UNIT 2 of BNSS 2023

• 1. Preventive and punitive Arrest ( with and without warrant)

• By: [Link] Singhal

• Assistant Professor of Law
• DME Law School
 Preventive Detention Punitive Detention
Under Section 170 of BNSS preventive
It is to punish a person for an offence committed
detention means detention of a person without
by him after trial and conviction in a court.
trial and conviction by a court.
Purpose: Its purpose is not to punish a person
for a past offence but to prevent him from Its purpose is to punish a person for an offence.
committing an offence in the near future.
It is only a precautionary measure and based
on suspicion. It punishes for the crime committed.

Availability of rights –
Following rights not available to a person
arrested or detained under preventive detention
law:
•Right to be informed of the grounds of arrest All these rights are available to a person
•Right to consult and be defended by a legal arrested or detained under a punitive detention
practitioner law.
•Right to be produced before a magistrate within
24 hours, excluding the journey time
•Right to be released after 24 hours unless the
magistrate authorizes further detention
A detainee under preventive detention has no A detainee under punitive detention can have
right of personal liberty guaranteed by Article the right of personal liberty guaranteed by
19 or Article 21. Article 19 or Article 21.
What is Preventive Detention?
•Background:
• Laws authorising preventive detention existed in British colonial rule in India since 1818.
• The Defence of India Act of 1915 was passed on the outbreak of the First World War, and the same was
repeated in connection with emergency regulations made during the Second World War.
• Both have provisions of preventive detention i.e., detention of a person without trial and conviction.
•About:
• Preventive detention means the detention of a person without trial and conviction by a court. Its purpose
is not to punish a person for a past offence but to prevent him from committing an offence in the near
future.
• The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for
extended detention.
• Grounds for Preventive Detention:
• State security
• Public order
• Foreign Affairs, etc.
•Two Types of Detentions:
• Preventive detention is when a person is held in police custody only on the basis of a suspicion that they
would conduct a criminal act or cause harm to society.
• The police have the authority to hold anyone they suspect of committing a criminal offence and also to
make arrests without a warrant or a magistrate’s authorisation in certain cases.
• Punitive detention which means detention as a punishment for a criminal offence. It occurs after an
offence is actually committed, or an attempt has been made towards the commission of that crime .
•Protection:
• Article 22 grants protection to persons who are arrested or detained.
• It has two parts—the first part deals with the cases of ordinary law and the second part deals with the
cases of preventive detention law.
• The article makes it mandatory for preventive detention laws to form advisory boards consisting of
persons qualified to be High Court judges.
• Under different laws, review boards must assess detention orders every three months to determine if
there's enough reason for preventive detention. They examine evidence, request more information if
needed, listen to the person detained, and then report if the detention was justified or not.
• Safeguards Available to the Detained Person:
• A person may be taken to preventive custody only for 3 months.
• The period of detention may be extended beyond 3 months, only after approval by the Advisory
Board.
• The detainee has the right to know the grounds of his/her detention.
• However, the state may refuse to tell the grounds if it is necessary to do so in the public interest.
• The detainee is provided an opportunity to challenge his/her detention.
•The Relative Preventive Laws:
• Public Safety Act (PSA).
• Narcotic Drug and Psychotropic Substance Act (NDPS),1985.
• National Security Act: The NCRB data showed that the number of people arrested under the
National Security Act (NSA) had dipped significantly compared to 2020.
• Preventive detentions under the NSA peaked in 2020 at 741. This number dropped to 483 in 2021.
•Issues Relate to Preventive Detention:
• Dent to Democracy: No democratic country in the world has made preventive
detention as an integral part of the Constitution as has been done in India.
• Extra Judicial Authority: Governments occasionally leverage such laws to exert
extrajudicial authority, raising concerns about arbitrary detentions.
• Misuse of other Acts: There are several laws like the Unlawful Activities (Prevention)
Act, 1967 which have potential to be misued for preventive detentions.
• Manipulation by Government Officials: District magistrates and the police also often
make preventive detentions to control law and order in emerging communal clashes or
clashes between any two communities, even when it might not always lead to public
disorder.
Supreme Court on Preventive Detention:
•Ameena Begum Case, 2023: The Supreme Court held that preventive detention is an
exceptional measure meant for emergency situations and should not be used routinely.
• The objective of preventive detention is not to punish but to prevent anything
prejudicial to the security of the state.
•Ankul Chandra Pradhan Case, 1997: This case emphasized that the purpose of preventive
detention is to prevent harm to the security of the state, rather than to impose
punishment.
