Bhara ya Nyaya Suraksha Sanhita 2023: Arrest and Criminal Jus ce

The Bhara ya Nyaya Suraksha Sanhita (BNSS) 2023 is a landmark reform in the Indian criminal
jus ce system. Its primary aim is to streamline the process of arrest, deten on, and the rights of
the accused, ensuring that law enforcement prac ces align with cons tu onal principles while
strengthening the jus ce delivery mechanism. Chapter V of the BNSS, which specifically addresses
arrest (Sec ons 35 to 62), provides a comprehensive framework governing how and when a
person can be arrested, the rights they are en tled to, and the responsibili es of law enforcement
officers in ensuring fairness and jus ce.
This essay will explore the cri cal aspects of arrest under the BNSS 2023, focusing on the meaning,
kinds, and cons tu onal rights of an arrestee, alongside key provisions surrounding the process
of arrest, including police powers, judicial oversight, and protec ons 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 a endance in court or to prevent the commission of a crime or to prevent
the interference in the inves ga on of a crime.
Arrest is a significant legal ac on that restrains an individual’s liberty. In this context, it is essen al
to dis nguish 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 depriva on of
personal liberty of an individual with the intent to compel obedience to the law, and this process
must comply with the cons tu onal safeguards outlined in Ar cles 21 (Right to Life and Liberty)
and 22 (Protec on Against Arrest and Deten on) of the Indian Cons tu on.

2. Classifica on 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 (Sec ons 35 & 36)
Police officers are granted the authority to arrest an individual without a warrant under certain
condi ons outlined in Sec on 35:
 If the officer witnesses the commission of a cognizable offence (one in which the police
can arrest without a warrant, such as the , murder, or assault).
 If there is credible informa on or reasonable suspicion that the individual has commi ed
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 obstruc ng police in the execu on of their duty or a emp ng to flee
custody.
Sec on 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 inves ga on can proceed, but
safeguards the freedom of the accused by ensuring that arrests are jus fied.

B. Arrest by Private Person (Sec on 40)

A private person can also arrest an individual under specific condi ons, 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 (Sec on 41)

Magistrates are empowered to order arrests within their jurisdic on 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 (Sec on 38)
The arrested person has the right to consult a lawyer of their choice during the interroga on. This
ensures that the individual is aware of their legal rights and has access to counsel, allowing them
to be er defend themselves during the legal process. However, this right is limited during
interroga on, not throughout the en re deten on process.
B. Right to be Informed of the Grounds of Arrest (Sec on 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 sure es. This transparency ensures that the
accused understands the legal basis for their deten on.
C. Right to Inform Rela ves (Sec on 48)
An arrestee has the right to inform a rela ve, friend, or another designated person about their
arrest. The police must record this informa on 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 preven ng unlawful deten ons.
D. Right to Medical Examina on (Sec on 51-53)
If an individual is arrested, they are en tled to a medical examina on to ensure their health and
safety during the deten on process. In cases of rape, the medical examina on must be conducted
within a specific radius (16 km) of the crime loca on, ensuring mely collec on of evidence. These
provisions serve to protect the health and well-being of the arrested person, preven ng poten al
abuse during arrest.
E. Prohibi on Against Unnecessary Restraint (Sec on 46)
The arres ng 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. Cons tu onal Safeguards and Immunity from Arrest

The BNSS 2023 reinforces several cons tu onal provisions that protect ci zens from arbitrary
arrest. These include:
 Ar cle 21 of the Indian Cons tu on 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.
 Ar cle 22 provides protec on against arbitrary arrest and deten on, including the right to
be informed of the reasons for arrest, the right to consult a legal prac oner, and the right
to be produced before a magistrate within a s pulated me.
Addi onally, there are specific immuni es from arrest under the Indian Cons tu on:
 Ar cle 363(3) provides immunity from arrest to the President and the Governor during
their tenure.
 Sec on 42 of the BNSS grants immunity to members of the Armed Forces from arrest while
on duty, unless permi ed by the Central Government.

