6.2 Arrest of Persons & Rights of Arrested Persons
Key Takeaways
- Section 35 BNSS replaces CrPC Section 41, statutorily embedding the Arnesh Kumar two-prong necessity test for warrantless arrest in offences punishable with up to 7 years imprisonment, making written justification mandatory.
- Section 35(1) proviso introduces a protective shield requiring prior written permission from a Deputy Superintendent of Police (DySP) before arresting infirm or elderly individuals aged above 60 years for offences punishable with under 3 years imprisonment.
- Under Section 35(3) BNSS (formerly CrPC 41A), police must serve a notice of appearance where arrest is not warranted under Section 35(1); continued compliance precludes arrest unless recorded reasons justify custodial detention.
- Section 43(3) BNSS establishes explicit statutory authority for police officers to use handcuffs during arrest or court production for habitual offenders, escape risks, and grave offences like terrorism, murder, and gang rape, modifying previous judicial doctrines.
- Sections 47, 48, and 53 BNSS fortify arrested persons' rights, mandating immediate communication of grounds and bail rights, nomination and notification of a friend or relative, and independent medical examination with mandatory report delivery.
6.2 Arrest of Persons & Rights of Arrested Persons
[!NOTE] Constitutional Core: Depriving an individual of personal liberty constitutes the most drastic exercise of sovereign executive power. Chapter V of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 35 to 62) governs the arrest of persons, balancing effective crime investigation against constitutional guarantees enshrined under Articles 21 and 22 of the Constitution of India. The BNSS codifies landmark Supreme Court directives on arrest restraints, notice of appearance, elderly protections, and the regulated use of mechanical restraints.
When Police May Arrest Without Warrant (Section 35 BNSS)
Section 35 BNSS (corresponding to Section 41 of CrPC 1973) categorizes the circumstances under which a police officer may arrest a person without an order from a Magistrate and without a warrant. The provision establishes a clear bifurcation based on the gravity of the prescribed punishment.
1. Offences Punishable Up to 7 Years: The Two-Prong Necessity Test [Section 35(1)(b)]
Where a person is accused of a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years (with or without fine), arrest is never automatic. The police officer can effect arrest only upon the concurrent satisfaction of two statutory prongs:
- Reasonable Belief: The police officer has reason to believe on the basis of credible information or complaint that the person has committed the said offence; AND
- Statutory Necessity: The police officer is satisfied that such arrest is necessary for one or more of the following five grounds:
- To prevent such person from committing any further offence;
- For proper investigation of the offence;
- To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;
- To prevent such person from making any inducement, threat, or promise to any witness so as to dissuade him from disclosing facts to the court or police;
- As unless such person is arrested, his presence in the court whenever required cannot be ensured.
[!IMPORTANT] Mandatory Written Recording of Reasons: Under Section 35(1)(b)(ii) BNSS, the police officer shall record his reasons in writing when making an arrest. Equally critical for judicial review, if the police officer decides not to arrest a person accused of an offence punishable up to 7 years, he shall also record the reasons in writing for not making the arrest. This statutorily incorporates the binding directions of the Supreme Court in Arnesh Kumar v. State of Bihar ((2014) 8 SCC 273) and Satender Kumar Antil v. CBI ((2022) 10 SCC 51).
2. Offences Punishable with More than 7 Years or Capital Punishment [Section 35(1)(c)]
For cognizable offences punishable with imprisonment for a term exceeding seven years, or with imprisonment for life, or with death, the police officer may arrest any person against whom credible information has been received or a reasonable suspicion exists of having committed such offence, on the basis of that information alone.
3. Special Protective Shield for Elderly and Infirm Persons [Section 35(1) Proviso]
In an unprecedented humanitarian safeguard, the proviso to Section 35(1) BNSS mandates that:
"Provided that no person against whom credible information or reasonable suspicion exists of having committed an offence punishable with imprisonment for less than three years, and who is infirm or above sixty years of age, shall be arrested without prior permission of an officer not below the rank of Deputy Superintendent of Police."
