Arrest, Summons, and Proclamation

Accused’s Presence for Trial

A fair trial requires the accused's presence to ensure a fair chance to defend themselves.
If found guilty, the accused should be available to receive the sentence.
Ensuring presence:
- Summons
- Arrest and Detention

Arrest and Detention

With warrant (Chapter VI.B)
Without warrant (Chapter V)

Arrest of Persons

Chapter V, BNSS

Joginder Kumar v State of UP & Ors. (SC, 1994)

Balance between human rights and increasing crime rate.
Existence of power to arrest vs. justification for its exercise.
Police officer must justify the arrest.
Arrest and detention can harm reputation and self-esteem.
No routine arrests on mere allegation.
Reasonable satisfaction after investigation is needed.
Arrest must be need-based.
Denying liberty is serious.
Except in heinous offences, arrest must be avoided if the person complies with a notice to attend the Station House.
Right to have someone informed, right to consult a lawyer are inherent in Arts. 21 and 22(1) of the Constitution.
Requirements:
- Arrested person is entitled to have a friend/relative informed.
- The police officer shall inform the arrested person of this right.
- An entry shall be made in the diary as to who was informed of the arrest.
- Magistrate needs to ensure compliance.
- Police officer should record the reasons for making the arrest in the case diary.
These requirements are to be followed in all cases of arrest till legal provisions are made [Subsequently incorporated as S 50A in the CrPC (S 48 BNSS)].

When police may arrest

Without warrant (S 35)
Arrest on refusal to give name and residence on commission of non-cognizable offence (S 39)

The manner of arrest

Procedure of arrest and duties of officer making arrest (S 36)
Designated police officer (S 37)
Right of arrested person to meet advocate of choice during interrogation (S 38)
Arrest how made (S 43)
Search of place entered by person sought to be arrested (S 44)
No unnecessary restraint (S 46)
Person arrested to be informed of grounds of arrest and right to bail (S 47); Friends/relatives/nominated person of arrested person to be informed (S 48)

After arrest

Medical examination of accused at the police officer’s request (S 51)
Examination of arrested person by medical officer (S 53)
Identification of arrested person (S 54)
Health and safety of arrested person (S 56)
Arrested person to be taken before Magistrate or officer in charge of police station (S 57)
Arrested person not to be detained for more than 24 hours (S 58)
Discharge of person apprehended (S 60)
Arrest to be made strictly according to the Sanhita (S 62)

When Police May Arrest

Arrest = deprivation of a person of his liberty by legal authority
S 35 shows that police officers have very wide powers of making arrests without warrant in cases of cognizable offences. However, these powers are subject to limitations.
‘May’ - police officer’s discretion in making an arrest without a warrant.
Requirement of reasonability and credibility intended to prevent misuse of such powers.
Malicious and excessive exercise of powers of arrest under these sections would be punishable under the BNS (S 258).
S 35(1)(b) provides an exhaustive list of circumstances which makes it effective in preventing illegal arrests by police officers for certain offences. The proviso makes it obligatory for the police to record reasons in writing if he decides to not arrest a person covered under this sub- section.
S 35(3)-(6) – Issuance of notice for appearance where arrest not required [S. 41A CrPC] (See Form No. 1, Second Schedule)
S. 35(7) – arrest of persons infirm or above 60 years of age [introduced under BNSS]
S 39 - arrest on refusal to give name and residence on commission of non-cognizable offence in the presence of PO

Arnesh Kumar v S of Bihar (SC 2014)

