Arrest Under BNSS 2023: Powers, Procedure And Rights

ARREST OF PERSON

Chapter V of The Bharatiya Nagarik Suraksha Sanhita, 2023 speaks about arrest of a person.

Who can be arrested?

As per Section 35 of BNSS Any person who have committed a cognizable offence either in presence of a police officer or a reasonable complaint is made against that person where credible information exists with reasonable suspicion that such an offence has been committed by that person.

Offences which may lead to arrest of a person without warrant.

1. Any person reasonably suspected to commit a cognizable offence punishable with imprisonment extent to seven years or more whether with or without fine including death sentence.
2. Any person who is a proclaimed offender by Sanhita or by the State Government.
3. Any person who possesses any property which may reasonably be suspected to be a stolen property.
4. Any person who obstructs a police officer from performing his lawful duty, or who has escaped or attempted to escape from lawful custody.
5. Any person who reasonably suspected to be a deserter from any of the arm forces of the Union.
6. Any person who is concerned in, or reason able complaint, or credible information is received of committing an offence outside India which if committed in India would be an offence.
7. Any person who is convicted of an offence and was realised imposing rules by the State Government and he /she violates such rules.
8. Any person who’s arrest requisition is made by one police officer to other either in written or orally specifying reason of arrest.

Gurjeet Singh Johar V. State of Punjab. 2020(1)RCR (Criminal) 344:.

Power of Police to arrest even without any assistance of the Magistrate is conferred to Police Officer during investigation.

Offences which a person can be arrested with warrant only.

1. Any person reasonably suspected of committing a Non-Cognizable offence.
2. Any person who has was released by the court on bond and latter on fails to appear before the court.
3. A warrant against any person allows Law Enforcement agency to take that person into custody by a Judge or a Magistrate.

State V. Dawood Ibrahim Kaskar, (2000) 10 SCC 438.

Magistrate must have reason to exercise its discretionary power to decide.

Who can arrest?

An arrest can be made by 3 types of persons.

1. Police Officer Under Section 35 of BNSS Any person who have committed a cognizable offence either in presence of a police officer or a reasonable complaint is made against that person where credible information exists with reasonable suspicion that such an offence has been committed by that person.

1. Private Person Under Section 40 of BNSS any privet person may arrest a person if in his presence any person commits a Non-Bailable and cognizable offence, or the person is a proclaimed offender. Subsequent to such arrest the person without unreasonable delay call a Police Officer and hand over such offender or in absence of Police Officer such offender must be taken in custody of nearest Police Station within six hours.

1. Any Executive or Judicial Magistrate Under Section 41 of BNSS any person commits an offence in presence of any Magistrate whether Executive or Judicial may arrest a person himself or order any person to arrest the offender. More over if any offence is committed within the local jurisdiction of any Magistrate and the same is reported, the Magistrate may direct to arrest in his presence or issue a warrant of arrest of such offender.

What are the Rights of Arrested Person?

This rights are very important to be known by every citizens of India as such rights are made by the Constitution makers, Law makers as well as Honourable Supreme Court of India during in its various landmark judgements have created these Rights Keeping in mind the very basic Human Rights and Human Dignity.

1. Right to Know Grounds of Arrest: The arrested individual must be informed of the reason and grounds for their arrest as soon as possible, usually at the time of arrest. This is mandated both by Article 22(1) of the Constitution and by Section 47 of the new Bharatiya Nagarik Suraksha Sanhita (BNSS). The police officer making arrest must prepare a memorandum of arrest stating Grounds of Arrest which is to be served to the family members or friends of the arrested person and the same is to be signed by the receiver as well as arrested person, Under Section 36(b) of BNSS.

1. Right to Remain Silent: Under Article 20(3) of the Constitution, no person accused of an offence can be compelled to be a witness against themselves, which gives the right to silence during interrogation.

1. Right to Legal Counsel: Every arrested person can consult and be defended by a legal practitioner of their choice, as guaranteed by the Constitution Under Article 22 (1) and Section 38 BNSS.

1. Right to Free Legal Aid: If the arrested individual cannot afford a lawyer, the state must provide free legal aid, under Article 39A and the Legal Services Authorities Act, 1987.

1. Right to Be Produced Before Magistrate: The arrested person must be brought before the nearest Magistrate within 24 hours of their arrest, excluding travel time. As per The Constitution Article 22(2)

1. Right to Bail: If any bailable offence is committed and arrest is made then the Police Officer should explain the arrested person his right to go on Bail. For non-bailable offences must take bail from the Court of Law. As per Section 47(2)

1. Right to Inform Relative or Friend: The police must allow the arrested person to inform a friend, relative, or family member about their arrest and place of detention. As per Section 48 of BNSS.

1. Right to Medical Examination: The arrested person has the right to a medical examination to prevent custodial torture or abuse.

1. Right to Humane Treatment and Protection from Torture: Police are bound to respect the human dignity of the arrested individual, and the use of torture or unlawful threats is strictly prohibited, as reinforced by Supreme Court judgments.

1. Rights Of Women: A women can be arrested by only a female Police Officer. Only her verbal acceptance of arrest is enough to for submission not required to touch. Any women cannot be arrested after sunset and before sunrise, If any exceptional circumstances arises then a female police officer with prior permission of the Magistrate of Local Jurisdiction may make arrest.

Landmark Judgments

1. Shri D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
2. Nandini Satpathy v. State of Orissa, AIR 1978 SC 1025.
3. Vihaan Kumar V. The State of Haryana & Anr. 2025.
4. Mohammed Ajmal Mohammad Amir Kasab V. State of Maharashtra, 2012 AIR (SC) 3565.
5. Arnesh Kumar V. State of Bihar, AIR 2014 SC 2756.
6. Nilabati Behera V. State of Orissa, AIR 1993 SC 1960.
7. Deepak Bajaj V. State of Maharashtra, AIR 2009 SC 628.