5. Miscellaneous Provisions
Several provisions under the BNSS 2023 address various aspects of arrest and deten on that
ensure fair treatment and accountability for law enforcement officers.
A. Duty of Police Officer During Arrest (Sec on 36)
The police officer making the arrest must adhere to certain du es, including clearly displaying
their iden fica on 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 (Sec on 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 ar cles found. However, the officer is required to
give the individual a receipt for any seized items, ensuring transparency in the process.
C. Repor ng and Deten on of Arrestee (Sec ons 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 Bhara ya 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 jus ce with the protec on of individual
rights. These reforms aim to address the challenges in the criminal jus ce 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 cons tu onal rights are upheld. As India
moves towards a more accountable and transparent jus ce system, the BNSS 2023 is poised to
play a pivotal role in safeguarding personal liberty and reinforcing the rule of law.
 Arrest and the Du es of a Police Officer Causing Arrest Under the Bhara ya Nagrik Suraksha
Sanhita 2023
Introduc on
Arrest is a crucial component of the criminal jus ce system, represen ng the moment when an
individual is deprived of their liberty by law enforcement authori es in order to ensure the
individual's a endance in court, to prevent the commission of a crime, or to assist in the
inves ga on of a criminal offense. In the Indian legal context, arrest is governed by the Bhara ya
Nagrik Suraksha Sanhita (BNSS) 2023, which aims to protect individual rights while ensuring
effec ve law enforcement. This reform significantly updates the procedural aspects of arrest,
placing emphasis on the du es of police officers and safeguarding the rights of the accused.
This essay will explore the concept of arrest under the BNSS 2023, highligh ng its meaning, the
legal framework governing arrests, and specifically, the du es of the police officer causing the
arrest. These du es are cri cal in maintaining transparency, accountability, and the protec on 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 Ar cle 21 of the Indian Cons tu on. Arrest must be carried out
in accordance with the law, ensuring that the process is fair and respec ul 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 responsibili es 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 commi ng further crimes.
 To aid in the inves ga on of a crime.
 To ensure the preserva on of evidence.
An arrest can occur with or without a warrant, and each situa on 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 Rela ng to Arrest Under BNSS 2023
The BNSS 2023 establishes detailed procedures for making arrests, and these are laid out in
various sec ons of the Sanhita, primarily Chapter V (Sec ons 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 du es and responsibili es of the police during the arrest process.
The law defines the different situa ons when arrests can be made without a warrant, including
when a cognizable offence is commi ed in the presence of the police officer or when the police
have reasonable suspicion or credible informa on that an individual has commi ed a cognizable
offence. In these cases, the police may proceed with an arrest without judicial interven on.
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
scru ny.

3. Du es 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 du es are designed to protect the rights of the individual being arrested and
ensure that the arrest is carried out legally, fairly, and respec ully. The following are the primary
du es of a police officer during the arrest of an individual:
A. Duty to Iden fy Themselves (Sec on 36)
One of the founda onal du es of a police officer during an arrest is to properly iden fy
themselves. The officer must ensure that they are easily recognizable as a police official by
wearing a uniform or displaying iden fica on. 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 Sec on 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 (Sec on 47)
The BNSS 2023 ensures that the arrestee’s rights are communicated clearly by the police officer
at the me 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 deten on and their en tlements under the law.
Addi onally, the police must inform the individual of their right to contact a rela ve 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 Sec on 48 of the BNSS.
C. Duty to Prepare an Arrest Memo (Sec on 36)
The police officer is required to prepare an arrest memo, documen ng the details of the arrest.
This memo must include:
 The name of the arrested person.
 The date and me 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 rela ve
or respected member of the locality. This ensures that there is an official record of the arrest,
reducing the poten al for abuse and maintaining accountability.
D. Duty to Ensure No Excessive Restraint (Sec on 46)
Under the BNSS, police officers are prohibited from using more force than necessary to prevent
an arrestee from fleeing or resis ng arrest. This is encapsulated in Sec on 46, which mandates
that the individual shall not be subjected to excessive restraint. The arrest should be conducted
in a manner that is propor onate to the situa on. If an individual is not resis ng arrest, no
unnecessary physical force should be used.
Addi onally, 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 (Sec on 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 Sec on 57. This is a cri cal
safeguard to prevent arbitrary deten on and ensure that a judicial officer reviews the necessity of
con nued deten on. This provision prevents the police from holding a person indefinitely
without judicial scru ny.
The Magistrate then determines whether the deten on is jus fied or if the arrestee should be
released on bail.
F. Duty to Ensure the Safety and Well-being of the Arrestee (Sec on 56-58)
The police officer must ensure the safety and well-being of the arrested person, especially during
the me they are in police custody. As per Sec on 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 deten on for an unreasonable period. According to
Sec on 58, a person can only be held in custody for a reasonable me, generally not exceeding 24
hours unless a Magistrate orders otherwise.
G. Duty to Follow Legal and Cons tu onal Provisions
Every arrest must be made in accordance with the law. The police officer must adhere to the
cons tu onal protec ons 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 jus fied but must also respect the fundamental rights of the
arrested individual.

