Bharatiya Nyaya Suraksha Sanhita 2023: Arrest and Criminal Justice

The Bharatiya Nyaya Suraksha Sanhita (BNSS) 2023 is a landmark reform in the Indian criminal
justice system. Its primary aim is to streamline the process of arrest, detention, and the rights of
the accused, ensuring that law enforcement practices align with constitutional principles while
strengthening the justice delivery mechanism. Chapter V of the BNSS, which specifically
addresses arrest (Sections 35 to 62), provides a comprehensive framework governing how and
when a person can be arrested, the rights they are entitled to, and the responsibilities of law
enforcement officers in ensuring fairness and justice.
This essay will explore the critical aspects of arrest under the BNSS 2023, focusing on the
meaning, kinds, and constitutional rights of an arrestee, alongside key provisions surrounding
the process of arrest, including police powers, judicial oversight, and protections for vulnerable
individuals.

1. Meaning of Arrest and Its Legal Basis

The term “arrest” is derived from the French word 'arrester', which means “to stop” or “to
seize.” In legal terms, arrest refers to the act of taking a person into custody under legal
authority, which restrains their liberty and compels them to obey the court’s orders. Arrest is
typically made to ensure the individual’s attendance in court or to prevent the commission of a
crime or to prevent the interference in the investigation of a crime.
Arrest is a significant legal action that restrains an individual’s liberty. In this context, it is
essential to distinguish between arrest and custody:
 Arrest involves taking someone into custody in a manner that is prescribed by law,
whereas custody refers to the state of being under the supervision or control of law
enforcement officers following the arrest.
The Deepak Mahajan v. Enforcement Directorate case explains that arrest is the deprivation of
personal liberty of an individual with the intent to compel obedience to the law, and this
process must comply with the constitutional safeguards outlined in Articles 21 (Right to Life and
Liberty) and 22 (Protection Against Arrest and Detention) of the Indian Constitution.

2. Classification of Arrest and Powers to Arrest

Arrests can be broadly categorized into two types: arrests with a warrant and arrests without a
warrant. The BNSS 2023 outlines the circumstances under which both types of arrests can take
place.
A. Arrest by Police Officer (Sections 35 & 36)
Police officers are granted the authority to arrest an individual without a warrant under certain
conditions outlined in Section 35:
 If the officer witnesses the commission of a cognizable offence (one in which the police
can arrest without a warrant, such as theft, murder, or assault).
 If there is credible information or reasonable suspicion that the individual has committed
a cognizable offence punishable with imprisonment for up to seven years.
 If the individual is a proclaimed offender or if they are in possession of stolen property.
 If the individual is obstructing police in the execution of their duty or attempting to flee
custody.
Section 36 expands on these provisions, specifying that in certain cases, arrests for non-
cognizable offences (less serious crimes) may only be made with the warrant of a Magistrate.
However, a police officer can arrest someone who refuses to provide their name or address
when accused of a non-cognizable offence. This provision ensures that the investigation can
proceed, but safeguards the freedom of the accused by ensuring that arrests are justified.

B. Arrest by Private Person (Section 40)

A private person can also arrest an individual under specific conditions, such as the commission
of a non-bailable cognizable offence or if the person is a proclaimed offender. The arrested
person must be handed over to the police within six hours. The case of Abdul v. State (1974)
clarifies that a private person’s ability to arrest is based on witnessing the commission of an
offence and not merely on suspicion.

C. Arrest by Magistrate (Section 41)

Magistrates are empowered to order arrests within their jurisdiction in cases involving
cognizable offences. A Magistrate can arrest an individual with or without a warrant, depending
on the circumstances of the case. This provision reinforces the judicial oversight over the power
of arrest, ensuring that arrests made by magistrates are within their authority.

3. Rights of the Arrestee

The BNSS 2023 outlines several key rights for individuals who are arrested, ensuring that their
dignity and rights are respected throughout the process.
A. Right to Meet a Lawyer (Section 38)
The arrested person has the right to consult a lawyer of their choice during the interrogation.
This ensures that the individual is aware of their legal rights and has access to counsel, allowing
them to better defend themselves during the legal process. However, this right is limited during
interrogation, not throughout the entire detention process.
B. Right to be Informed of the Grounds of Arrest (Section 47)
The police officer must inform the arrestee of the grounds for their arrest and explain the
nature of the offence. If the offence is bailable, the arrestee must be informed of their right to
be released on bail and the procedure to arrange for bail or sureties. This transparency ensures
that the accused understands the legal basis for their detention.
C. Right to Inform Relatives (Section 48)
An arrestee has the right to inform a relative, friend, or another designated person about their
arrest. The police must record this information and ensure that the arrested individual’s family
or contacts are informed. This safeguard is crucial in maintaining the human dignity of the
accused and preventing unlawful detentions.
D. Right to Medical Examination (Section 51-53)
If an individual is arrested, they are entitled to a medical examination to ensure their health and
safety during the detention process. In cases of rape, the medical examination must be
conducted within a specific radius (16 km) of the crime location, ensuring timely collection of
evidence. These provisions serve to protect the health and well-being of the arrested person,
preventing potential abuse during arrest.
E. Prohibition Against Unnecessary Restraint (Section 46)
The arresting authority must not subject the arrestee to excessive or unnecessary restraint. The
arrested person should only be restrained to the extent necessary to prevent escape or harm.
This principle ensures that the arrestee’s dignity is preserved throughout the process.

