Section 43 CrPC and Section 40 BNSS: Arrest by a Private Person
Indian criminal procedure permits a private individual to arrest another person only in narrowly defined circumstances. The present provision is Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to former Section 43 of the Code of Criminal Procedure, 1973 (CrPC).
When may a private person arrest someone?
Under Section 40(1) BNSS, a private person may arrest or cause the arrest of a person who commits a cognizable and non-bailable offence in that private person's presence, or of a proclaimed offender. Mere suspicion, a private dispute or an allegation of a minor offence does not automatically confer this power.
A cognizable offence is one for which a police officer may ordinarily arrest without a warrant in accordance with law. A non-bailable offence is an offence not classified as bailable; bail is determined under the applicable legal provisions. Both classifications must apply to the offence witnessed under the first limb of Section 40(1).
Section 40 BNSS: explanation of each subsection
Section 40(1): limited power and mandatory handover
The private individual must hand the arrested person over to a police officer, or, if no officer is available, take the person to the nearest police station. The transfer must happen without unnecessary delay and in any event within six hours. Six hours is an outer limit, not permission to detain someone for that entire period when earlier transfer is possible.
Section 40(2): police decision on custody
Where the police officer has reason to believe that the arrested person falls within Section 35(1) BNSS, which specifies circumstances in which police may arrest without warrant, the officer shall take that person into custody. The private arrest does not by itself determine whether continued police custody is lawful.
Section 40(3): non-cognizable offence or no offence
If the police have reason to believe a non-cognizable offence was committed and the person refuses to provide their name and residence, or supplies details reasonably believed to be false, the matter is handled under Section 39 BNSS (formerly Section 42 CrPC). If there is no sufficient reason to believe any offence has been committed, the person must be released immediately.
What did Section 43 CrPC provide?
Subsection (1): A private person could arrest someone committing a cognizable and non-bailable offence in their presence, or a proclaimed offender, and transfer that person to police or the nearest police station without unnecessary delay.
Subsection (2): If the arrested person came within Section 41 CrPC, the police officer was required to re-arrest that person.
Subsection (3): A suspected non-cognizable offender who refused to provide a reliable name and residence was dealt with under Section 42 CrPC; a person against whom there was insufficient reason to suspect an offence had to be released at once.
Practical safeguards and legal limits
- Confirm that the statutory grounds for a private arrest actually exist; the power is exceptional, not general policing authority.
- Contact police immediately and transfer custody as soon as reasonably possible, always within the six-hour statutory ceiling.
- Avoid unnecessary force, punishment, interrogation or public humiliation. A private arrest does not authorize vigilantism.
- Tell the responding officer what was personally witnessed and identify any evidence or witnesses.
- Police must independently apply the governing arrest and release provisions and applicable constitutional safeguards.
Does the old CrPC still matter?
The BNSS replaced the CrPC with effect from 1 July 2024, subject to statutory saving and transitional provisions, including Section 531 BNSS. Older cases and proceedings may therefore require examination of the former CrPC and the applicable transition rules. For current private-arrest procedure, consult Section 40 BNSS.
Official legal sources
Read the Bureau of Police Research and Development BNSS reference PDF, the National Crime Records Bureau BNSS provisions, and the Delhi Police Academy BNSS handbook for the relevant statutory text and cross-references.
Frequently asked questions
Can any citizen arrest a suspected offender?
No. Section 40 BNSS limits private arrest to the specific situations it describes, including a cognizable and non-bailable offence committed in the person's presence or a proclaimed offender.
How quickly must the person be handed to police?
Without unnecessary delay, and no later than six hours after the private arrest.
What if police find no sufficient reason to suspect an offence?
Section 40(3) requires immediate release.
This article provides general legal information and is not a substitute for advice on the facts of an individual case.