Introduction:
Arrest involves the apprehension of individuals suspected of committing a crime or offense. It is a temporary deprivation of freedom, for effective interrogation and investigation in the case. In this article, we will examine the policy, procedure, forms and framework of arrest in general under Bharatiya Nagarik Suraksha Sanhita (BNSS)
Significance and policy of the arrest:
By restricting an individual's movement, arrest instills a sense of accountability and deters the potential offenders. It also helps in aiding the investigation process as when the accused is under arrest, the chances of absconding after committing the crime offender are nil.
Watch JudiX’s 1 minute video lecture on Arrest and Anticipatory bail under BNSS
Forms of Arrest:
Arrest in India is broadly categorized into two types:
1. Arrest with a Warrant:
- Issued by a magistrate or judge, a warrant is necessary for non-cognizable offenses.
- Section 35(2) BNSS says that: Subject to the provisions of section 39 of BNSS, no person concerned in a non-cognizable offence oragainst whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.
2. Arrest without a Warrant:
- Police can arrest without a warrant in cases of cognizable offenses based on reasonable complaints or credible information. Section 35(1) BNSS details about the same.
- Section 39 of BNSS details the arrest procedure when a person refuses to provide their name or address.
3. Arrest by a Private Person:
- Private individuals can arrest someone under Section 40 of BNSS for a non-bailable offense committed in their presence or when a crime is committed against a person or property.
- Specific conditions, including sufficient apprehension and a justifiable cause, must be met.
4. Arrest by a Magistrate:
- Magistrates, both executive and judicial, can arrest a person within their jurisdiction.
- Section 41 of BNSS grants magistrates the power to arrest individuals committing offenses in their presence.
Procedures and Protections:
- Section 43 of BNSS defines how an arrest is made, emphasizing upon the physical restraint of the person.
- Protections against arbitrary arrest are also enshrined in the Constitution. Article 22 guarantees the rights of an arrested person, including the right to be informed of the grounds of arrest and to consult a legal practitioner.
Important case laws on areest procedures in India.
1. State of Bombay v. Kathi Kalu Oghad:
- This case defines arrest as "a physical restraint put on a person as a result of accusations of the crime or offense he has committed."
2. Hussainara Khatoon v. State of Bihar:
- In this Public Interest Litigation (PIL), the Supreme Court held that an accused unable to afford legal services has the right to free legal aid provided by the state as it is the duty of the state to arrange free legal services for those who cannot access justice due to economic conditions or other disabilities.
3. Joginder Kumar v. State of UP:
- This landmark case emphasizes the right of an accused to be informed of the grounds of the offense, informed about their arrest, and to consult a lawyer.
4. State of Punjab v. Ajaib Singh:
- Defined arrest as a "physical restraint resulting from accusations of a crime." The case emphasized the importance of adherence to the Defence of India Act, 1962, and associated rules in executing orders of detention.
5. In re Madhu Limaye Case:
- Highlighted the violation of an essential and vital right when an arrested person was not informed about the grounds of arrest. The case affirmed that such violations can be challenged under Article 32, underscoring the significance of protecting fundamental rights.
Post-Arrest Procedures:
- Section 47 BNSS mandates informing the accused of the grounds of arrest immediately.
- Section 53 BNSS provides for the medical examination of the accused, ensuring a balance between individual rights and the need for evidence.
FAQs on Arrest Procedures in India:
1. What is the significance of arrest in the criminal justice system?
- Arrest is a fundamental aspect that involves apprehending individuals suspected of committing a crime, allowing effective interrogation and investigation. It signifies a temporary deprivation of freedom.
2. Why is the study of arrest procedures essential in our daily lives?
- Understanding arrest procedures is crucial as it balances personal freedom and societal well-being, instilling accountability, and deterring potential offenders.
3. What are the forms of arrest in India?
- Arrest in India is broadly categorized into:
- Arrest with a Warrant
- Arrest without a Warrant
- Arrest by a Private Person
- Arrest by a Magistrate
4. What conditions warrant an arrest without a warrant?
- Police can arrest without a warrant in cases of cognizable offenses based on reasonable complaints or credible information. Specific conditions are detailed in Section 39 of BNSS.
5. Can private individuals make arrests in India?
- Yes, private individuals can arrest someone under Section 40 of BNSS for a non-bailable offense committed in their presence or when a crime is committed against a person or property.
6. What protections are in place against arbitrary arrest?
- Protections against arbitrary arrest are enshrined in the Constitution and CrPC. Article 22 guarantees rights, including being informed of the grounds of arrest and the right to consult a legal practitioner.
7. What role do case laws play in shaping arrest procedures in India?
- Case laws, such as State of Bombay v. Kathi Kalu Oghad and Hussainara Khatoon v. State of Bihar, set precedents emphasizing procedural correctness, protection of fundamental rights, and adherence to legal frameworks.
8. How does the Constitution safeguard the rights of an arrested person?
- Article 22 of the Constitution guarantees the rights of an arrested person, including being informed of the grounds of arrest and the right to consult a legal practitioner.
9. What are the post-arrest procedures mandated by law?
- Post-arrest procedures include immediate notification of grounds of arrest (Section 47 BNSS), medical examination (Section 53 BNSS).
10. How do these arrest procedures contribute to the balance between individual rights and law enforcement needs?
- These procedures aim to strike a delicate balance between individual rights and societal justice, ensuring justice is served while safeguarding fundamental liberties.
Notes on Arrest under BNSS (Bharatiya Nagarik Suraksha Sanhita)
Comments