4. Constitutional Safeguards and Immunity from Arrest

The BNSS 2023 reinforces several constitutional provisions that protect citizens from arbitrary
arrest. These include:
 Article 21 of the Indian Constitution guarantees the right to life and personal liberty,
ensuring that no one is deprived of their liberty except in accordance with the procedure
established by law.
 Article 22 provides protection against arbitrary arrest and detention, including the right to
be informed of the reasons for arrest, the right to consult a legal practitioner, and the right
to be produced before a magistrate within a stipulated time.
Additionally, there are specific immunities from arrest under the Indian Constitution:
 Article 363(3) provides immunity from arrest to the President and the Governor during
their tenure.
 Section 42 of the BNSS grants immunity to members of the Armed Forces from arrest
while on duty, unless permitted by the Central Government.

5. Miscellaneous Provisions
Several provisions under the BNSS 2023 address various aspects of arrest and detention that
ensure fair treatment and accountability for law enforcement officers.
A. Duty of Police Officer During Arrest (Section 36)
The police officer making the arrest must adhere to certain duties, including clearly displaying
their identification and preparing an arrest memorandum that must be signed by a witness. This
creates a record of the arrest, which can be used for future reference in legal proceedings.
B. Search of the Arrestee (Section 49)
In cases where the person is not granted bail or if arrested without a warrant, the officer has the
authority to search the individual and seize any articles found. However, the officer is required
to give the individual a receipt for any seized items, ensuring transparency in the process.
C. Reporting and Detention of Arrestee (Sections 56-58)
The police must take reasonable care of the arrested person's health and safety. They must
produce the arrestee before a Magistrate within 24 hours, ensuring no individual is detained
beyond a reasonable period without judicial oversight.

6. Conclusion
The Bharatiya Nyaya Suraksha Sanhita 2023 provides a robust framework for arrest and the
rights of arrested individuals. Through detailed provisions, it ensures that the process of arrest is
lawful, transparent, and accountable, balancing the interests of justice with the protection of
individual rights. These reforms aim to address the challenges in the criminal justice system,
reduce arbitrariness in law enforcement, and ensure that all individuals are treated with fairness
and dignity.
The BNSS 2023 significantly contributes to modernizing India’s legal landscape by ensuring that
arrests are made based on clear legal standards and that constitutional rights are upheld. As
India moves towards a more accountable and transparent justice system, the BNSS 2023 is
poised to play a pivotal role in safeguarding personal liberty and reinforcing the rule of law.
 Arrest and the Duties of a Police Officer Causing Arrest Under the Bharatiya Nagrik Suraksha
Sanhita 2023
Introduction
Arrest is a crucial component of the criminal justice system, representing the moment when an
individual is deprived of their liberty by law enforcement authorities in order to ensure the
individual's attendance in court, to prevent the commission of a crime, or to assist in the
investigation of a criminal offense. In the Indian legal context, arrest is governed by the
Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, which aims to protect individual rights while
ensuring effective law enforcement. This reform significantly updates the procedural aspects of
arrest, placing emphasis on the duties of police officers and safeguarding the rights of the
accused.
This essay will explore the concept of arrest under the BNSS 2023, highlighting its meaning, the
legal framework governing arrests, and specifically, the duties of the police officer causing the
arrest. These duties are critical in maintaining transparency, accountability, and the protection of
fundamental rights during the process of arrest. By discussing the relevant provisions of the
BNSS, we will understand how the law seeks to ensure that arrests are carried out in a just and
humane manner.

