Chanderprabhu Jain College of Higher Studies

&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Affiliated to GGS Indraprastha University, Delhi, Approved by the AICTE & Approved by Bar Council of India | Recognized by Govt. of NCT of Delhi)

E-Notes

Class : BA LLB

Paper Code : LLB 305

Subject : BNSS

Faculty Name : Mr. Shadab Hussain

Unit – II

Punitive and Preventive Arrest (With or Without Warrant) and Provision for
Bail Under the Criminal Procedure Code

Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), arrests can be broadly categorized into
punitive and preventive arrests. Each type serves a different purpose and is governed by specific
sections of the BNSS. Along with this, the code provides detailed procedures for arrests, whether
with or without a warrant, and the provisions regarding bail.

Punitive Arrest:

Punitive arrest refers to the arrest made after an individual is accused of committing a crime and
faces trial and punishment upon conviction. This form of arrest is generally retributive in nature,
aiming to bring the offender to justice. The police can arrest a person under this category if there
is sufficient evidence of the individual’s involvement in a crime. The punitive arrest follows the
legal procedures after the filing of an FIR (First Information Report) or a complaint before a
magistrate.

According to

Section 35 of the BNSS, the police has the authority to arrest an individual without a warrant in
certain situations. This is permissible when the individual is suspected of committing a
cognizable offense (where the police can arrest without a warrant and start an investigation
without the magistrate's permission). For instance, in cases involving offenses punishable with
imprisonment for more than seven years, the police may proceed without a warrant to arrest the
accused person.

However, in non-cognizable offenses (where the police cannot arrest without a warrant), the
arrest can only be made by obtaining a warrant issued by a magistrate. The procedure for a
warrant is covered under Section 72 of the BNSS.

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Preventive Arrest:
Preventive arrest is undertaken not as a response to a committed offense but to prevent the
occurrence of a potential offense. Under Section 168 of the BNSS, preventive arrests can be
made when the police believe that an individual is likely to commit a cognizable offense.
Preventive detention laws are intended to prevent crimes by restricting an individual’s freedom
before they commit an illegal act, based on suspicion or intelligence reports.

The primary objective of preventive arrest is to maintain law and order, prevent crimes, and
protect public peace. In cases where there is reasonable apprehension that an individual may
disturb public tranquillity or commit any offense, preventive arrest is a measure to thwart such
an action. However, preventive detention laws in India, such as the National Security Act (NSA)
or similar state laws, are often seen as controversial due to the potential for abuse and misuse.

In terms of duration, a person arrested preventively must be brought before the magistrate within
24 hours of the arrest, except in cases under certain special laws such as preventive detention
laws, which allow for detention without a formal charge for extended periods.

Provisions for Bail:

Bail is a significant aspect of arrest procedures in India. Bail can be defined as the temporary
release of an accused person awaiting trial, sometimes on condition of a monetary guarantee.
The BNSS outlines two types of bail:

1. Bailable Offenses: According to Section 478 of the BNSS, for bailable offenses, bail is a
right, and the arrested individual has to be released upon fulfilling the required conditions.
The police or magistrate cannot deny bail for such offenses.

2. Non-Bailable Offenses: For non-bailable offenses, under Section 479 of the BNSS, bail is
not a matter of right. The court has discretion to grant or deny bail based on factors such as
the nature and gravity of the offense, the risk of the accused fleeing, and the likelihood of
tampering with evidence or witnesses.

Anticipatory Bail under Section 482 BNSS is another provision where a person who apprehends
arrest for a non-bailable offense can apply to the High Court or Court of Sessions to secure bail
before being arrested.

Summons, Warrant, Proclamation, and Attachment

The Criminal Procedure Code provides a detailed legal framework for issuing summons and
warrants. It also prescribes procedures related to proclamations and attachments for absconding
offenders.

