Chapter V of BNSS : Arrest in Cognizable cases

 
Meaning and Object

Meaning

The term 'arrest' has not been defined in BNSS. The word 'arrest' is derieved from the French word 'arreter', which means to 'stop or stay'. In general sense it means the apprehension or restraint or deprevation of one's personal liberty. In legal terms it means a process by which a person is taken into custody by a legal authority. It is a restraint on the liberty of a person to compel him to obey the orders of the court or other legal authority. Every compulsion or physical restraint is not arrest. When the restraint is total and deprivation of liberty is complete, then it would amount to arrest.

In Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775 Supreme Court that essential element to constitute arrest is that there must be intention to arrest under the authority, accompanied by detention of the person in the manner known to law. The court rules that when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Arrest of person is a condition precedent for taking him into custody. 

Supreme Court in State of Haryana v. Dinesh Kumar, (2008) 3 SSC 222, held that in legal sense arrest consists of taking into custody of another person under the authority empowered by law. Supreme Court clarified that 'Custody' and 'arrest' are not synonymous terms. In every arrest there is custody but not vice-versa. Custody may amount to arrest in certain cases but not in all cases. Custody is physical control or presence of accused in court coupled with submission to the jurisdiction of the court. A person can be in custody when police arrests him or he surrenders before the court. 

Object: Object of arrest is to bring the accused before the court of law to face the proceedings of the court.

Who can arrest? Arrest can be made by 

Section 35 and 39: A police officer

Section 40: A private person

Section 41: A Magistrate

Cases in which a police officer can arrest without a warrant

Section 2(1)(g) of the Sanhita provides that a police officer may arrest a person without warrant in  cognizable cases. The power to arrest without warrant is given to a police officer under Section 35 of the Sanhita.

Section 35 and 39 provide provisions for arrest by police officer without warrant in certain cases. Section 35(1) provides that a police officer without an order from the Magistrate and without a warrant can arrest any person under any of the circumstances mentioned under clause (a) to (j). It lays down various circumstances in whcih a person can be arrested by a police officer without warrant.

The Sanhita under various other provisions as well empowers a police officer to arrest without Magistrate's order or warrant. These circumstances are stated as under:

1. Offence in presence of police [Section 35(1)(a)]: A police officer may arrest without warrant, any person who commits a cognizable offence in his presence.

2. Offence punishable with 7 years or less than 7 years imprisonment term [Section 35(1)(b)]: If a reasonable complaint is made or credible information is received or reasonable suspicion exists that a person has committed a cognizable offence punishable with imprisonment for a term may be less than 7 years or which may extend to 7 years, with or without fine, the police officer can arrest such person without warrant if:

(i) the police officer has reason to believe that such person has committed such offence, and 

(ii) he 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 tampering with evidence or causing it to disappear.

(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 disclosing such facts to the court or to police officer, or 

(e) as unless such person is arrested, his presence in the court whenever required cannot be ensured.

The police officer shall record the reason in writing for making such arrest. If the arrest is not required under this provision, the police officer shall record the reasons in writing for not making the arrest.

Parameters given under this section were added by way of amendment in the CrPC in 2009 pursuant to the guidelines laid down in Joginder Kumar v. State of U.P. AIR 1994 SC 1349, to prevent arbitrary arrests by the police officers. They have been kept as it is in Sanhita.

In Social Action Forum for Manav Adhikar. v. UOI, (2008) 10 SCC 443 Supreme Court remarked that no arrest should 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 is reached after some investigation as to the genuineness and bona fide of a complaint and a reasonable belief, both as to person's complicity and even so as to the need to effect arrest.

3. Offences punishable with death, life imprisonment, etc [Section 35(1)(c)]: If a person has committed a cognizable offence punishable with death, life imprisonment or imprisonment for a term exceeding 7 years, with or without fine and police officer has reason to believe on the basis of credible information received that such person has committed such offence, the police officer may arrest him without warrant.

4. Proclaimed Offender [Section 35(1)(d)]: Any person who has been declared a proclaimed offender either under this Sanhita or by order of State Government can be arrested without warrant. 

5. Possessor of Stolen Property [Section 35(1)(e)]: Any person may be arrested without warrant whose possession anything is found which is reasonably suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing.

6. Obstructs or escapes from custody of police officer [Section 35(1)(f)]: A police officer may arrest without warrant any person who:

(i) obstructs a police officer in execution of his duty, or

(ii) who has escaped or attempts to escape from lawful custody.

7. Deseter [Section 35(1)(g)]: A person who is reasonably suspected of being a deserter from any of the Armed Forces of the Union can be arrested without warrant.