1. Understanding Arrest in the Context of BNSS 2023

Arrest is defined as the act of taking a person into legal custody. It is a significant power vested
in law enforcement officers, but it is also a significant interference with an individual’s personal
liberty, a fundamental right under Article 21 of the Indian Constitution. Arrest must be carried
out in accordance with the law, ensuring that the process is fair and respectful of the rights of
the arrested person. Under the BNSS 2023, the law provides a comprehensive framework for
when and how arrest can be made, along with the rights of the arrestee and the responsibilities
of the police.
The primary purpose of an arrest can be summarized as:
 To ensure that the individual appears before the court.
 To prevent the individual from committing further crimes.
 To aid in the investigation of a crime.
 To ensure the preservation of evidence.
An arrest can occur with or without a warrant, and each situation is regulated by specific
provisions in the BNSS, ensuring that the police act within the legal limits and respect the rights
of the accused.
2. Legal Provisions Relating to Arrest Under BNSS 2023
The BNSS 2023 establishes detailed procedures for making arrests, and these are laid out in
various sections of the Sanhita, primarily Chapter V (Sections 35 to 62). The provisions govern:
 The circumstances under which an arrest may occur.
 The powers of law enforcement officers to make an arrest.
 The rights of the arrested person.
 The duties and responsibilities of the police during the arrest process.
The law defines the different situations when arrests can be made without a warrant, including
when a cognizable offence is committed in the presence of the police officer or when the police
have reasonable suspicion or credible information that an individual has committed a cognizable
offence. In these cases, the police may proceed with an arrest without judicial intervention.
However, for less serious offences, the BNSS mandates that arrests should be carried out only
with a warrant issued by a Magistrate, ensuring that police powers are exercised under judicial
scrutiny.

3. Duties of the Police Officer During Arrest Under BNSS 2023

The BNSS 2023 places a significant responsibility on law enforcement officers during the arrest
process. These duties are designed to protect the rights of the individual being arrested and
ensure that the arrest is carried out legally, fairly, and respectfully. The following are the primary
duties of a police officer during the arrest of an individual:
A. Duty to Identify Themselves (Section 36)
One of the foundational duties of a police officer during an arrest is to properly identify
themselves. The officer must ensure that they are easily recognizable as a police official by
wearing a uniform or displaying identification. This helps prevent the abuse of power, as it
guarantees that the individual being arrested is aware that they are being detained by a law
enforcement officer and not an unauthorized person.
The officer must also make the purpose of the arrest clear. The individual must know that they
are being arrested and the grounds for the arrest, as per Section 47 of the BNSS 2023. This
prevents any misunderstanding and establishes a transparent process of arrest.
B. Duty to Inform the Arrestee of Their Rights (Section 47)
The BNSS 2023 ensures that the arrestee’s rights are communicated clearly by the police officer
at the time of arrest. The police must inform the individual of the specific grounds for their
arrest and the nature of the offense. If the offense is bailable, the arrested person must also be
informed of their right to bail. This provision safeguards the right of the arrestee to be fully
aware of the legal basis for their detention and their entitlements under the law.
Additionally, the police must inform the individual of their right to contact a relative or friend or
another person of their choice to inform them of the arrest, ensuring that the process remains
transparent and the family or loved ones are informed. This is a fundamental right enshrined
under Section 48 of the BNSS.
C. Duty to Prepare an Arrest Memo (Section 36)
The police officer is required to prepare an arrest memo, documenting the details of the arrest.
This memo must include:
 The name of the arrested person.
 The date and time of the arrest.
 The offense for which the arrest was made.
 The name of the officer making the arrest.
The memo should be signed by the arrestee, if possible, or by a witness, who may be a relative
or respected member of the locality. This ensures that there is an official record of the arrest,
reducing the potential for abuse and maintaining accountability.
D. Duty to Ensure No Excessive Restraint (Section 46)
Under the BNSS, police officers are prohibited from using more force than necessary to prevent
an arrestee from fleeing or resisting arrest. This is encapsulated in Section 46, which mandates
that the individual shall not be subjected to excessive restraint. The arrest should be conducted
in a manner that is proportionate to the situation. If an individual is not resisting arrest, no
unnecessary physical force should be used.
Additionally, the use of handcuffs should be limited to cases where it is absolutely necessary,
considering the nature of the offense and the arrested person’s history. The Supreme Court, in
cases like Sheela Barse v. State of Maharashtra (1983), emphasized that handcuffing should not
be arbitrary and should take into account the gravity of the offense.
E. Duty to Produce the Arrestee Before a Magistrate (Section 57)
Another significant duty of a police officer is to ensure that the arrested individual is produced
before a Magistrate within 24 hours of the arrest, as required by Section 57. This is a critical
safeguard to prevent arbitrary detention and ensure that a judicial officer reviews the necessity
of continued detention. This provision prevents the police from holding a person indefinitely
without judicial scrutiny.
The Magistrate then determines whether the detention is justified or if the arrestee should be
released on bail.
F. Duty to Ensure the Safety and Well-being of the Arrestee (Section 56-58)
The police officer must ensure the safety and well-being of the arrested person, especially
during the time they are in police custody. As per Section 56, the health and safety of the
arrestee must be protected. Officers should take reasonable steps to prevent harm to the
arrestee and provide basic medical assistance when necessary.
The arrested person should not be held in detention for an unreasonable period. According to
Section 58, a person can only be held in custody for a reasonable time, generally not exceeding
24 hours unless a Magistrate orders otherwise.
G. Duty to Follow Legal and Constitutional Provisions
Every arrest must be made in accordance with the law. The police officer must adhere to the
constitutional protections afforded to the arrestee, including the right to a fair trial, the right to
consult a lawyer, and the right against torture or degrading treatment. This duty emphasizes
that the arrest must not only be legally justified but must also respect the fundamental rights of
the arrested individual.