 • ARREST[Chapter V, Sections 35-62]
• Meaning: The term ‘arrest has not been defined in the Sanhita. In simple terms it means a legal process by which a
person is taken into custody by a legal authority.
• It is a restraint on the liberty of a person to compel him to obey the orders of the court of other legal authority.
• Supreme Court in State of Haryana v. Dinesh Kumar, (2008) held that in legal sense arrest consists of taking into
custody of another person under the authority of law.
• Object: Object of arrest is to bring the accused before the court of law to face the proceedings of the court.
• Who can arrest?
• Arrest can be made by : A police officer [Section 35 and 39] A private person [Section 40] A magistrate
[Section 41]
• Arrest by Police Officer
• Sections 35 and 39 provide provisions for arrest by police officer without warrant in certain cases.
• Section 35(1) provides that a police officer without an order from the magistrate and without a warrant can arrest any
person under any of the circumstances mentioned below, who or against whom-
• (a) Commits a cognizable offence in the presence of a police officer.
• (b) A reasonable complaint has been made, or credible information has been received, or a reasonable suspicion
exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years whether with or without fine, if certain conditions are satisfied.
• (c) Credible information is received that a cognizable offence punishable with imprisonment for a term more than
seven years or death sentence has been committed by him and officer has reason to believe so on the basis of
information.
(d) Proclaimed offender
(e) In whose possession anything is found which may reasonably be suspected to be stolen property and
who may reasonably be suspected of having committed an offence with reference to such thing
(f) Obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape,
from lawful custody
(g) Reasonably supected of being a deserter from any of the Armed Forces of the Union
(h) Concerned in, or against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place
out of India which, if committed in India, would have been [Link] an offence, and for which he
is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in
India.
(i) Who, being a released convict, commits a breach of any rule made under Section 394(5)
(J) For whose arrest any requisition, whether written or oral, has been received from another police officer,
provided that the requisition specifies the person to be arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by
the officer who issued the requisition.
Section 39 provides that when any person who, in the presence of a police officer, has committed
or has been accused of committing a non-cognizable offence refuses on demand of such officer to
give his name and residence or gives a name or residence which such officer has reason to believe
to be false. he may be arrested by such officer in order that his name or residence may be
ascertained.
Position w.r.t. offences punishable with imprisonment of less than 7 years or which extend to7
years
Section 35(1)(b) states that in arrest of persons who are accused of cognizable offences which are
punishable for imprisonment of less than seven years or which extend to seven years, before
making arrest, police has to satisfy the following conditions-
(i)Police has reason to believe on the basis of complaint, information or suspicion that the person
has committed an offence;
(ii) Police is satisfied that arrest is necessary:-
(a) to prevent committing further offences;
(b) for proper investigation;
(c) to prevent evidence to disappear,
(d) to prevent such person from making inducement, threat or promise to any person acquainted
with facts and circumstances of the case;
(e) to enable his presence in court. [Section 35(1)(b)]
• In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 Supreme Court directed police
officers not to automatically arrest the accused if a case is registered under Section 478-A of
Indian Penal Code (now Section 85 of BNS), The court also said that automatic arrest should
also not be made where the offence is punishable with imprisonment for a term which may be
less than seven years of extend to seven years.
• If the police officer considers that the arrest is not required, he shall record reasons in
writing for not making the arrest.
• In Mohammed Zubair v. State of NCT of Delhi, AIR 2022 SC 36-49Supreme Court while
reiterating the observation made in Arnesh Kumar v. State of Bihar, held that Police officers
have a duty to apply their mind to the case before them and ensure that the condition(s) in
Section 44 of BNSS are met before they conduct an arrest.
• Section 35(3) provides that the police officer shall, in all cases where the arrest of a person is
not required under Section 35(1) issue a notice directing the person accused of committing a
cognizable offence, to appear before him or at such other place as may be specified in the
notice. Section 35(4) further provides that if such notice is issued then it shall be the duty of
that person to comply.
• Section 35(7) states that no arrest shall be made without prior permission of an officer not
below the rank of Deputy Superintendent of Police in case of an offence which is punishable
for imprisonment of less than three years and such person is infirm or is above sixty years of
age.
 Procedure of Arrest
Section 36 Procedure of arrest and duties of officers making the arrest:
(a) Bear an accurate, visible and clear identification of his name which will facilitate easy
identification.
(b) Memorandum of arrest: Upon arrest a memorandum of arrest shall be prepared which shall be
attested by at least one witness, who is the member of family of the person arrested or is respectable
member of the locality and countersigned by the person arrested.