4. Conclusion
The du es of the police officer causing an arrest under the Bhara ya Nagrik Suraksha Sanhita
2023 are cri cal to ensuring that the process of arrest is carried out in a fair, transparent, and
humane manner. The law priori zes the protec on of individual rights while allowing law
enforcement authori es to perform their du es effec vely. Through detailed provisions, the BNSS
seeks to balance the interests of jus ce with the fundamental rights of the accused, ensuring
that the process of arrest remains accountable and free from arbitrary ac on.
By emphasizing the right to informa on, proper documenta on, 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.
 Cri cal Examina on of the Rights of an Arrested Person Under Bhara ya Nagrik Suraksha
Sanhita 2023
Introduc on
Arrest, a cri cal tool for law enforcement, involves taking an individual into legal custody, o en
resul ng in a temporary restric on 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 Bhara ya 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 du es and ensuring that individuals are not subjected
to arbitrary or unlawful deten on.
The BNSS 2023 provides a comprehensive framework that not only establishes the procedures for
arrest but also lays down clear legal protec ons for those arrested, in line with cons tu onal
guarantees. This essay will cri cally examine the rights of an arrested person under the BNSS
2023, analyzing their importance, limita ons, and prac cal implica ons.

1. Cons tu onal 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 cons tu onal
backdrop against which these rights are framed. The Indian Cons tu on, under Ar cle 21,
guarantees the right to life and personal liberty, and this right extends to every individual within
Indian territory, including those who are arrested. Ar cle 22 further protects individuals against
arbitrary arrest and deten on, manda ng 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 cons tu onal framework, expanding on the rights and protec ons
for arrested individuals. It incorporates provisions aimed at preven ng abuse of power by law
enforcement and ensuring that arrested persons are treated with dignity, in line with interna onal
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 protec on from mistreatment. Below, we cri cally examine these rights in
light of the provisions outlined in the Sanhita.
A. Right to be Informed of the Grounds of Arrest (Sec on 47)
One of the most fundamental rights of an arrested person is the right to know the reasons for
their arrest. Under Sec on 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
deten on.
Cri cally, the right to be informed serves as a check against arbitrary arrests. Without this
provision, individuals could be detained without jus fica on, leading to poten al abuse of power.
However, a significant concern arises in prac ce: the quality of communica on. The law requires
that the grounds be explained, but this is con ngent 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 effec veness of this right.
B. Right to be Produced Before a Magistrate (Sec on 57)
Under Sec on 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 preven ng illegal deten on and provides a mechanism for judicial
oversight.
However, in prac ce, there are challenges related to the efficiency of the judicial process. While
the law mandates a 24-hour meframe, it is o en difficult to ensure mely produc on, especially
in remote or overcrowded police sta ons. 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 (Sec on 47)
In cases where the offense is bailable, Sec on 47 requires that the arrested person be informed
of their right to bail. This ensures that the arrestee understands their en tlement 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 poten al issue arises in cases of wrongful deten on, 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, par cularly those from marginalized communi es, could result in them
being unfairly detained due to ignorance of their rights. This gap can also lead to prolonged
deten on even if the individual is en tled to bail.
D. Right to Contact a Rela ve or Friend (Sec on 48)
Sec on 48 of the BNSS 2023 guarantees the arrested person the right to inform a rela ve or friend
about their arrest. This provision is essen al for ensuring that the arrested person’s family or legal
representa ves are no fied, which can help prevent disappearances and ensure accountability
for the police. It is par cularly important for ensuring that an individual’s basic human rights are
respected during custody.
Cri cally, while this right is established, the actual implementa on is o en 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 poli cal mo va ons are involved. The lack of a
standardized procedure to ensure mely communica on may also result in delays.
E. Right Against Torture and Cruel Treatment (Sec on 46)
Under Sec on 46, an arrested person cannot be subjected to any excessive force or torture. The
sec on specifically men ons 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 obliga ons under interna onal
human rights law, such as the United Na ons Conven on Against Torture. However, torture and
custodial violence remain widespread in India. Despite legal safeguards, there are instances of
police brutality, extor on, and coercion during interroga on. The lack of accountability
mechanisms within the police force, the insufficient training of officers in human rights norms,
and the underrepor ng of torture incidents mean that this right is o en violated in prac ce.
F. Right to Consult a Legal Prac oner (Sec on 38)
Sec on 38 ensures that the arrested person has the right to consult a legal prac oner of their
choice during the interroga on process, though not throughout the en re interroga on. 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-incrimina ng statements.
A cri cal examina on reveals that while this right is beneficial, its prac cal applica on o en faces
obstacles. In many cases, especially involving vulnerable popula ons, access to legal
representa on 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 inequi es in
access to jus ce.
G. Right to Medical Examina on (Sec ons 51-53)
Under Sec on 51 to 53, every arrested person must be medically examined by a registered
medical prac oner, especially when there is suspicion of physical abuse or torture. The law also
specifies that if the arrest involves a female arrestee, the examina on must be conducted by a
female medical officer.
This provision is vital in documen ng any physical injuries that may have occurred during the
arrest or deten on. However, the implementa on of medical examina ons is not always foolproof.
There have been instances where medical examina ons were either not conducted or were done
in a superficial manner. The lack of proper medical infrastructure in some police sta ons and the
failure to document injuries properly can result in the denial of jus ce for those who are
subjected to ill-treatment during arrest.

