"In the framework of criminal procedure, offenses are meticulously classified into cognizable and non-cognizable categories, a distinction that fundamentally dictates the power of a police officer to investigate and, most critically, to arrest. While cognizable offenses empower the police to arrest without a warrant, the realm of non-cognizable offenses presents a starkly different legal landscape. Here, the authority of the police is intentionally circumscribed, making an arrest a procedurally intricate action that is generally prohibited without prior judicial sanction.
Engaging and Thought-Provoking
"Imagine a scenario where a police officer hears a complaint about a minor verbal altercation or a case of simple mischief. Their instinct might be to intervene and make an arrest. However, the law draws a critical line in the sand. For a specific category of less serious crimes known as 'non-cognizable offences,' the officer's power to arrest is not a given right but a carefully guarded exception. This principle strikes at the very heart of the balance between maintaining public order and protecting individual liberty from state overreach. So, when exactly can this line be crossed? This exploration begins by understanding why the legal system places such stringent restrictions on arrest in non-cognizable cases."
Section 35(2) of BNSS lays down that in non-cognizable offences police officer cannot arrest without the warrant or order from the magistrate. Section 39 is an exception to this general rule. Further, Section 39 lays down that if a person , in presence of a police officer, is accused of committing a non-cognizable offence refuses:
1. On demand to give his name and residence; or
2. Gives name or residence which police officer has reason to believe to be false, then the police officer may arrest such person in order to ascertain the correct name and residence.
3. When correct name or residence is ascertained then he shall be released on bond or bail bond to appear before Magistrate if so required.
If the name or residence is not ascertained within 24 hours from time of his arrest or he fails to furnish the sureties, the police officer shall forward such accused to nearest Magistrate having jurisdiction. The purpose of such arrest is only to ascertain name or address of the person.
Rights of arrested person
1. Right to know the ground of arrest [Article 22(1) of Constitution, Section 47, 55 and 77 of the Sanhita]
2. Right to be informed about the release on bail [Section 47(2)]
3. Right to be produced before Magistrate without delay [Article 22(2), Section 58, 78 and 187]
4. Right to consult a legal practitioner [Article 22(1) of the constitution, Section 38 and 340
5. Right to be examined by a medical practitioner [Section 51, 53]
BNSS as well as Constitution of India has provided certain rights of arrested persons. Following are the rights of arrested person.
1. Right to know the ground of arrest [Arrest 22(1) of Constitution, Sections 47, 55 and 77 of the Sanhita]: Constitution of India has conferred 'right to know the ground of arrest' the status of Fundamental Rights. Article 22(1) of the Constitution of India provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, the ground of the arrest.
In re Madhu Limaya, (1969) 1 SCC 292, Supreme Court held that Article 22(1) of the Constitution embodies a rule which has always been regarded as vital and fundamental for safeguarding person liberty. Legislative manifestation of this fundamental right has been provided under Section 47, 55 and 77 of the Sanhita. Section 47(1) of the Sanhita provides that every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for arrest.
Section 55(1) provides that when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55, such subordinate officer shall, before making an arrest, notify to the person to be arrested the substance of the written order given by the senior police officer.
Section 77 provides that the police officer or other person executing a warrant of arrest shall notify the substance of the warrant of arrest to the person arrested.
Section 48 makes it obligatory on the part of the police to inform the friend or relatives of the arrested person or any other person named by him about the arrest.
2. Right to be informed about the release on bail [Section 47(2)]: Section 47(2) provides that when a police officer arrests a person, without a warrant, accused of a bailable offence, he shall inform him that he is entitled to be released on bail and he may arrange for sureties on his behalf.
3. Right to be produced before Magistrate without delay [Article 22(2), Section 58, 78 and 187]: This right has also got the constitutional protection in form of fundamental right in Article 22(2) of the constitution. It provides that every person who has been arrested and detained in the custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. It must however, be noted that the time of 24 hours shall exclude the time necessary for the journey from the place of arrest to the court of Magistrate. Article 22(1) applies to cases of arrest without warrant as well as with warrant.
Section 58 and 78 are legislative manifestation of the Consitutional right. Section 58 applies to arrest without warrant while Section 78 applies to arrest with a warrant. Section 58 provides that police officer shall not detain in custody a person arrested without a warrant for a longer period that what is reasonable and such period shall not exceed 24 hours except with an order of Magistrate under Section 187 of the Sanhita.
Section 187 provides the procedure when the investigation cannot be completed within 24 hours. It also lays down the powers of Magistrate when accused is produced before him within 24 hours of arrest. If the police fails to produce an arrested person before the Magistrate, he will be guilty of wrongful detention.
4. Right to consult a legal practitioner [Article 22(1) of the Constitution, Sections 38 and 340]: Article 22(1) of the Constitution provides that arrested person shall not be denied the right to consult legal practitioner of his choice.
