Abstract
The Criminal Procedure Code of 1973 is replaced with the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, which modernizes arrest procedures. By tending to wrongful detainment and strengthening judicial monitoring, it places an emphasis on responsibility, transparency, and individual rights. Electronic recording amid captures, required notice of the detainee’s selected contacts, and protections for the elderly and disabled are some of the major measures.
Arrests1 can be made by private individuals or magistrates under certain circumstances, with or without a warrant (for offenses secured by BNSS Section 35), or both. Section 187 of the BNSS further reinterprets custody, giving magistrates the authority to permit detention in approved facilities for predetermined periods of time.
Keywords: – BNSS, Individuals right, custody, electronic recording
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1Arrest determines from the French word arrater, implies “to stop or stay.
Introduction
Under the Bhartiya Nagrik Suraksha Sanhita (BNSS) 2023, arrest procedures in India are redefined with a focus on enhancing transparency, accountability, and safeguarding individual rights. The BNSS, a landmark update that replace the Criminal procedure code of 1973, aims to modernize and streamline the process of arrest by addressing longstanding issues such as unlawful detention, lack of judicial oversight, and the abuse of arrest powers.
The BNSS sets modern measures by introducing technological measures, emphasizing electronic recording during arrest and cross examination, and ordering the prompt communication of an individual’s detainment to their family.
Police can arrest a person without a warrant only in certain endorsed cases (enumerated in S.41, CrPC and S.35, BNSS). For example, arrests for cognizable offenses, proclaimed criminals, military deserters, etc., may be made under the guidelines. However, without a warrant, arrests cannot be conducted for offenses that are not identifiable. The criminal procedural code’s rules must be followed when making an arrest.
What is Arrest?
The word “arrest” comes from the French word “arrater”, which means to “to stop or stay”. It implies that an individual is being controlled. It restrains a person and forces him to obey the law. It can be depicted as carrying out an order from a court of law or from a legally authorized official. Arrests are ordinarily made as part of an investigation procedure with multiple goals in mind. Arrests occur in both criminal and civil proceedings.
Distinction between arrest and custody?
Arrest implies “a seizure or coercive restriction; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge. In criminal law, an arrest is an critical device for bringing an accused before the court and to avoid him from absconding.
Custody2 Merely observation or confinement on the movement of the person concerned is called custody. In criminal law, custody is the second stage of the arrest. Various times it happens that when a man is arrested for any illegal act or suspicion of wrongdoing, the police will most likely be unable to finish the examination within 24 hours and present the individual before the officer. As of right now, it is critical to prevent the individual from the general public, for the security of the general public and the security of the individual himself. It is moreover essential that he is accessible for further investigation and inquiry and does not evade the law.
Arrest Under CrPC
Arrest in compatibility of a warrant
If somebody commits a wrongdoing or offense that cannot be arrested a police officer cannot hold them without a warrant. The power to make an arrest of seize someone’s assets is granted by an arrest warrant. A judge or officer acting on behalf of the state authorizes each arrest warrant. Every arrest warrant issued by a court must be written, signed by the presiding officer, and sealed by the court in accordance with section 70 of the CrPC, 1973.
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2Custody alludes to the supervision or confinement of an individual’s movements, frequently as a precursor to or following arrest. See Central Bureau of Investigation v. Anupam J. Kulkarni, AIR 1992 SC 1768.
Arrest without warrant3
As the term “arrest without warrant” suggests, a police officer may make an arrest for an arrestable offense without a warrant. A police officer may make an arrest under specific circumstances, as outlined
in Section 41 of the CrPC, without a warrant or a magistrate’s order. A police officer may make an arrest under this section if he or she:
- Committed a wrongdoing that is punishable by law,
- Has been pronounced an offender by the State Government or the CrPC
- Possesses stolen property,
- Interferes with a police officer’s ability to carry out their duties,
- Flees or endeavors to escape from legal custody,
- Is reasonably suspected of deserting from any of India’s armed force,
- Violates a rule as a discharged prisoner,
- Is involved in an offense committed outside of India,
- Or is the subject of an arrest request that has been gotten from another police officer that details the subject of the arrest, the offense, or another reason for the arrest.
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3Section 70 of the CPC 1973 States that a warrant must be written, signed and sealed by the issuing authority.
Arrest by a private4 person
It implies that a private individual can arrest any individual who commits a non-bailable and cognizable offense in his presence. “Arrest by private individual and procedure on such arrest” is covered in Section 43 of the CrPC, 1973. A private individual may make an arrest if:
- either the individual is a proclaimed offender or
- they commit a wrongdoing that is both cognizable and non-bailable.
A police officer ought to re-arrest the individual if there are grounds to suspect that he violates Section 41 of the CrPC.
