Arrest without Warrant

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. S.35(1)(b) and the notice scheme in S.35(3) to (6) carry forward the 2009 amendments to S.41 and S.41A CrPC, which Arnesh Kumar (2014) enforced. The BNSS adds S.35(7), which requires a DSP's prior permission to arrest an infirm person or a person above 60 for an offence punishable with less than three years.

Legal Framework

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:

• S.35(2): For a non-cognizable offence, no arrest without a warrant or order of a Magistrate, subject to S.39.

Mandatory Conditions Before Arrest (S.35(1)(b)):

For offences punishable with imprisonment up to 7 years, the police officer may arrest only if:

Why: S.35(1)(b) carries forward S.41(1)(b) CrPC, which Arnesh Kumar v. State of Bihar (2014) enforced through binding directions. 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(3) to (6)):

• S.35(3): Where arrest is not required under S.35(1), the officer shall issue a notice of appearance directing the person to appear before him or at a specified place.
• S.35(4): The person must comply.
• S.35(5): If he complies, he shall not be arrested unless, for recorded reasons, the officer thinks he ought to be.
• S.35(6): If he fails to comply or will not identify himself, he may be arrested, subject to any court orders.
• S.35(7): No arrest without the prior permission of a DSP or higher officer for an offence punishable with less than three years where the person is infirm or above sixty.

How Arrest is Made (S.43, S.36)

Use of Force, Handcuffs and Women (S.43):

Private Person's Arrest (S.40)

Any private person may arrest, or cause to be arrested, any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender. Without unnecessary delay, and within six hours, he must hand the person over to a police officer or take him to the nearest police station (S.40(1)). The police then re-arrest under S.35, deal with him under S.39, or release him at once (S.40(2), (3)).

Arrest of Judicial Officers and Legislators

• Judicial officers (Delhi Judicial Service Association, 1991):
  • A judicial officer should be arrested only after intimation to the District Judge or the High Court.
  • If immediate arrest is needed, only a technical or formal arrest should be made, and it must be communicated at once to the District and Sessions Judge and the Chief Justice of the High Court.
  • He should not be taken to a police station without the prior order of the District and Sessions Judge, if available, and must be given immediate facilities to contact his family, legal advisers and judicial officers.
  • No handcuffing, unless he offers violent resistance or there is imminent need to avert danger to life and limb; any such case must be reported at once, and the police bear the burden of showing necessity, failing which they are personally liable.
  • No statement, panchnama or medical test without the presence of his legal adviser and a judicial officer of equal or higher rank.
• Members of Parliament and State Legislatures:
  • No immunity from arrest in criminal cases or preventive detention (K. Anandan Nambiar, 1965).
  • The arresting authority must intimate the Speaker or Chairman of the arrest (for the Lok Sabha, Rule 229 of the Rules of Procedure and Conduct of Business).
  • Under civil process only, S.135A CPC exempts members from arrest or detention during a meeting of their House or of its committee, and during a joint sitting, meeting, conference or joint committee of the Houses and forty days before and after it (S.135A(1)(c)).
• Armed Forces (S.42): No arrest for acts in the discharge of official duties without the consent of the Central Government; the State may extend this to its public order forces.
• Sanction to prosecute (S.218, formerly S.197 CrPC): No court shall take cognizance of an offence by a Judge, Magistrate or public servant removable only by or with the sanction of the Government, alleged to have been committed while acting or purporting to act in the discharge of official duty, without previous sanction of the Central or State Government. The Government must decide within 120 days, failing which sanction is deemed granted; no sanction is needed for the offences listed in the third proviso (S.64 to S.66, S.68 to S.71, S.74 to S.79, S.143, S.199 and S.200 BNS). Sanction governs cognizance, not arrest.

Old Law to New Law

• S.41 CrPC to S.35 BNSS: Clauses (a) to (j) carry forward S.41(1) and S.41(2); the notice in S.41A becomes S.35(3) to (6).
• New S.35(7): DSP permission to arrest infirm persons or persons above 60 for offences punishable with less than three years.
• S.46 CrPC to S.43 BNSS: New S.43(3) on handcuffs, which partly departs from Prem Shankar Shukla (1980) by listing offences for which handcuffs may be used.
• S.43 CrPC to S.40 BNSS: A private person must now hand over the arrested person within six hours.
• S.41C CrPC to S.37 BNSS: Information about arrested persons must be displayed, including in digital mode.
• S.50A CrPC to S.48 BNSS: The designated police officer must also be informed.

Requirements

To test whether an arrest without warrant is lawful, check:

• Clause: Which clause of S.35(1) applies?
• Seven-year offences: For an offence up to 7 years, were the S.35(1)(b) conditions met and reasons recorded?
• Notice: If arrest was not necessary, was a notice issued under S.35(3), and did the person fail to comply (S.35(6))?
• Special classes: Did S.35(7), S.42 or the rules for judicial officers and legislators apply?
• Procedure: Were S.36, S.47 and S.48 complied with?
• Women: Were S.43(1) proviso, S.43(5) and S.49(2) complied with?
• Production: Was the person produced within 24 hours (S.58; Art.22(2))?
• Grounds: Were the grounds of arrest communicated, and in writing where the law requires it (Prabir Purkayastha)?

Illustrations

1. A shopkeeper sees someone snatch a purse and run. The nearest constable chases and arrests the snatcher on the spot (S.35(1)(a)); there is no time to go to a Magistrate for a warrant. This is why warrantless arrest exists. But if a woman files a dowry complaint and the police arrest the husband the next day without checking whether arrest is necessary, that is the misuse S.35(1)(b) guards against.

