Power to Arrest

The power to arrest is a significant power vested in the state to deprive a person of their liberty in connection with a criminal investigation or prosecution. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) outlines the circumstances and authorities under which an arrest can be made.

Arrest by Police Officer without Warrant (Section 41 BNSS)

Section 41 of the BNSS details the circumstances under which a police officer can arrest a person without a warrant. This is a crucial provision that balances the need for effective crime prevention and investigation with the protection of individual liberty.

• A police officer can arrest any person without a warrant in the following situations:

  • Who has committed, or attempts to commit, or is reasonably suspected of having committed, a cognizable offence.

  • Who has been proclaimed as an offender either under the provisions of this Sanhita or by order of the State Government.

  • In whose possession, found without lawful excuse, anything reasonably believed to be stolen property.

  • Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody.

  • Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.

  • Who has been concerned in, or on reasonable suspicion is believed to have been concerned in, the commission of an offence which is likely to provide facilities for the escape of a person concerned in such offence.

  • Who is reasonably believed to be a member of, or associated with, a declared unlawful association.

  • Who has been concerned in, or on reasonable suspicion is believed to have been concerned in, the commission of any act which is an offence under any law for the time being in force, and for which he may be arrested without a warrant under such law.

• Conditions for Arrest: Importantly, for arrests under clause (2) (reasonable suspicion of commission of a cognizable offence), the police officer must be satisfied that the arrest is necessary:

  • To prevent the person from committing any further offence;

  • To prevent the person from causing the disappearance of evidence or tampering with evidence;

  • To prevent the person from causing any injury to any person;

  • To prevent the person from absconding and to ensure his presence before the Court when required.

  The police officer shall record in writing the reasons for such arrest.

Arrest by Private Person without Warrant (Section 43 BNSS)

Section 43 of the BNSS allows private citizens to make arrests in specific circumstances:

• Any private person may arrest any person—

  • who, in his view, commits a non-bailable and cognizable offence; or

  • who, being a proclaimed offender, is lurking or wandering in public view.

• The private person making the arrest must, without unnecessary delay, take or send the person arrested to the nearest police officer or, in the absence of a police officer, to the nearest village headman or other authority or person empowered by the State Government in this behalf.

Arrest by Magistrate (Section 44 BNSS)

Section 44 of the BNSS empowers Magistrates to arrest offenders:

• A Judicial Magistrate or an Executive Magistrate may at any time arrest, or order any person to arrest, an accused person for whose arrest he is competent to issue a warrant.

Power to arrest without warrant (Section 41(2) BNSS)

This refers to the specific conditions laid out in Section 41(2) which are detailed above under "Arrest by Police Officer without Warrant." It emphasizes that even when a police officer has the general power to arrest without a warrant for a cognizable offence, the decision to arrest must be justified by specific reasons relating to preventing further offences, destruction of evidence, injury to persons, or absconding, and these reasons must be recorded in writing.

Procedure on Arrest

The BNSS lays down a stringent procedure to be followed by any person making an arrest to safeguard the liberty of the individual and ensure that arrests are not made arbitrarily.

Information to the person arrested about the offence and grounds of arrest (Section 41(1)(b) BNSS)

This is a fundamental right of the arrested person. Section 41(1)(b) mandates that the police officer or other person making the arrest shall:

• Inform the person arrested about the particulars of the offence for which he is being arrested, or other grounds for such arrest.

• Inform the person arrested about his right to obtain bail, if the offence is bailable and he is able to furnish surety or bail.

This information must be provided in a language understood by the arrested person. Failure to do so can render the arrest illegal and may lead to penalties for the officer.

Right to inform an arrested person to inform a relative, friend or nominee (Section 41(1)(c) BNSS)

This provision, also a crucial safeguard, is found in Section 41(1)(c) of the BNSS.

• It states that the person arrested shall be informed of his right to inform a relative, friend, or any other person of his choice about his arrest and the place of custody. This is vital for ensuring that the arrested person has legal representation and that their whereabouts are known to their family or acquaintances.

