The Dynamics of Arrest

The Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “the BNSS”) marks a significant evolution in India’s legal framework, addressing the intricacies of arrest procedures with heightened emphasis on safeguarding individual rights while maintaining public order. Enacted to replace outdated provisions and align with contemporary legal and human rights standards, the BNSS introduces comprehensive guidelines for the arrest of individuals by law enforcement officers, private citizens, and magistrates. This new legislation delineates the responsibilities and protocols that must be adhered to during an arrest, ensuring transparency, accountability, and protection of civil liberties. By mandating clear identification of arresting officers, the preparation of detailed arrest memorandums, and the right to legal counsel, the BNSS seeks to balance the necessity of law enforcement with the fundamental rights of the citizens of the country.

What is arrest?

Arrest is derived from the French word “arrater” meaning “to stop or stay”. It signifies a restraint of a person. It is a restraint of a person, obliging him to be obedient to law. It may be defined as the execution of the command of a court of law or of a duly authorised officer. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. Arrests are either in civil or criminal cases.

What is the difference between arrest and custody?

Lexicologically, the meaning of the word arrest is given in various dictionaries depending upon the circumstances in which the said expression is used. In every arrest, there is custody but not vice versa and that both the words custody and arrest are not synonymous terms. Though custody may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra-legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences.

In which situations can the police arrest without a warrant?

A police officer can arrest a person without a warrant or magistrate’s order in the following situations:

• If a person commits a cognizable offence in the officer’s presence.
• If there is a reasonable complaint, credible information, or reasonable suspicion that the person has committed a cognizable offence, punishable with imprisonment up to seven years or less than seven years, and the police officer believes that the person committed the offence based on the complaint, information, or suspicion. Also, the officer finds it necessary to arrest the person to prevent further offences, ensure proper investigation, prevent the person from tampering with evidence, stop the person from threatening or influencing witnesses, ensure the person appears in court when required. However, the officer must record the reasons for the arrest in writing. If the arrest is not needed, the officer must record reasons for not making the arrest.
• If credible information suggests the person committed a cognizable offence punishable with imprisonment over seven years or with death, and the officer believes the information.
• If the person is proclaimed as an offender.
• If the person possesses suspected stolen property.
• If the person obstructs a police officer, escapes or attempts to escape from lawful custody.
• If the person is suspected of being a deserter from the Armed Forces.
• If the person is involved in an act outside India that would be an offence in India, and is liable to be detained under extradition laws.
• If the person, being a released convict, breaches any rule made under the BNSS.

Can a person involved in a non-cognizable offence be arrested without a warrant or a magistrate’s order?

A person involved in a non-cognizable offence cannot be arrested without a warrant or magistrate’s order. If arrest is not needed, the police officer must issue a notice directing the person to appear before him or at a specified place. The person must comply with the notice. If the person complies with the notice, they cannot be arrested unless the officer records reasons for the arrest. If the person fails to comply with the notice or refuses to identify themselves, the officer may arrest them, subject to any court orders.

Can an arrest be made without the permission of a Deputy Superintendent of Police?

No arrest can be made without the permission of an officer of at least the rank of Deputy Superintendent of Police for offences punishable with less than three years of imprisonment, if the person is infirm or over 60 years of age.

What is the procedure for arrest and duties of officer making an arrest?

Every police officer making an arrest must wear a visible name tag for easy identification. They must prepare an arrest memorandum, which should be attested by a family member of the arrested person or a respectable member of the locality. The arrested person must also countersign this memorandum. If no family member attests the memorandum, the arrested person must be informed of their right to have a relative, friend, or any person named by them informed of their arrest.

Who are designated police officers?

The State Government must establish a police control room in every district and at the state level. Each district and police station must have a designated officer, not below the rank of Assistant Sub-Inspector, responsible for maintaining and displaying information about arrested persons and their charges.

Does the arrested person have a right to meet an advocate?

Any arrested person has the right to meet an advocate of their choice during interrogation, though not continuously throughout the interrogation.