8. Offence outside India [Section 35(1)(h): Any person who has been concerned in or against whom a reasonable complaint is made or credible information is received that he has committed an act outside India which is an offence in India and for which he is liable to be apprehended under any law of extradition can be arrested. 

9. Breach of rule under Section 394(5) [Section 35(1)(i)]: Any person who, being a released convict, breaches any rule made under Section 394(5) of the Sanhita can be arrested by a police officer without warrant.

10. Arrest upon requisition [Section 35(1)(i)]: Any person for whose arrest or oral or a written requisition has been received from another police officer can be arrested without warrant if:

(i) The requisition specifies the person to be arrested, and

(ii) The offence or other cause for which arrest is made is provided in requisition, and

(iii) It appears that the person might lawfully be arrested without a warrant by the police officer issuing requisition.

11. Non  - disclosure of name or address [Section 39]: According to Section 39, a police officer can arrest a person even in non-cognizable case if such person refuses to give or gives false name or address. No warrant is necessary to make such arrest, and such arrest is valid until such name or address is not ascertained.

12. Preventing commission of cognizable offence [Section 170]: A police offeicer is authorized to arrest a person under Section 170 without warrant if such person is designing to commit a cognizable offence and arrest is necessary to prevent him from doing so.

13. Breach of condition under Section 437: A police officer may arrest a person without warrant whose sentence has been suspended or remitted by State Government upon certain conditions and he has breached those conditions.

Thus, in all these cases, a person can be arrested without warrant or an order of Magistrate.

Notice of appearance

It provides for the notice of appearance before police officer. In cases where the arrest of person is not required under Section 35(1) police shall issue a notice, directing the person against whom reasonable complaint has been made, or credible information has been received or reasonable suspicion exists that he has committed cognizable offence, directing the person to appear before police at such time and place as mentioned in the notice. Section 35(4) further states that the person to whom the notice is issued is duty bound to comply with the terms of the notice. Section 35(5) provides that if such person complies and continues to comply with the notice, he shall not be arrested with respect of the offence referred to in the notice unless in ht e opinion of the person offeice he ought to be arrested. The reason of arrest must be recorded in writing. Section 35(6) provides that where such person at any any time, fails to comply with the notice or is unwilling to identify himself, the police officer may, subject to orders of the competent court, arrest him for offence mentioned in the notice.

Prior Permission in arrest in certain cases

Section 35(7) provides that no arrest shall be made without prior permission of an offence not below the rank of Deputy Superintendent of Police is 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.

This is a new provision. Section 35(7) of BNSS, 2023 is a new provision. A new condition has been introduced in case of arrest of any person who is infirm and is above sixty years of age in an offence punishable with imprisonment of less than three years.

Procedure of arrest and Memorandum of arrest

Section 36 provides for procedure of arrest and duties of officers making the arrest. It provides that every police officer making the arrest shall -

(i) Bear an accurate, visible and clear identification of his name which will facilitate easy identification.

(ii) Memorandum of arrest: Upon arrest a memorandum of arrest shall be prepared which shall be attested by at least one witness, who is the member of family of the person arrested or is respectable member of the locality and countersigned by the person arrested.

(iii) Inform the person arrested unless, memo of arrest has been signed by his family member, that he has a right to have a relative or friend or any other person named by him to be informed of his arrest.

Police Control Rooms

Section 37(a) provides for establishment of police control room by State Government in every District and at State level. Section 37(b) further provides that the State Government shall designate a police officer in every district and in every police station, not below the rank of Assistant Sub-Inspector of Police who shall be responsible for maintaining the information about the names and addresses of the persons arrested, nature of the offence with which charged, which shall be prominently displayed in any manner including in digital mode in every police station and at the district headquarters.

Section 37(b) of BNSS, 2023 is a new provision. Earlier, CrPC provided in general for State Government to cause the display of name and addresses of arrested person on notice board outside the control rooms at every district and control room at State level was resposible for collection of details about the person arrested, nature of the offence they are charged with. But Section 37(b) of BNSS, now provides for designation of a police officer, not below the rank of Assistant Sub-Inspector of Police in every district and in every police station, by State Government who shall be resposible for maintaining the collection of such details of arrested person and such information shall be displayed prominently.

Right of arrested person to meet an advocate of his choice

Section 38 provides right of arrested person to meet an advocate of his choice during interrogation, though not throughout interrogation.

Arrest by private person, Magistrate and Protection of members of armed forces

Arrest by private person

Section 40 lays down the circumstances when a private person can arrest and the procedure on such arrest.

