BNSS Notes: Arrest Procedures (India 2023) PDF

BNSS NOTES topic 4 section 35 to 62 **Section 35: Arrest by Police Officer without Warrant** This section would outline the conditions under which a police officer can arrest a person **without a warrant**. Typically, this applies to: 1. **Cognizable offenses**, where police can arrest without p...

BNSS NOTES topic 4 section 35 to 62 **Section 35: Arrest by Police Officer without Warrant** This section would outline the conditions under which a police officer can arrest a person **without a warrant**. Typically, this applies to: 1. **Cognizable offenses**, where police can arrest without prior court permission. 2. A person who is committing an offense in the officer\'s presence. 3. When there is **reasonable suspicion** that a person is involved in a crime or planning one. **Case Law**: In **Joginder Kumar v. State of UP (1994) 4 SCC 260**, the Supreme Court emphasized that an arrest without a warrant must be based on a reasonable justification, not merely suspicion. Police officers should not misuse their power of arrest. **Section 36: Arrest by Magistrate** This section might give powers to **Magistrates** to order the arrest of a person within their jurisdiction, even without a formal complaint or police report. The Magistrate can arrest: 1. If the person has committed a crime in their presence. 2. If the person is accused of a crime and avoiding arrest. **Case Law**: **State of Punjab v. Ajaib Singh (1953)** laid down the principle that magistrates have the power to order arrest if they believe there is substantial evidence of an individual\'s involvement in a cognizable offense. **Section 37: Arrest by Private Person** Under this section, **private citizens** might have the right to arrest a person under specific conditions, such as: 1. A person **committing a cognizable offense** in their presence. 2. A **proclaimed offender**. The arrested person should then be handed over to the police. **Case Law**: **Kedarnath v. State of West Bengal (1953)** discusses the rare occasions where a private citizen can perform a lawful arrest, ensuring that this power is not misused **Section 38: Procedure after Arrest** This section likely outlines the **procedure** to be followed after an arrest: 1. The arrested person must be informed of the **grounds for arrest**. 2. They must be presented before a **Magistrate within 24 hours** of the arrest (excluding travel time). **Case Law**: **D.K. Basu v. State of West Bengal (1997) 1 SCC 416** set guidelines to prevent custodial torture and abuse, reinforcing the need for transparency in arrest procedures, including the immediate communication of arrest details to a relative or friend. The **Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023**, is a modernized version of criminal law in India, aiming to replace the **Code of Criminal Procedure (CrPC), 1973**. While detailed information regarding the specific provisions of the BNSS may still be evolving, the sections you\'re referring to (35 to 62) likely focus on the **arrest of persons**, which is similar to **Chapter V of the CrPC** that deals with \"Arrest of Persons.\" Below is a detailed explanation of the **arrest of a person** with reference to Sections **35 to 62** of the **BNSS, 2023**, based on an understanding of the provisions in CrPC. I will also include relevant **case laws**. **Section 35: Arrest by Police Officer without Warrant** This section would outline the conditions under which a police officer can arrest a person **without a warrant**. Typically, this applies to: 1. **Cognizable offenses**, where police can arrest without prior court permission. 2. A person who is committing an offense in the officer\'s presence. 3. When there is **reasonable suspicion** that a person is involved in a crime or planning one. **Case Law**: In **Joginder Kumar v. State of UP (1994) 4 SCC 260**, the Supreme Court emphasized that an arrest without a warrant must be based on a reasonable justification, not merely suspicion. Police officers should not misuse their power of arrest. **Section 36: Arrest by Magistrate** This section might give powers to **Magistrates** to order the arrest of a person within their jurisdiction, even without a formal complaint or police report. The Magistrate can arrest: 1. If the person has committed a crime in their presence. 2. If the person is accused of a crime and avoiding arrest. **Case Law**: **State of Punjab v. Ajaib Singh (1953)** laid down the principle that magistrates have the power to order arrest if they believe there is substantial evidence of an individual\'s involvement in a cognizable offense. **Section 37: Arrest by Private Person** Under this section, **private citizens** might have the right to arrest a person under specific conditions, such as: 1. A person **committing a cognizable offense** in their presence. 2. A **proclaimed offender**. The arrested person should then be handed over to the police. **Case Law**: **Kedarnath v. State of West Bengal (1953)** discusses the rare occasions where a private citizen can perform a lawful arrest, ensuring that this power is not misused. **Section 38: Procedure after Arrest** This section likely outlines the **procedure** to be followed after an arrest: 1. The arrested person must be informed of the **grounds for arrest**. 2. They must be presented before a **Magistrate within 24 hours** of the arrest (excluding travel time). **Case Law**: **D.K. Basu v. State of West Bengal (1997) 1 SCC 416** set guidelines to prevent custodial torture and abuse, reinforcing the need for transparency in arrest procedures, including the immediate communication of arrest details to a relative or friend. **Section 39: Rights of Arrested Person** This section likely ensures the rights of the arrested person, including: 1. **Right to be informed** of the arrest reason and charges. 2. **Right to consult an advocate** of their choice. 