Arrest: Bharatiya Nagarik Suraksha Sanhita, 2023

Arrest is not explicitly defined in the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, it refers to the act of restraining a person's liberty by legal authority, intending to detain them in response to an alleged or suspected violation of the law. The provisions governing arrest in the BNSS aim to balance the rights of individuals with the need for maintaining public order. The BNSS, 2023, is a procedural law that regulates the procedural framework of the criminal justice system.

BNSS, 2023 has replaced the Code of Criminal Procedure, 1973 and aims at expeditious disposal of cases and trials while incorporating modern techniques for investigation procedures. It consists of provisions for arrest, rights of arrested persons, and post-arrest procedures.

Types of Arrest

BNSS, 2023 provides for two types of arrests that is, arrest with a warrant and arrest without a warrant. When the police or any authorized person arrests a person based on the execution of the warrant issued by a court, it is called arrest with a warrant and occurs in non-cognizable cases. When the police arrest without requiring a warrant issued by a court, it is called arrest without a warrant and mostly occurs in cognizable cases.

I) Arrest with the Warrant

Sections 72 to 83 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) govern the procedure for arrest with a warrant. In such cases, the court issues a warrant authorizing a police officer or another designated person to arrest the individual named in the warrant. Key provisions include the following:

Issuance and Validity of Arrest Warrants:

• An arrest warrant must be in writing, signed by the presiding officer of the court, and bear the court's seal.
• The warrant remains valid until it is either executed or cancelled by the issuing court.
• The court may endorse the release of the individual to be arrested if they execute a bail bond with sufficient sureties. The bond, aimed at ensuring the individual's presence as required, must be forwarded to the issuing court.

Persons Authorized to Execute the Warrant (Sections 74–76):

The court may direct the warrant for execution to the following:

Police Officers: The warrant may specify one or more police officers, and it can be executed by any one of them or another officer endorsed on the warrant.

Any Other Person: If immediate execution is necessary and no police officer is available, the court may authorize any other person to execute the warrant.

Chief Judicial Magistrate of the First Class: Within their jurisdiction, they may direct the warrant to any person to apprehend an escaped convict, proclaimed offender, or a person accused of a non-bailable offence who is evading arrest.

Notification of Arrest:

The executing police officer or person must inform the individual being arrested of the reason for the arrest and, if required, present the warrant to them.

Production Before the Court:

• The arrested individual must be brought before the court within 24 hours of the arrest.
• If this principle is violated, a writ petition under Articles 32 or 226 of the Constitution can be filed in the Supreme Court or High Court to issue a Writ of Habeas Corpus for immediate redress.

Execution Outside the Jurisdiction of the Issuing Court (Sections 80–83):

When an arrest warrant must be executed outside the issuing court’s jurisdiction, the BNSS, 2023, prescribes two methods:

Direct Execution by Local Police Officers:

• The warrant is handed to an executive magistrate or a police officer not below the rank of an officer in charge of a police station within the jurisdiction where the arrest is to be made.
• However, if obtaining an endorsement would cause undue delay or hinder the arrest, the police officer may execute the warrant without prior endorsement.

Forwarding to an Appropriate Authority:

• The warrant, along with the relevant documents, is forwarded to an executive magistrate, commissioner of police, or district superintendent of police within the jurisdiction where the warrant needs to be executed.
• These documents include the substance of the information and the necessary details for the release of the arrested person, if applicable.

Production Before Nearby Courts:

• If the place of arrest is within 30 kilometres of the issuing court, the arrested individual must be brought before that court.
• If the place of arrest is closer to an executive magistrate within the local jurisdiction, the arrested person may be produced before that magistrate.
• Upon production, if the offence is bailable, the person may be released upon executing a bail bond. For non-bailable offences, the chief judicial magistrate or sessions judge may consider the accompanying documents and decide on granting bail.

II) Arrest Without Magistrate’s Order or Warrant (Section 35)

A police officer may arrest a person without an order from a Magistrate or a warrant in the following cases:

(a) When the person commits a cognizable offence in the officer's presence.

(b) When there is a reasonable complaint, credible information, or reasonable suspicion that the person has committed a cognizable offence punishable with imprisonment of up to seven years, provided:

The officer has a reason to believe the offence has been committed based on the complaint, information, or suspicion.

The arrest is deemed necessary for the following reasons:

• To prevent further offences.
• To ensure proper investigation.
• To prevent evidence tampering.
• To prevent inducement, threat, or promise to witnesses.
• To ensure the accused's presence in court when required.

The police officer must record the reasons for such an arrest in writing.

(2) Arrest in Non-Cognizable Offences

No person accused of a non-cognizable offence shall be arrested without a warrant or Magistrate’s order, subject to Section 39.

(3) Notice in Lieu of Arrest

• If the arrest is not necessary under the provisions of sub-section (1), the police officer must:
• Issue a notice to the accused, requiring them to appear before the officer or at a specified location.
• The accused must comply with the notice terms.

(4) Compliance with Notice

If the person complies with the notice, they cannot be arrested for the specified offence unless the officer records reasons for deeming arrest necessary.

(5) Failure to Comply with Notice

If the person fails to comply with the notice or refuses to identify themselves, the police officer may arrest them, subject to any Court orders.

(6) Special Conditions for Arrest

For offences punishable by imprisonment of less than three years, if the accused is infirm or above 60 years of age, prior permission from an officer of at least the rank of Deputy Superintendent of Police is required for arrest.

Arrest of Women and Vulnerable Groups

The BNSS incorporates special provisions to protect women, children, and individuals with disabilities during arrest:

• Women cannot be arrested after sunset or before sunrise except in exceptional circumstances, with prior approval from a magistrate.
• Female police officers must carry out the arrest of women.
• Children and individuals with mental or physical disabilities require additional safeguards to prevent undue hardship.

Important Case Laws

1. DK Basu v. State of West Bengal (1997), the Supreme Court established vital procedural safeguards to protect individuals from arbitrary arrests and custodial violence. The Court mandated that the person being arrested must be informed of the grounds for arrest, provided with the right to legal representation, and subjected to a medical examination within 24 hours of arrest. These guidelines aimed to uphold the constitutional right to life and personal liberty under Article 21 and set a precedent for humane treatment during detention.

2. Arnesh Kumar v. State of Bihar (2014), the Supreme Court focused on preventing the misuse of arrest powers, particularly for offences punishable with imprisonment of up to seven years. The Court held that arrests should not be made as a routine measure and emphasized that police officers must record written reasons for making an arrest.

Conclusion

Most of the provisions regarding arrest are retained from the code of criminal procedure to the BNSS, 2023. There is an additional provision requiring prior permission of an officer of the rank of Deputy Superintendent of Police before making an arrest in certain cases.

References

[1] Bharatiya Nagarik Suraksha Sanhita, 2023

[2] Code of Criminal Procedure, 1973

[3] D. K. Basu v. State of West Bengal, (1997) 6 SCC 642

[4] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

Important Link