2. Suppose B files a complaint that her neighbour C damaged her garden wall (mischief under S.324 BNS, punishable with less than 7 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, as is usual in a petty dispute, the SHO records his reasons for not arresting and issues a notice under S.35(3) telling C to appear at the station on Tuesday at 10 AM. Only if C ignores the notice may he be arrested (S.35(6)).

3. Private arrest: A shopkeeper catches a burglar at night and locks him in a storeroom until morning, then calls the police after eight hours. The arrest itself is lawful (S.40(1)), but the delay beyond six hours breaches S.40(1).

4. Judicial officer: Police wish to arrest a Civil Judge for an alleged assault. They should first inform the District Judge; if immediate arrest is necessary, only a formal arrest should be made and reported at once (Delhi Judicial Service Association).

5. MP: An MP is arrested in a criminal case while Parliament is in session. He has no immunity (Anandan Nambiar), but the Speaker must be informed. Had it been a civil arrest under a money decree while the House was meeting, S.135A CPC would bar it.

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(1)(b) and S.35(3) to (6) carry these provisions forward.

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.

Delhi Judicial Service Association v State of Gujarat (1991) Delhi Judicial Service Association v State of Gujarat 1991

• Facts: After disputes with the local police, the Chief Judicial Magistrate of Nadiad was arrested on flimsy grounds by police officers, assaulted, handcuffed and tied with a rope, and his photographs were published (September 1989).
• Held: The Supreme Court punished the police officers for contempt and laid down guidelines for the arrest of judicial officers, including prior intimation to the District Judge or High Court, only formal arrest in urgent cases, no handcuffing except on violent resistance or imminent danger, and no statements or tests without a legal adviser or a judicial officer of equal or higher rank present.
• Principle: Arrest of a judicial officer must follow special safeguards to protect judicial independence.

K. Anandan Nambiar v Chief Secretary, Government of Madras (1965) K Anandan Nambiar v Chief Secretary Madras 1965

• Facts: Members of Parliament detained under the Defence of India Rules argued that their detention prevented them from attending Parliament and was therefore invalid.
• Held: A member of Parliament has no immunity from arrest or detention on a criminal charge or under a valid law of preventive detention. The rights of a member to attend and vote are not fundamental rights and do not override a lawful order of detention.
• Principle: Legislators have no privilege against criminal arrest or preventive detention.

Prabir Purkayastha v State (NCT of Delhi) (2024) Prabir Purkayastha v State NCT of Delhi 2024

• Facts: The appellant was arrested under the Unlawful Activities (Prevention) Act, 1967, and remanded without being given the grounds of arrest in writing.
• Held: The right to be informed of the grounds of arrest under Art.22(1) is a fundamental right. Following Pankaj Bansal (2023), the grounds must be supplied in writing. Since this was not done before remand, the arrest and remand were invalid, and he was ordered to be released.
• Principle: Grounds of arrest must be furnished to the arrested person in writing.

Rudul Sah v State of Bihar (1983) Rudul Sah v State of Bihar 1983

• Facts: The petitioner remained in jail for over 14 years after his acquittal.
• Held: The Supreme Court ordered his release and awarded compensation under Art.32 for the violation of Art.21, as a public law remedy, without prejudice to a civil suit.
• Principle: Unlawful detention can be compensated in writ jurisdiction.

Distinctions

Criticism and Debate

• Arrest as the default: Despite S.41 CrPC and Arnesh Kumar, studies and court orders show that arrests for minor offences remain common. Critics argue that the duty to record reasons is often met with standard phrases.
• Handcuffs (S.43(3)): Allowing handcuffs for listed offences at the time of arrest sits uneasily with Prem Shankar Shukla (1980), which treated handcuffing as an exception needing judicial approval.
• Grounds in writing: Prabir Purkayastha requires written grounds under Art.22(1), but S.47 BNSS speaks only of communicating "full particulars". Whether written grounds are required for all arrests under the BNSS is debated.
• Legislators: The absence of immunity ensures equality before the law, but the requirement to inform the Speaker shows a balance with parliamentary functioning.
• S.35(7): The protection for the elderly and infirm is welcome but narrow, since few offences are punishable with less than three years.

Essay Outline

1. Introduction: Arrest and Art.21, Art.22.
2. Police powers: S.35(1)(a) to (j); S.35(2).
3. Necessity test: S.35(1)(b); Joginder Kumar; Arnesh Kumar.
4. Notice of appearance: S.35(3) to (6); S.35(7).
5. Procedure and rights: S.36, S.43, S.47, S.48, S.58; D.K. Basu; Prabir Purkayastha.
6. Private persons and Magistrates: S.40, S.41.
7. Special classes: judicial officers (DJSA), legislators (Anandan Nambiar, S.135A CPC), Armed Forces (S.42).
8. Remedies: Rudul Sah; departmental action and contempt.
9. Critique and conclusion.

Recall Check

1. What conditions must a police officer satisfy under S.35(1)(b) before arresting for offences up to 7 years?
2. What is a notice of appearance under S.35(3)?
3. What does S.43(4) say about causing death during arrest?
4. Within what time must a private person hand over an arrested person?
5. What safeguards apply to the arrest of a judicial officer?
6. Does an MP have immunity from arrest in a criminal case?

Flashcards