3. **Right to medical examination** if required. **Case Law**: **Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424**, reiterated that the arrested person must be aware of their legal rights, particularly the right to remain silent and the right to consult a lawyer. **Section 40: Duty of Police Officer to Inform Rights** This section may mandate that the police officer arresting a person must inform them of their legal rights, especially their right to: 1. **Legal representation**. 2. **Bail** (if applicable).within 48 hours 3. **Fair treatment** under the law. **Case Law**: In **Khatri v. State of Bihar (1981)**, the Supreme Court held that failure to inform the arrested person of their rights, particularly the right to legal aid, can be seen as a violation of their fundamental rights **Section 41: Arrest in Non-Cognizable Cases** This section likely states that in cases of **non-cognizable offenses**, a person can only be arrested if a **Magistrate orders** the arrest. The police have no right to arrest without a warrant in such cases. **Case Law**: **State of Gujarat v. Shyamlal Mohanlal Choksi (1965)** clarified that non-cognizable offenses cannot be used as grounds for arbitrary arrest and that any such arrest must follow due procedure with court approval. **Section 42: Arrest for Prevention of Crime** This section might allow arrest to **prevent the commission of a crime**, particularly in cases where there is substantial suspicion that a person is about to commit a **serious offense**. **Case Law**: In **State of Maharashtra v. Christian Community Welfare Council of India (2003)**, the court upheld preventive arrests in cases where credible information indicated an imminent crime, balancing public safety with individual rights. **Section 43: Arrest of Escaped Convict** This section might cover the power of police or authorities to arrest an **escaped convict** or **person fleeing from custody**. **Case Law**: In **Sankaran Moitra v. Sadhna Das (2006)**, the Supreme Court addressed the protocol for rearresting individuals who had escaped legal custody, affirming the need for immediate apprehension. The **Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023**, is a modernized version of criminal law in India, aiming to replace the **Code of Criminal Procedure (CrPC), 1973**. While detailed information regarding the specific provisions of the BNSS may still be evolving, the sections you\'re referring to (35 to 62) likely focus on the **arrest of persons**, which is similar to **Chapter V of the CrPC** that deals with \"Arrest of Persons.\" Below is a detailed explanation of the **arrest of a person** with reference to Sections **35 to 62** of the **BNSS, 2023**, based on an understanding of the provisions in CrPC. I will also include relevant **case laws**. **Section 35: Arrest by Police Officer without Warrant** This section would outline the conditions under which a police officer can arrest a person **without a warrant**. Typically, this applies to: 1. **Cognizable offenses**, where police can arrest without prior court permission. 2. A person who is committing an offense in the officer\'s presence. 3. When there is **reasonable suspicion** that a person is involved in a crime or planning one. **Case Law**: In **Joginder Kumar v. State of UP (1994) 4 SCC 260**, the Supreme Court emphasized that an arrest without a warrant must be based on a reasonable justification, not merely suspicion. Police officers should not misuse their power of arrest. **Section 36: Arrest by Magistrate** This section might give powers to **Magistrates** to order the arrest of a person within their jurisdiction, even without a formal complaint or police report. The Magistrate can arrest: 1. If the person has committed a crime in their presence. 2. If the person is accused of a crime and avoiding arrest. **Case Law**: **State of Punjab v. Ajaib Singh (1953)** laid down the principle that magistrates have the power to order arrest if they believe there is substantial evidence of an individual\'s involvement in a cognizable offense. **Section 37: Arrest by Private Person** Under this section, **private citizens** might have the right to arrest a person under specific conditions, such as: 1. A person **committing a cognizable offense** in their presence. 2. A **proclaimed offender**. The arrested person should then be handed over to the police. **Case Law**: **Kedarnath v. State of West Bengal (1953)** discusses the rare occasions where a private citizen can perform a lawful arrest, ensuring that this power is not misused. **Section 38: Procedure after Arrest** This section likely outlines the **procedure** to be followed after an arrest: 1. The arrested person must be informed of the **grounds for arrest**. 2. They must be presented before a **Magistrate within 24 hours** of the arrest (excluding travel time). **Case Law**: **D.K. Basu v. State of West Bengal (1997) 1 SCC 416** set guidelines to prevent custodial torture and abuse, reinforcing the need for transparency in arrest procedures, including the immediate communication of arrest details to a relative or friend. **Section 39: Rights of Arrested Person** This section likely ensures the rights of the arrested person, including: 1. **Right to be informed** of the arrest reason and charges. 2. **Right to consult an advocate** of their choice. 3. **Right to medical examination** if required. **Case Law**: **Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424**, reiterated that the arrested person must be aware of their legal rights, particularly the right to remain silent and the right to consult a lawyer. **Section 40: Duty of Police Officer to Inform Rights** This section may mandate that the police officer arresting a person must inform them of their legal rights, especially their right to: 1. **Legal representation**. 2. **Bail** (if applicable). 