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School of Law
An ISO 9001:2015 Certified Quality Institute
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Summons:

A summons is a legal document issued by a court requiring a person to appear before it at a

specified date and time. According to Section 61 of the CrPC, every summons must be in
writing, signed by the presiding officer of the court, and must bear the seal of the court. The
summons procedure is generally used for less severe offenses (non-cognizable offenses), where
the presence of the accused or witness is required in court.

The summons must be served personally to the individual named in the document. If the person
cannot be found, the summons may be served to an adult member of the person's family or
affixed at their residence or workplace, as described in Section 64.

Warrant of Arrest:

An arrest warrant is a legal authorization issued by a magistrate under Section 70 of the CrPC. It
empowers the police to arrest a specific individual. Unlike a summons, a warrant is issued for
more serious offenses (cognizable offenses) or when the individual does not comply with a
summons. The warrant specifies the details of the person to be arrested and gives the police legal
backing to detain the individual. A warrant must be in writing and bear the signature and seal of
the issuing magistrate.

Warrants can be classified as:

1. Bailable Warrant: This type of warrant allows the arrested individual to be released on
bail.

2. Non-Bailable Warrant: This warrant does not allow for immediate bail, and the individual
must be presented before the court.

Proclamation for Person Absconding:

When a person deliberately avoids arrest or evades the summons, the court can issue a
proclamation under Section 82 of the CrPC. The court publicly declares the individual as an
absconder, and the notice is published, often through newspapers or posted at the person's last
known address. The absconding person is required to appear before the court within a specific
period (usually 30 days). Failing this, the court can proceed with further legal actions.

Attachment of Property:

As a punitive measure for absconding, Section 83 of the CrPC allows the court to order the
attachment of the absconder's property. This is often done as a deterrent to prevent individuals
from avoiding arrest and as a means to compel their appearance in court. The attached property
may later be auctioned if the individual does not comply with court orders.

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Search (With or Without Warrant)

The BNSS also provides detailed provisions for conducting searches during an investigation.
The objective of a search is to find incriminating evidence or apprehend a suspect.

Search With Warrant:

A search warrant is a legal document issued by a court that authorizes the police to search a
specific location for evidence related to a crime. According to Section 93 of the CrPC, a search
warrant can be issued if the court has reason to believe that evidence of an offense is concealed
in any place or that a person sought by the police is hiding in a specific location.

A search warrant ensures that the police do not arbitrarily invade the privacy of individuals and
property. The search must be conducted in the presence of respectable inhabitants of the locality,
and a detailed inventory of the items seized must be made, as per Section 100 of the CrPC.

Search Without Warrant:

There are situations where the police may conduct searches without a warrant. Under Section
165 of the CrPC, a police officer can search a place without a warrant if they believe that the
delay caused by obtaining a warrant would lead to the destruction of evidence or allow the
accused to escape. The officer must record the reasons for not obtaining a warrant and report the
search to the nearest magistrate.

Illegal Search, Arrest, and Allied Rights and Remedies

In any democratic society, individual liberty and privacy are considered sacrosanct, and legal
frameworks are in place to protect citizens from arbitrary and unlawful actions by law
enforcement agencies. In India, BNSS, along with various provisions of the Indian Constitution,
safeguard citizens against illegal searches, arrests, and detentions. The remedies available in the
case of such illegal actions form a vital part of ensuring justice and upholding the rule of law.

1. Illegal Arrest and its Implications

An arrest becomes illegal when it is carried out without following the due process prescribed
under the CrPC and the Constitution. The CrPC lays down specific rules governing the process
of arrest, and any deviation from these rules amounts to an infringement on the fundamental
rights of the individual.

Key Elements of a Legal Arrest:

- Authority to Arrest: The police must have a legal basis for making an arrest, either through a
warrant issued by a magistrate or by fulfilling the requirements for a warrantless arrest under
Section 41 of the CrPC (which pertains to cognizable offenses). Arrests made without fulfilling
these legal prerequisites would be considered illegal.