• The police officer must facilitate this notification.

Producing the arrested person before a Magistrate

A critical step after an arrest is to present the arrested person before a Magistrate.

• Section 46(1) BNSS mandates that the police officer or other person making an arrest shall, without unnecessary delay and subject to the provisions herein relating to bail, produce the arrested person before a Magistrate.

This is to ensure judicial oversight of the arrest and detention, preventing prolonged illegal detention by the police.

Time limit for production before Magistrate (Section 46 BNSS)

Section 46 of the BNSS specifies the time limit within which an arrested person must be produced before a Magistrate:

• Section 46(2) BNSS: No person arrested and produced before a Magistrate under Section 46(1) shall be detained in custody beyond the period of twenty-four hours excluding the time necessary for the journey from the place of arrest to the Magistrate's Court, unless authorised by the Magistrate by a further order.

• Section 46(3) BNSS: If the arrest is made upon a warrant, the police officer shall produce the arrested person before the court that issued the warrant, or if the court is not in session, before the Magistrate to whom such officer is required to produce all persons arrested under a warrant.

• This 24-hour rule is a crucial safeguard against arbitrary detention and ensures that the legality of the arrest and the need for further detention are reviewed by a judicial officer promptly.

Search of Persons Arrested

When a person is arrested, the police have the power to search their person. This is governed by Section 47 of the BNSS.

Section 47 BNSS

Section 47 of the BNSS outlines the procedure for searching an arrested person:

• Power to Search: Whenever a police officer arrests any person under Section 41, Section 42 or Section 43, he may search the arrested person and place in safe custody any article found upon him which he has reason to believe to be necessary for the purpose of investigation or may be connected with the offence.

• Search of Female: The search of a female shall be conducted with strict regard to decency (Section 51, BNSS, which deals with Search of Persons Arrested, cross-referenced by implication for conduct).

• Procedure: While the section empowers the police officer to search, it implies that the search should be conducted in a dignified and lawful manner. The items found during the search can be seized as evidence if they are relevant to the investigation or connected with the offence.

The objective of this search is to:

• Prevent the arrested person from carrying any weapon or incriminating material.

• Seize any evidence related to the crime.

• Find out if the person is in possession of stolen property.

Offences and Penalties Relating to Arrest

The BNSS includes provisions to penalise those who obstruct the lawful process of arrest or for non-compliance by officers.

Penalty for non-compliance with the provisions regarding arrest (Section 49 BNSS)

Section 49 of the BNSS is a crucial provision aimed at enforcing adherence to the procedural safeguards during arrest:

• General Rule: In making an arrest, no more force than is necessary shall be used, nor shall more restraint be imposed than is necessary for the prevention of escape.

• Penalty for Contravention: If any police officer or other person making an arrest uses more force than is necessary or imposes more restraint than is necessary, he shall be liable for prosecution for the offence committed by him.

This section underscores the principle that arrests must be conducted with minimum necessary force. Any excessiveness can lead to penal consequences for the arresting officer. This provision acts as a deterrent against police brutality or misuse of power during arrests.

Police Custody

Police custody refers to the detention of an arrested person by the police, typically for the purpose of investigation. The BNSS regulates the conditions and duration of police custody.

Remand to Police Custody (Section 46 BNSS)

Section 46 of the BNSS deals with the production of an arrested person before a Magistrate and the subsequent custody arrangements.

• Initial Production: As per Section 46(2), any person arrested and produced before a Magistrate shall not be detained in custody beyond twenty-four hours excluding the journey time, unless authorised by the Magistrate by a further order.

• Basis for Remand: For further detention in police custody, the police officer must present the arrested person before a Magistrate and must produce a valid reason for such detention. The Magistrate then decides whether to grant police custody and for how long.

• Conditions for Granting Police Custody: The Magistrate must be satisfied that the detention is necessary for a proper investigation, and it is not for the purpose of merely extracting confession or information.