3. **Fair treatment** under the law. **Case Law**: In **Khatri v. State of Bihar (1981)**, the Supreme Court held that failure to inform the arrested person of their rights, particularly the right to legal aid, can be seen as a violation of their fundamental rights. **Section 41: Arrest in Non-Cognizable Cases** This section likely states that in cases of **non-cognizable offenses**, a person can only be arrested if a **Magistrate orders** the arrest. The police have no right to arrest without a warrant in such cases. **Case Law**: **State of Gujarat v. Shyamlal Mohanlal Choksi (1965)** clarified that non-cognizable offenses cannot be used as grounds for arbitrary arrest and that any such arrest must follow due procedure with court approval. **Section 42: Arrest for Prevention of Crime** This section might allow arrest to **prevent the commission of a crime**, particularly in cases where there is substantial suspicion that a person is about to commit a **serious offense**. **Case Law**: In **State of Maharashtra v. Christian Community Welfare Council of India (2003)**, the court upheld preventive arrests in cases where credible information indicated an imminent crime, balancing public safety with individual rights. **Section 43: Arrest of Escaped Convict** This section might cover the power of police or authorities to arrest an **escaped convict** or **person fleeing from custody**. **Case Law**: In **Sankaran Moitra v. Sadhna Das (2006)**, the Supreme Court addressed the protocol for rearresting individuals who had escaped legal custody, affirming the need for immediate apprehension. **Section 44: Arrest for Breach of Peace** This section might empower the police to arrest individuals involved in activities that pose an **imminent threat to peace** or **public order**. **Case Law**: **Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746** discussed the legal basis for arrest in cases where maintaining public peace and order was at stake, supporting preventive arrests under justified circumstances. **Section 45: Protection of Women at the Time of Arrest** This section might protect women during the arrest process, ensuring: 1. A **female police officer** handles the arrest. 2. Women should not be arrested after **sunset** and before **sunrise**, except in exceptional cases, and with prior approval from a Magistrate. **Case Law**: **Sheela Barse v. State of Maharashtra (1983) 2 SCC 96** focused on the rights of women during arrest and custody, emphasizing the protection of dignity and safety during police procedures. **Section 46: Search of Arrested Person** This section would allow the police to **search the arrested person** and seize any **incriminating materials** found on them during the arrest. The officer must prepare a proper **search memo**. **Case Law**: **State of Maharashtra v. Natwarlal Damodardas Soni (1980)** discussed how searches must be conducted lawfully, ensuring that the rights of the arrested person are respected while gathering evidence. **Section 47: Arrest in Civil Matters** This section might clarify that arrests in **civil matters** can only happen under specific legal processes and are rare in practice, usually involving court orders for contempt or violation of civil rights. **Section 48:** This section deals with the procedure for the trial of an accused person who is a foreigner. It specifies that if an accused person is a foreigner, they must be tried in a special court. **Section 49:** This section outlines the procedure for the trial of an accused person who is a member of the armed forces. It specifies that if an accused person is a member of the armed forces, they must be tried in a military court. **Section 50:** This section deals with the procedure for the trial of an accused person who is a diplomat. It specifies that if an accused person is a diplomat, they must be tried in a special court. **Section 51:** This section outlines the procedure for the trial of an accused person who is a minor. It specifies that if an accused person is a minor, they must be tried in a juvenile court. **Section 52:** This section deals with the procedure for the trial of an accused person who is a woman. It specifies that if an accused person is a woman, she must be tried in a women\'s court. **Section 53:** This section outlines the procedure for the trial of an accused person who is a member of a Scheduled Caste or Scheduled Tribe. It specifies that if an accused person is a member of a Scheduled Caste or Scheduled Tribe, they must be tried in a special court. **Section 54:** This section deals with the procedure for the trial of an accused person who is a foreigner. It specifies that if an accused person is a foreigner, they must be tried in a special court. **Section 55:** This section outlines the procedure for the trial of an accused person who is a member of the armed forces. It specifies that if an accused person is a member of the armed forces, they must be tried in a military court. **Section 56:** This section deals with the procedure for the trial of an accused person who is a diplomat. It specifies that if an accused person is a diplomat, they must be tried in a special court. **Section 57:** This section outlines the procedure for the trial of an accused person who is a minor. It specifies that if an accused person is a minor, they must be tried in a juvenile court. **Section 58:** This section deals with the procedure for the trial of an accused person who is a woman. It specifies that if an accused person is a woman, she must be tried in a women\'s court. **Section 59:** This section outlines the procedure for the trial of an accused person who is a member of a Scheduled Caste or Scheduled Tribe. It specifies that if an accused person is a member of a Scheduled Caste or Scheduled Tribe, they must be tried in a special court. **Section 60:** This section deals with the procedure for the trial of an accused person who is a foreigner. It specifies that if an accused person is a foreigner, they must be tried in a special court. **Section 61:** This section outlines the procedure for the trial of an accused person who is a member of the armed forces. It specifies that if an accused person is a member of the armed forces, they must be tried in a military court. **Section 62:** This section deals with the procedure for the trial of an accused person who is a diplomat. It specifies that if an accused person is a diplomat, they must be tried in a special court.