Arrest (Under BNSS, 2023)

Introduction

Arrest is a legal process where a person is taken into custody under the authority of law. It
serves multiple purposes, such as preventing the commission of further offenses, ensuring the
accused’s presence before the court, and maintaining law and order. The Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS, 2023) has replaced the Code of Criminal Procedure, 1973 and
governs the procedure related to arrests in India.

1. Meaning and Definition of Arrest

Simple Explanation

Arrest means the act of restraining a person’s liberty by legal authority. It can be made with or
without a warrant, depending on the circumstances.

Authorities Responsible

Police officers (authorized to arrest under BNSS, 2023).

Magistrates (can order arrest).

Private persons (in specific cases).

Essentials of Arrest

1. There must be an intent to arrest.

2. The person must be taken into custody.

3. The arrestee must be informed of the grounds of arrest.

4. The arrested person has legal rights and safeguards.

2. Legal Provisions Related to Arrest (BNSS, 2023)

A. Section 35 – When a Person Can Be Arrested

Simple Explanation

A person can be arrested if:

They commit a cognizable offense.

They obstruct a police officer.

They are declared a proclaimed offender.

Authorities Responsible

Police officers can arrest without a warrant in cognizable cases.

Magistrates can issue an arrest warrant in non-cognizable cases.

Procedure

1. Police or Magistrate orders the arrest.

2. The person is taken into custody.

3. The arrestee is informed of the reasons.

4. The accused is presented before the Magistrate within 24 hours.

Essentials

Arrest should be lawful.

Fundamental rights must be protected.

Case Law: D.K. Basu v. State of West Bengal (1997) – Laid down guidelines to prevent arbitrary
arrests.

B. Section 36 – Arrest Without Warrant in Cognizable Offenses

Simple Explanation

Police can arrest a person without a warrant if the offense is serious (e.g., murder, rape,
terrorism).

Authorities Responsible

Police officers.

Procedure

1. The police officer arrests the suspect.

2. The accused is informed of their rights.

3. The person is presented before the Magistrate within 24 hours.

Essentials

The offense must be cognizable.

There must be reasonable suspicion or reliable information.

Due process must be followed.

C. Section 37 – Arrest with a Warrant

Simple Explanation

For non-cognizable offenses, an arrest requires a warrant issued by a Magistrate.

Authorities Responsible

Magistrate issues the warrant.

Police execute it.

Procedure

1. The court issues a written arrest warrant.

2. The police execute the warrant and arrest the accused.

3. The arrested person is brought before the Magistrate.

Essentials

The warrant must be properly signed and sealed.

It should specify the person’s identity and offense.

Case Law: Smt. Menaka Gandhi v. Union of India (1978) – Warrant-based arrests must follow
due process.

D. Section 38 – Arrest by a Private Person

Simple Explanation
A private citizen can arrest someone if they catch them committing a non-bailable and
cognizable offense.

Authorities Responsible

The private individual.

Police (after taking custody of the accused).

Procedure

1. The private person detains the accused.

2. The accused is handed over to the police.

3. The police verify and take further action.

Essentials

The crime must be serious.

The accused must be immediately handed over to the police.

Case Law: R.P. Kapur v. State of Punjab (1960) – Private arrests must be reasonable.

E. Section 39 – Procedure of Arrest

Simple Explanation

The arresting officer must follow a defined legal process to ensure fairness.

Authorities Responsible

Police officers executing the arrest.

Procedure

1. The officer must identify themselves.

2. The reason for arrest must be informed.

3. The accused must be allowed to contact a lawyer.

4. Medical examination should be conducted if required.

5. Production before the Magistrate must happen within 24 hours.

Essentials

The process should not involve excessive force.

The accused has a right to legal representation.

Case Law: Arnesh Kumar v. State of Bihar (2014) – Police must justify the necessity of arrest.

F. Section 40 – Rights of an Arrested Person

Simple Explanation

The Constitution and BNSS, 2023 provide safeguards to protect arrested persons.

Authorities Responsible

Police officers.

Magistrates ensuring fair procedures.

1. Right to be informed of arrest grounds (Article 22(1), Constitution of India).

2. Right to legal representation (Section 40 BNSS, 2023).

3. Right to be produced before a Magistrate within 24 hours.

4. Right against unlawful detention and torture.

5. Right to inform a family member or friend.

Case Law: Hussainara Khatoon v. State of Bihar (1979) – Speedy trial is a fundamental right.

G. Section 41 – Medical Examination of an Arrested Person

Simple Explanation

An arrested person has the right to a medical check-up, especially in cases of alleged torture.

Authorities Responsible

Police officers arranging the check-up.

Medical professionals conducting it.

Procedure

1. The arrestee is taken to a certified doctor.

2. The doctor submits a medical report.

3. If injuries are found, action is taken against police misconduct.

Medical check-ups help prevent custodial torture.

Case Law: D.K. Basu v. State of West Bengal (1997) – Laid down guidelines for the medical
examination of arrested persons.

Conclusion

The Bharatiya Nagarik Suraksha Sanhita, 2023 provides a structured framework for arrests,
ensuring both law enforcement and protection of individual rights. Whether made with or without
a warrant, an arrest must follow strict legal procedures to prevent misuse of power. The judiciary
plays a crucial role in ensuring fairness and justice in the arrest process.