3. Challenges and Cri cisms of the Rights of Arrested Persons

While the BNSS 2023 outlines several essen al rights for arrested persons, its implementa on
faces significant challenges:
 Inefficient Implementa on: There are instances where the police do not follow the
prescribed procedures, leading to arbitrary deten ons and viola ons 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 con nue to be reported.
 Lack of Legal Literacy: Many individuals, par cularly from marginalized communi es, are
unaware of their rights, which leaves them vulnerable to exploita on.

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 essen al to uphold human dignity and personal liberty.
However, the real-world applica on of these rights remains challenging due to issues of
enforcement and police misconduct. To truly protect the rights of arrested persons, it is
impera ve to improve the training of police officers, ensure greater transparency in the criminal
jus ce system, and enhance public awareness about legal rights.
In conclusion, while the BNSS 2023 is a significant step towards ensuring the protec on of arrested
persons' rights, its effec ve implementa on and safeguards against abuse remain areas requiring
constant a en on and reform.
Cri cal Examina on of the Provisions Rela ng to Arrest under the Bhara ya Nagrik Suraksha
Sanhita, 2023
Introduc on
The Bhara ya Nagrik Suraksha Sanhita, 2023 (BNSS 2023) represents a significant step forward in
the legal framework governing the criminal jus ce system in India. One of its most important
provisions is the detailed regula on of arrest, a process that is crucial in the administra on of
jus ce but also deeply affects an individual's personal liberty. Arrests, if not regulated properly,
can lead to abuse of power, viola on of cons tu onal rights, and, in extreme cases, the illegal
deten on of innocent persons.
The provisions of BNSS 2023 regarding arrest a empt to balance law enforcement requirements
with the protec on of individual rights. This essay cri cally examines the provisions rela ng to
arrest, highligh ng their significance, possible challenges in implementa on, and poten al 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, o en 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
Ar cle 21 of the Indian Cons tu on. An arrest can only be made legally under certain condi ons
and with proper authoriza on.
Sec on 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 inves ga on of a
criminal offense. In this regard, arrest serves mul ple func ons: enforcing the law, ensuring the
presence of the accused in court, and preven ng the individual from obstruc ng jus ce.
However, the law also acknowledges the poten al for abuse of power in arrest situa ons, making
safeguards essen al. 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. Classifica on of Arrests: Warranted and Non-Warranted

