Powers of the Police to Arrest a Person
Powers of the Police to Arrest a Person
I. Statutory Basis for Arrest by Police under BNSS, 2023
The powers and procedure relating to arrest by police are primarily governed under Chapter V of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS). The provisions
reflect both the authority granted to police and the safeguards against misuse of such power.
II. Arrest without Warrant (Section 35, BNSS)
A police officer may arrest a person without a warrant in specific circumstances:
1. If the person commits a cognizable offence in the presence of the police.
2. If there is a reasonable complaint, credible information, or reasonable suspicion that a person has committed a cognizable offence punishable with less than seven years or up to seven years. However, the police must record why such arrest is necessary, such as:
a. To prevent further offences
b. For proper investigation
c. To prevent evidence tampering
d. To stop inducement/threatening of witnesses
e. To ensure the accused’s presence in court
f. If arrest is not required, reasons for non-arrest must be recorded.
3. If the person is suspected in a cognizable offence punishable with more than seven years (or death), and there is reason to believe in their involvement.
4. Also, if the person is a proclaimed offender, found with suspected stolen property, obstructs police, attempts escape, is a deserter, or is required under extradition law, among other specific circumstances.
III. Procedure and Safeguards while Making Arrest
1. Notice Instead of Arrest: If arrest is not required, police must issue notice for appearance. Compliance precludes arrest unless later necessary.
2. Special Protection: For offences punishable with less than three years, and if the person is infirm or above sixty, prior permission of an officer of Deputy Superintendent rank or above is needed.
3. Memo of Arrest: Police making an arrest shall wear visible identification, prepare a memorandum of arrest attested by a family member or a resident of the locality and countersigned by the person arrested, and inform the person of their right to notify a relative/friend.
4. Display and Record-Keeping: Police control rooms must maintain and display arrest details in every district and police station.
IV. Rights of the Arrested Person
1. The arrested person is entitled to be informed of the grounds of arrest and of the right to bail.
2. They are entitled to meet an advocate of their choice during interrogation, although not throughout.
3. Family or friends must be informed of the arrest, and the information must be entered in police station records.
4. Arrested persons must be produced before a magistrate without unnecessary delay and cannot be detained beyond 24 hours without a magistrate’s order.
V. Duties and Use of Force
1. A police officer may use necessary means / force to effect arrest if the person resists, proportionate to the offence.
2. Handcuffing is allowed for specific heinous offences and habitual/repeat offenders.
3. No unnecessary restraint should be used.
4. No right to cause death unless the arrest is for offences punishable with death or life imprisonment.
5. Women cannot be arrested after sunset and before sunrise except in exceptional circumstances, requiring magistrate's permission.
VI. Judicial Scrutiny and Case Law
1. Joginder Kumar v. State of U.P.: The Supreme Court has repeatedly emphasized that arrest cannot be made in a routine manner on a mere
allegation or FIR registration. There must be reasonable satisfaction after some investigation regarding genuineness and necessity.
2. Arnesh Kumar v. State of Bihar: The Supreme Court specifically directed police to avoid unnecessary arrests and to record reasons for arrest/non
arrest.