4. Conclusion
The duties of the police officer causing an arrest under the Bharatiya Nagrik Suraksha Sanhita
2023 are critical to ensuring that the process of arrest is carried out in a fair, transparent, and
humane manner. The law prioritizes the protection of individual rights while allowing law
enforcement authorities to perform their duties effectively. Through detailed provisions, the
BNSS seeks to balance the interests of justice with the fundamental rights of the accused,
ensuring that the process of arrest remains accountable and free from arbitrary action.
By emphasizing the right to information, proper documentation, and appropriate use of force,
the BNSS 2023 ensures that arrests are carried out in a manner that respects the dignity of
individuals, promotes accountability, and strengthens the rule of law.
 Critical Examination of the Rights of an Arrested Person Under Bharatiya Nagrik Suraksha
Sanhita 2023
Introduction
Arrest, a critical tool for law enforcement, involves taking an individual into legal custody, often
resulting in a temporary restriction of personal freedom. While arrest is necessary for
maintaining law and order, it also represents an interference with the fundamental right to
personal liberty. Under the Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, significant emphasis
is placed on safeguarding the rights of an arrested person. These rights aim to strike a balance
between enabling law enforcement to carry out its duties and ensuring that individuals are not
subjected to arbitrary or unlawful detention.
The BNSS 2023 provides a comprehensive framework that not only establishes the procedures
for arrest but also lays down clear legal protections for those arrested, in line with
constitutional guarantees. This essay will critically examine the rights of an arrested person
under the BNSS 2023, analyzing their importance, limitations, and practical implications.

1. Constitutional Framework and Legal Basis for Rights of the Arrested Person
Before delving into the specifics of the BNSS 2023, it is important to understand the
constitutional backdrop against which these rights are framed. The Indian Constitution, under
Article 21, guarantees the right to life and personal liberty, and this right extends to every
individual within Indian territory, including those who are arrested. Article 22 further protects
individuals against arbitrary arrest and detention, mandating that an individual must be
informed of the reasons for their arrest and be produced before a magistrate within 24 hours.
The BNSS 2023 builds upon this constitutional framework, expanding on the rights and
protections for arrested individuals. It incorporates provisions aimed at preventing abuse of
power by law enforcement and ensuring that arrested persons are treated with dignity, in line
with international human rights standards.