This statutory barrier prevents arbitrary arrests of senior citizens and medically incapacitated persons for petty offences without high-level administrative oversight.
Notice of Appearance Before Police Officer (Section 35(3) BNSS)
Section 35(3) BNSS (corresponding to Section 41A CrPC) serves as the primary statutory alternative to custodial arrest:
SECTION 35(3) NOTICE PIPELINE
Police Officer determines arrest is NOT required under Section 35(1)
│
▼
MANDATORY: Issue Notice of Appearance directing person to attend at specified time/place
│
▼
Duty of Person: Bound to appear and comply with all terms of the notice
│
┌────────────────────────┴────────────────────────┐
▼ ▼
Person COMPLIES with Notice Person FAILS to Comply or
│ Cannot be Identified
▼ │
SHALL NOT BE ARRESTED ▼
(Unless officer records written reasons Police Officer MAY ARREST
that custodial arrest is essential) (Subject to competent Court orders)
Designated Police Officers and Control Rooms (Sections 36 & 37 BNSS)
To ensure institutional transparency and prevent custodial disappearances, the BNSS enacted robust public-disclosure obligations:
- Designated Police Officer [Section 36 BNSS]: The State Government shall establish a designated police officer in every district and at every police station, not below the rank of Assistant Sub-Inspector (ASI), who shall be responsible for maintaining and displaying information regarding arrested persons.
- District & State Police Control Rooms [Section 37 BNSS / CrPC Section 41C]:
- Police Control Rooms shall be established in every district and at the State level.
- Public Display Mandate: The names and addresses of all arrested persons and the specific nature of offences charged shall be displayed on notice boards outside every police station and at district control rooms, both physically and in digital format for public inspection.
Statutory Rights of the Arrested Person
The BNSS provides an extensive catalog of procedural safeguards that become enforceable from the exact moment of apprehension:
1. Right to Know Grounds of Arrest & Right to Bail [Section 47 BNSS / CrPC Section 50]
- Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested, or other grounds for such arrest.
- Where a person is arrested for a bailable offence, the officer shall immediately inform him of his statutory right to be released on bail and that he may arrange for sureties.
2. Right to Inform Nominated Relative or Friend [Section 48 BNSS / CrPC Section 50A]
- The police officer effecting arrest has a statutory duty to inform immediately any friend, relative, or other person nominated by the arrested person about the factum of arrest and the exact location where he is detained.
- An entry of such notification must be made in the register maintained at the police station.
- Magisterial Audit: When the accused is produced for remand, the Magistrate is under a mandatory statutory obligation to satisfy himself that the requirements of Section 48 have been complied with by the police officer (D.K. Basu v. State of West Bengal, (1997) 1 SCC 416).
3. Right to Medical Examination [Section 53 BNSS / CrPC Section 54]
- When any person is arrested, he shall be examined by a medical officer in the service of the Central or State Government, or, in the absence of such medical officer, by a registered medical practitioner, promptly after the arrest is made.
- Where the arrested person is a female, the examination shall be made only by, or under the supervision of, a female medical officer or female registered medical practitioner.
- Delivery of Report: The medical officer is statutorily bound to prepare a systematic examination report recording injuries, marks of violence, and approximate time of infliction, and shall furnish a copy of the report to the arrested person or his nominee.
4. Constitutional & Statutory Production Ceiling [Section 58 BNSS / CrPC Section 57]
- No police officer shall detain in custody a person arrested without warrant for a longer period than under all circumstances of the case is reasonable, and such period shall not exceed twenty-four hours (exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court), unless authorized by a judicial remand order under Section 187 BNSS (Article 22(2) Constitution of India).
Special Statutory Protections for Female Accused
The BNSS preserves and enhances protective measures designed to uphold the modesty and dignity of women during arrest:
- Arrest by Female Officer [Section 43(1) Proviso BNSS / CrPC Section 46(1)]: Where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed. No male police officer shall touch the person of the woman for making her arrest; arrest must be made exclusively by a female police officer.
