Introduction
An arrest is one of the most significant steps that can affect a person’s liberty. At the same time, arrest is not intended to be an automatic consequence of every criminal complaint or allegation.
The law prescribes circumstances in which police may arrest a person, the procedure that must be followed, and certain safeguards available to an arrested person.
Since the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has replaced the Code of Criminal Procedure, 1973 (CrPC), questions relating to arrest should now be understood primarily with reference to the BNSS and other applicable laws.
This article explains, in simple language, who can arrest a person, when arrest without a warrant may take place, what information must be given to the arrested person, and what important safeguards apply after arrest.
What is an Arrest?
In simple terms, arrest involves taking a person into lawful custody or restraining the person’s liberty under legal authority.
An arrest should be distinguished from merely being questioned by the police. A person may be called for questioning without necessarily being arrested, depending upon the circumstances and applicable law.
The legal framework governing arrest is designed to balance two interests:
- effective investigation of offences; and
- protection of an individual’s personal liberty.
When Can Police Arrest Without a Warrant?
The BNSS provides circumstances in which a police officer may arrest a person without an order from a Magistrate and without a warrant.
For example, Section 35 of the BNSS deals with circumstances in which police may arrest without a warrant. These include certain situations involving cognizable offences and circumstances where statutory conditions relating to the necessity of arrest are satisfied.
For offences punishable with imprisonment of up to seven years, the statutory framework is particularly important: the police officer must have the requisite basis for believing that the person committed the offence and must consider the conditions specified by law before making the arrest.
Therefore, a criminal complaint by itself should not be understood as meaning that arrest is automatically mandatory.
The precise position depends upon:
- the offence alleged;
- whether the offence is cognizable or non-cognizable;
- the punishment prescribed;
- the facts and circumstances of the case; and
- the statutory requirements governing arrest.
Arrest and Cognizable Offences
A cognizable offence is an offence for which the law gives police certain powers to investigate and, subject to the statutory conditions, arrest without a warrant.
Section 35 of the BNSS specifically sets out circumstances in which police may arrest without warrant in connection with cognizable offences.
However, whether an arrest is legally justified must always be determined from the particular facts and the applicable statutory provisions.
What Information Must Be Given to an Arrested Person?
One of the important safeguards under the BNSS is that a person arrested without a warrant must be informed of the full particulars of the offence or the grounds for arrest.
Section 47 of the BNSS provides this requirement. It also states that, in applicable cases involving a person arrested without warrant for an offence other than a non-bailable offence, the person must be informed of the right to bail.
This means that a person should not ordinarily be left unaware of why he or she has been arrested.
Right to Inform a Relative or Friend
The BNSS also contains safeguards regarding communication of the arrest.
Under Section 48, the police officer or other person making the arrest is required to give information regarding the arrest and the place where the arrested person is being held to a relative, friend, or another person nominated by the arrested person for receiving such information.
The provision also requires the police to inform the arrested person of this right when the person is brought to the police station.
This safeguard can be particularly important when a person is taken into custody unexpectedly.
Special Rule Regarding Arrest of Women
The BNSS contains a specific safeguard concerning the arrest of women.
Section 43 provides that, except in exceptional circumstances, a woman should not be arrested after sunset and before sunrise. Where exceptional circumstances exist, the woman police officer is required to make a written report and obtain prior permission from the Magistrate of the first class having the relevant jurisdiction.
The exact application of this provision depends upon the facts and circumstances of the case.
What Happens After Arrest?
After arrest, several procedural safeguards become relevant.
Depending upon the circumstances, the arrested person may be required to be produced before the appropriate Magistrate within the period prescribed by law, subject to constitutional and statutory provisions governing detention and remand.
The Magistrate’s role is important because continued detention is not simply a matter of police discretion.
The court examines the legal basis for further custody according to the applicable procedure.
Right to Legal Assistance
A person facing arrest or already in custody may require immediate legal advice.
Legal representation can be particularly important during the initial stages of a criminal case, including arrest, police questioning, bail proceedings and remand.
The National Legal Services Authority (NALSA) states that persons called for questioning and persons arrested by police can also access legal aid under its early-access-to-justice framework.
NALSA also provides free legal services in appropriate cases, including representation by advocates and legal advice.
A person seeking urgent legal assistance can contact the NALSA helpline at 15100.
Can an Arrested Person Get Bail?
Bail depends upon the nature of the offence and the applicable law.
A distinction is generally made between:
- Bailable offences
- Non-bailable offences
In a bailable offence, the statutory right to bail operates subject to the applicable provisions.
In a non-bailable offence, bail is not automatically available as a matter of right, but the accused may seek bail from the competent court.
The exact procedure and conditions depend upon the offence and the circumstances of the case.
Important Rights and Safeguards After Arrest
A person who has been arrested should be aware of several basic safeguards, including:
1. Know the grounds of arrest
The arrested person should be informed of the offence or grounds for arrest as required by law.
2. Information to a relative or friend
Information regarding the arrest and place of custody is required to be communicated to a nominated relative, friend or other person in accordance with the BNSS.
3. Legal assistance
An arrested person may seek legal assistance, including legal aid where eligible.
4. Bail where legally applicable
The arrested person should understand whether the alleged offence is bailable or non-bailable and take appropriate legal advice.
5. Judicial oversight of detention
Further custody is subject to the procedure established by law and the relevant orders of the competent court.
What Should a Person Do If Police Say They Are Going to Arrest Them?
If you are facing a possible arrest, avoid confrontation with police officers.
Instead:
- Remain calm.
- Ask clearly what offence or case is involved.
- Seek advice from a criminal lawyer as soon as possible.
- If eligible, contact the appropriate Legal Services Authority for legal aid.
- Inform a trusted family member or person.
- Do not sign documents without understanding their nature and legal implications.
- Do not attempt to destroy evidence, threaten witnesses or obstruct the investigation.
Every criminal case is fact-specific, so professional legal advice should be obtained where an actual arrest or criminal proceeding is involved.
Conclusion
Arrest is a serious legal measure because it directly affects a person’s liberty. At the same time, police have statutory powers to arrest in circumstances provided by law.
The Bharatiya Nagarik Suraksha Sanhita, 2023 sets out important provisions concerning arrest without warrant, communication of the grounds of arrest, information to relatives or friends and other procedural safeguards.
Understanding these safeguards can help a person respond appropriately if they or a family member becomes involved in a criminal investigation.
Disclaimer: This article is intended for general legal information and education. It is not a substitute for legal advice in a particular case. Criminal procedure can vary according to the facts, offence and applicable law. Consult a qualified advocate for advice concerning a specific matter.