Arrest without warrant -Section 35-BNSS-Law notes
Introduction : Arrest of a person
BACKGROUND
Art 21 of the Indian Constitution states “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Art 22 is related to ‘Protection against arrest and detention in certain cases’. Art 22 states that No person who is arrested shall be detained in custody without being informed the reasons, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.It also states that, Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest.
Arrest : There is no explicit definition of Arrest in BNS or BNSS but generally we can say that, An arrest is the legal process of taking a person into police custody, restraining their freedom, and detaining them because they are suspected of committing a crime.
Detention : In a legal context, detention is the act of temporarily holding a person in custody, such as a police station. The physical restraint put upon a person and taking him into custody without allegation is not arrest but detention.Detention may be for investigation or prevention. If a person is detained, he is not necessarily a suspect in criminal case but if a person is arrested, he is accused of violating the law. An arrest affects person’s liberty, dignity and may be future which is not the case with detention.
Custody : Custody is the temporary physical control or confinement of a person by authorities.The accused is under surveillance of the police. It may be actual imprisonment.Their are two types of custody: Police Custody (the accused is locked up at a police station for interrogation) and Judicial Custody (the accused is remanded to jail under the Magistrate’s authority).
Section 2(1)(g) of BNSS Cognizable offence : “Cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule(related to classification of statutes) or under any other law for the time being in force, arrest without warrant eg Murder, Rape, Kidnapping, Dowry death, Theft.
Section 2(1)(o) of BNSS Non-cognizable offence : “Non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant. Eg. Defamation, Public nuisance, Simple hurt, Cheating.
Section 35 : When police may arrest without warrant. (Section 41 of CrPC)
Section 35(1) allows any police officer to arrest a person without an order from Magistrate and without a warrant, who has committed a cognizable offence in his presence, and against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence. But this arrest is conditional. First, the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence which is punishable up to seven years and secondly the police officer is satisfied that such arrest is necessary for certain future possibilities such as,
*prevent such person from committing any further offence,
*for proper investigation, tampering with evidence in any manner,
*to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case,
*presence of such person in the Court whenever required cannot be ensured.
This section is with proviso(condition) that, a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
Section 35(1) also empowers the police officer to arrest without warrant to a person
– against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or death punishment;
– who has been proclaimed as an offender;
– in whose possession anything is found which may reasonably be suspected to be stolen property;
– who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
– who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;
– Such person has committed any act at any place out of India which, if committed in India, would have been punishable as an offence;
– Such person under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India;
– who, being a released convict, commits a breach of any rule
-another police officer who has been received any requisition specifying the person to be arrested with cause for arrest.
Section 35(2) states that, if a person has committed a non-cognizable offence he should not be arrested except under a warrant or order of a Magistrate but, subject to the provision of section 39, arrest can be made on refusal to give name and address.
Section 35(3) makes it clear that where the arrest of a person is not required under section 35(1), the police officer is required to issue notice directing the accused to appear before him at a specified place and time.
Section 35(4) states that, where such notice is issued, to any person, it should be the duty of that person to comply with the terms of the notice.
Section 35(5) states that, If such an accused complies with the terms of notice, he shall not be arrested, unless for reasons to be recorded the police officer is of the opinion that, arrest is necessary.
Section 35(6) states that, where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
Section 35(7) states that, No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age