Circumstances Under Which Police May Arrest a Person Without a Warrant

Introduction

Arrest is one of the most coercive acts exercised by the State through its police machinery. It involves curtailing a person’s liberty and detaining them for investigation or trial. In India, the law relating to arrest is primarily governed by the Code of Criminal Procedure, 1973 (CrPC), (which is now Bhartiya Nagarik Suraksha Samhita, 2023(BNSS)). While in ordinary circumstances, police require a warrant issued by a magistrate to arrest a person, the BNSS also provides for situations where police may arrest without such a warrant. These are usually emergencies or situations where obtaining a warrant would defeat the purpose of the arrest, such as preventing an escape, preserving evidence, or ensuring public safety.

Legal Framework Governing Arrest Without Warrant

1. Section 35 of the BNSS: Core Provision

Section 35 of the BNSS is the principal provision that outlines the circumstances under which a police officer may arrest without a warrant. It mainly describe the cognizable offences, done in presence of police officer arresting the criminal or there is a reasonable suspicion or information that a cognizable offence has been committed.

Section 35(1)(a): Arrest in Cognizable Offences

A police officer is authorized to arrest without a warrant any person who falls under certain legal conditions:

• Who has committed a cognizable offence, or

• Who is the subject of a reasonable complaint, or against whom credible information has been received, or

• If reasonable suspicion exists that he has committed a cognizable offence.

A cognizable offence refers to a crime in which the police have the authority to file a case and begin an investigation without needing prior permission from a magistrate. Common examples include murder, rape, kidnapping, and dacoity.

Section 35(1)(b): Arrest in Cases Punishable with Less Than 7 Years

When the alleged offence is punishable with imprisonment less than or up to seven years, the police can arrest without warrant only if it is necessary to prevent further commission of the offence, ensure proper investigation, prevent tampering with evidence or influence on witnesses, ensure presence of the accused in court. However, the officer must record reasons in writing justifying the arrest.

Section 35(1)(c): Offence Punishable with Imprisonment for more than 7 years

As per Section 35(1)(c), an arrest without a warrant is allowed if there is evidence indicating that the person has committed a cognizable offence punishable with imprisonment exceeding seven years or with the death penalty.

Section 35(1)(d): Proclaimed Offender

A person declared a proclaimed offender under Section 84 BNSS may be arrested without a warrant. The arrest under this provision is grounded in the official proclamation, which acts as the legal foundation allowing the police to proceed without obtaining a separate warrant. This provision authorizes the police to act against individuals who have been formally declared offenders by the competent authorities.

Section 35(1)(e): Possession of Stolen Property

If a person is found in possession of property suspected to be stolen, and the officer reasonably suspects that the person committed a cognizable offence, arrest without warrant is permitted. The officer should also be convinced that the person is unlikely to appear in court unless taken into custody.

Section 35(1)(f): Escaped Convict

The police are empowered to arrest any individual who escapes from lawful custody, without requiring a warrant.This provision grants the police the authority to act promptly in cases where there is resistance or an attempt to escape arrest, thereby facilitating the effective performance of their responsibilities.

2. Section 39 BNSS: Refusal to Give Identity

If a person has committed a non-cognizable offence (for which police cannot arrest without magistrate’s permission) but the person refuses to give name and residence, or provides false details, then police may arrest him to ascertain identity.

Once identity is confirmed, the person must be released on bond, unless required to be taken before a magistrate.

3. Section 170 BNSS: Preventive Arrests

Police may arrest a person without a warrant to prevent the commission of a cognizable offence, provided the following conditions are satisfied:

• The officer has reason to believe that the offence cannot be prevented by any other means, and

• The person is about to commit the offence.

Nonetheless, the arrested individual must be brought before a magistrate within 24 hours, and cannot be held in custody beyond that time unless judicial custody is sanctioned.

