Section 41 CrPC and Section 35 BNSS: When Police May Arrest Without a Warrant

What is arrest without a warrant?

Arrest without a warrant means taking a person into lawful custody without first obtaining an arrest warrant from a Magistrate. A cognizable offence is an offence for which a police officer may arrest without warrant in accordance with the applicable First Schedule or other law. A non-cognizable offence is one for which the police do not ordinarily have that power.

Section 35(1) BNSS sets out the circumstances in which police may arrest without an order of a Magistrate and without a warrant. It does not make arrest automatic merely because an allegation has been made.

Section 35(1) BNSS: Grounds on which police may arrest

Subject to the statutory requirements, Section 35(1) authorises arrest without warrant in these situations:

1. Offence committed in police presence: A person commits a cognizable offence in the presence of a police officer (clause (a)).
2. Cognizable offence punishable up to seven years: A reasonable complaint, credible information or reasonable suspicion exists, and the additional belief, necessity and written-reasons requirements are satisfied (clause (b)).
3. Serious cognizable offence: Credible information indicates a cognizable offence punishable with imprisonment exceeding seven years, or death, and the officer has reason to believe the person committed it (clause (ba)).
4. Proclaimed offender: The person has been proclaimed an offender under the applicable law or State Government order (clause (c)).
5. Suspected stolen property: The person possesses property reasonably suspected to be stolen and is reasonably suspected of an offence connected with it (clause (d)).
6. Obstruction or escape: The person obstructs a police officer performing duty, escapes or attempts to escape lawful custody (clause (e)).
7. Armed Forces deserter: The person is reasonably suspected of desertion from the Union Armed Forces (clause (f)).
8. Acts outside India: The person is implicated in conduct abroad that would be an offence in India and is liable to apprehension or detention under extradition or other applicable law (clause (g)).
9. Released convict: A released convict breaches applicable rules governing notification of residence (clause (h)).
10. Requisition from another officer: A lawful requisition identifies the person and grounds for arrest, which would justify arrest without warrant by the requesting officer (clause (i)).

Section 35(2) restricts arrest in non-cognizable cases, subject to the statutory exception concerning refusal to give name and residence under Section 39 BNSS.

Offences punishable with imprisonment up to seven years

For the category in Section 35(1)(b), the police officer must have reason to believe, based on the complaint, information or suspicion, that the person committed the offence. The officer must also be satisfied that arrest is necessary for at least one of the following statutory purposes:

• Preventing the person from committing a further offence.
• Ensuring proper investigation of the offence.
• Preventing disappearance of, or tampering with, evidence.
• Preventing inducement, threats or promises to witnesses that could discourage disclosure of facts.
• Ensuring the person's presence before the court when required.

The officer must record reasons for making the arrest in writing. Where arrest is not required under the relevant provision, reasons for not arresting must also be recorded. These are substantive safeguards against routine or mechanical arrest.

Under Section 35(7) BNSS, arrest of a person who is infirm or above 60 years of age for an offence punishable with imprisonment of less than three years requires prior permission from an officer not below the rank of Deputy Superintendent of Police.

Notice of appearance under Section 35(3) to (6) BNSS

Where arrest is not required under Section 35(1), police must issue a notice directing the person against whom a reasonable complaint, credible information or reasonable suspicion exists to appear before the officer or at another specified place. This mechanism broadly corresponds to former Section 41A CrPC.

The person must comply with the notice. If the person complies and continues to comply, arrest for the offence mentioned in the notice is ordinarily prohibited unless the officer records reasons that arrest is necessary. Failure to comply, or unwillingness to identify oneself, can permit arrest subject to applicable law and any competent court orders.

The prescribed notice form appears in the Second Schedule to BNSS. A notice is not itself a finding of guilt.

Arrest safeguards and rights of the arrested person

The power under Section 35 must be read with other BNSS safeguards and constitutional protections:

• Section 36 BNSS: Police officers making arrests must follow identification and arrest-memorandum requirements, including the prescribed attestation and countersignature safeguards.
• Section 38 BNSS: An arrested person has the right to meet an advocate of choice during interrogation, though not throughout interrogation.
• Section 47 BNSS: The arrested person must be informed of the grounds of arrest and, where applicable, the right to bail.
• Section 48 BNSS: Information about the arrest and place of detention must be given to a relative, friend or other nominated person in accordance with the section.
• Articles 21 and 22 of the Constitution: Protect personal liberty and provide essential safeguards against unlawful arrest and detention, including production before a Magistrate within the constitutional time limit.

The Supreme Court's decision in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 emphasised that arrest should not be automatic in offences within the relevant punishment range and that statutory arrest conditions must be examined. Its reasoning remains important when applying corresponding BNSS safeguards.

Former Section 41 CrPC: Historical provision and continuing relevance

Section 41 of the Code of Criminal Procedure, 1973 was titled When police may arrest without warrant. Its sub-section (1) permitted warrantless arrest on enumerated grounds, including cognizable offences committed in the officer's presence, credible information of serious offences, proclaimed offenders, suspected stolen property, obstruction of police, escape from custody, desertion from the Armed Forces, certain acts outside India, breaches by released convicts and lawful requisitions from other officers.

For cognizable offences punishable with imprisonment of up to seven years, former Section 41(1)(b) required reason to believe the person committed the offence, satisfaction that arrest was necessary for one of the specified purposes, and written reasons. The proviso required reasons to be recorded when arrest was not necessary. Section 41(1)(ba) addressed cognizable offences punishable by imprisonment exceeding seven years or death. Section 41(2), subject to former Section 42, restricted arrest in non-cognizable cases without a warrant or Magistrate's order.

The provision was substantially amended by Act 5 of 2009 (effective 1 November 2010), and the proviso concerning reasons for not arresting was inserted by Act 41 of 2010 (effective 2 November 2010). Former Sections 41A, 41B, 41C and 41D respectively addressed notice of appearance, arrest procedure, control rooms and access to an advocate during interrogation.

Transition: Section 531 BNSS repealed the CrPC but saves specified pending appeals, applications, trials, inquiries and investigations. Consequently, the older provisions may remain relevant where the savings clause applies.