Circumstances in which a private person can arrest: Any private person may arrest or cause to be arrested any person who -

(i) in his presence commits a non-bailable and cognizable offence or 

(ii) who is a proclaimed offender

Procedure after arrest: If any private person arrests any person, then without unnecessary delay, but within 6 hours from such arrest, he shall make over or cause to be made over that person so arrested to a police officer or in absence of police officer take that arrested person to nearest police station. If there is reason to believe that such person comes under provisions of Section 39, the police officer shall take him in custody. 

There is a change in this provison. In CrPC it was provided that private person should without unnecessary delay make over the arrested person to police or police station and no time limit was provided for it but Section 40(1) of BNSS, 2023 provides that the private person must, without unnecessary delay, make over the accused within six hours from such arrest. Section 40(3) of BNSS, 2023 now provides that if the person arrested by private person come under the provision of Section 39, police officer shall take him into custody whereas in CrPC it was provided that police officer shall re-arrest him.

Arrest by Magistrate

Section 41 lays down power of a Magistrate (Executive or Judicial) to make arrest. Following are the essentials to invoke this section - 

(i) Offence must be committed in presence of Magistrate (Executive or Judicial)

(ii) Within his local jurisdiction

He may himself arrest or order any person to arrest the offender and subject to provisions of bail commit him to custody. Here the offence may be cognizable or non-cognizable. Magistrate may also arrest any person, within his local jurisdiction, for whose arrest he is competent to issue a warrant.

Protection of members of Armed Forces

Section 42 lays down that notwithstanding anything contained in Section 35 and Section 39 to 41 (both inclusive), no member of Armed forces of Union shall be arrested for anything done or purported to be done by him in discharge of his official duty except after obtaining consent of Central Government. 

Mode of arrest

Section 43(1) provides that in making an arrest, the police officer or other person shall actually touch or confine the body of the person to be arrested, unless there be submission to the custody by word or action. Therefore, it can be seen from this provision that arrest does not necessarily means actually touching and confining the body. Arrest can also be made by submission to custody.

Arrest of woman

In case of arrest of a women Proviso to Section 43 lays down that an oral intimation of arrest shall be presumed unless the circumstances are indicated to the contrary. Police shall not touch the person of women for making the arrest unless the police officer is female. 

Section 43(5) provides that except in exceptional circumstances exists, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Forcible arrest

If the person forcibly resists the endeavour to arrest him or attempts to evade arrest, police officer or other person may use all means necessary to effect the arrest. This has been provided under Section 43(2). This provision has to be read in light of Section 46 which provides that the person arrested shall not be subjected to unnecessary restraint. Section 43(4) lays down that while arresting the person, death of the person cannot be caused unless the person is accused of an offence punishable with death or with imprisonment for life.

Handcuffing

Section 43(3) provides that the police officer may, keeping in view the nature and gravity of the offence, use handcuffs while making the arrest of a person or while producing such person before the court, in following cases, -

(1) who is a habitual or repeat offender, or 

(2) who escaped from custody, or 

(3) who has committed offence of

• Organised crime, terrorist act, drug related crime, or
• Illegal possession of arms and ammunition, or 
• Murder, rape, acide attack or
• counterfeiting of coins and currency notes
• human tafficking, sexual offence against children or
• offence against the State

This is a new provision. CrPC did not specifically provide for making of arrest by using handcuffs. However, in BNSS, 2023 Section 43(3) provides that in certain offences (mentioned in the Section ), considering the nature and gravity of offences. the police officer may use handcuff while effecting the arrest of a person.

Directions on handcuffing: In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 held that handcuffing should be permissible only in exceptional circumstances. Onus is on the authority imposing the handcuffs to justify the action. Court directed that no prisoner should be handcuffed routinely. There must be materials sufficiently stringent to satisfy the reasonable mind that there is clear and present danger of escape of the prisoner. Merely because the person is charged with grave or serious offence does not give liberty to the authorities  to handcuff.

Search of place in order to arrest

Section 44 provides that any person who has authority to arrest and has reason to believe that the accused has entered in some place shall demand free ingress in that place and the person in-charge of that place will allow him so. If free ingress in not allowed then it shall be lawful for the person authorized to arrest, to break open any outer or inner door or window of any house. If that place is in occupation of a pardanashin woman then adequate opportunity shall be afforded to her to withdraw.

Pursuit of offenders into other jurisdictions 

Section 45 lays down that a police officer for the purpose of arresting any person without warrant, whom he is authorised to arrest, can pursue such person in any place in India.