Arrest Without a Warrant: When Can Police Arrest Someone for Non-Cognizable Offences?
- Introduction
An arrest directly affects a person’s personal liberty; therefore, the police do not possess unlimited power to arrest an individual. Criminal procedure mandates adherence to specific legal conditions when making an arrest.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) delineates distinct police powers for cognizable and non-cognizable offences. Generally, the police cannot arrest an individual without a warrant for a non-cognizable offence. Section 35(2) of the BNSS explicitly states that a warrant or an order from a Magistrate is required to arrest a person involved in a non-cognizable offence, subject to the limited exception provided under Section 39.
The objective is to ensure that the police do not misuse their power of arrest and that no individual is arrested unnecessarily based merely on suspicion or a complaint.
- Cognizable aur Non-Cognizable Offence mein Difference
First, it is important to understand the difference between cognizable and non-cognizable offences.
In the case of a cognizable offence, the police may have the authority under the law to make an arrest without a warrant. Section 35 of the BNSS specifies various situations where the police can arrest without a warrant.
However, the situation is different for non-cognizable offences. In such cases, the police generally:
- cannot arrest without a warrant;
- cannot initiate an investigation directly without a Magistrate’s order;
- and generally require a warrant or an order from a Magistrate to make an arrest.
- BNSS Section 35 – General Rule Regarding Arrest
The title of Section 35 of the BNSS itself is “When police may arrest without warrant.”
Section 35(1) primarily deals with situations involving cognizable offences. For instance, under certain circumstances—and subject to statutory conditions—the police may make an arrest based on a reasonable complaint, credible information, or reasonable suspicion. However, Section 35(2) specifically imposes restrictions regarding non-cognizable offences.
The fundamental rule of this provision is:
- A person involved in a non-cognizable offence cannot ordinarily be arrested without a warrant or an order from a Magistrate.
- In other words, if a person is merely accused of a non-cognizable offence, the police cannot simply state, “We suspect you, so we are arresting you.”
- The police require proper legal authority.
- Section 39 – Limited Exception
Section 35(2) itself states that its rule is “subject to the provisions of Section 39.”
Section 39 grants the police the power to arrest in a specific, limited situation. If the police reasonably suspect a person of having committed a non-cognizable offence and a police officer asks that person to provide their name and residence, but the person refuses to disclose their name or residence; or provides a false name or residence, and the police officer reasonably believes the information to be false, then the police officer may arrest that person for the purpose of ascertaining their identity.
Example:
Suppose the police have reasonable grounds to believe that A has committed a non-cognizable offence.
The police ask A:
“Tell me your name and address.”
A refuses to disclose his name and address.
In such a situation, Section 39 grants the police a limited power of arrest; however, the purpose of the arrest is to ascertain the person’s identity, not to automatically punish them.
- What happens after the identity is confirmed?
Section 39 does not confer a power of unlimited detention.
If the person’s true name and residence are ascertained, they should be released on a bond or bail bond, subject to the condition of appearing before the Magistrate if required. If the person resides outside India, a requirement for a surety residing in India may apply regarding the bail bond. And if the true name or residence is not ascertained within 24 hours, or if the person fails to execute the required bond or bail bond, they must be produced before the nearest Magistrate. This clarifies that the purpose of Section 39 is not arbitrary detention; rather, it serves as a limited safeguard or exception primarily intended for ascertaining identity.
- Section 174 BNSS – Non-Cognizable Cases Investigation
Section 174 of the BNSS is also very important in the context of non-cognizable offences. When a police station receives information regarding a non-cognizable offence, the police officer records the information in the prescribed manner and refers the informant to the Magistrate. Normally, the police cannot conduct an investigation without an order from the Magistrate.
If the Magistrate orders an investigation, the police may proceed with it; however, Section 174(3) specifically clarifies that the police do not acquire the power to arrest without a warrant merely because an investigation order has been issued. This distinction should certainly be explained in the article.