4. Section 43 BNSS: Method of Arrest

While this section does not directly deal with arrests without a warrant, it lays down key guidelines on how an arrest should be carried out. It allows police officers to use reasonable and necessary force if the person resists or attempts to escape arrest. Additionally, it provides special protection for women by prohibiting their arrest between sunset and sunrise, unless exceptional circumstances exist and prior approval is obtained from a magistrate.

5. Section 62 BNSS: Arrest Must Be Lawful

This section emphasizes that arrests must strictly follow the procedures laid down in the Bhartiya Nagarik Suraksha Samhita(BNSS). It clearly establishes that any arrest made outside these legal provisions—whether with or without a warrant—is considered arbitrary and unlawful. This serves as a safeguard against misuse of police powers and protects individual rights.

6. Section 40 BNSS: Arrest by Private Persons 

Interestingly, the BNSS also grants private individuals the authority to carry out an arrest in certain situations. A private person may arrest someone who either:

• Engages in a cognizable and non-bailable offence in the direct view of the police officer, or
• Identified as a proclaimed offender.

However, it is mandatory that the arrested person be handed over to the nearest police officer or station without any unnecessary delay and within 6 hours of such arrest.

This provision acts as a legal tool for public participation in maintaining law and order. However, it must be exercised cautiously to avoid misuse or wrongful detention. The police, upon taking custody, are then responsible for proceeding according to legal procedures, including presenting the accused before a magistrate within 24 hours.

Judicial Interpretation and Guidelines

1. D.K. Basu v. State of West Bengal (1997)

The Court laid down mandatory guidelines to be followed by police during any arrest:

1. Police identification: Arresting officers must wear clear name tags and provide identification.
2. Arrest memo: It is required to be created at the time of the arrest and must be signed by a witness, ideally a family member or a nearby resident.
3. Family intimation: The family or friend of the arrested person must be informed immediately about the arrest.
4. Health check-ups: The arrested individual must undergo a medical examination every 48 hours by a government doctor during detention.
5. Police diary entry: Details of the arrest, including time, date, and circumstances, must be recorded in the police diary.

Any violation of these guidelines constitutes a breach of Article 21 of the Constitution, which guarantees the right to life and personal liberty.

2. Arnesh Kumar v. State of Bihar (2014)

In this important judgment, the Supreme Court laid down restrictions on arrest in offences punishable with imprisonment up to 7 years, such as under Section 498A IPC (dowry harassment):

1. No automatic arrest: Police should not arrest the accused automatically for such offences.
2. Section 41 compliance: Arrest must be justified based on the criteria provided in Section 41 of CrPC (now Section 35 of BNSS).
3. Recording of reasons: The officer must record valid reasons in writing explaining why the arrest is necessary.
4. Judicial oversight: Magistrates must ensure that the arrest was legal and necessary before authorizing further detention.

The judgment aims to curb misuse of arrest powers, especially in domestic disputes, and uphold the personal liberty guaranteed under Article 21 of the Constitution.

3. Joginder Kumar v. State of U.P. (1994)

The Supreme Court clarified that police officers cannot arrest a person solely because they are empowered to do so. The arrest must be justified by the facts and circumstances, necessary to prevent further harm or ensure investigation, and must not be carried out as a routine or mechanical procedure. This upholds the principle that personal liberty cannot be restricted without just cause, in line with Article 21 of the Constitution.

Safeguards Against Arbitrary Arrest

To ensure that warrantless arrests are not abused, several safeguards exist:

1. Right to Be Informed of Grounds of Arrest (Section 47 BNSS & Article 22(1) of Constitution)

A person arrested without a warrant must be informed of the grounds for their arrest at the time of arrest. Additionally, if the offence is bailable, they must be informed of their right to seek bail. This is a constitutional and statutory safeguard to ensure transparency and protect individual liberty.

2. Production Before Magistrate (Section 58 BNSS & Article 22(2))

The individual who has been arrested must be brought before a magistrate within 24 hours of the arrest, excluding the time taken for travel. Any detention beyond this period without the magistrate’s authorization is considered illegal and a violation of Article 22(2) of the Constitution. This safeguard ensures judicial oversight and protects against unlawful detention.