(c) Inform the person arrested unless, memo of arrest has been signed by his family member, that he
has a right to have a relative or friend or any other person named by him to be informed of his arrest.

Section 37 (1) Establishment of police control room by state government in every district and at
state level.
Section 37(2) Designate a police officer in every district and in every police station, not below the
rank of Assistant Sub-Inspector of Police who shall be responsible for maintaining the
information about the names and addresses of the persons arrested, nature of the offence with
which charged, which shall be prominently displayed in any manner including in digital mode in
every police station and at the district headquarters.

Section 38 Right of arrested person to meet an advocate of his choice during interrogation, though
not throughout interrogation.
• Arrest by Private Person [Section 40]
• Section 40 lays down the circumstances when a private person can arrest
and the procedure on such arrest.
• Circumstances in which a private person can arrest: Any private person
may arrest of cause to be arrested any person who in the presence of the
private person-
• (i)Commits a non-bailable and cognizable offence.
• (ii) Any Proclaimed Offender.
• Procedure after arrest: If any private person arrests any person, then
without unnecessary delay, but within 6 hours from such arrest, he shall
make over or cause to be made over that person so arrested to a police
officer or in the absence of police officer take that arrested person to
nearest police station.
• If there is reason to believe that such person comes under provisions of
Section 35, the police officer shall take him in custody.
• Arrest by Magistrate [Section 41]
• Section 41 lays down power of a Magistrate (Executive or Judicial) to make
arrest.
• Following are the essentials to invoke this section-
• (i) Offence must be committed in presence.
• (ii)Within his local jurisdiction; of Magistrate (Executive or Judicial).
• He may himself arrest of order any person to arrest the offender and subject to
provisions of bail commit him to custody. Here the offence may be cognizable
or non-cognizable.
• Magistrate may also arrest any person, within his local jurisdiction, for whose
arrest he is competent to issue a warrant.
• Protection of Members of Armed Forces [Section 42]Section 42 lays down
that notwithstanding anything contained in Section 35 & Sections 39 to 41
(both inclusive), no member of Armed Forces of Union shall be arrested for
anything done or purported to be done by him in discharge of his official duty
except after obtaining consent of Central Government.
• Arrest how made [Section 43-46]
• Section 43 provides that in making an arrest, the police officer or other
person shall actually touch on confine the body of the person to be
arrested, unless there be submission to the custody by word or action.
Therefore, it can be seen from this provision that arrest does not
necessarily means actually touching and confining the body.
• Arrest can also be made by submission to custody.
• .Section 43(3) provides that the police officer may, keeping in view the
nature and gravity of the offence, use handcuff while making the arrest
of a person or while producing such person before the court, in following
cases,
• who is a habitual or repeat offender, or
• who escaped from custody, or
• who has committed offence of-
• organised crime, terrorist act, drug related crime, or
• illegal possession of arms and ammunition, or
• murder, rape, acid attack, or
• counterfeiting of coins and currency-notes,
• human trafficking, sexual offence against children, or
• offence against the State
• Arrest of woman: In case of arrest of a women Proviso to Section 43 lays down
that an oral intimation of arrest shall be presumed unless the circumstances are
indicated to the contrary. Police shall not touch the person of women for making
the arrest unless the police officer is female.
• Section 43(5) provides that no woman shall be arrested after sunset and before
sunrise. In case of any exceptional circumstances where such arrest is necessary,
the woman police officer shall obtain a prior permission of the Judicial
Magistrate of the first class.
• Use of force: If the person forcibly resists the endeavour to arrest him or attempts to
evade arrest, police officer or other person may use all means necessary to effect the
arrest. This has been provided under Section 43(2).
• This provision has to be read in light of Section 46 which provides that the person
arrested shall not be subjected unnecessary restraint.
• While arresting the person, death of the person cannot be caused unless the person is
accused of an offence punishable with death or with imprisonment for life.
• Search of place in order to arrest: Section 44 provides that any person who has
authority to arrest and has reason to believe that the accused has entered in some place
shall demand free ingress in that place and the person in-charge of that place will allow
him so.
• If free ingress is not allowed then it shall be lawful for the person authorized to arrest
to break open any outer or inner door or window of any house.
• If that place is in occupation of a pardanashin woman the adequate opportunity shall be
afforded to her to withdraw.
• Section 45 lays down that a police officer for the purpose of arresting any person
without warrant, whom he is authorized to arrest, can pursue the such person in any
place in India.
