Overview:
The Bharatiya Nagarik Suraksha Sanhita (BNSS) categorizes offenses into two types: cognizable and non-cognizable. Cognizable offenses, as per Section 2(g) of BNSS are those offences in which police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Now, generally these offences are grave and serious crimes such as culpable homicide, murder, kidnapping, and rape.
On the other hand, non-cognizable offenses, defined in Section 2(o) of BNSS, are relatively less serious offenses like hurt, assault, cheating, and defamation. For non-cognizable offenses, a police officer cannot make an arrest without a warrant.
Who Can Make an Arrest Without a Warrant?
The power to make an arrest without a warrant is not unlimited. The key authorities empowered for such arrests include:
1. Police Officers: For individuals involved in cognizable offenses or against whom a reasonable complaint, credible information, or reasonable suspicion exists (Section 35 BNSS).
2. Magistrates: If an offense occurs in their presence (Section 41 BNSS).
3. Private Persons: In cases of non-bailable and cognizable offenses committed in their presence (Section 40 BNSS).
Watch JudiX’s 1 minute video lecture on Arrest and Anticipatory bail under BNSS
Procedure for Making an Arrest Without a Warrant: Section 43 BNSS
Section 43 of the BNSS outlines the procedure for making an arrest without a warrant. The arresting person, whether a police officer or a private individual, must physically touch and confine the body of the arrestee unless signs of submission are evident.
However, it is crucial to note that the use of force leading to death during an arrest is prohibited unless the person accused is involved in an offense punishable by death or life imprisonment.
Circumstances Allowing Arrest Without a Warrant: Sections 35, 39, and 170 of BNSS.
Several circumstances permit arrests without a warrant, as outlined in different sections of the Code:
1. Section 35: Lists specific situations where arrests without a warrant are justified, including offenses, possession of weapons, being a proclaimed offender, and more.
2. Section 39: Allows arrest without a warrant if a person commits an offense in the presence of a police officer and refuses to provide their name or address.
3. Section 170: Grants wide powers to police officers for preventive arrests to prevent the commission of a cognizable offense. This discretionary power is subject to a maximum detention period of twenty-four hours.
Important case laws on the issue:
1. D.K. Basu vs. State of West Bengal (1997):
- Key Points: This landmark case addressed custodial deaths and laid down comprehensive guidelines for arrests and detentions.
- Impact: It established crucial rights for arrested individuals, including the right to be informed about the grounds of arrest, access to legal representation, medical examination, and the right to be presented before a magistrate within 24 hours.
2. Joginder Kumar vs. State of Uttar Pradesh (1994):
- Key Points: Questioning the justifiability of arrests, this case emphasized that arrests cannot be made merely because they are lawful, requiring officers to justify the reasons for the arrest.
- Impact: It reinforced the principle that clear justifications for arrests are essential, particularly for offenses that do not fall under heinous crimes.
3. State of Maharashtra vs. Christian Community Welfare Council of India (2003):
- Key Points: Focused on the arrest of females, this case stipulated that no female person should be arrested at night or in the absence of a lady constable, except under exceptional circumstances.
- Impact: The guidelines aimed at protecting the dignity and rights of women during arrests, acknowledging the need for special considerations in such cases.
FAQs on Arrests and Bharatiya Nagarik Suraksha Sanhita (BNSS):
1. What are cognizable offenses under BNSS?
- Cognizable offenses, as defined in Section 2(g) of BNSS, are serious crimes such as culpable homicide, murder, kidnapping, and rape, for which a police officer may arrest without a warrant.
2. Which offenses are considered non-cognizable under BNSS?
- Non-cognizable offenses, per Section 2(o), include less severe transgressions like hurt, assault, cheating, and defamation. A police officer cannot make an arrest without a warrant for non-cognizable offenses.
3. Who has the authority to make an arrest without a warrant?
- The power to make an arrest without a warrant is vested in police officers for cognizable offenses (Section 35 BNSS), magistrates if the offense occurs in their presence (Section 41 BNSS), and private persons for non-bailable and cognizable offenses committed in their presence (Section 40 BNSS).
4. What is the procedure for making an arrest without a warrant under BNSS?
- Section 43 of BNSS outlines the procedure, requiring the arresting person, whether a police officer or a private individual, to physically touch and confine the body of the arrestee unless signs of submission are evident. The use of force leading to death is prohibited unless the accused is involved in an offense punishable by death or life imprisonment.
5. Under what circumstances are arrests without a warrant justified?
- Various circumstances, as detailed in Sections 35, 39, and 170 of BNSS, permit arrests without a warrant. These include specific situations outlined in Section 35, refusal to provide information in Section 39, and preventive arrests under Section 170.
6. Can force leading to death be used during an arrest without a warrant?
- The use of force leading to death during an arrest is prohibited under normal circumstances, except when the person accused is involved in an offense punishable by death or life imprisonment.
7. What are the key provisions related to arrests without a warrant in BNSS?
- Key provisions include Sections 35, 39, 40, and 43 BNSS, which address different aspects of arrests without a warrant, ranging from justifications for arrest to the procedure involved.
Arrest without warrant under BNSS (Bharatiya Nagarik Suraksha Sanhita)
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