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- Communication of Grounds of Arrest: BNSS mandates that every person arrested without a
warrant must be informed of the grounds for their arrest and the right to bail if the offense is
bailable. Any failure to communicate these grounds to the accused makes the arrest unlawful.

- Right to be Presented Before a Magistrate: Under Section 58 BNSS, an arrested person must be
produced before a magistrate within 24 hours of the arrest. If the police fail to present the
individual within the stipulated time frame, the arrest becomes illegal.

- Prohibition of Arbitrary Detention: Article 22(1) of the Indian Constitution guarantees that no
person shall be detained in custody without being informed of the reasons for such detention,
and they must be allowed to consult and be defended by a legal practitioner of their choice.
Violation of these constitutional rights renders the arrest invalid.

Consequences of Illegal Arrest:

- Violation of Fundamental Rights: An illegal arrest violates the individual’s Right to Life and
Personal Liberty as enshrined in Article 21 of the Constitution. Such an arrest infringes on an
individual's personal liberty and dignity.

- Unlawful Detention: Detaining an individual without following proper legal procedures

amounts to unlawful detention, for which the individual can seek remedies in court, including
compensation.

- Torture and Inhumane Treatment: Illegal arrests are often associated with custodial torture,
inhumane treatment, or prolonged detention without trial. These practices are explicitly
prohibited by the law and amount to serious violations of human rights.

2. Illegal Search and its Implications

A search is considered illegal when it is conducted without adhering to the statutory provisions
of the BNSS or other laws governing searches. The right to privacy is integral to human dignity
and is safeguarded under Article 21 of the Constitution. Any search that breaches this right
without valid legal grounds or procedures is unlawful.

Key Provisions for Conducting a Legal Search:

- Search Warrant: According to Section BNSS, a search warrant can be issued by a magistrate
when it is believed that the object or person sought is concealed in a particular place. Without
such a warrant, any search conducted for non-cognizable offenses or in situations where it is not
an immediate necessity is unlawful.

- Search Without a Warrant: BNSS permits police officers to conduct searches without a
warrant, but only in cases where obtaining a warrant would cause undue delay and potentially
result in the loss of evidence or escape of a suspect. However, if the officer does not follow the
specific procedure, such a search becomes illegal.

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School of Law
An ISO 9001:2015 Certified Quality Institute
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- Respect for Privacy and Dignity: The law also requires that searches be conducted with due
regard to the privacy and dignity of the individuals involved. For example, Section 100(4) of the
CrPC mandates that a search should be conducted in the presence of at least two independent
and respectable witnesses from the locality. If this procedure is not followed, the search can be
challenged as unlawful.

# Consequences of Illegal Search:

- Violation of Right to Privacy: An illegal search amounts to a violation of an individual's

fundamental right to privacy, as recognized under Article 21 of the Constitution. This right is
particularly important in personal spaces such as homes or private offices.

- Unlawful Seizure of Property: Any evidence or property obtained during an illegal search is
considered unlawfully seized. Although Indian courts have admitted illegally obtained evidence
in certain cases, the constitutional safeguards ensure that individuals can challenge such
searches.

- Invasion of Dignity: Searches of private spaces can involve personal invasions, and any undue
harassment or invasion of privacy during the search process can be grounds for legal action.

3. Allied Rights and Remedies in Case of Illegal Search and Arrest

The BNSS and the Constitution provide several remedies to protect individuals against illegal
searches and arrests, reinforcing the importance of due process and fundamental rights in a
democratic society. These remedies serve as checks and balances against the arbitrary use of
police powers.

Remedies for Illegal Arrest:

1. Habeas Corpus: The writ of Habeas Corpus is a powerful constitutional remedy under
Article 32 and Article 226 that protects individuals from illegal detention. If a person is
unlawfully detained, they or someone on their behalf can file a habeas corpus petition in
the High Court or Supreme Court. The court will then require the detaining authority to
justify the detention and, if no legal grounds exist, the court will order the immediate
release of the individual.