Under Sec on 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 dis nct 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 commi ed a cognizable offense. In such cases, a police officer may arrest the
person a er obtaining a wri en order or warrant from a Magistrate, specifying the charges and
jus fica ons for the arrest.
This provision ensures that arrests are carried out only a er 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 deten ons and may infringe upon the right to personal
liberty guaranteed under the Cons tu on.
B. Arrest Without Warrant
On the other hand, arrest without a warrant can occur in specific circumstances outlined under
Sec on 35. A police officer may arrest an individual without a warrant if they have credible
informa on 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
condi ons. This provision allows law enforcement to act swi ly, especially in cases where
immediate ac on is required to prevent further harm or ensure the comple on of an inves ga on.
Cri cally, while such powers are necessary to maintain law and order, they also create the
poten al for abuses of power. The lack of judicial oversight in non-warrant arrests may lead to
arbitrary deten ons based on subjec ve police assessments. The requirement for the police
officer to record reasons for arrest in wri ng, as mandated in Sec on 35, is an a empt to ensure
transparency and accountability. Yet, the effec veness of this provision depends on police
compliance and transparency, which in prac ce may be inconsistent.

3. Safeguards Against Arbitrary Arrests: Cons tu onal 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 cri cal because arbitrary arrests and unlawful deten on pose a direct threat to the right to
personal liberty under Ar cle 21 of the Indian Cons tu on.
A. Right to be Informed of the Grounds of Arrest (Sec on 47)
Sec on 47 mandates that the police officer must inform the arrested person of the specific
grounds for their arrest at the me of the arrest. This provision is crucial for transparency and
ensuring that individuals are not detained without knowledge of the reasons for their deten on.
However, this right may not always be effec vely enforced. There are concerns that police officers
may fail to clearly communicate the grounds for arrest, or may provide vague or inconsistent
explana ons. 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 (Sec on 57)
Sec on 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 s ll instances of unlawful deten on 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
logis cal challenges in remote areas or busy metropolitan regions may delay the process, leading
to unnecessary deten on.
C. Right to Legal Representa on (Sec on 38)
Sec on 38 of the BNSS 2023 gives an arrested person the right to consult a legal prac oner of
their choice, though not during the en re interroga on. This provision protects the right to a fair
trial and ensures that the arrested person is aware of their legal op ons and rights during the
interroga on process.
While the right to counsel is essen al, access to legal aid can be a significant issue, par cularly for
marginalized communi es and low-income individuals. The lack of sufficient legal
representa on or the unavailability of competent counsel may result in coerced confessions or
a denial of fair treatment during the arrest process.

4. Procedural Provisions: Documenta on and Accountability

A. Memorandum of Arrest (Sec on 36)
Sec on 36 of the BNSS 2023 requires that a memorandum of arrest be created at the me of
arrest, documen ng the name of the arrested person, the me of arrest, and the iden ty of the
arres ng officer. This memorandum must also be a ested 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
effec veness 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 Ar cles (Sec on 49)
The BNSS 2023 allows the seizure of ar cles from the arrested person if they are found in their
possession at the me 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, par cularly without proper supervision, may lead to viola ons of privacy or
the plan ng of evidence.

5. Challenges and Cri cisms of the Provisions Rela ng to Arrest

A. Implementa on Issues
Despite the clear legal framework laid out in the BNSS 2023, the implementa on of arrest
provisions remains a significant challenge. In prac ce, police forces may not always follow the
prescribed procedures, leading to arbitrary arrests and viola ons 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 some mes arrest individuals on flimsy grounds or without adequate
jus fica on, leading to unlawful deten on. Torture and custodial violence con nue 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 s ll concerns about the lack of independent review of police ac ons during arrest.
Further efforts are needed to strengthen accountability mechanisms and ensure that law
enforcement officers are held responsible for any viola ons of an individual's rights.