The right to consult legal practitioner is closely associated with right of free legal aid. The right of free legal aid is also implicit in Artcile 21. Supreme Court in Khatri (II) v. State of Bihar, (1981) 1 SCC 627, has held that the State is under a constitutional mandate to provide free legal aid to an indigent person. This right accrues not only when the trial begins but when the person is arrested and produced before a Magistrate. Supreme Court in Suk Das. v. UT of Arunachal Pradesh, (1986) 2 SCC 401, has even held that if this constitutional right is denied then it would vitiate the trial.
Section 38 provides that when any person is arrested and interrogated by police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.
Section 340 also provides that any person against whom proceedings are initiated under this Sanhita may of right be defended by a pleader of his choice. Section 340 provides for the legal aid to the accused at the expense of State in sessions trial as well as other trials.
Supreme Court in Mohd. Azmal Amir Kasab v. State of Maharastra, (2012) 9 SCC 1, held that it is the duty of Magistrate and courts to inform the indigent accused about his right to get free legal aid.
5. Right to be examined by a medical Practitioner [Section 51, 53]: Section 53 enables a police officer to compel an arrested person to undergo medical examination with a view to facilitate investigation. Section 53 gives the right to the accused person to have him medically examined to enable him to defend and protect himself properly.
Supreme Court in Sheela Barse v. State of Maharashtra (1983) 2 SCC 96, has held that arrested person must be informed by the Magistrate about his right to be medically examined under Section 54 [Now Section 53 of BNSS]
Guidelines for arrest
Supreme Court is Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443, held that the law of arrest is one of balancing individual rights, liberties and privileges, on one hand and individual duties, obligations and responsibilities on the other hand.
No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. No arrest should be made without reasonable satisfaction reached after some investigation as to the genuineness and bonafide of a complaint and a reasonable belief both as the the person's complicity and even so as to the need to effect arrest.
A person accused of offence punishable with imprisonment for a term, which may be less that seven years or which may extend to seven years with or without fine, cannot be arrested by the police under conditions mentioned in Section 41(1)(b) of the Code [Now BNSS Section 35(1)(b)] have been fulfilled.
Supreme court in the case of Joginder Kumar v. State of U.P., (1994) 4 SCC 260, held that regulating the nature of interaction between the accused and the police authorities is at the crux of developed criminal justice system. In this case the court laid down certain guidelines in order to have transparency in the accused police relations.
Need for guidelines.
In Joginder Kumar's case, the court observed that arrest and custodial deaths have become a handy rule and common phenomenon. The court clarified that power to arrest is one thing and the exercise of such power is another. So, the court directed the police officers not to make arrests in routine manner but only under compelling circumstances and laid down following guidelines:
(a) An arrested person in custody is entitled to have one friend, relative or other person interested in his welfare to be informed of his arrest.
(b) He shall be informed of this right by the police officer making arrest.
(c) An entry shall be made in diary as to who was informed of his arrest. These protection from power must be held to flow from Article 21 and 22(1) of Constitution.
The frequent instances of police atrocities and custodial deaths, however, continued and pre-empted Supreme Court to issue further guidelines the protecting arrested persons in the case of D.K. Basu v. State of West Bengal (1997) 6 SC 642 which are as under:
a. The police personnel carrying out the arrest and handling the interrogation should bear an accurate and clear identification mark with their designation.
b. The police officer carrying out the arrest shall prepare the memo of arrest which shall be attested by at least one witness.
c. Arrested person shall be entitled to have his friend or relative to be informed of his arrest.
d. He must be aware of his right to have someone being informed of his arrest.
e. The arrestee must be examined at the time of arrest and every major or minor injury must be recorded.
f. The arrestee should be subject to medical examination by a trained doctor every 48 hours.
g. The copies of all documents including memo of arrest should be sent to the Magistrate for record.
h. The arrestee must be produced before Magistrate within 24 hours.
i. He must be permitted to meet a lawyer during interrogation.
j. Police control room should be provided at every district and State headquarters.
All these guidelines were later adopted in the code by way of 2009 amendment and has been kept so in BNSS.
In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, Supreme Court held that no arrest should be made merely because the offence is non-bailable and cognizable. The existence of power of arrest is one thing and the justification for arrest is quite different. No arrest should be made without a reasonable satisfaction as to the genuineness of the allegation. Police officers were directed not to automatically arrest where a case is registered under Section 498-A of IPC (Section 85 of BNS) and also in cases where the offence is punishable with imprisonment for a term which may be less that seven years or which may extend to seven years. They have to satisfy themselves about the necessity for arrest under the parameters laid down in Section 41 of the Code (Now Section 35 of BNSS)
Court in Arnesh's case held that before the Magistrate authorizes detention under Section 167 of the Code [now Section 187of BNSS], he has to be first satisfied that the arrest made is legal and in accordance with the constitutional rights. If arrest is not in accordance with Section 41 (Section 35 of BNSS) then the Magistrate is duty bound not to authorize further detention of the accused. The court gave the following directions:
a. All the State Government must instruct their police officers that they are not supposed to automatically arrest an accused.
b. All police officers must be provided with a checklist contained specified claused under Section 35(1)(b)(ii) of BNSS. Failure to do so will render police officer subject to departmental actions.
c. The police officer shall forward the checklist furnishing the reasons for arrest to the Magistrate who shall authorize detention after recording its satisfaction otherwise he may also be subject to departmental action.
d. Failure to comply with the directions will render the police officers liable for departmental action. They will also be liable to be punished for the contempt of the court.
