Bhartiya Nagrik Suraksha Sanhita 2023

When Police may arrest without warrant

Project Submitted Under the Supervision of

Mrs. Bulbul Chatterjee

Assistant Professor, BM Law College

Submitted by:
Preeti Ranga
BM Law College, Jodhpur
 Acknowledgement
I would like to express my deepest appreciation to Prof. Raman Dave, Hon’ble Director, B M
Law College for affording me the opportunity to undertake this research. I take this opportunity
to express my gratitude and indebtedness to Mrs. Bulbul Chatterjee, Assistant Professor BM
Law College, teacher for Bhartiya Nagrik Suraksha Sanhita 2023, for guiding me in the
endeavour of writing this project and also for his enlightening lectures on the subject. I would
also like to thank the College Library for the wealth of information therein. I would like to
thank the Library Staff for their co-operation.

Preeti Ranga
[Batch 2020-2025]
 Table of content
S. No Content Page
No.
1 Introduction 1
2 Meaning of arrest 1
3 Who can make arrest 2
4 Procedure for arrest 3
5 When police may arrest without warrant 4-6
6 Case laws 7
7 Conclusion 8
8 Bibliography 9
Introduction
The Bhartiya Nagarik Suraksha Sanhita (BNSS) categorizes offenses into two types: cognizable
and non-cognizable. Cognizable offenses, as per Section 2(g) of BNSS are those offences in
which police officer may, in accordance with the First Schedule or under any other law for the
time being in force, arrest without warrant. Now, generally these offences are grave and serious
crimes such as culpable homicide, murder, kidnapping, and rape.
On the other hand, non-cognizable offenses, defined in Section 2(o) of BNSS, are relatively
less serious offenses like hurt, assault, cheating, and defamation. For non-cognizable offenses,
a police officer cannot make an arrest without a warrant.

The meaning of arrest in law

Arrest in legal terms means “seizure or forceful restraint”. In other words, arrest of a person
means depriving him/her of liberty and confining him/her in custody by someone authorised
by law due to suspicion of committing an offence. The idea of arresting a person is to have
his/her availability for presenting before the Court, and also make sure that the person does not
interfere or tamper with the evidence which may be crucial for proving the case.
Arrest under Bhartiya Nagarik Suraksha Sanhita, 2023
The provision regarding “arrest of persons” under the CrPC has been adopted under Section 35
of BNSS. However, there is a twist here. Section 41A of CrPC which provided for notice of
appearance before Police Officer in case arrest is not required. The same has been discussed
and explained below in detail. In addition, the last sub-section of Section 35 of BNSS is a new
addition which was not there under CrPC. It requires prior permission from a Deputy
Superintendent of Police or someone of higher rank, in case the punishment for offence
committed is below 3 years and the person to be arrested is infirm or is above sixty years of
age.
Who Can Make an Arrest Without a Warrant?
The power to make an arrest without a warrant is not unlimited. The key authorities empowered
for such arrests include:
1. Police Officers: For individuals involved in cognizable offenses or against whom a
reasonable complaint, credible information, or reasonable suspicion exists (Section 35 BNSS).
2. Magistrates: If an offense occurs in their presence (Section 41 BNSS).
3. Private Persons: In cases of non-bailable and cognizable offenses committed in their
presence (Section 40 BNSS).
Procedure for Making an Arrest Without a Warrant: Section 43 BNSS
Section 43 of the BNSS outlines the procedure for making an arrest without a warrant. The
arresting person, whether a police officer or a private individual, must physically touch and
confine the body of the arrestee unless signs of submission are evident.
However, it is crucial to note that the use of force leading to death during an arrest is prohibited
unless the person accused is involved in an offense punishable by death or life imprisonment.
Circumstances Allowing Arrest Without a Warrant: Sections 35, 39, and 170 of BNSS.
Several circumstances permit arrests without a warrant, as outlined in different sections of the
Code:
1. Section 35: Lists specific situations where arrests without a warrant are justified, including
offenses, possession of weapons, being a proclaimed offender, and more.
2. Section 39: Allows arrest without a warrant if a person commits an offense in the presence
of a police officer and refuses to provide their name or address.
3. Section 170: Grants wide powers to police officers for preventive arrests to prevent the
commission of a cognizable offense. This discretionary power is subject to a maximum
detention period of twenty-four hours.

Section 35. When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest
any person—

(a) who commits, in the presence of a police officer, a cognizable offence; o

(b) 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; or

(c) 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; or

(d) who has been proclaimed as an offender either under this Sanhita or by order of the State
Government; or

(e) 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; or

(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or

(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;
or

(h) 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; or

(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of
section 394; or

(j) 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

(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.
(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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

Important case laws on the issue:

1. D.K. Basu vs. State of West Bengal (1997):
Key Points: This landmark case addressed custodial deaths and laid down comprehensive
guidelines for arrests and detentions.
Impact: It established crucial rights for arrested individuals, including the right to be informed
about the grounds of arrest, access to legal representation, medical examination, and the right
to be presented before a magistrate within 24 hours.
2. Joginder Kumar vs. State of Uttar Pradesh (1994):
Key Points: Questioning the justifiability of arrests, this case emphasized that arrests cannot
be made merely because they are lawful, requiring officers to justify the reasons for the arrest.
Impact: It reinforced the principle that clear justifications for arrests are essential, particularly
for offenses that do not fall under heinous crimes.
3. State of Maharashtra vs. Christian Community Welfare Council of India (2003):
Key Points: Focused on the arrest of females, this case stipulated that no female person should
be arrested at night or in the absence of a lady constable, except under exceptional
circumstances.
Impact: The guidelines aimed at protecting the dignity and rights of women during arrests,
acknowledging the need for special considerations in such cases.
Conclusion
The provisions for arrest without a warrant under the Bhartiya Nagrik Suraksha Sanhita integral
to maintaining law and order. However, these powers must be exercised responsibly to prevent
abuse and infringement of individuals' rights. The guiding principles laid down in landmark
judgments like D.K. Basu v. State of West Bengal emphasize the balance between effective
policing and safeguarding fundamental rights.
Bibliography
Books:
Bare act of The Bhartiya Nagrik Suraksha Sanhita 2023

Online resource:
https://www.myjudix.com/post/arrest-without-warrant-under-bnss-bharatiya-nagarik-
suraksha-sanhita
https://cytrain.ncrb.gov.in
https://lawgicalshots.com