6. Conclusion
The Bhara ya Nagrik Suraksha Sanhita, 2023 makes substan al strides in regula ng arrest
procedures and protec ng 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 deten on.
However, the prac cal challenges in implemen ng these provisions—such as the failure of police
officers to follow procedures, delays in judicial reviews, and the poten al for abuses of power—
highlight the need for greater oversight and training of law enforcement agencies. Effec ve
enforcement of these rights, along with increased public awareness and stronger judicial scru ny,
is essen al to ensure that the legal protec ons provided in the BNSS 2023 translate into
meaningful jus ce and accountability.
Circumstances Under Which Police May Arrest a Person Without Warrant under the Bhara ya
Nagrik Suraksha Sanhita, 2023
The Bhara ya 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 effec ve law
enforcement with the protec on of individual rights.
The condi ons for a non-warrant arrest under the BNSS 2023 are enumerated primarily in Sec on
35. The law allows for arrest without a warrant in certain situa ons where immediate ac on is
necessary to prevent further harm or to ensure that a person is brought before a court of law.
These situa ons are typically related to the commission of cognizable offenses or ac ons 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 (Sec on 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.
Explana on: 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 the , assault, or murder. When a police officer witnesses such an offense, the
officer is permi ed to make an arrest on the spot.
Leading Case: Joginder Singh v. State of U ar 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 commi ed 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 propor onal
to the offense commi ed and should be carried out following proper legal procedures.

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

Under Sec on 35(2) of the BNSS 2023, a police officer may arrest a person without a warrant if
they have reasonable suspicion or credible informa on regarding the commission of a cognizable
offense by the individual. This applies when the officer has valid reasons to believe that the person
has commi ed or is about to commit a cognizable offense punishable with imprisonment of up to
seven years.
The officer must record their reasons for arres ng the individual, ensuring accountability and
transparency. This provision seeks to prevent arbitrary arrests based solely on suspicion without
any objec ve 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 scru ny in such situa ons. The Court held that while reasonable suspicion could
jus fy 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
discre on being exercised with cau on, following the principle that an arrest must be based on
objec ve criteria and not on a mere belief or assump on.

3. Proclaimed Offender (Sec on 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 proclama on by the court for not appearing in court, even a er
being summoned.
The ra onale behind this provision is to prevent a person who is ac vely evading legal proceedings
from escaping arrest, especially in cases where the person is believed to be inten onally avoiding
trial or inves ga on.
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 administra on of jus ce. The
Court also observed that the person’s deliberate refusal to cooperate with legal proceedings and
their a empts to evade arrest jus fy immediate ac on, including an arrest without a warrant.

4. Possession of Stolen Property (Sec on 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 par cularly relevant to situa ons involving the or robbery.
The possession of stolen goods is a clear indica on that the person may have commi ed a
cognizable offense, and immediate arrest is necessary to prevent the person from escaping jus ce
or tampering with evidence.
Leading Case: K.K. Verma v. State of U ar Pradesh (1973)
In this case, the Supreme Court observed that if a person is found in possession of stolen goods,
there is a presump on that the person is involved in the commission of a the or robbery. The
Court held that in such cases, the police officer is jus fied in making an arrest without a warrant.
The possession of stolen property itself cons tutes prima facie evidence that the individual may
have commi ed a cognizable offense.

5. Obstruc ng a Police Officer or Escaping Custody (Sec on 35(5) and 35(6))

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

6. Offense Commi ed Outside India (Sec on 35(7))

In cases where an individual commits an offense outside India that would be punishable if it
occurred within Indian jurisdic on, 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 s ll be apprehended and brought to jus ce.

7. Deserter from Armed Forces (Sec on 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 rela ng to arrest without a warrant under BNSS 2023 aim to ensure public safety,
uphold law enforcement authority, and prevent the evading of jus ce. While these provisions
empower the police to act swi ly in situa ons involving serious crimes, they also impose
safeguards, such as recording reasons for arrest and requiring reasonable suspicion.
However, it is cri cal 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 U ar Pradesh and Arnesh Kumar v. State of Bihar
emphasize the need for balance, stressing that the police must act based on objec ve, reasonable
grounds, and that proper oversight mechanisms should be in place to safeguard individual
liber es.
Thus, while the police have the authority to arrest without a warrant under specific condi ons,
there is a need for stringent checks and balances to ensure that such powers are used fairly and
in accordance with the law.