2. Right to Compensation: Under public law remedy, compensation can be awarded to the
victim of an illegal arrest or detention. Courts, particularly the Supreme Court and High
Courts, have on numerous occasions awarded compensation for violations of Article 21.
For instance, in the landmark case of Rudal Shah v. State of Bihar (1983), the Supreme
Court ruled that monetary compensation must be given to individuals who are unlawfully
detained.

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School of Law
An ISO 9001:2015 Certified Quality Institute
(Affiliated to GGS Indraprastha University, Delhi, Approved by the AICTE & Approved by Bar Council of India | Recognized by Govt. of NCT of Delhi)

3. Criminal and Disciplinary Actions Against Police Officers: The police officers
responsible for illegal arrests can face disciplinary actions under departmental rules.
Additionally, under Section 166 of the Indian Penal Code (IPC), a public servant who
disobeys the law with the intent to cause harm to any person can be prosecuted for their
misconduct.

4. Bail and Immediate Release: If the court finds that the arrest is illegal, the individual is
entitled to be released immediately. Moreover, in the case of non-bailable offenses, the
accused can apply for anticipatory bail under Section 482 BNSS, which protects
individuals from unjust arrest.

Remedies for Illegal Search:

1. Exclusion of Illegally Obtained Evidence: Although Indian courts follow the principle of
admissibility of evidence regardless of the manner of its acquisition, the accused can
challenge the admissibility of evidence obtained through illegal searches. Courts have
discretion in this matter and may exclude evidence if it is found that the search was
conducted unlawfully or with malafide intent.

2. Filing a Complaint Against Police Misconduct: An individual subjected to an illegal

search can file a formal complaint against the police officers involved, leading to
departmental inquiries or even criminal proceedings for misconduct. This is governed by
both the CrPC and the police conduct regulations.

3. Civil Action for Violation of Rights: Victims of illegal searches can also file civil suits
for trespass or invasion of privacy. These suits seek compensation for the mental and
emotional harm caused by such actions.

4. Judicial Review: Courts, particularly the High Courts under Article 226 of the
Constitution, can intervene through judicial review to prevent misuse of search and seizure
powers. If the search is found to have violated fundamental rights or the CrPC, the courts
can quash the illegal actions and provide relief.

4. Judicial Precedents and Landmark Cases

Judicial intervention has played a crucial role in defining the scope and remedies for illegal
searches and arrests. Several landmark cases have contributed to the protection of fundamental
rights:

1. D.K. Basu v. State of West Bengal (1997): This case laid down the detailed guidelines
for arrest and detention. The Supreme Court mandated that arresting officers must carry
proper identification and that every person arrested must be informed of their right to
inform a family member or friend. Non-compliance with these guidelines makes the arrest
illegal.

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&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Affiliated to GGS Indraprastha University, Delhi, Approved by the AICTE & Approved by Bar Council of India | Recognized by Govt. of NCT of Delhi)

2. Ramlila Maidan Incident (2012): The Supreme Court ruled that illegal detention and
excessive force used by police during a peaceful protest violated the rights of the
protesters. The court awarded compensation for the violation of Article 21.

3. Joginder Kumar v. State of UP (1994): The Supreme Court held that an arrest should not
be made merely on the suspicion of complicity in an offense. There must be a justification
for arrest, and this should be closely scrutinized to prevent arbitrary action by the police.

Conclusion

Illegal search and arrest represent serious breaches of individual rights under both the BNSS and
the Constitution. The legal system provides multiple remedies, including judicial review,
compensation, and disciplinary action against erring officials. However, it is the duty of law
enforcement agencies to follow due process and respect the rights of individuals to prevent the
need for such remedies in the first place. Strengthening accountability mechanisms and
enhancing awareness of legal rights are essential to curbing unlawful actions

Sd/-
Mr. Shadab Hussain