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BHARATIYA NAGARIK SURAKSHA SANHITA (BNSS), 2023
PART 3 – Arrest, Rights of Arrested Persons, Police Powers, Search and Seizure
Exam Focus: JKSSB | JKPSC | SSC | UPSC | Banking | State PCS | Police Recruitment
CHAPTER 3: ARREST UNDER BNSS
Meaning of Arrest
An arrest is the lawful act of taking a person into custody by a police officer or another authorized person so that the person may answer for an alleged offence before a court.
Objectives of Arrest
Prevent the accused from escaping.
Ensure a proper investigation.Prevent further offences.
Protect witnesses and evidence.
Secure the accused's appearance before the court.
Example
If a person is alleged to have committed robbery and there is reasonable legal basis for arrest, the police may arrest the person according to the procedure laid down in BNSS.
Essentials of a Valid Arrest
A lawful arrest generally requires that:
It is authorized by law.
The police identify themselves.
The grounds of arrest are communicated to the arrested person.
The arrest follows the prescribed legal procedure.
Constitutional and statutory safeguards are respected.
Types of Arrest
1. Arrest With Warrant
A court issues a warrant directing the police to arrest a particular person.
Example: A court issues a warrant against an accused who repeatedly fails to appear before the court.
Features
Issued by a competent court.
Must contain the name/details of the accused.
Must bear the signature and seal of the court where required.
2. Arrest Without Warrant
Police may arrest without a warrant in situations permitted by BNSS, such as certain cognizable offences, subject to legal safeguards.
Example: If a police officer witnesses a serious cognizable offence being committed, the officer may arrest the accused without first obtaining a warrant.
Who Can Arrest?
The following may arrest in circumstances authorized by law:
Police Officer
Magistrate (in certain situations provided by law)
Private person (in limited circumstances recognized by law, such as apprehending a person committing certain offences and handing them over to the police without unnecessary delay)
Rights of an Arrested Person
These rights are important for competitive examinations and stem from the Constitution and criminal procedure.
1. Right to Know the Grounds of Arrest
The arrested person must be informed of the reasons for the arrest.
Article 22(1) of the Constitution provides an important safeguard in this regard.
2. Right to Consult and Be Defended by a Lawyer
An arrested person has the right to consult and be defended by a legal practitioner of their choice.
3. Right to Be Produced Before a Magistrate
A person arrested by the police must ordinarily be produced before the nearest Magistrate within 24 hours of arrest, excluding the time necessary for the journey, unless otherwise authorized by law.
This safeguard is reflected in Article 22(2) of the Constitution.
4. Right Against Illegal Detention
No person should be detained beyond the period permitted by law without the authority of a Magistrate.
5. Right to Medical Examination
Medical examination may be conducted in situations provided by law to protect the interests of justice and the rights of the accused.
6. Right to Inform a Relative or Friend
The arrested person is entitled to have a relative, friend, or another nominated person informed about the arrest, in accordance with legal requirements.
Arrest of Women
BNSS provides safeguards relating to the arrest of women.
Important principles include:
Women should be treated with dignity and respect.
Arrest procedures must comply with statutory safeguards.
The law contains provisions relating to the manner and timing of arrest in appropriate circumstances.
Exam Tip: Questions often test awareness of the existence of special safeguards for women during arrest rather than minute procedural details.
Use of Force During Arrest
A police officer may use only such force as is reasonably necessary to effect a lawful arrest.
Unnecessary or excessive force is not permitted.
Handcuffing
BNSS introduced provisions recognizing the use of handcuffs in specified categories of cases, subject to the conditions laid down by law.
This is a significant point of difference often tested in examinations.
Police Custody vs Judicial Custody
| Police Custody | Judicial Custody |
|---|---|
| Accused remains in the custody of the police. | Accused is lodged in jail under the authority of the court. |
| Used primarily for investigation as permitted by law. | Investigation by direct police custody is not available unless permitted by further judicial orders. |
| Subject to judicial oversight. | Prison authorities maintain custody. |
Meaning
A search is the lawful examination of a person, place, or property to discover evidence connected with an offence.
