Can the police arrest you without a warrant? Under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), yes, but only in defined situations and with safeguards. This guide explains arrest without warrant under BNSS for the general public and law students. A warrant is a Magistrate’s written order authorising arrest. The BNSS came into force on 1 July 2024, replacing the Code of Criminal Procedure, 1973 (CrPC).
What Section 35 BNSS Says
Section 35 carries forward Sections 41 and 41A of the CrPC. Offences are defined in the Bharatiya Nyaya Sanhita, 2023 (BNS), while the BNSS sets procedure. Most grounds involve a cognizable offence, meaning a serious offence where police can arrest and investigate without a Magistrate’s permission.
When Can Police Arrest Without Warrant?
Under Section 35(1), police may arrest a person who:
- (a) commits a cognizable offence in a police officer’s presence;
- (b) is reasonably suspected of a cognizable offence punishable up to seven years, but only if arrest is necessary to prevent further offences, ensure proper investigation, stop evidence tampering, stop witness threats or secure court appearance. Reasons must be recorded in writing, including reasons for not arresting;
- (c) is credibly reported to have committed an offence punishable with over seven years or death;
- (d) is a proclaimed offender;
- (e) holds suspected stolen property;
- (f) obstructs police or escapes custody;
- (g) is a suspected armed forces deserter;
- (h) is wanted for an offence committed abroad, under extradition law;
- (i) is a released convict breaching rules under Section 394(5);
- (j) is wanted under another officer’s specific requisition.
Arrest Without Warrant Under BNSS: Quick Comparison
| Situation | Rule |
|---|---|
| Cognizable, up to 7 years | Arrest only if necessary; reasons in writing |
| Cognizable, over 7 years or death | Credible information plus reason to believe |
| Non-cognizable | No arrest without Magistrate’s warrant or order (S.35(2)) |
| Under 3 years, person infirm or over 60 | Prior permission of an officer of DSP rank or above (S.35(7)) |
Non-Cognizable Offences and Section 39
For non-cognizable offences, Section 35(2) bars arrest without a Magistrate’s warrant or order, subject to Section 39, which permits arrest of a person who refuses to give a name and residence.
Notice of Appearance: The Alternative to Arrest
If arrest is not required, police must issue a notice to appear (Section 35(3)).
Complaint or information of cognizable offence
|
Is arrest required under S.35(1)?
Yes: arrest, reasons recorded
No: notice to appear (S.35(3))
|
Person complies (S.35(4))
|
No arrest unless reasons recorded (S.35(5))
|
Non-compliance or refusal to identify:
arrest possible (S.35(6))
Rights and Duties at a Glance
- Police must: record written reasons for arrest or non-arrest, follow Section 36 procedure and inform you of the grounds.
- You must: comply with any notice of appearance, give your name and residence when asked, and not resist lawful arrest.
Safeguards for the Arrested Person
- Section 36: procedure and duties of the arresting officer, including identification and a memorandum of arrest.
- Section 38: right to meet an advocate of your choice during interrogation.
- Section 47: right to know the grounds of arrest and, in bailable offences, the right to bail.
- Section 48: the arrest must be communicated to a relative or friend.
- Sections 57 and 58: production before a Magistrate without unnecessary delay, and no detention beyond 24 hours.
- Section 62: arrest must be made strictly according to the Sanhita.
These reflect Articles 21 and 22 of the Constitution on personal liberty and arrest safeguards.
Remedies for Illegal Arrest
Section 35 itself prescribes no penalty, but an unjustified arrest can be challenged. You can raise it before the Magistrate at production, seek bail (Chapter XXXV, Sections 478 to 496, including anticipatory bail under Section 482), or file a habeas corpus writ (a petition for release from unlawful detention) in the High Court under Article 226 or the Supreme Court under Article 32. You can also complain to senior officers for departmental action.
What Changed From the CrPC
Sections 41 and 41A CrPC are now Sections 35(1) and 35(3) to (6) BNSS, largely unchanged. The notable addition is Section 35(7), protecting elderly and infirm persons in offences under three years.
FAQs
No. For non-cognizable offences, a warrant or Magistrate’s order is needed.
No. Police must be satisfied that arrest is necessary and record reasons.
Police may arrest you for the offence mentioned in the notice (Section 35(6)).
For offences under three years, only with prior permission of an officer of DSP rank or above.
Yes, under Section 47.
Not beyond 24 hours without production before a Magistrate (Section 58).
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