Arrest brings humiliation, curtails freedom and casts scars forever. The attitude to arrest first and then proceed with the rest is despicable.
The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. No arrest can be made in a routine manner on a mere allegation.
S 41(1)(b) [S 35(1)(b) BNSS] –
Accused cannot be arrested only on the PO’s satisfaction that he has committed the offence. PO has to be further satisfied that such arrest is necessary under any of the specified grounds in S 41(1)(b)(ii) (i.e., to prevent the person from committing further offences; for proper investigation, etc.).
The requirement to record reasons in writing while making arrest/where arrest not required.
Therefore, before arrest, PO must ask why arrest, if really required, purpose served, object achieved, and arrest only after these questions are addressed and one or the other condition u/s 41(1)(b)(ii) is satisfied.
Accused arrested without warrant has the constitutional right u/Art. 22(2) and u/s 57 CrPC to be produced before the Magistrate.
S 41A CrPC [S 35(3)-(6) BNSS] –
Aimed to avoid unnecessary arrest or threat of arrest - requires to be vitalized. At this stage also, the condition precedent for arrest u/s 41 CrPC has to be complied with and shall be scrutinized by the Magistrate.
See SC’s directions

Manner of Arrest

S 36 Procedure of arrest and duties of officer making arrest – visible identification; arrest memo; right of arrestee to have a friend/relative informed
S 37 Designated police officer – police control room in every district and state level; designated PO to maintain and display information about persons arrested at every PS and at district HQ
S 38 Right of arrestee to meet an advocate of choice during interrogation - though not throughout interrogation.
S 43 Arrest how made – confining an arrestee; woman arrestee; if arrestee resists/ evades arrest; use of handcuffs in certain cases [introduced in BNSS]; no right to cause death; no woman shall be arrested after sunset and before sunrise save in exceptional circumstances.
S 46 No unnecessary restraint to prevent an arrestee’s escape.
S 44 Search of place entered by person sought to be arrested

Manner of Arrest

S 47 Person arrested to be informed of grounds of arrest and of right to bail
Art. 22(1) of the Constitution – “No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.
Right to be informed of the grounds of arrest is a precious right of the arrested person. This allows the arrestee to move the proper court for bail, or a writ of habeas corpus (if the circumstances require), or arrange for his defence.
S 48 Obligation of person making arrest to inform about arrest etc. to relative or friend

Prabir Purkayastha v State (NCT of Delhi) (SC 2024)

Any person arrested for allegation of commission of offences under the UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest.
Purpose – this information the only effective means for the arrested person to consult his Advocate, to oppose police custody remand, and to seek bail. Any other interpretation would dilute the sanctity of Art. 22(1).
Right to be informed of grounds of arrest flows from Art. 22(1) and any infringement of this FR would vitiate the process of arrest and remand. That Chargesheet has been filed would not validate the illegality and the unconstitutionality committed at the time of arrest and the grant of initial police custody remand.
Even in the case of Art. 22(5) (preventive detention), SC has held that the grounds on which the liberty of a citizen is curtailed must be communicated in writing to enable him to seek remedial measures.
Difference between ‘reasons to arrest’ and ‘grounds of arrest’ – the former is formal and general and would commonly apply to any person arrested on a charge of a crime; whereas the latter would be required to contain all such details in hand of the IO which necessitated the arrest of the accused and must convey all basic facts on which he was being arrested to provide him an opportunity to defend himself against custodial remand and to seek bail. Therefore, interpretation given by the HC Single Judge that grounds of arrest were conveyed to the accused in writing vide the arrest memo was unacceptable. The memo did not indicate the grounds of arrest but simply set out the ‘reasons for arrest’.

Post-Arrest Procedures

S 51 Examination of accused by the medical practitioner at the request of the police officer
BNSS changes
‘any police officer’ (CrPC – a PO not below the rank of sub-inspector);
medical practitioner to send examination report to IO, without delay.
What does ‘examination’ include?
S 53 – Examination of arrested person by medical officer
BNSS changes –
first proviso – medical officer may conduct one more examination if he thinks it necessary
While S 51 enables a PO to compel an arrested person to undergo a medical examination to facilitate investigation, S 53 gives the accused the right to have himself medically examined to enable him to establish that the offence was not committed by him or that he was subjected to physical injury.