Can an accused person be arrested for refusing to give name and address?

If a person commits or is accused of a non-cognizable offence and refuses to provide their name and address or provides false information, they can be arrested until their correct details are ascertained. Once identified, they must be released on bond or bail unless they are not residents of India, in which case, sureties who are residents in India, are required. If their true identity is not determined within 24 hours or if they fail to execute the bond or provide sureties, they must be taken to the nearest Magistrate, having jurisdiction.

When can a private person arrest?

A private person can arrest someone committing a non-bailable and cognizable offence or a proclaimed offender in their presence. The arrested person must be handed over to a police officer or taken to the nearest police station within 6 hours from such arrest. If the person refuses to provide their name and residence, they will be dealt with as per the provision for arresting persons refusing to give details.

When can a Magistrate arrest?

A Magistrate (Executive or Judicial) can arrest or order the arrest of anyone committing an offence in their presence within their jurisdiction. They can also arrest or order the arrest of any person for whom they can issue a warrant.

Can members of the Armed Forces be arrested?

Members of the Armed Forces cannot be arrested for actions performed in official duties without the Central Government’s consent. This protection can also apply to other forces maintaining public order, as notified by the State Government.

How are arrests made?

Arrests must involve the police officer or person making the arrest touching or confining the arrested person unless they submit to custody by word or action. Women are presumed to submit to custody on oral intimation unless the circumstances require otherwise. Handcuffs can be used for serious offenses like organized crime, terrorism, or repeat offences. Force necessary to effect the arrest may be used, but not to cause death unless the person is accused of an offense punishable with death or life imprisonment.

What are the restrictions on arresting women?

Generally, women should not be arrested after sunset and before sunrise unless in exceptional circumstances, and prior permission from a Magistrate must be obtained in writing.

When can search of places and persons be carried out?

Police officers can search places if they believe an arrested person is hiding there. Entry must be allowed, and if refused, force can be used to enter. Persons arrested can be searched, and items other than necessary clothing can be seized and kept in safe custody. Women can only be searched by other women, respecting decency.

Is communication of arrest details necessary?

The police officer making the arrest must inform the arrested person’s relatives or nominated persons about the arrest and where the person is being held. This information must be recorded, and the Magistrate must ensure compliance with this requirement.

Can arrested persons be medically examined?

Arrested persons can be examined by a registered medical practitioner if it’s believed their examination will provide evidence for the offence. This includes taking samples for DNA profiling. Female examinations must be conducted or supervised by female practitioners.

When is identification of arrested persons carried out?

If the arrested person needs to be identified by others, the court may order an identification parade. During this process, accommodations must be made for mentally or physically disabled identifiers.

What is reporting of arrests?

Officers must report arrests without warrants to higher authorities.

Can a person be detained for more than 24 hours?

Arrested persons must be presented before a Magistrate or the officer in charge of a police station without unnecessary delay and cannot be detained for more than 24 hours without a Magistrate’s special order.

What if the arrested person escapes?

Arrests must strictly follow legal provisions. If an arrested person escapes, they can be pursued and rearrested. Only necessary restraint should be used, and no one should be discharged except on bond, bail, or by a Magistrate’s order.

In conclusion, the BNSS represents an important step forward in modernizing the legal framework governing arrests in India. By meticulously outlining the procedures and responsibilities associated with arrests, this legislation aims to strike a delicate balance between the imperatives of law enforcement and the protection of individual rights. It ensures that arrests are conducted with transparency, accountability, and respect for human dignity, thereby fostering greater trust between the public and the police. The detailed provisions for officer identification, the right to legal representation, and the stringent guidelines for the treatment of arrested individuals underscore the commitment to upholding the rule of law and safeguarding civil liberties. As this new legal instrument is implemented, it is expected to enhance the efficacy and fairness of the criminal justice system, setting a robust precedent for future reforms. It not only strengthens the legal process but also reinforces the foundational principles of justice and human rights, paving the way for a more equitable and transparent legal system in the country.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.