Arrest by Magistrate
Section 44 of Code of Criminal Procedure, 1973, deals with ‘Arrest by Magistrate’ while the term Officer here addresses both judicial and Executive Magistrate. Its Subsection (1) illustrate that “When any offense is committed in front of officer, whether executive, within his local jurisdiction, he may himself arrest the offender or order any individual to arrest the wrongdoer, and may then commit the offender to custody, subject to the provisions herein contained as to bail.” According to Subsection (2), an officer has the authority to make an arrest or order someone within his local jurisdiction to make an arrest.
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4Section 43 of the CrPC permits private individuals to arrest someone who commits a cognizable and non-bailable offense in their presence.
Arrest Under BNSS
- Arrest of decrepit or aged persons: Police cannot arrest an individual who is over 60 or infirm for offenses carrying a sentence of less than three years in jail without first obtaining the consent of an officer not lower than the level of DSP (Section 35(7), BNSS).
- Information of arrest: According to S.36 of BNSS, the person who is detained may now designate “any” person-not just a friend or family member-to be notified of his arrest.
- Designated police officer: In accordance with the BNSS, State Governments must allot a police officer to each district and police station in addition to these control rooms in order to keep track of officers who have been arrested and the offenses they have committed. This information must be clearly displayed in every district headquarters and police station, even digitally (S.37, BNSS).
- Arrest by Private Persons: Under BNSS, the private person is required to handover the arrested person to the police within 6 hours of the arrest (S. 40, BNSS). According to BNSS, a person who has been arrested by a private party being taken into police custody does not constitute “re-arrest,” but rather police custody.
- Handcuffs: If an individual is a repeat offender, has escaped from custody, or has committed a certain serious offense (such as murder, rape, terrorism, etc.), BNSS permits a police officer to use handcuffs when making an arrest or bringing him before the court. (BNSS, S. 43(3)).
- Medical Practitioner: According to S. 51 of the BNSS, any police officer may now seek such an examination. Although it was not specifically stated in the CrPC, the medical professional is now required to send the examination report to the investigating officer right away (S. 51(3), BNSS).
Police v. Judicial Custody
CrPC: A maximum of 15 days (from the date of remand) might be permitted by the magistrate under the CrPC for the denouced to be held in police custody. After these 15 days, any further detention could only be in judicial custody for a maximum of 60 days (for lesser offenses) or 90 days (for offenses carrying a minimum sentence of 10 years in prison, the death penalty, or life in prison). In Central Bureau of Investigation v. Anupam J. Kulkarni, 1992 AIR 1768, the Supreme Court ruled that police custody could only be given for the first 15 days after an arrest. However, in V. Senthil Balaji v. State, 2023 ALLMR (Cri) 4267 the Supreme Court ruled that the required 15 days of police custody could be an accumulation of shorter periods of custody sought over the entire period of investigation lasting 60 or 90 days, and this ruling was recently referred to a larger bench after being questioned as correct law.
BNSS: Under the BNSS, this idea has completely changed and is now outlined in S. 187. Since S.187, BNSS, affects people’s personal liberty and the fundamental rights guaranteed by our Constitution, it is likely one of the most noticeable and controversial reforms.
(1) S.187(2) of BNSS provides that the Magistrate may authorise detention of the accused in ‘such custody’ as he deems fit for a period of 15 days. Such period can be in whole or part at any time during the:
- initial 60 days out of the 90 days’ period – in case of offences punishable with death, life imprisonment, or imprisonment of 10 years or more; and
- initial 40 days out of the 60 days’ period – in case of other offences.
(2) According to BNSS S.187(3), a magistrate may permit detention for longer than 15 days if he is convinced that there are sufficient grounds to do so. However, the length of time that a person may be held in custody cannot be longer than 90 days for offenses carrying a death sentence, life in prison, or a minimum of 10 years in prison, or 60 days for other offenses.
(3) According to S.187 of the BNSS, the magistrate may only authorize detention after determining if the accused has been granted bail. Therefore, it recognizes that even while the accused is being held by the police, a bail application may be filed.
(4) The BNSS also aims to define the phrases “judicial custody” and “police custody.” No person may be held in a location other than a “police station under police custody,” “a prison under judicial custody, or a place declared as prison by the central or state government,” according to the BNSS. To put it another way, BNSS stipulates that judicial detention and police custody can only take place in prisons or locations designated as prisons by the government.
Conclusion
Furthermore, it’s critical to remember that the laws governing arrests and detention are intricate and intended to strike a balance between the protection of individual rights and the authority of law enforcement. Furthermore, all of these carefully crafted clauses guarantee that any arrest is made in a fair and legal manner.
Although the majority of the provisions in the recently enacted Bharatiya Nagarik Suraksha Sanhita that are defined under the heading of “arrest” are taken directly from the Criminal Procedure Code, some new provisions have been added, some old provisions have been removed, and some provisions have been changed to better suit the current situation.