Post-Arrest Procedures

S 54 Identification of person arrested
test identification parade
S 56 Health and safety of arrested person
S 57 Person arrested to be taken before Magistrate or officer in charge of police station
S 58 Person arrested not to be detained more than twenty-four hours (BNSS change - “whether having jurisdiction or not”)
Art. 22(2) Constitution – Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Objective – (i) to prevent arrest and detention for extracting confessions or as a means of compelling people to give information; (ii) to prevent PS from being used as prisons; (iii) to afford an early recourse to a judicial officer for bail, discharge etc.
S 60 Discharge of person apprehended
S 62 Arrest to be made strictly according to the Sanhita

Rights of Arrested Persons

To know the grounds of arrest (S 47, Art. 22(1))
To be taken before a Magistrate without delay (S 57, Art. 22(2))
Not to be detained for more than 24 hours without judicial scrutiny (S 58, Art. 22(2))
To be examined by a medical practitioner (S 53)
Others?

Summons; Warrant of Arrest: Proclamation

Chapter VI, BNSS

Summons and Warrant Cases

Summons or arrest is decided by a judicial officer, but the judicial discretion is guided, and to an extent controlled, by BNSS provisions.
Standard used to make the initial decision of arrest or summons: Seriousness of the offence?
In a summons case, the consequences of trial are less serious to the accused than those in a warrant case, hence less likely that the accused would abscond and disobey the summons to attend his trial (Failure to appear is a punishable offence u/s 208 BNS). In a warrant case, the risk of absconding is higher.
Therefore, BNSS gives the general direction that in a summons case, a summons is issued, and a warrant in a warrants case, but the judicial officer has the discretion to depart from this rule if required by the circumstances.
See S 227 BNSS

Meaning and Form of Summons

‘Summons’ is an authoritative call to the accused person to appear in court to answer a charge of an offence.
S 63 Form of Summons:
See Form No. 2, Second Schedule, BNSS (Form indicates that the court issuing the summons may permit the accused to appear through his lawyer.)
BNSS change – Summons may also be in the form of electronic communication and shall bear the image of the Court’s seal or digital signature.
S 64 Summons how served (BNSS changes – S 64(1) proviso; S 64(2) proviso)
S 66 Service when persons summoned cannot be found by exercise of due diligence [requirement of adult ‘male’ member removed in BNSS]
S 70(3) – All summons served through electronic communication u/s 64 to 71 shall be considered as duly served + copy of such summons shall be attested and kept as proof of service

Meaning and Form of Warrant of Arrest

‘Warrant of arrest’ is a written order issued and signed by a Magistrate and addressed to a police officer or some other person specially named, and commanding him to arrest the body of the accused person named in it.
Decision to issue or not to issue a warrant – requires a balancing of social interests (that an accused be arrested and detained so that he can be put on trial) and interests of the individual accused (should not be arrested before his guilt is established through a fair trial). Hence, decided by a judge.
No general warrant of arrest, i.e., a warrant to arrest all persons committing a particular offence(s). It would be illegal to issue such a warrant.
An arrest warrant remains in force till it is executed or cancelled by the court issuing it.

Form and Content of Warrant of Arrest

S 72 Form of warrant of arrest and duration
See Form No. 3, Second Schedule, BNSS (Must mention name of the person to be arrested, offence he is charged with, person with the authority to arrest)
S 73 Power to direct security to be taken (Bailable Warrant of Arrest)
See Form No. 3, Second Schedule, BNSS
S 77 Notification of substance of warrant
S 78 Person arrested to be brought before Court without delay

S 90 - Issue of warrant in lieu of, or in addition to, summons

A court may,
In any case in which it is empowered to issue a summons for the appearance of any person,
Issue, after recording reasons in writing, a warrant for his arrest –
(i) If the Court sees reason to believe that he has absconded or will not obey the summons, or
(ii) If at such time, he fails to appear, even when the summons is proved to have been duly and timely served and no reasonable excuse is offered for such failure.
See Form No. 1