Guidelines for police officers while arresting judicial officers
Supreme Court in Delhi Judicial Services Association v. State of Gujarat, (1991) 4 SCC 406, laid down the following guidelines for arresting a judicial officer:-
a. A judicial Officer should be arrested for any offence under the intimation to the District Judge or the High Court.
b. In case of necessity for immediate arrest only a technical or formal arrest may be effected.
c. The fact of the arrest should be immediately communicated to the District and Sessions Judge and the Chief Justice of the High Court.
d. The judicial officer shall not be taken to the police station, without the prior order or directions of the District and Sessions Judge of the concerned district.
e. Ordinarily, there should be no handcuffing of the judicial officer.
f. Immediate facilities should be provided to the judicial officer for communication with his family members, legal advisers and judicial officers.
g. No statement of judicial officer who is under arrest should be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the legal advisor of the judicial officer.
Other important provisions relating to arrest
Search of arrested persons: Section 49 of the Sanhita provides for the search of arrested person. It states that whenever a person is arrested with or without warrant by a police officer or by a private person who makes over that person to police officer, such officer may search such person and place in safe custody all articles except wearing apparel and a receipt of articles seized from arrested person shall be given to such person. This power is available only when arrested person is not released on bail. In case the arrested person is a woman, search shall be made by a female only with strict regard to decency.
Supreme Court in Kamalabai Jethamal v. State of Maharashtra, AIR 1962 SC 1189 held that some irregularity in making such search that in itself will not made the search illegal and evidence collected inadmissible.
Section 51 provides for examination of accused by a medical practitioner at the request of police officer. In Ritesh v. State of U.P and Anr (2019), Supreme Court held that Magistrate has power to direct the accuse to give voice samples during investigation without his consent.
It must be noted that tests results of polygraph, narco analysis, brain mapping etc do not fall within the ambit of the expression 'such other tests' used in Explanation (a) of section 51.
Section 52 provides that if the arrested person has been accused of offence of rape or attempt to rape and the police officer has reason to believe that the medical examination of the person will afford evidence as to commission of such offence then it shall be lawful for the medical practitioner in the hospital run by Government or local authority and in the absence of such a practitioner within a radius of sixteen kilometer from the place where the offence is committed, by any other medical practitioner, acting at the request of the police officer, to examine the arrested person on the request of police officer.
In Chotkau v. State of Uttar Pradesh, AIR 2022 SC 4688 Supreme Court held that it may be possible for the prosecution to take a chance by not medically examining the accused, if the victim of rape is alive and is in a position to testify in court. But in cases where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes greate importance. The failure of the prosecution to produce such evidence will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution. Section 53A of CrPC (Now Section 52 of BNSS) also enables the prosecution to obtain a significant piece of evidence to prove the charge.
Identification of accused
Section 54 provides that on request of police officer the court can require the accused to subject himself for identification by others if it is found necessary for investigation of an offence. It provides that where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court, having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any other person or persons in such manner as the Court may deem fit. Its proviso states that if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with and the identification process shall be recorded by any audio-video electronic means.
In Mukesh Singh v. State (NCT of Delhi) 2023 (11) SCALE 580 Supreme court held that after the introduction of Section 54A in the CrPC [Now Section 54 BNSS], an accused is under an obligation to stand for identification parade. An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same. If the coercion is sought to be imposed in getting fram an accused, evidence which cannot be procured save through positive volitional act on his part, the constitutional guarantee as enshrined under Article 20(3) of the Constitution will step in to protect him. However, if the evidence can be procured without any positive volitional evidentiary act on the part of the accused, Article 20(3) of the constitution will have no application. The accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act.
Health and Safety of accused
Section 56 provides that it shall be duty of the person having custody of the accused to take reasonable care of health and safety of the accused.
Section 61 provides that if an arrested person escapes then person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India.
Consequences of non-compliance of provisions relating to arrest
Section 62 provides arrest to be made strictly in accordance with the code or any other law for the time being in force for arrest. Following are the consequences of non-compliance of provisions of arrest:
(i) If a police officer or any public servant having authority to arrest knowingly exercises the authority in contravention of law and effects and illegal arrest he shall be prosecuted under Section 258 of BNS.
(ii) Any person who illegally arrests is also liable under Section 127 of BNS for wrongful confinement.
(iii) Illegal arrest also amounts to kind of false imprisonment and a civil suit will also lie for damages.
(iv) Trial will not be void merely because the provisions for arrest have not been followed.
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