2. Rights of the Arrested Person Under BNSS 2023

The BNSS 2023 recognizes several key rights of an arrested person, ensuring transparency,
accountability, and protection from mistreatment. Below, we critically examine these rights in
light of the provisions outlined in the Sanhita.
A. Right to be Informed of the Grounds of Arrest (Section 47)
One of the most fundamental rights of an arrested person is the right to know the reasons for
their arrest. Under Section 47 of the BNSS 2023, a police officer is mandated to inform the
individual of the specific offense for which they are being arrested, in clear and understandable
language. This ensures that the arrestee has a fair understanding of the legal basis for their
detention.
Critically, the right to be informed serves as a check against arbitrary arrests. Without this
provision, individuals could be detained without justification, leading to potential abuse of
power. However, a significant concern arises in practice: the quality of communication. The law
requires that the grounds be explained, but this is contingent upon the police officer’s
willingness to comply and the arrestee’s understanding of the language used. Thus, there could
be cases where the arrested individual is not adequately informed, undermining the
effectiveness of this right.
B. Right to be Produced Before a Magistrate (Section 57)
Under Section 57, the law requires that an arrested person be produced before a magistrate
within 24 hours of arrest, ensuring that the arrest is reviewed by an independent judicial
authority. This provision is vital for preventing illegal detention and provides a mechanism for
judicial oversight.
However, in practice, there are challenges related to the efficiency of the judicial process. While
the law mandates a 24-hour timeframe, it is often difficult to ensure timely production,
especially in remote or overcrowded police stations. The procedural delays in certain parts of
the country might hinder the quick release of individuals who are arrested unjustly, especially for
minor offenses.
C. Right to be Informed of the Right to Bail (Section 47)
In cases where the offense is bailable, Section 47 requires that the arrested person be informed
of their right to bail. This ensures that the arrestee understands their entitlement to release and
is not unduly detained. This provision plays a crucial role in safeguarding the personal liberty of
individuals arrested for non-serious offenses.
However, a potential issue arises in cases of wrongful detention, where the person may not be
aware of their right to bail due to police neglect or ignorance. The lack of legal literacy among
many arrested individuals, particularly those from marginalized communities, could result in
them being unfairly detained due to ignorance of their rights. This gap can also lead to
prolonged detention even if the individual is entitled to bail.
D. Right to Contact a Relative or Friend (Section 48)
Section 48 of the BNSS 2023 guarantees the arrested person the right to inform a relative or
friend about their arrest. This provision is essential for ensuring that the arrested person’s family
or legal representatives are notified, which can help prevent disappearances and ensure
accountability for the police. It is particularly important for ensuring that an individual’s basic
human rights are respected during custody.
Critically, while this right is established, the actual implementation is often patchy. There are
cases where police officers fail to inform the arrested person’s family or deny access to phone
calls, especially in high-profile cases or when political motivations are involved. The lack of a
standardized procedure to ensure timely communication may also result in delays.
E. Right Against Torture and Cruel Treatment (Section 46)
Under Section 46, an arrested person cannot be subjected to any excessive force or torture. The
section specifically mentions that the arrested person should not be subjected to more restraint
than necessary to prevent escape. The police must use reasonable force and avoid any
inhumane or degrading treatment.
This provision is of paramount importance as it aligns with India's obligations under
international human rights law, such as the United Nations Convention Against Torture.
However, torture and custodial violence remain widespread in India. Despite legal safeguards,
there are instances of police brutality, extortion, and coercion during interrogation. The lack of
accountability mechanisms within the police force, the insufficient training of officers in human
rights norms, and the underreporting of torture incidents mean that this right is often violated
in practice.
F. Right to Consult a Legal Practitioner (Section 38)
Section 38 ensures that the arrested person has the right to consult a legal practitioner of their
choice during the interrogation process, though not throughout the entire interrogation. This
right is crucial for ensuring that the individual’s defense is not compromised during custody and
that they are not coerced into making self-incriminating statements.
A critical examination reveals that while this right is beneficial, its practical application often
faces obstacles. In many cases, especially involving vulnerable populations, access to legal
representation is delayed or denied due to financial constraints or lack of legal aid services.
Moreover, legal aid provided by the state may not always be adequate, leading to inequities in
access to justice.
G. Right to Medical Examination (Sections 51-53)
Under Section 51 to 53, every arrested person must be medically examined by a registered
medical practitioner, especially when there is suspicion of physical abuse or torture. The law
also specifies that if the arrest involves a female arrestee, the examination must be conducted
by a female medical officer.
This provision is vital in documenting any physical injuries that may have occurred during the
arrest or detention. However, the implementation of medical examinations is not always
foolproof. There have been instances where medical examinations were either not conducted or
were done in a superficial manner. The lack of proper medical infrastructure in some police
stations and the failure to document injuries properly can result in the denial of justice for
those who are subjected to ill-treatment during arrest.

3. Challenges and Criticisms of the Rights of Arrested Persons

While the BNSS 2023 outlines several essential rights for arrested persons, its implementation
faces significant challenges:
 Inefficient Implementation: There are instances where the police do not follow the
prescribed procedures, leading to arbitrary detentions and violations of rights.
 Police Negligence: Police officers may neglect their duty to inform the arrested person of
their rights or may fail to ensure access to legal counsel.
 Torture and Custodial Violence: Despite the legal provisions, instances of torture and
physical abuse during police custody continue to be reported.
 Lack of Legal Literacy: Many individuals, particularly from marginalized communities, are
unaware of their rights, which leaves them vulnerable to exploitation.

4. Conclusion
The BNSS 2023 significantly strengthens the rights of arrested persons, providing a
comprehensive legal framework that ensures accountability and fairness in the process of
arrest. These rights, such as the right to be informed of the grounds of arrest, the right to legal
counsel, and the right to be free from torture, are essential to uphold human dignity and
personal liberty.
However, the real-world application of these rights remains challenging due to issues of
enforcement and police misconduct. To truly protect the rights of arrested persons, it is
imperative to improve the training of police officers, ensure greater transparency in the criminal
justice system, and enhance public awareness about legal rights.
In conclusion, while the BNSS 2023 is a significant step towards ensuring the protection of
arrested persons' rights, its effective implementation and safeguards against abuse remain
areas requiring constant attention and reform.
Critical Examination of the Provisions Relating to Arrest under the Bharatiya Nagrik Suraksha
Sanhita, 2023
Introduction
The Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS 2023) represents a significant step forward
in the legal framework governing the criminal justice system in India. One of its most important
provisions is the detailed regulation of arrest, a process that is crucial in the administration of
justice but also deeply affects an individual's personal liberty. Arrests, if not regulated properly,
can lead to abuse of power, violation of constitutional rights, and, in extreme cases, the illegal
detention of innocent persons.
The provisions of BNSS 2023 regarding arrest attempt to balance law enforcement requirements
with the protection of individual rights. This essay critically examines the provisions relating to
arrest, highlighting their significance, possible challenges in implementation, and potential areas
for reform.

