Arrest – How Made under Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Provision explaining the legal method and manner in which an arrest must be carried out.

Introduction

Arrest is a fundamental step in the criminal justice process that enables law enforcement authorities to take a person accused of committing an offence into custody. However, the law prescribes specific procedures regarding how an arrest should be carried out to ensure that personal liberty is not violated.

Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure regarding how an arrest must be made. The provision ensures that arrests are conducted lawfully, respectfully, and with minimal use of force. It substantially corresponds to Section 46 of the Code of Criminal Procedure, 1973.

Meaning of Arrest

Arrest refers to the act of taking a person into custody under lawful authority for the purpose of answering a criminal charge or preventing the commission of a crime. It involves restraint on the liberty of a person and therefore must be performed according to legal procedure.

Section 40 specifically deals with the method or manner in which arrest must be effected.

Method of Making an Arrest

According to Section 40 BNSS, an arrest is made by actually touching or confining the body of the person to be arrested, unless the person submits to custody by word or action.

Thus, arrest may occur in two ways:

1. Physical restraint – where the police officer physically takes control of the accused.
2. Submission to custody – where the accused voluntarily agrees to accompany the police officer.

In both situations, the person is considered legally arrested.

Submission to Custody

If the person willingly submits to the authority of the police officer, there is no need to physically touch or restrain them.

For example, if the police officer informs the accused that they are under arrest and the accused agrees to accompany the officer, the arrest is considered valid.

Use of Force in Making Arrest

If the person attempts to resist arrest or tries to evade custody, the police officer may use reasonable force to make the arrest.

However, the law requires that the force used must be necessary and proportionate to the circumstances.

Excessive or unnecessary force during arrest is prohibited and may lead to legal consequences.

Restriction on Causing Death

Section 40 clearly states that the police officer must not cause the death of a person who is not accused of an offence punishable with death or life imprisonment.

This safeguard ensures that lethal force cannot be used except in the most serious situations.

Arrest of Women

A special safeguard is provided for women during arrest.

A woman should not be arrested after sunset and before sunrise, except in exceptional circumstances where such arrest is necessary.

In such cases, the police officer must obtain prior permission from a Judicial Magistrate and must record the reasons for making such arrest.

Additionally, arrest of a woman should preferably be made by a female police officer.

Purpose of the Provision

Section 40 aims to:

• Ensure lawful and transparent arrest procedures.
• Protect individuals from excessive use of force.
• Provide safeguards for vulnerable persons, particularly women.
• Maintain the balance between law enforcement and personal liberty.

Connection with Other BNSS Provisions

Section 40 must be read along with other provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 relating to arrest, including:

• Section 35 – Arrest of persons
• Section 36 – Procedure of arrest and duties of officer making arrest
• Section 37 – Arrest by private person
• Section 38 – Arrest by Magistrate
• Section 39 – Protection of members of armed forces from arrest

Together, these provisions create a comprehensive legal framework governing arrests in India.

Illustrative Example

If a police officer informs an accused person that they are under arrest for committing theft and the accused willingly accompanies the officer to the police station, the arrest is considered valid even without physical restraint.

However, if the accused attempts to flee, the police officer may use reasonable force to restrain and arrest the person.

Important Points for Examination

• Section 40 BNSS corresponds to Section 46 CrPC.
• Arrest is made by touching or confining the body of the accused.
• If the accused submits to custody, physical force is not required.
• Reasonable force may be used if the accused resists arrest.
• Death cannot be caused unless the accused is charged with a very serious offence.
• Special safeguards exist for the arrest of women.

Conclusion

Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides the legal framework governing the manner in which arrests must be made. By regulating the use of force and introducing safeguards for individuals, the provision protects personal liberty while enabling law enforcement authorities to perform their duties effectively.