PROCEDURE TO ARREST A PERSON UNDER THE BHARATIYA NAGARIK SURAKSHA SANHITA

INTRODUCTION

The BNSS 2023 aims to provide faster means of disposal of cases to reduce the delay in the delivery of justice in the country. One of the key measures for ensuring that is the swift arrest of the person accused of committing a crime. There need to be measures to ensure that the rights of the accused are not violated when he is being arrested. The BNSS seeks to modify the defects of the CRPC.  Chapter 5 of the BNSS deals with the arrest of persons.

ARREST WITHOUT WARRANT

A police officer is entitled to arrest a person without an order from the magistrate or without a warrant under the following circumstances;

• The person commits a cognizable offence
• Credible information exists that the person has committed a cognizable offence punishable with imprisonment of more than seven years with or without fine or with death sentence.
• Proclaimed as an offender either by an order of the State Govt or the Sanhita.
• The person is in possession of property suspected to be stolen.
• The person obstructs the police officer during the execution of his duty or who has escaped from lawful custody.
• The person is suspected of being a deserter from any of the armed forces of the union.
• Reasonable suspicion exists against the person that he committed an offence outside India, which if committed in India would have been punishable as an offence.

When the arrest of a person is not required under any of the above-mentioned categories and there is reasonable suspicion that the person has committed a cognizable offence, the police officer shall issue a notice to such a notice directing the person to appear before him or at any other place. The accused person has to comply with the terms of the notice. If the person fails to comply with the terms of the notice or refuses to identity himself, the police officer may arrest the person for the offences mentioned in the notice.

An arrest of a person who is infirm or above sixty years old shall not be made without the permission of an officer below the rank of the Deputy Superintendent of Police in case of an offence punishable with less than three years of imprisonment. This provision was introduced by BNSS and it was not present in the CRPC.

DUTIES OF THE ARRESTING OFFICER

Under Section 36 of the act, the officer making the arrest needs to bear an accurate, visible and clear identification of his name which will smoothen the identification process. Further, the police officer is required to prepare a memorandum that should be attested by one witness, who may be a member of the family of the arrested person or a respected person of the locality where the arrest is made. The police officer needs to inform to the person arrested that he has a right to inform his relative or friend or any person named by him about  his arrest.

DESIGNATED POLICE  OFFICERS

A police control room needs to be established in every district and at the state level under Section 37 of the act.  Further, the state govts are also required to designate a police officer in every district and in every police station for maintaining information about the persons arrested.  The information needs to be displayed in every police station, district headquarters and shall also be displayed in digital mode.

ARREST BY PRIVATE PERSONS

Under Section 40 of the act, any private citizen can arrest any person who has committed a non bailable and cognizable offence in his presence or any proclaimed offender. The private citizen needs to handover the arrested person to the police within a period of six hours. Under the CRPC, there was no time period given within which the private citizen had to handover the person to the police. The private citizen had to handover the arrested person ‘without unnecessary delay’ to the police under the CRPC. But now under BNSS, a specific time period has been specified.

ARREST BY MAGISTRATE

If an offence has been committed in the presence of an Executive or Judicial Magistrate within their local jurisdiction, he/she may arrest or order any other person to arrest the accused. The offender could be subjected to custody. This is provided under Section 41 of the BNSS.

PROTECTION TO MEMBERS OF THE ARMED FORCES

The members of the armed forces cannot be arrested for anything done in discharge of their official duties unless the consent of the Central Government is given for the same. This is given under Section 42 of the BNSS.

HOW AN ARREST SHOULD BE MADE?

While making the arrest of a person, the police officer should actually touch or confine the body to be arrested, unless there is submission by the person to be arrested by word or action. In cases where the person to be arrested is a female, her submission to custody by an oral intimation shall be presumed and a police officer should not touch a woman during the arrest, unless the police officer making the arrest is a woman. Information regarding the arrest of a female need to be given to her friends or relatives or any other person named by her. If any person tries to evade arrest, the police officer may use all means necessary in his disposal to effect the arrest of that person.

HANDCUFFS

Section 43(3) of the BNSS allows police officers to use handcuffs while arresting a person or producing him before a court of law. This could happen in cases when the accused is a habitual, repeat offender who escaped from custody, who has committed the offence of terrorist acts, organized crime or drug related offences etc.

PURSUIT OF OFFENDERS IN OTHER JURISDICTIONS

Under Section 45 of the act, a police officer may pursue a person in any part of India without a warrant if he is authorized to do so.

INFORMATION RELATING TO ARREST TO BE PROVIDED BY THE POLICE

The police officer who has arrested a person without a warrant shall inform such a person about the particulars of the offence for which he is arrested or the grounds for making such an arrest. When a person accused of a bailable offence has been arrested by a police officer without a warrant, the police officer shall inform the person that he is entitled to be released on bail.  This is provided under Section 47 of the BNSS.

INFORMATION ABOUT ARREST TO BE GIVEN TO FRIEND/RELATIVE

The police officer making the arrest shall provide information regarding the arrest and the place where the accused is kept to the relatives or friends or any person so named by the accused. Information shall also be provided to the designated police officer in the district. The police officer is also obligated to inform the accused person that he has the right to inform his relatives/friends regarding his arrest. This is provided under Section 48 of the BNSS.

MEDICAL PRACTITIONER

Under Section 51 of the BNSS, any police officer can request a registered medical practitioner to make an examination of the accused person if there are reasonable grounds to believe that the examination of the accused may provide evidence to the commission of the offence. Under the CRPC, only a police officer not below the rank of sub inspector could have requested for a medical examination. But under the BNSS, any police officer can request for a medical examination.

CONCLUSION

The procedure to arrest a person has been comprehensively dealt with by the BNSS. It has brought out certain important changes to ensure faster disposal of cases. At the same time, the BNSS has attempted to ensure that the rights of the accused persons are protected. For instance, arrest of an infirm person or senior citizen could only take place with the permission of DSP  if the offence is punishable with less than three years of imprisonment.

Contributed By : Kritavirya Choudhary (Intern)