Simple example:
If there is a complaint against B for a non-cognizable offence:
Complaint → Police records information → Informant referred to Magistrate → Magistrate’s order → Investigation
But:
Investigation order ≠ automatic power to arrest without warrant. This is a very important legal point.
- Special Rule for Mixed Offences
There is another important point in Section 174(4). If a case involves two or more offences and at least one of them is cognizable, the entire case will be treated as a cognizable case.
Example:
Suppose that against an accused:
Offence A = cognizable
Offence B = non-cognizable
In such a situation, under Section 174(4), the entire case can be treated as a cognizable case. Therefore, it is useful to clarify in the article that the rule regarding a “non-cognizable offence” applies straightforwardly only when the case is genuinely of a non-cognizable nature.
- Can one be arrested just for complaining?
Normally, no. Mere filing of complaint does not automatically give the police the power to arrest warrantless in non-cognizable offences. The basic protection of Section 35(2) ensures this very thing. In case of non-cognizable offence, warrant/order of Magistrate is required, except the limited situation covered by Section 39.
Therefore the central argument of the article could be this:
A complaint, suspicion or allegation by itself does not give the police unlimited power to arrest a person for a non-cognizable offense without a warrant.
- Why Is This Protection Important?
An arrest can have a serious impact on a person’s:
- liberty,
- reputation,
- employment,
- family life, and
- mental well-being.
If the police were granted unlimited power to make arrests without a warrant for non-cognizable offences, the risk of arbitrary arrests could increase. Therefore, the BNSS has restricted police powers while maintaining the role of judicial oversight.
The involvement of a Magistrate ensures that police action can be examined within the framework of legal authority and procedural safeguards.
- Practical Example
Suppose there is an allegation of a non-cognizable offence against X.
The police receive a complaint.
Situation 1:
X presents himself before the police and provides his correct name and address. The police cannot arrest X without a warrant solely on the basis of a non-cognizable offence.
Situation 2:
X refuses to disclose his name/address. Section 39 may apply, and the police may arrest him for the purpose of ascertaining his identity.
Situation 3:
X provides a false name/address, and the police reasonably believe the information to be false.
Again, the limited exception under Section 39 may apply.
Situation 4:
There are both non-cognizable and cognizable offences against X.
In accordance with the consequences under Section 174(4), the case may be treated as a cognizable case.
- Conclusion
The framework of BNSS, 2023 establishes that warrantless arrest is not a general rule in non-cognizable offences. Section 35(2) restricts the police from making arrests in such offenses unless there is a warrant or order of a Magistrate.
However, Section 39 provides a limited exception where the person refuses to disclose his true name and residence or gives information that the police reasonably believe to be false. Even in that situation, the power is connected with ascertaining the person’s identity and is subject to further procedural safeguards. Similarly, Section 174 ensures that investigation of a purely non-cognizable case is subject to Magistrate’s order, while making it clear that such an order itself does not give police the power to arrest without warrant. Therefore, the answer to the title question is “generally no, but in a narrowly defined situation under Section 39, police may arrest without warrant for the limited purpose of ascertaining identity.” This point should be the main highlight of your article. This article will not only read “police cannot arrest”, but will also properly analyze Section 35 , Section 39 , Section 174.
References
- The Bharatiya Nagarik Suraksha Sanhita, 2023, s 35.
- The Bharatiya Nagarik Suraksha Sanhita, 2023, s 39.
- The Bharatiya Nagarik Suraksha Sanhita, 2023, s 174.
- The Constitution of India, art 21.
- The Constitution of India, art 22.
- Joginder Kumar v State of Uttar Pradesh, (1994) 4 SCC 260.
- K. Basu v State of West Bengal, (1997) 1 SCC 416.
- Arnesh Kumar v State of Bihar, (2014) 8 SCC 273.
- Ministry of Home Affairs, The Bharatiya Nagarik Suraksha Sanhita, 2023.
- India Code, The Bharatiya Nagarik Suraksha Sanhita, 2023.
