Arrest without warrant is the power of a police officer to arrest a person without prior judicial authorization. Under S.35 BNSS (corresponding to S.41 CrPC), this power exists for cognizable offences subject to conditions and safeguards. The BNSS has significantly tightened the conditions for warrantless arrest compared to the CrPC, incorporating the Arnesh Kumar guidelines into the statutory text.
Legal Framework
| Provision | Subject |
|---|---|
| S.35 BNSS (formerly S.41 CrPC) | When police may arrest without warrant |
| S.36 | Arrest by private person without warrant |
| S.37 | Arrest: how made (procedure) |
| S.38 | No unnecessary restraint |
| S.39 | Search of arrested person |
| S.40 | Mode of searching women |
| S.41 | Seizure of offensive weapons |
| S.42 | Power of police officer to detain and search |
| S.43-44 | Arrest of vagrants and escaped convicts |
| S.46 | Use of force in arrest |
Why: The power to arrest without warrant is the most potent police power. It directly deprives a person of liberty without judicial authorization. Therefore, it must be exercised with extreme caution, only when necessary, and subject to strict conditions.
When Police May Arrest (S.35)
Conditions for Arrest (S.35(1)):
A police officer may arrest without warrant a person who:
| Condition | Detail |
|---|---|
| (a) | Commits cognizable offence in officer's presence |
| (b) | Against whom reasonable complaint made or credible information received or reasonable suspicion exists of commission of cognizable offence punishable with imprisonment for 7+ years |
| (c) | Proclaimed offender |
| (d) | Possesses property suspected to be stolen |
| (e) | Obstructs police officer in duty or escapes lawful custody |
| (f) | Reasonably suspected of being a deserter from armed forces |
| (g) | Released convict acting in breach of conditions |
| (h) | Whose arrest is requisitioned by another officer |
Mandatory Conditions Before Arrest (S.35(3)):
For offences punishable with imprisonment up to 7 years, police officer shall not arrest unless satisfied that:
| Condition | Detail |
|---|---|
| (a) | There is reason to believe the person has committed the offence |
| (b) | Arrest is necessary to: prevent further offence, or proper investigation, or prevent evidence tampering, or prevent influence on witnesses, or unless arrested person's presence cannot be ensured |
Why: S.35(3) codifies the ratio of Arnesh Kumar v. State of Bihar (2014). It converts a power into a conditional power, ensuring that arrest is the exception for less serious offences. Notice of appearance should be the default.
Notice of Appearance (S.35(4)):
Where arrest is not required (offence up to 7 years, conditions not met), the officer shall issue a notice of appearance directing the person to appear before him or at a specified place. Non-compliance with notice may then justify arrest.
How Arrest is Made (S.37)
| Step | Detail |
|---|---|
| 1 | Touch or confine body of person (or submission to custody) |
| 2 | Inform grounds of arrest (S.47) |
| 3 | No unnecessary restraint (S.38) |
| 4 | Arrest memo prepared (witnesses, time, date) |
| 5 | Search of person (S.39) |
| 6 | Seizure of offensive weapons (S.41) |
| 7 | Women: searched only by female officer (S.40) |
| 8 | Produce before Magistrate within 24 hours (S.58) |
Use of Force (S.46):
| Situation | Permitted Force |
|---|---|
| Person does not submit | Reasonable force to effect arrest |
| Person resists/attempts to evade | All means necessary to effect arrest |
| Person accused of offence not punishable with death/life | Force shall NOT extend to causing death |
| Risk of escape from offence punishable with death/life | Force may extend to causing death as last resort |
Private Person's Arrest (S.36)
Any private person may arrest without warrant any person who commits a non-bailable and cognizable offence in their presence. The arrested person must be handed to the police officer or taken to the nearest police station without unnecessary delay.
Illustrations
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A shopkeeper sees someone snatch a purse and run. The nearest constable chases and arrests the snatcher on the spot no time to go to a Magistrate for a warrant. This is exactly why warrantless arrest exists: for situations needing immediate action. But if a woman files a dowry complaint and police arrest the husband the next day without even checking whether he might abscond that is the misuse this section guards against.
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Suppose B files a complaint that her neighbour C damaged her garden wall (S.324 BNS mischief, punishable up to 2 years). The SHO cannot just go arrest C. He must first ask: Will C run away? Will C tamper with evidence? Is C likely to damage more property? If none of these apply and usually they won't for a petty dispute the SHO issues a notice telling C to appear at the station on Tuesday at 10 AM. Only if C ignores the notice does arrest become justified.
