Section 40 BNSS 2023: Arrest by Private Person and Procedure on Such Arrest
Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 specifies the limited circumstances in which a private person may make an arrest and prescribes what must happen immediately afterward, including delivery to police without unnecessary delay and within six hours.
What is Section 40 BNSS?
Section 40 gives a private person a narrowly defined statutory power to arrest another person in specified circumstances. It also safeguards against unnecessary private detention by requiring prompt handover to the police and by directing release where there is no sufficient reason to believe that an offence has been committed.
Key legal terms under Section 40
Private person: For the purpose of Section 40, a person who is not exercising the arrest power as a police officer or Magistrate under the other arrest provisions of the BNSS.
Cognizable offence: An offence for which a police officer may arrest without warrant in accordance with the BNSS and the classification applicable to the offence.
Non-bailable offence: An offence classified as non-bailable under the applicable law. Bail in such cases is governed by the statutory provisions and the discretion of the competent court or authority where applicable.
Proclaimed offender: A person who has been declared or proclaimed as an offender in accordance with the applicable legal procedure.
Without unnecessary delay: Section 40 requires prompt action after a private arrest and additionally fixes an outer limit of six hours for handing over the arrested person to a police officer or taking the person to the nearest police station.
Text of Section 40 - Arrest by private person and procedure on such arrest
40. (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, but within six hours from such arrest, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of sub-section (1) of section 35, a police officer shall take him in custody.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 39; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
When may a private person make an arrest?
Under subsection (1), a private person may arrest, or cause the arrest of, a person who in the private person's presence commits an offence that is both non-bailable and cognizable. The provision also permits the arrest of a proclaimed offender.
The statutory power should therefore not be treated as a general authority for private persons to arrest anyone merely suspected of wrongdoing. The conditions stated in Section 40 must be satisfied.
Six-hour handover requirement
A person arrested by a private person cannot be kept in private custody indefinitely. Section 40(1) requires the arrested person to be handed over to a police officer without unnecessary delay and, in any event, within six hours from the arrest.
If no police officer is available, the private person must take, or cause the arrested person to be taken, in custody to the nearest police station within the statutory framework.
What happens after the person is handed over to police?
Under subsection (2), if there is reason to believe that the person falls within Section 35(1) BNSS, the police officer shall take that person into custody. Section 35(1) sets out circumstances in which police may arrest without warrant.
What if only a non-cognizable offence appears to have been committed?
Subsection (3) directs that where there is reason to believe the person has committed a non-cognizable offence and the person refuses to give his name and residence, or supplies particulars the police officer has reason to believe are false, the person must be dealt with under Section 39 BNSS.
Immediate release where there is no sufficient reason to believe an offence was committed
Section 40(3) expressly provides that if there is no sufficient reason to believe that the person has committed any offence, the person shall be released at once. This requirement limits continued custody after the police examine the circumstances of the private arrest.
Related BNSS arrest provisions
Section 40 should be read with Section 35 BNSS on police arrest without warrant, Section 36 BNSS on procedure of arrest, Section 38 BNSS on access to an advocate during interrogation, and Section 39 BNSS on refusal to give name and residence.
Section 40 BNSS at a glance
- A private person may arrest someone who, in his presence, commits a non-bailable and cognizable offence.
- A private person may also arrest a proclaimed offender.
- The arrested person must be handed over without unnecessary delay and within six hours.
- If no police officer is available, the person must be taken to the nearest police station.
- If Section 35(1) applies, the police officer shall take the person into custody.
- If a non-cognizable offence is involved and identity particulars are refused or believed false, Section 39 applies.
- If there is no sufficient reason to believe that any offence was committed, the person must be released at once.
Official legal resources
This page provides general legal information. The legality of an arrest in a particular case depends on the precise facts, classification of the alleged offence, compliance with the BNSS, and other applicable legal safeguards.