• Arrest in Non-cognizable Offences [Section 35(2) r/w 39]
• Section 35(2) lays down that in non cognizable offenses роlice officer cannot
arrest without the warrant or order from the magistrate.
• Section 39 is an exception to this general rule.
• Section 39 lays down that if a person, in persence of police officer, is accused
of committing a noncognizable offence refuses:
• ▸ on demand to give his name and residence ,or
• gives name or residence which police officer has reason to believe to be false,
then the police officer may arrest such person in order to ascertain the correct
name and residence.
• The purpose of such arrest in only to ascertain name or address of the person.
• When correct name of residence is ascertained then he shall be released on a
bond or bail bond. If the name or residence is not ascertained or he fails to
furnish the sureties the police officer shall forward such accused to nearest
magistrate.
 • Guidelines for Arrest of Judicial Officer
• Delhi Judicial Services Association [Link] of Gujarat, (1991)
• Supreme Court laid down the following guidelines for arresting a judicial
officer:
• (a) A judicial officer should be arrested for any offence only under the
intimation to the District Judge or the High Court.
• (b) In case of necessity for immediate arrest only a technical or formal
arrest may be effected.
• (c) The fact of the arrest should be immediately communicated to the
District and Sessions Judge and the Chief Justice of the High Court.
• (d) The judicial officer shall not be taken to the police station, without the
prior order or directions of the District and Sessions Judge of the
concerned district.
• (e) Ordinarily, there should be no handcuffing of the judicial officer.
• (f) Immediate facilities should the provided to the judicial officer for
communication with his family members, legal advisers and judicial
officers.
• (g) No statement of judicial officer who is under arrest should be
recorded nor any panchnama be drawn up nor any medical tests be
conducted except in the presence of the legal advisor of the judicial
officer.
 • Rights of arrested persons
• BNSS as well as Constitution of India has provided certain rights of arrested
persons. Following are the rights of arrested persons-
• (1) Right to know the grounds of arrest, [Article 22(1) of Constitution of
India, Sections 47, 48, 55 and 77 of BNSS]
• ➤ Constitution of India has conferred 'right to know the grounds of arrest' the
status of Fundamental Rights. Article 22(1) of the Constitution of India
provides that no person who is arrested shall be detained in custody without
being informed, as soon as may be, the ground of the arrest.
• ➤ Legislative manifestation of this fundamental right has been provided under
Section 47 and 77 of the Sanhita.
• ➤ Section 48 provides for information of arrest and place where arrested
person is kept, to the relative, friend or any other person named by him and
also to the designated police officer in the district.
• (2) Right to be informed about the release on bail. [Section 47(2)]
• (3) Production before Magistrate without delay and within 24 hours. [Article
22(2) of Constitution of India & Sections 57, 58, 78 and 187 of BNSS]
• (4) Right to consult a legal practitioner. [Article 22(1) of Constitution of India &
Sections 38, 340 of BNSS]
• (5) Right of free legal aid. [Article 21, 39A of Constitution of India & Section
340 of BNSS]
• ➤ Supreme Court in Khatri (2) v. State of Bihar, (1981) has held that
Constitutional obligation to provide free legal aid does not arise only when the
trial commences but when the accused is for the first time produced before a
Magistrate and also when he is remanded from time to time.
• ➤ Section 341 provides for the legal aid to the accused at the expense of State in
sessions trial as well as other trials.
• (6) Right to be examined by medical practitioner, [Sections 51, 53 and 56]
• In Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 Supreme Court held
that accused person must be informed by Magistrate about his right to be
medically examined.
• Other important provisions relating to arrest
• Section 49 provides for search of arrested person and Section 50 provides
for power to seize offensive weapons from arrested person, immediately
after the arrest has been made.
• Section 51 provides for examination of accused by a medical practitioner
at the request of police officer.
• Section 52 provides that if the arrested person has been accused of offence
of rape of attempt to rape and the police officer has reason to believe that
the medical examination of the person will afford evidence as to
commission of such offence then it shall be lawful for the medical
practitioner in the hospital run by Government or local authority to
examine the arrested person on the request of police officer.
• Identification of accused: Section 54 provides that on request of
police officer the court can require the accused to subject himself for
identification by others if it is found necessary for investigation of
an offence. Provided that if the person identifying the person
arrested is mentally or physically disabled. such process of
identification shall take place under the supervision of a Magistrate
who shall take appropriate steps to ensure that such person identifies
the person arrested using methods that person is comfortable with
and the identification process shall be recorded by any audio video
electronic means.
THANK YOU