1. The Concept of Arrest under BNSS 2023

Under BNSS 2023, arrest is defined as the process of taking a person into custody under legal
authority, often to ensure compliance with a court order or to prevent the commission of a
crime. The concept of arrest in the BNSS is rooted in the principle of personal liberty guaranteed
under Article 21 of the Indian Constitution. An arrest can only be made legally under certain
conditions and with proper authorization.
Section 35 of the BNSS defines arrest as the act of restraining a person’s liberty to compel
obedience to a court order, prevent the commission of a crime, or aid in the investigation of a
criminal offense. In this regard, arrest serves multiple functions: enforcing the law, ensuring the
presence of the accused in court, and preventing the individual from obstructing justice.
However, the law also acknowledges the potential for abuse of power in arrest situations,
making safeguards essential. For this reason, the BNSS 2023 establishes strict guidelines on
when and how an arrest can be made, along with detailed provisions on the rights of the
arrested person.

2. Classification of Arrests: Warranted and Non-Warranted

Under Section 35 to 36 of BNSS 2023, arrests are classified into two broad categories: arrest
with a warrant and arrest without a warrant. Both categories serve distinct purposes and have
different procedural requirements.
A. Arrest with Warrant
An arrest under a warrant is typically authorized by a Magistrate based on a reasonable belief
that an individual has committed a cognizable offense. In such cases, a police officer may arrest
the person after obtaining a written order or warrant from a Magistrate, specifying the charges
and justifications for the arrest.
This provision ensures that arrests are carried out only after judicial oversight, providing a check
on police power. However, it should be noted that the efficiency of this process depends on the
availability of judicial resources and the promptness of Magistrates in issuing warrants. Delays
in issuing warrants can lead to unnecessary detentions and may infringe upon the right to
personal liberty guaranteed under the Constitution.
B. Arrest Without Warrant
On the other hand, arrest without a warrant can occur in specific circumstances outlined under
Section 35. A police officer may arrest an individual without a warrant if they have credible
information or reasonable suspicion regarding the commission of a cognizable offense, if the
person is a proclaimed offender, or if the person is in possession of stolen property, among
other conditions. This provision allows law enforcement to act swiftly, especially in cases where
immediate action is required to prevent further harm or ensure the completion of an
investigation.
Critically, while such powers are necessary to maintain law and order, they also create the
potential for abuses of power. The lack of judicial oversight in non-warrant arrests may lead to
arbitrary detentions based on subjective police assessments. The requirement for the police
officer to record reasons for arrest in writing, as mandated in Section 35, is an attempt to
ensure transparency and accountability. Yet, the effectiveness of this provision depends on
police compliance and transparency, which in practice may be inconsistent.

3. Safeguards Against Arbitrary Arrests: Constitutional Rights of the Arrested Person

The BNSS 2023 contains specific provisions that aim to safeguard the rights of the arrested
person, ensuring that arrests are not arbitrary and that detainees are treated humanely. These
safeguards are critical because arbitrary arrests and unlawful detention pose a direct threat to
the right to personal liberty under Article 21 of the Indian Constitution.
A. Right to be Informed of the Grounds of Arrest (Section 47)
Section 47 mandates that the police officer must inform the arrested person of the specific
grounds for their arrest at the time of the arrest. This provision is crucial for transparency and
ensuring that individuals are not detained without knowledge of the reasons for their detention.
However, this right may not always be effectively enforced. There are concerns that police
officers may fail to clearly communicate the grounds for arrest, or may provide vague or
inconsistent explanations. This problem can be exacerbated by language barriers, insufficient
training, and the informal nature of many arrests.
B. Right to be Produced Before a Magistrate (Section 57)
Section 57 of the BNSS 2023 requires that an arrested person be produced before a Magistrate
within 24 hours of arrest, except in cases where the arrest is made under special circumstances
or the arrested person is unable to appear due to medical reasons. This ensures that an
independent judicial authority reviews the lawfulness of the arrest.
The 24-hour period ensures that individuals are not illegally detained by the police. However,
there are still instances of unlawful detention where the 24-hour rule is not strictly followed, or
where the Magistrate's review is not thorough enough to guarantee the individual’s rights. The
logistical challenges in remote areas or busy metropolitan regions may delay the process,
leading to unnecessary detention.
C. Right to Legal Representation (Section 38)
Section 38 of the BNSS 2023 gives an arrested person the right to consult a legal practitioner of
their choice, though not during the entire interrogation. This provision protects the right to a
fair trial and ensures that the arrested person is aware of their legal options and rights during
the interrogation process.
While the right to counsel is essential, access to legal aid can be a significant issue, particularly
for marginalized communities and low-income individuals. The lack of sufficient legal
representation or the unavailability of competent counsel may result in coerced confessions or
a denial of fair treatment during the arrest process.

