Arrest of Persons under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Provision empowering police officers to arrest individuals without warrant in specified circumstances.

Introduction

Arrest is an important procedural step in criminal law used to secure the presence of an accused before the court and to ensure proper investigation of offences. Section 35 of the lays down the circumstances in which a police officer may arrest a person without a warrant. This provision largely corresponds to Section 41 of the and incorporates safeguards to prevent arbitrary arrest while enabling effective investigation.

Meaning of Arrest

Arrest refers to the act of taking a person into custody under legal authority for the purpose of preventing or responding to a criminal offence. It involves the deprivation of personal liberty and must therefore comply with constitutional and statutory safeguards.

The power of arrest is balanced by the protection of personal liberty guaranteed under Article 21 of the .

Section 35 BNSS – Arrest without Warrant

Section 35 empowers a police officer to arrest a person without an order from a Magistrate and without a warrant under certain conditions.

Grounds for Arrest

A police officer may arrest a person without warrant if:

1. The person has committed a cognizable offence in the presence of the police officer.
2. A reasonable complaint has been made, credible information has been received, or reasonable suspicion exists that the person has committed a cognizable offence punishable with imprisonment up to seven years, provided that arrest is necessary for specific purposes.

Conditions for Arrest (Offence punishable up to 7 years)

In cases where the offence is punishable with imprisonment up to seven years, the police officer must believe that arrest is necessary for one or more of the following reasons:

• To prevent the person from committing any further offence.
• For proper investigation of the offence.
• To prevent the person from causing disappearance of evidence.
• To prevent the person from influencing or threatening witnesses.
• To ensure the person’s presence in court.

The police officer must record reasons in writing while making the arrest.

Offences Punishable with More than Seven Years

If a person is accused of committing an offence punishable with imprisonment exceeding seven years or with death penalty, the police officer may arrest the person if credible information exists and the officer believes the person has committed the offence.

Arrest of Proclaimed Offenders

A police officer may arrest a person without warrant if the person:

• Has been declared a proclaimed offender.
• Possesses stolen property and is suspected of committing theft-related offences.
• Obstructs a police officer in the execution of lawful duties.
• Is reasonably suspected of being a deserter from the armed forces.

Arrest of Person Concerned in Cognizable Offence Outside India

If a person is suspected of committing an offence outside India that would be punishable in India, the police officer may arrest such person under applicable extradition laws.

Safeguard against Unnecessary Arrest

Section 35 incorporates an important safeguard against arbitrary arrest. When arrest is not required, the police officer must issue a notice of appearance to the accused instead of arresting them.

This principle reflects the jurisprudence developed by the Supreme Court of India in:

• (2014)

Principle from Arnesh Kumar Case

The Supreme Court held that arrest should not be automatic and police officers must justify the necessity of arrest. The Court directed police officers to follow strict guidelines before making arrests in offences punishable up to seven years.

Procedure and Documentation

Section 35 requires police officers to:

• Record reasons for arrest in writing.
• Record reasons if arrest is not made.
• Ensure compliance with procedural safeguards.

This requirement increases transparency and accountability in criminal investigations.

Relationship with Other BNSS Provisions

Section 35 is closely connected with the following provisions of the :

• Section 36 – Procedure of arrest and duties of officer.
• Section 37 – Designated police officer to maintain arrest records.
• Section 39 – Right of arrested person to inform relatives or friends.
• Section 43 – Arrest by private person.

These provisions collectively ensure that arrest powers are exercised within a structured legal framework.

Illustrative Example

If a police officer receives credible information that a person committed theft and the officer believes the accused may destroy evidence or flee, the officer may arrest the person without warrant under Section 35.

However, if the offence is minor and the accused is cooperating with the investigation, the police officer may issue a notice of appearance instead of arresting the person.

Key Examination Points

• Section 35 BNSS corresponds to Section 41 CrPC.
• Arrest without warrant is allowed only in specified circumstances.
• Reasons for arrest must be recorded in writing.
• Arrest must be necessary for investigation or justice.
• Supreme Court guidelines discourage unnecessary arrests.

Conclusion

Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 regulates the power of arrest without warrant and introduces safeguards to prevent misuse. By requiring police officers to justify arrests and record reasons, the provision balances the need for effective criminal investigation with the protection of individual liberty.