Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) deals with the power of a police officer to arrest a person without a warrant. This section outlines specific circumstances where an arrest can be made without a warrant issued by a Magistrate.
Code: BNSS Code, Section 35.
Section 35(1) states that a police officer can arrest a person without a warrant under the following circumstances:
- (a) Cognizable Offence in Presence: If the person is committing a cognizable offence in the presence of the police officer.
- (b) Cognizable Offence with Reasonable Suspicion: If there is reasonable suspicion that the person has committed a cognizable offence punishable with imprisonment for a term less than or equal to seven years, and the following conditions are met:
- (i) The police officer believes the person committed the offence.
- (ii) The police officer believes the arrest is necessary to:
- (a) Prevent further offences.
- (b) Facilitate proper investigation.
- (c) Prevent tampering with evidence.
- (d) Prevent influencing witnesses.
- (e) Ensure the person’s presence in court.
- (c) Cognizable Offence with Credible Information: If there is credible information that the person has committed a cognizable offence punishable with imprisonment exceeding seven years or with death sentence, and the police officer believes the person committed the offence.
- (d) Proclaimed Offender: If the person has been proclaimed as an offender under the BNSS or by a state government order.
- (e) Suspected Stolen Property: If the person is found in possession of suspected stolen property and there is reasonable suspicion of their involvement in an offence related to the property.
- (f) Obstruction of Duty: If the person obstructs a police officer in the execution of their duty, has escaped from lawful custody, or attempts to escape.
- (g) Deserter from Armed Forces: If the person is reasonably suspected of being a deserter from the armed forces.
- (h) Offence Committed Outside India: If the person has been involved in an act outside India that would be punishable as an offence in India, and they are liable to be apprehended or detained in India under extradition laws.
- (i) Breach of Release Conditions: If the person, being a released convict, commits a breach of rules made under section 394(5) of the BNSS.
- (j) Requisition from Another Officer: If a requisition for arrest has been received from another police officer, specifying the person, the offence, and the legality of warrantless arrest.
Section 35(2) states that arrest for non-cognizable offences can only be made with a warrant from a Magistrate.
For Section 35(3-6) outlines a procedure for issuing notices to suspects in cognizable offences where arrest is not immediately required. The police officer must record reasons in writing for not arresting the suspect.
Under Section 35(7) mandates prior permission from an officer not below the rank of Deputy Superintendent of Police for arresting individuals who are infirm, over 60 years old, and accused of offences punishable with less than three years imprisonment.
Illustrations:
- A police officer witnesses a person stealing a wallet from another person. The officer can arrest the person without a warrant, as it is a cognizable offence committed in their presence.
- Arresting individuals is essential for preventing further offenses, facilitating investigations, stopping evidence tampering, and avoiding witness influence.
- A credible report indicates that a person has committed a murder, which is a cognizable offence punishable with death sentence. The police officer can arrest the person without a warrant based on the credible information.
- When police find a person in possession of a stolen car, the officer can arrest them without a warrant due to reasonable suspicion of involvement in the theft.
Common Questions and Answers: on When Police May Arrest Without Warrant
Q: What is a cognizable offence?
A: A cognizable offence is an offence where the police officer can investigate and arrest a suspect without a warrant. Such offences are generally serious in nature, like murder, theft, assault, etc.
Q: Can the police officer arrest someone for a non-cognizable offence without a warrant?
A: No, arrest for non-cognizable offences is only permissible with a warrant from a Magistrate.
Q: What are the grounds for arrest without a warrant under section 35(1)(b)?
A: Arrest under 35(1)(b) is possible when there is a reasonable suspicion of a cognizable offence.  It can also ensure the person’s presence in court.
Q: What are the exceptions to warrantless arrest for individuals over 60 years old or infirm?
A: Section 35(7) requires prior permission from an officer. He/she should not be below the rank of Deputy Superintendent of Police for arresting individuals over 60 years old. Additionally, individuals may be exempt from penalties for certain offenses. Specifically, these offenses are punishable by imprisonment of less than three years. Consequently, this exemption can significantly impact the legal consequences faced by individuals in such situations.
