Section 35 BNSS 2023: When Police May Arrest Without Warrant
Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 sets out the circumstances in which a police officer may arrest a person without an order from a Magistrate and without a warrant. It also contains safeguards requiring reasons for arrest or non-arrest, a notice of appearance where arrest is not required, and additional protection in specified cases involving infirm persons or persons above sixty years of age.
Meaning and scope of Section 35 BNSS
Section 35 governs police power to make an arrest without first obtaining a warrant. The section distinguishes between different categories of cases, including cognizable offences committed in the presence of a police officer, cognizable offences punishable up to seven years, graver cognizable offences, proclaimed offenders, possession of suspected stolen property, obstruction of police, escape from lawful custody, desertion from the Armed Forces, extradition-related cases, breach by released convicts, and requisitions received from other police officers.
Key legal expressions
Cognizable offence: An offence for which a police officer may, in accordance with the First Schedule or any other law for the time being in force, arrest without warrant.
Non-cognizable offence: An offence for which a police officer has no authority to arrest without warrant.
Reason to believe: Section 35 requires the police officer to form the relevant belief on the basis of the complaint, information, or suspicion available in the particular case. For offences punishable up to seven years, arrest must also be shown to be necessary for one or more of the purposes specified in the section.
Text of Section 35 - When police may arrest without warrant
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 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.
(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.
(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.
(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.
(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.
When is arrest necessary for offences punishable up to seven years?
For the category covered by Section 35(1)(b), the existence of a complaint, information, or suspicion is not by itself sufficient. The police officer must have reason to believe that the person committed the offence and must also be satisfied that arrest is necessary for one of the purposes listed in the provision.
- Preventing the person from committing a further offence.
- Ensuring proper investigation.
- Preventing disappearance or tampering with evidence.
- Preventing inducement, threat, or promise to witnesses or persons acquainted with the facts.
- Ensuring the person's presence before the Court when required.
The police officer must record reasons in writing when making such an arrest. Where arrest is not required under sub-section (1), reasons for not making the arrest must also be recorded.
Notice of appearance instead of arrest
Section 35(3) requires issuance of a notice to appear where arrest is not required under sub-section (1). A person receiving such notice must comply with it. If the person complies and continues to comply, the person should not be arrested for the offence mentioned in the notice unless the police officer records reasons for concluding that arrest has become necessary.
If the person fails to comply with the notice or is unwilling to identify himself, the police officer may, subject to any order passed by a competent Court, arrest the person for the offence stated in the notice.
Protection for infirm persons and persons above sixty years
Section 35(7) imposes an additional safeguard where the alleged offence is punishable with imprisonment of less than three years and the person is infirm or above sixty years of age. In such a case, an arrest cannot be made without prior permission of an officer not below the rank of Deputy Superintendent of Police.
Non-cognizable offences
Subject to Section 39 BNSS, a person concerned in a non-cognizable offence cannot be arrested merely on the basis of a complaint, credible information, or reasonable suspicion. A warrant or an order of a Magistrate is required.
Section 35 BNSS at a glance
- Police may arrest without warrant only in the situations authorized by law.
- For cognizable offences punishable up to seven years, the officer must satisfy the statutory necessity test.
- Reasons for arrest, and in specified cases reasons for not arresting, must be recorded in writing.
- If arrest is not required, a notice of appearance must ordinarily be issued.
- Compliance with the notice generally protects the person from arrest unless fresh reasons for arrest are recorded.
- Additional prior approval is required in the circumstances specified in Section 35(7).
Official legal resources
This page is intended as a general legal information resource. For application of Section 35 to a particular case, the facts, the alleged offence, the applicable Schedule, judicial orders, and other relevant provisions should be examined.