Objectives
Recover stolen property.
Seize weapons.
Find documents.
Collect electronic devices or other evidence where authorized.
Prevent destruction of evidence.
Types of Search
Search with a Warrant
Conducted under the authority of a warrant issued by a competent court.
Search without a Warrant
Permitted in certain situations specified by law, particularly where immediate action is necessary and the statutory conditions are fulfilled.
Search of a Person
A person may be searched following the legal procedure after arrest or where otherwise authorized by law.
Search of Premises
Police may search a house, office, or other premises when empowered by law.
Search of Electronic Devices
Modern investigations may involve the seizure or examination of electronic devices in accordance with legal procedure and safeguards.
Examples include:
Mobile phones
Laptops
Computers
Hard drives
Digital storage devices
Seizure
Meaning
Seizure means taking lawful possession of property connected with an offence for investigation or trial.
Examples
Knife used in an assault.
Counterfeit currency.
Forged documents.
Stolen jewellery.
Mobile phone used in cybercrime.
Why is Seizure Important?
It helps:
Preserve evidence.
Prevent tampering.
Assist forensic examination.
Support prosecution during trial.
Role of Forensic Science
BNSS places greater emphasis on scientific investigation.
Common forensic techniques include:
DNA profiling
Fingerprint analysis
Ballistics
Cyber forensics
Voice analysis
Handwriting examination
Toxicology
Duties of Police During Investigation
Police should:
Register information where required.
Collect evidence lawfully.
Record witness statements.
Conduct searches according to law.
Protect the rights of victims and accused.
Submit the police report to the court after completing the investigation.
Important Constitutional Safeguards
| Article | Provision |
|---|---|
| Article 20 | Protection in respect of conviction for offences (including protection against double jeopardy and self-incrimination as applicable). |
| Article 21 | Protection of life and personal liberty. |
| Article 22 | Safeguards against arbitrary arrest and detention. |
| Arrest | Detention |
|---|---|
| Formal legal custody. | Temporary restraint that may or may not amount to arrest, depending on the circumstances. |
| Person becomes an accused or suspect under lawful process. | May be for inquiry or preventive purposes where authorized by law. |
BNSS replaced the Code of Criminal Procedure, 1973.
Grounds of arrest must be communicated to the arrested person.
An arrested person has the right to consult a lawyer.
Production before a Magistrate is ordinarily required within 24 hours, excluding travel time.
Police custody and judicial custody are different.
BNSS gives greater importance to forensic investigation and technology.
Search and seizure must follow the legal procedure.
Practice MCQs
1. Which Article of the Constitution provides safeguards relating to arrest and detention?
A. Article 14
B. Article 19
C. Article 22
D. Article 32
Answer: C
2. A person arrested by the police should ordinarily be produced before a Magistrate within:
A. 12 hours
B. 24 hours (excluding journey time)
C. 48 hours
D. 72 hours
Answer: B
3. Which of the following is an example of scientific evidence?
A. DNA Profile
B. Fingerprint Analysis
C. Ballistic Examination
D. All of the above
Answer: D
4. Judicial custody means:
A. Custody with police for investigation
B. Custody in jail under the authority of the court
C. House arrest
D. Private detention
Answer: B
Statement-Based Questions
Q1. Consider the following statements:
An arrested person has the right to know the grounds of arrest.
An arrested person has the right to consult a lawyer.
Choose the correct answer:
A. Only 1
B. Only 2
C. Both 1 and 2
D. Neither 1 nor 2
Answer: C
Q2. Consider the following statements:
BNSS places increased emphasis on forensic investigation.
Police custody and judicial custody are the same.
Choose the correct answer:
A. Only 1
B. Only 2
C. Both 1 and 2
D. Neither 1 nor 2
Answer: A