3. Right to Legal Counsel

The person arrested has the right to consult and be defended by a legal practitioner of their choice, as guaranteed under Article 22(1) of the Constitution. It is the duty of the police to ensure that this right is facilitated without delay. Denial of this right amounts to a violation of constitutional protections and due process.

Special Considerations in Certain Laws

Several special laws also allow arrest without warrant under specific conditions:

1. Unlawful Activities (Prevention) Act (UAPA)

Police are empowered to arrest without a warrant in cases involving terrorist activities, especially under special laws like the Unlawful Activities (Prevention) Act (UAPA). Such arrests can be made based on reasonable suspicion or the existence of material evidence indicating the person’s involvement. These provisions are intended to address threats to national security but must still comply with constitutional safeguards to prevent misuse.

2. Narcotic Drugs and Psychotropic Substances Act (NDPS)

Section 42 of the NDPS Act permits warrantless arrest and search in narcotics-related cases when an officer has reasonable belief that an offence has been or is being committed. The officer can enter and search any premises and arrest the suspect without prior approval, provided the reasons for such belief are recorded in writing. This provision is designed to enable swift action in drug-related offences, but officers must strictly follow procedural safeguards to ensure legality.

3. Customs Act, Income Tax Act, etc.

Even officers empowered under special laws—such as those from the Customs Department, Directorate of Revenue Intelligence (DRI), or GST authorities—can arrest individuals without a warrant in certain cases, especially those involving smuggling, tax evasion, or economic offences. These powers are granted under statutes like the Customs Act, GST Act, and FEMA, provided the officer has reason to believe that an offence has been committed. However, such arrests must still adhere to constitutional safeguards and procedural requirements to prevent abuse.

Criticism and Concerns

Despite clear legal provisions and Supreme Court guidelines, arbitrary and unnecessary arrests remain widespread, particularly in rural and semi-urban areas. Several factors contribute to this ongoing issue:

• Misuse of police discretion – Officers often arrest individuals without proper justification, ignoring the necessity and proportionality principles.
• Lack of legal awareness – Many citizens are unaware of their basic rights during arrest, making them vulnerable to abuse.
  Political or personal vendetta – Arrest powers are sometimes used to settle scores or intimidate opponents.
• Custodial torture – Unlawful arrest is often accompanied by physical or mental abuse in custody.
• Overcrowded jails – A significant number of those arrested are kept in custody as undertrial prisoners, contributing to severe jail congestion.

Data from the National Crime Records Bureau (NCRB) further highlights the problem, showing a consistently high percentage of undertrial detainees, many of whom are arrested in cognizable offences but are eventually acquitted, raising concerns about the fairness and effectiveness of the arrest system.

Recent Developments and Reforms

1. Supreme Court Guidelines on Arrest (2022)

In Satender Kumar Antil v. CBI, the Supreme Court reiterated the need to arrest only when necessary, especially in economic offences. The Court directed all investigating agencies to strictly follow Sections 41 and 41A ( now section 35 under BNSS).

2. Model Police Act

The Model Police Act drafted by the Ministry of Home Affairs promotes accountability, transparency, and checks on arbitrary arrest.

3. Bail Reforms

The Supreme Court and Law Commission have emphasized that bail should be the rule, and jail an exception, especially in cases involving arrest without warrant.

Conclusion

The power to arrest without a warrant is a necessary tool for maintaining law and order, especially in urgent and serious situations. However, it is also a power that is highly susceptible to abuse. The legal provisions under the BNSS, judicial pronouncements, and constitutional safeguards attempt to strike a delicate balance between the needs of the police and the rights of individuals.

It is crucial for law enforcement agencies to act responsibly and transparently, and for citizens to be aware of their legal rights during arrest. A just and fair criminal justice system is the cornerstone of a democratic society, and arbitrary arrest has no place in it.

This paper aims to comprehensively explore the legal provisions, judicial interpretations, and safeguards that apply when police arrest a person without a warrant.

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