Maximum period of Police Custody

The BNSS, while regulating police custody, maintains the critical time limits established in prior law to prevent prolonged detention without judicial oversight.

• General Rule: The total period of police custody, which includes any period of police remand, cannot exceed fifteen days in total. This limit is a cumulative figure for the entire period of police custody during the investigation of an offence (Section 46(2) and Section 187).

• Judicial Review: This period is subject to judicial review by the Magistrate. The Magistrate must be satisfied that further police custody is necessary for effective investigation and must record the reasons for granting such custody.

• Beyond 15 Days: If the investigation requires further detention beyond 15 days, the accused can only be remanded to judicial custody, not police custody, and this too will be subject to the Magistrate's discretion under Section 187.

This 15-day limit is a critical safeguard against the abuse of power by the police.

Judicial Custody

Judicial custody means detention of an arrested person in a jail or prison, under the orders of a Magistrate, as opposed to being held at a police station.

Remand to Judicial Custody

When the police require detention beyond the initial 24 hours (and if police custody is not granted or has expired), or when the investigation requires the accused to be held pending further proceedings, the Magistrate may order judicial custody.

• Magistrate's Authority: Section 46(2) and Section 187 of BNSS empower the Magistrate to authorise detention in police custody or judicial custody for a term not exceeding fifteen days in the whole. However, if the Magistrate is satisfied that there is sufficient reason for the accused being detained otherwise than in custody of the police, he may order detention in such custody as the Magistrate thinks fit.

• Duration: Judicial custody can be for periods of 15 days at a time, and this can be extended by the Magistrate as needed, for the purpose of investigation, up to a maximum of 90 days for offences punishable with death, life imprisonment, or imprisonment for a term of ten years or more, and up to 60 days for other offences (related to default bail provisions under Section 490 of BNSS, derived from Section 167 CrPC).

• Purpose: Judicial custody is meant for purposes of investigation, ensuring the accused does not abscond, and preparing for trial. It is overseen by the judiciary.

Interrogation and Recording of Statements

The BNSS provides detailed procedures for the interrogation of accused persons and the recording of statements of witnesses and accused, with significant emphasis on technological integration.

Recording of Confessions and Statements (Section 173 BNSS)

Section 173 of the BNSS deals with the recording of statements and confessions:

• Statements of Witnesses: Police officers investigating a cognizable case may examine witnesses orally and reduce their statements into writing. Such statements recorded during investigation are part of the police report (charge sheet).

• Confessions and Statements of Accused: Under Section 173(3) BNSS (corresponding to Section 164 CrPC), any confession or statement made to a Magistrate during the course of investigation or at any time thereafter, but before the commencement of the inquiry or trial, shall be recorded in the prescribed manner.

  • Voluntariness: The Magistrate must first satisfy himself that the confession is made voluntarily, and before recording it, he must explain to the accused that he is not bound to make a confession and that if he does so, it may be used as evidence against him.

  • Recording Procedure: The confession is to be recorded in the form of questions and answers, and it must be signed by the person making it and also by the Magistrate.

  • Admissibility: Confessions recorded in accordance with this procedure are admissible in evidence against the accused.

• Statements of Persons other than accused: Section 173(5) BNSS allows recording of statements of persons other than the accused, including victims, through audio-video electronic means.

Videography of Search and Seizure and Statements

A significant reform introduced by the BNSS is the emphasis on videography.

• Section 47(5) BNSS: Provides that in cases of search and seizure, the search shall be conducted by the police officer in the presence of two independent witnesses, and the process of search and seizure shall be videographed.

• Section 173(5) BNSS: Mentions that statements of persons other than the accused shall be recorded by audio-video electronic means.

• Section 173(6) BNSS: It is also mandated that the recording of confessions and statements of witnesses shall be videographed.

The objective of mandatory videography is to ensure transparency, prevent malpractices during searches, seizures, and the recording of statements, and provide an objective record of the proceedings, thereby enhancing the fairness of the criminal justice process.