The power of the police to arrest without warrant is one of the most discussed and debated aspects of criminal law. While it is essential for maintaining law and order, it also carries the risk of misuse. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the old Code of Criminal Procedure, lays down specific provisions regulating when and how an arrest can be made without a warrant. For citizens, understanding these rights is vital because an unlawful arrest can lead to grave injustice.
When Can Police Arrest Without Warrant?
BNSS allows police officers to arrest a person without warrant in cases of cognizable offences — offences where the police can act on their own without prior approval from the Magistrate. These include serious crimes like murder, theft, cheating, and offences involving threats to public order. However, the law makes it clear that arrest is not mandatory in every case. The police must consider the seriousness of the offence, the possibility of the accused absconding, and whether arrest is necessary for investigation.
Rights of an Arrested Person
The Supreme Court in D.K. Basu v. State of West Bengal (1997) laid down important guidelines on arrest. These include the right to be informed of the grounds of arrest, the right to inform a family member, and the right to consult a lawyer. Under BNSS, these rights continue to apply, ensuring transparency and accountability. The arrested person must also be produced before a Magistrate within 24 hours. Failure to do so makes the detention illegal.
Protection from Arbitrary Arrest
The judiciary has repeatedly emphasized that liberty cannot be curtailed casually. In Joginder Kumar v. State of U.P. (1994), the Supreme Court held that arrest should not be used as a punitive tool and should be justified by necessity. This precedent remains relevant under BNSS. Courts today expect the police to record reasons in writing when they choose to arrest without warrant.
Practical Remedies for Citizens
If you or someone you know is arrested without a warrant, ask for a copy of the arrest memo, ensure that family members are informed, and demand production before a Magistrate. If rights are violated, a writ of habeas corpus can be filed before the High Court under Article 226 of the Constitution. Compensation can also be sought for unlawful detention.
Conclusion
Arrest without warrant is a powerful tool but also a potential threat to liberty. By knowing the safeguards under BNSS and key judicial precedents, citizens can protect themselves against arbitrary police action.