grounds of arrest and their right to bail, ensuring transparency and fairness. Further, provisions such as producing the arrested individual before a magistrate within 24 hours and restrictions on unnecessary detention uphold the principles of justice and personal liberty enshrined in the Constitution.
Judicial interpretations and amendments over time have strengthened procedural safeguards to prevent arbitrary or unlawful arrests. Police officers are obligated to follow due process, and any deviation can attract legal consequences. The inclusion of rights such as informing a relative or friend and the right to consult a legal practitioner further reinforce legal protections. In conclusion, while the power to arrest is vital for maintaining law and order, its exercise must be consistent with the BNSS’s procedural framework to uphold the rule of law and protect fundamental human rights.