4. Procedural Provisions: Documentation and Accountability

A. Memorandum of Arrest (Section 36)
Section 36 of the BNSS 2023 requires that a memorandum of arrest be created at the time of
arrest, documenting the name of the arrested person, the time of arrest, and the identity of the
arresting officer. This memorandum must also be attested by a family member or a respected
member of the community, ensuring that the arrest is witnessed and accountable.
The memorandum serves as a key tool for transparency in the arrest process, but the
effectiveness of this provision depends on how diligently the police follow these procedural
requirements. The failure to create a memorandum or the use of false witnesses could lead to
serious issues related to police accountability.
B. Search and Seizure of Articles (Section 49)
The BNSS 2023 allows the seizure of articles from the arrested person if they are found in their
possession at the time of arrest, ensuring that evidence is preserved. If the arrested person is a
female, the search is to be conducted by a female officer.
While this provision helps in securing evidence, it also raises concerns about abuses of power.
Improper searches, particularly without proper supervision, may lead to violations of privacy or
the planting of evidence.

5. Challenges and Criticisms of the Provisions Relating to Arrest

A. Implementation Issues
Despite the clear legal framework laid out in the BNSS 2023, the implementation of arrest
provisions remains a significant challenge. In practice, police forces may not always follow the
prescribed procedures, leading to arbitrary arrests and violations of rights.
B. Abuse of Power
The lack of strict oversight in non-warrant arrests leaves the process open to abuses of power.
Police officers may sometimes arrest individuals on flimsy grounds or without adequate
justification, leading to unlawful detention. Torture and custodial violence continue to be
significant issues, despite legal safeguards.
C. Gaps in Accountability
While the BNSS 2023 mandates certain procedural checks, such as the memorandum of arrest,
there are still concerns about the lack of independent review of police actions during arrest.
Further efforts are needed to strengthen accountability mechanisms and ensure that law
enforcement officers are held responsible for any violations of an individual's rights.

6. Conclusion
The Bharatiya Nagrik Suraksha Sanhita, 2023 makes substantial strides in regulating arrest
procedures and protecting the rights of arrested persons. The provisions regarding the right to
be informed of arrest grounds, the right to legal counsel, and the right to be produced before a
Magistrate represent vital safeguards against arbitrary arrest and unlawful detention.
However, the practical challenges in implementing these provisions—such as the failure of
police officers to follow procedures, delays in judicial reviews, and the potential for abuses of
power—highlight the need for greater oversight and training of law enforcement agencies.
Effective enforcement of these rights, along with increased public awareness and stronger
judicial scrutiny, is essential to ensure that the legal protections provided in the BNSS 2023
translate into meaningful justice and accountability.
Circumstances Under Which Police May Arrest a Person Without Warrant under the Bharatiya
Nagrik Suraksha Sanhita, 2023
The Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS 2023) provides detailed provisions
regarding the arrest of individuals, emphasizing the importance of following due process and
safeguarding personal liberty. However, there are specific circumstances under which the police
may arrest an individual without a warrant. These provisions are designed to balance the need
for effective law enforcement with the protection of individual rights.
The conditions for a non-warrant arrest under the BNSS 2023 are enumerated primarily in
Section 35. The law allows for arrest without a warrant in certain situations where immediate
action is necessary to prevent further harm or to ensure that a person is brought before a court
of law. These situations are typically related to the commission of cognizable offenses or actions
that obstruct law enforcement.
Let’s examine the key circumstances under which an individual can be arrested without a
warrant:
1. Commission of Cognizable Offense in the Presence of the Police (Section 35(1))
A police officer has the authority to arrest a person without a warrant if the individual commits a
cognizable offense in the presence of the police officer. In this case, the officer can arrest the
person immediately, as they have observed the crime taking place.
Explanation: A cognizable offense is one where the police have the authority to arrest the
person without the need for prior approval from a Magistrate. These offenses typically involve
serious crimes, such as theft, assault, or murder. When a police officer witnesses such an
offense, the officer is permitted to make an arrest on the spot.
Leading Case: Joginder Singh v. State of Uttar Pradesh (1994)
In this case, the Supreme Court of India clarified the law regarding the arrest of individuals
without a warrant. The Court ruled that a police officer could arrest a person without a warrant
if the officer has a reasonable belief that the person has committed a cognizable offense in their
presence. The Court also emphasized that personal liberty cannot be infringed arbitrarily, and
arrest should only be made when necessary. The Court held that the arrest should be
proportional to the offense committed and should be carried out following proper legal
procedures.

