Arrest under BNSS 2023: Grounds, Sections, and Case Laws

Bare act provision 

Arrest by private person [section 40]

Section 40 lays down the circumstances  when a private person can arrest and procedure on such arrest

Circumstances in which a private person can arrest:

Any private person may arrest or cause to be arrested who in the presence of private person.

i) commits a non - bailable and           cognizable offence.

ii) Any proclaimed offender.

2: Arrest by magistrate section 41

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS 2023), enacted to replace the colonial-era Criminal Procedure Code (CrPC), brings a renewed focus on balancing citizen rights and policing powers. Arrest, being a powerful tool in the hands of law enforcement, is rightly placed under scrutiny in BNSS 2023. Let’s break down what "arrest" means under this new law, the grounds under which it can occur, and the protective safeguards embedded within.

What is Arrest

Arrest is the legal restraint of a person’s liberty, compelling them to remain within police custody or judicial control. It is not merely a procedural act; it is a profound invasion of personal liberty and must be backed by lawful grounds and necessity.

Under BNSS 2023, arrest continues to be guided by principles of reasonableness, necessity, and legality, now with reinforced safeguards for the accused.

Sections of BNSS 2023 on Arrest

The provisions of BNSS 2023 related to arrest are largely modeled on the CrPC but updated for clarity, technology, and accountability.

🔹 Section 35 – When Police May Arrest Without Warrant

This section mirrors Section 41 of the CrPC but with improved wording.

A police officer may arrest without a warrant if:

• A cognizable offence is committed in the officer's presence.
• There is credible information of a person having committed a cognizable offence punishable with imprisonment of up to seven years, but only if:
  • Arrest is necessary to prevent further offence,
  • Proper investigation cannot proceed without arrest,
  • The person is likely to tamper with evidence or influence witnesses,
  • The person is likely to abscond,
  • The person disobeys summons.

Requirement: The officer must record reasons in writing for making or not making the arrest.

Case Law: Arnesh Kumar v. State of Bihar (2014)
The Supreme Court emphasized that arrest is not mandatory in all cognizable offences and warned against routine arrests. BNSS 2023 codifies this principle.

🔹 Section 36 – Arrest in Non-Cognizable Offences

For non-cognizable offences, the police officer cannot arrest without the prior permission of a Magistrate. This provision safeguards citizens against arbitrary police action.

🔹 Section 37 – Arrest on Refusal to Give Name and Residence

If a person commits a non-cognizable offence in the presence of a police officer and refuses to identify themselves, they may be arrested to ascertain identity.

🔹 Section 38 – Procedure of Arrest

This section insists on:

• Informing the person of the grounds of arrest,
• Their right to bail, if applicable,
• Immediate communication of arrest to a relative or friend.

Case Law: D.K. Basu v. State of West Bengal (1997)
The Supreme Court laid down 11 guidelines on arrest and detention, now incorporated into BNSS 2023, ensuring humane treatment during arrest.

🔹 Section 39 – Search of Arrested Person

Police can search the arrested person and place any articles or weapons found into safe custody.

🔹 Section 40 – Medical Examination

Every arrested person has the right to a medical examination by a registered medical practitioner, safeguarding them from torture or inhumane treatment.

Case Law: Sheela Barse v. State of Maharashtra (1983)
The court emphasized the need for prompt medical examination of arrested individuals, especially women.

🔹 Section 41 – Duty of Officer Making Arrest

A female should only be arrested by a female officer, and arrest should not occur after sunset and before sunrise unless in exceptional cases with written justification.

Arrest of Women, Children, and Elderly – Special Provisions

BNSS 2023 respects the vulnerability of certain groups:

• No arrest of women after sunset without special permission.
• Children and persons with disabilities must be handled with sensitivity.
• The arresting officer must prepare a memo of arrest, signed by a witness and the arrested person.

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Why These Safeguards Matter

India's justice system faces a crisis of overcrowded jails and pre-trial detentions. Nearly 75% of inmates in Indian prisons are undertrials (NCRB data). BNSS 2023 attempts to reduce unnecessary arrests and promote bail over jail.

Summary: Arrest under BNSS 2023 – A Balanced Framework

Provision	Purpose
Section 35	Police power to arrest without warrant
Section 36	Arrest in non-cognizable offences only with Magistrate's approval
Section 38	Right to be informed of arrest and legal rights
Section 40	Medical examination to prevent abuse
Section 41	Guidelines for women, children, and sensitive arrests

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Final Thoughts

BNSS 2023 emphasizes that liberty is the rule, and arrest is the exception. It reflects India’s constitutional values and Supreme Court jurisprudence, ensuring that arrests are no longer treated as a mechanical formality but a justifiable legal act grounded in necessity, legality, and humanity.

Written by -Sangita patel 

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