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Arrest under Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023

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 31-Jul-2024

Source: Karnataka High Court 

Why in News? 

A bench of Justice M Nagaprasanna held that the notice under Section 35 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) should contain the crime number, offence alleged, and a copy of FIR should be attached with it.       

  • The Karnataka High Court held this in the case of Tavaragi Rajashekhar Shiva Prasad v. State of Karnataka.  

What is the Background of Tavaragi Rajashekhar Shiva Prasad v. State of Karnataka Case? 

  • The petitioner in this case claims to be a reputed renowned journalist. 
  • He received a notice on WhatsApp on 6th June 2024. This notice was styled to be issued under Section 41 (1)(a) of Criminal Procedure Code, 1973 (CrPC) which does not refer to registration of any crime under which the notice was issued. 
  • The petitioner claims to have enquired about the notice and sought reasons for the issuance of notice, however, he was not informed of the crime details. 
  • Therefore, the petitioner came to the Court.

What were the Court’s Observations? 

  • The High Court observed in this case that the notice so issued though quotes Section 41 (1)(a) of CrPC it is infact issued under Section 41-A of CrPC as the petitioner is directed to appear before the Police. 
  •  Any notice issued under Section 41- A if not complied with results in arrest of the noticee. Therefore, the noticee must be aware of why he is being summoned to the police station. 
  • A citizen must know why he is being summoned and the information given to the citizen cannot be half baked. The notice should contain the crime number and the purpose for which he is being summoned. 
  • The Court held that the notice can be issued electronically but the police officer must mention the crime number and also attach a copy of FIR to the communication. 
  • The Court then compared Section 35 of BNSS with Section 41 of CrPC. 
  • The Court finally issued guidelines to summon any person. The drill that should be followed are: 
    • The notice under Section 35 of the BNSS shall mention the crime number and the offence alleged in the crime number. This can be communicated to the noticee either through the conventional method or through electronic mode. 
    • The communication shall attach a copy of the FIR so registered, as the FIR would contain the gist of the complaint. 
    • In the event notice does not contain the crime number, the offence alleged or appending of the FIR, subject to just exceptions, the noticee is not obliged to appear before the officer who has directed him to appear, and no coercive action can be taken for non-appearance. 
    • It is also necessary for the Police Department to bring about a robust system for the FIR being uploaded immediately on their registration and make it search friendly. 

What is the Provision for Arrest and Notice for Arrest ? 

  • Section 41 and Section 41 A of CrPC provides for arrest and the notice of appearance before police officer respectively. This is contained in Section 35 of BNSS. 
  • Comparison between CrPC and BNSS: 
Section 41 and 41A of CrPC Section 35 of BNSS

Section 41:  

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— 

(a) who commits, in the presence of a police officer, a cognizable offence;  

(b) against whom 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 the following conditions are satisfied, namely:—  

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;  

(ii) the police officer is satisfied that such arrest is necessary—  

(a) to prevent such person from committing any further offence; or  

(b) for proper investigation of the offence; or  

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or  

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or  

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, 

and the police officer shall record while making such arrest, his reasons in writing: 

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest 

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; 

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or  

(d) 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; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or  

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or  

(g) who has been 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 punishable as 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; or  

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or 

(i) 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 35: 

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—  

(a) who commits, in the presence of a police officer, a cognizable offence; or  

(b) against whom 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 the following conditions are satisfied, namely:— 

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;  

(ii) the police officer is satisfied that such arrest is necessary—  

(a) to prevent such person from committing any further offence; or  

(b) for proper investigation of the offence; or  

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or  

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or  

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, 

and the police officer shall record while making such arrest, his reasons in writing: 

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest; or 

(c) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; or  

(d) who has been proclaimed as an offender either under this Sanhita or by order of the State Government; or  

(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; or  

(f) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or  

(g) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or 

(h) who has been 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 punishable as 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; or 

(i) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 394; or  

(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. 
(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate  (2) Subject to the provisions of section 39, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. 

Section 41 A: 

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice 

 (3) The police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. 
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.  (4) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. 
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.  (5) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. 
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.  (6) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. 
(7) 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. 
  • It is to be noted that under CrPC the notice for appearance before police officer is contained in Section 41 A and the grounds of arrest are mentioned in Section 41. However, under BNSS both these provisions have been amalgamated under Section 35 of BNSS.  
  • A new provision is added in the form of Section 35 (7).  
  • Section 35 (7) of BNSS provides that no arrest shall be made without prior permission of the officer not below the rank of Deputy Superintendent of Police in case: 
    • The offence is punishable for less than three years; and 
    • Such a person is infirm or above sixty years of age.