2. Reasonable Suspicion Regarding the Commission of a Cognizable Offense (Section 35(2))

Under Section 35(2) of the BNSS 2023, a police officer may arrest a person without a warrant if
they have reasonable suspicion or credible information regarding the commission of a
cognizable offense by the individual. This applies when the officer has valid reasons to believe
that the person has committed or is about to commit a cognizable offense punishable with
imprisonment of up to seven years.
The officer must record their reasons for arresting the individual, ensuring accountability and
transparency. This provision seeks to prevent arbitrary arrests based solely on suspicion without
any objective basis for such belief.
Leading Case: Arnesh Kumar v. State of Bihar (2014)
In this case, the Supreme Court of India addressed the issue of arrest without a warrant and the
need for judicial scrutiny in such situations. The Court held that while reasonable suspicion
could justify an arrest without a warrant, arbitrary arrests based solely on vague or generalized
suspicions are not permissible. The Court emphasized the importance of the police officer’s
discretion being exercised with caution, following the principle that an arrest must be based on
objective criteria and not on a mere belief or assumption.

3. Proclaimed Offender (Section 35(3))

A person who has been declared a proclaimed offender under the Criminal Procedure Code or
any other applicable law may also be arrested without a warrant. A proclaimed offender is
someone who has been issued a proclamation by the court for not appearing in court, even after
being summoned.
The rationale behind this provision is to prevent a person who is actively evading legal
proceedings from escaping arrest, especially in cases where the person is believed to be
intentionally avoiding trial or investigation.
Leading Case: State of Maharashtra v. Natwarlal (1994)
In this case, the Supreme Court held that a proclaimed offender could be arrested without a
warrant because such an arrest is necessary for ensuring the proper administration of justice.
The Court also observed that the person’s deliberate refusal to cooperate with legal proceedings
and their attempts to evade arrest justify immediate action, including an arrest without a
warrant.

4. Possession of Stolen Property (Section 35(4))

If a person is found in possession of stolen property, a police officer may arrest the individual
without a warrant. This provision is particularly relevant to situations involving theft or robbery.
The possession of stolen goods is a clear indication that the person may have committed a
cognizable offense, and immediate arrest is necessary to prevent the person from escaping
justice or tampering with evidence.
Leading Case: K.K. Verma v. State of Uttar Pradesh (1973)
In this case, the Supreme Court observed that if a person is found in possession of stolen goods,
there is a presumption that the person is involved in the commission of a theft or robbery. The
Court held that in such cases, the police officer is justified in making an arrest without a warrant.
The possession of stolen property itself constitutes prima facie evidence that the individual may
have committed a cognizable offense.

5. Obstructing a Police Officer or Escaping Custody (Section 35(5) and 35(6))

Police officers may also arrest an individual without a warrant if the person is obstructing a
police officer in the discharge of their duties or is attempting to escape from lawful custody.
This provision is important for maintaining public order and ensuring that law enforcement
officers can carry out their duties without interference.
It also ensures that individuals who are lawfully detained are not able to escape or avoid facing
trial.

6. Offense Committed Outside India (Section 35(7))

In cases where an individual commits an offense outside India that would be punishable if it
occurred within Indian jurisdiction, the police have the authority to arrest that individual
without a warrant. This provision ensures that individuals who commit serious crimes beyond
India’s borders can still be apprehended and brought to justice.

7. Deserter from Armed Forces (Section 35(8))

A person who is a deserter from the armed forces may also be arrested without a warrant. Such
individuals are considered to be in breach of military discipline and may be arrested
immediately to ensure that they face the appropriate consequences under military law.

Conclusion
The provisions relating to arrest without a warrant under BNSS 2023 aim to ensure public
safety, uphold law enforcement authority, and prevent the evading of justice. While these
provisions empower the police to act swiftly in situations involving serious crimes, they also
impose safeguards, such as recording reasons for arrest and requiring reasonable suspicion.
However, it is critical to ensure that these provisions are exercised judiciously and are not
abused, as arbitrary or unnecessary arrests could violate the fundamental rights of individuals.
The leading cases like Joginder Singh v. State of Uttar Pradesh and Arnesh Kumar v. State of
Bihar emphasize the need for balance, stressing that the police must act based on objective,
reasonable grounds, and that proper oversight mechanisms should be in place to safeguard
individual liberties.
Thus, while the police have the authority to arrest without a warrant under specific conditions,
there is a need for stringent checks and balances to ensure that such powers are used fairly and
in accordance with the law.