- No Arrest After Sunset and Before Sunrise [Section 43(1) Second Proviso BNSS / CrPC Section 46(4)]: Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise. Where such exceptional circumstances exist, the woman police officer must obtain the prior permission of the Judicial Magistrate of the First Class within whose local jurisdiction the offence is committed or the arrest is to be made (Bharati S. Khandhar v. Maruti Govind Jadhav, 2013 Cri LJ 1621 (Bom)).
- Decent Search [Section 49(2) BNSS / CrPC Section 51(2)]: Whenever it is necessary to cause a female to be searched, the search shall be carried out by another female with strict regard to decency.
The Use of Handcuffs under Section 43(3) BNSS
One of the most consequential departures enacted in the BNSS is the statutory authorization of handcuffs under Section 43(3):
"The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or producing him before the court who is a habitual or repeat offender, or who had escaped from custody, or who has committed an offence of—
- terrorism, organized crime, illicit trafficking in drugs or arms;
- rape, gang rape, acid attack, murder, human trafficking, sexual offences against children; or
- counterfeiting currency, offence against the State; or
- an offence punishable with death, imprisonment for life, or imprisonment for a term of seven years or more."
Judicial Precedent vs. Statutory Codification
- Historical Doctrine: In landmark rulings including Prem Shankar Shukla v. Delhi Administration ((1980) 3 SCC 526) and Citizen for Democracy v. State of Assam ((1995) 3 SCC 743), the Supreme Court ruled that handcuffing is prima facie inhuman, degrading, and violative of Article 21. Handcuffs could not be deployed routinely without demonstrating clear escape propensity and obtaining prior judicial permission.
- BNSS Paradigm Shift: Section 43(3) BNSS confers direct statutory discretion upon the police officer to deploy handcuffs during arrest and transit for specific enumerated serious offences and repeat offenders. However, this power remains subject to judicial review during magisterial production under Article 21, requiring documented justification in the case diary.
Practical Exam Traps & Maharashtra Subordinate Judiciary Tips
| Trap Subject | Common Misconception | Correct Statutory / Judicial Position |
|---|---|---|
| Arrest of Elderly Accused | Believing police can arrest any person accused of a cognizable offence without senior permission. | Under Section 35(1) proviso BNSS, prior written permission of a DySP is mandatory before arresting an infirm person or person above 60 years for offences carrying under 3 years imprisonment. |
| Arrest of Women at Night | Believing an Executive Magistrate or police station in-charge can sanction a night arrest of a woman. | Only a Judicial Magistrate of the First Class (JMFC) within whose jurisdiction the offence occurred or arrest is to be made can grant prior permission under Section 43(1) BNSS. |
| Notice of Appearance Consequence | Believing issuance of Section 35(3) notice completely bars subsequent arrest. | If the person fails to comply or identity cannot be ascertained, the police officer may arrest him subject to court orders; if he complies, arrest requires recorded written reasons. |
| Handcuffing Scope | Assuming handcuffs can be placed on any accused at the absolute whim of the police. | Section 43(3) restricts handcuffing to repeat offenders, escapees, or persons accused of grave offences (punishable with 7+ years, life, death, terrorism, rape, etc.). |
Under the proviso to Section 35(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, what prior authorization is mandatory before arresting an infirm person or a person above sixty years of age for an offence punishable with imprisonment for less than three years?
Under Section 43(1) second proviso of the Bharatiya Nagarik Suraksha Sanhita, 2023, who is the exclusive judicial authority competent to grant prior permission for the arrest of a woman after sunset and before sunrise in exceptional circumstances?
Which provision of the Bharatiya Nagarik Suraksha Sanhita, 2023 explicitly codifies statutory discretion for police officers to use handcuffs during arrest and transit for habitual offenders, escapees, and persons accused of grave offences like murder, rape, and terrorism?
When a person accused of an offence punishable with imprisonment up to seven years complies with a notice of appearance issued under Section 35(3) BNSS and continues to cooperate, what is the statutory restriction on the police officer's power to arrest?