Recall Check
- What conditions must a police officer satisfy under S.35(3) before arresting for offences up to 7 years?
- What is a notice of appearance under S.35(4)?
- When can force extending to causing death be used during arrest?
Key Cases
Arnesh Kumar v. State of Bihar (2014) Arnesh-Kumar-v-State-of-Bihar-2014 Issue: Whether police must arrest in every cognizable case, particularly for offences under S.498A IPC. Rule: S.41 CrPC (now S.35 BNSS) empowers but does not mandate arrest. Automatic arrest for offences up to 7 years violates Art.21. Held: For offences punishable with up to 7 years, arrest should not be automatic. Police must record reasons why arrest is necessary. Magistrate must examine arrest memo for compliance. Non-compliance is actionable. BNSS S.35(3) codifies these guidelines.
Joginder Kumar v. State of UP (1994) Joginder-Kumar-v-State-of-UP-1994 Issue: What safeguards apply to arrest without warrant? Rule: Power to arrest does not mean arrest is always necessary. Personal liberty under Art.21 mandates restraint. Held: Arrest must be justified. Right to inform friend/relative and right to consult lawyer apply. Police officers must exercise self-restraint; arrest should be necessary for investigation, not routine.
D.K. Basu v. State of West Bengal (1997) DK-Basu-v-State-of-West-Bengal-1997 Issue: What are the mandatory requirements for lawful arrest? Rule: Art.21 and Art.22 mandate specific safeguards to prevent custodial torture and protect dignity. Held: Eleven requirements including: arrest memo with witnesses and time, right to have relative informed, medical examination, no third-degree, right to lawyer. Non-compliance makes arrest illegal and officers liable for departmental action and contempt.
Distinctions
| Parameter | Arrest without Warrant (S.35) | Notice of Appearance (S.35(4)) |
|---|---|---|
| Nature | Physical custody | Direction to appear |
| When used | S.35(3) conditions met | S.35(3) conditions NOT met |
| Effect | Immediate deprivation of liberty | Liberty preserved; obligation to appear |
| For offences | Cognizable (any punishment) | Cognizable (up to 7 years only) |
| Non-compliance | N/A (person already arrested) | Arrest may then be made |
| Judicial review | Production within 24 hours | None required |
Flashcards
Q: Under S.35(3), for which category of offences must police satisfy additional conditions before arrest? A: Offences punishable with imprisonment up to 7 years.
Q: What is a notice of appearance under S.35(4)? A: A notice directing the person to appear before the police officer instead of arrest, applicable when S.35(3) conditions are not met.
Q: Can a private person arrest without warrant? A: Yes. S.36: for non-bailable and cognizable offences committed in their presence.
Q: What did Arnesh Kumar hold about arrest? A: Automatic arrest for offences up to 7 years violates Art.21; police must record reasons; Magistrate must verify compliance.
Q: When can force causing death be used during arrest? A: S.46: only when accused of offence punishable with death or life imprisonment and attempts to escape.
Q: Must women be searched by female officers? A: Yes. S.40: search of woman's person shall only be made by another woman with strict regard to decency.
Q: What are the D.K. Basu requirements for lawful arrest? A: Arrest memo (time, date, witnesses), inform relative/friend, medical examination, right to lawyer, no third-degree, produce before Magistrate within 24 hours.
Exam Scenario
Police receive information that A (a woman) has committed an offence under S.85 BNS (cruelty by husband's relatives), punishable with up to 3 years. The SHO immediately arrests A and her mother-in-law without recording any reasons. The accused challenge the arrest. Advise.
S.85 BNS is punishable with up to 3 years imprisonment. Under S.35(3) BNSS (codifying Arnesh Kumar), for offences punishable with up to 7 years, the police officer shall not arrest unless satisfied that: (a) there is reason to believe the offence was committed, AND (b) arrest is necessary to prevent further offence, ensure proper investigation, prevent evidence tampering, or ensure presence. The SHO arrested without recording any reasons satisfying these conditions. The arrest is illegal. Further, under D.K. Basu, the arrest memo must contain reasons. Under Arnesh Kumar, the Magistrate must verify compliance with S.35(3) at the time of production. The court should: (1) release the accused on bail, (2) record that arrest was in violation of S.35(3), (3) consider departmental action against the SHO. The proper procedure was to issue a notice of appearance under S.35(4).