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Constitution and Powers of Criminal Courts under BNSS, 2023

Introduction

The criminal court system in India is hierarchical, designed to ensure graded administration
of criminal justice. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces
the CrPC, retains much of the structural framework of criminal courts while modernizing it.

The scheme of Chapter II of BNSS (Sections 8 to 26) deals with the constitution of criminal
courts and their powers. These provisions lay down how courts are organized, their
jurisdiction, and the classification of magistrates. The system is broadly divided into Courts
of Session and Magistrates’ Courts under the supervisory control of the High Courts.

Classes of criminal courts:

Section 6 of the BNSS provides for the classes of criminal courts in every State apart from
the High Courts and the Supreme Court, namely –

1. Court of Session

2. Judicial Magistrates of the first class and,

3. Judicial Magistrates of the second class; and

4. Executive Magistrates

Territorial divisions under the Sanhita:

India's territory comprises states, with districts and Sessions Divisions as basic territorial
units per Section 7 of the BNSS. Large cities like Bombay, Calcutta, and Madras are
recognized as metropolitan areas, functioning as separate sessions divisions and districts.
India's criminal courts include the Supreme Court, High Courts, Courts of Session (in each
Session Division), and Courts of Judicial Magistrates (in each district).

Court of Session

Section 8 of the Bharatiya Nagarik Suraksha Sanhita largely mirrors Section 9 of the old
Criminal Procedure Code regarding Courts of Session, omitting the mention of Assistant
Sessions Judges.

Establishment and Appointments: The State Government establishes a Court of Session for
each sessions division, presided over by a High Court-appointed Judge. The High Court can
also appoint Additional Sessions Judges.
Inter-Divisional Appointments: A Sessions Judge for one division can also be appointed as
an Additional Sessions Judge for another, sitting at various locations as directed by the High
Court.

Vacancies: If the Sessions Judge position is vacant, the High Court can arrange for urgent
applications to be handled by an Additional Sessions Judge or, if none, by the Chief Judicial
Magistrate.

Court Sittings: Courts generally sit at High Court-specified locations. For convenience, with
prosecution and accused consent, the Court can sit elsewhere within the division for specific
cases. In Kehar Singh v. The State (Delhi Admn.), it was held that Tihar Jail could be a valid
sitting location.

Business Distribution: The Sessions Judge distributes business among Additional Sessions
Judges.

Limitations on Authority: State of Karnataka v. Channabasappa held that a Civil Judge or

Chief Judicial Magistrate acting as a Sessions Judge lacks the authority to grant bail in serious
cases, as they are not a Sessions Court constituted under Section 8.

Section 22 of the BNSS outlines sentencing powers for High Courts and Sessions Judges:

- Section 22 of the BNSS outlines the sentencing powers of High Courts and Sessions Judges,
replacing the previous Section 28 of the Cr.P.C.

- High Courts can impose any sentence permitted by law, affirming their broad jurisdiction
over sentencing. (S. 22(1))

- Sessions Judges and Additional Sessions Judges also have the authority to issue any legally
authorized sentence, providing them with significant discretion. (S. 22(2))

- Any death sentence issued by a Sessions Judge or Additional Sessions Judge requires
confirmation from the High Court.

- The Supreme Court's ruling in Ramashraya Chakravarti v State of Madhya Pradesh

emphasizes that sentencing is a judicial decision influenced by minimum legal penalties and
various factors, including crime nature, offender characteristics, and societal impact.
- The case of Jagat Bahadur v State of Madhya Pradesh establishes that appellate courts'
sentencing authority is limited by the original court's capabilities, ensuring consistency in
judicial standards during appeals.

Courts of Judicial Magistrates

Section 9 of the BNSS outlines the establishment and jurisdiction of Judicial Magistrate
Courts. These courts, categorized as first and second class, are set up in every district. The
State Government, in collaboration with the High Court, decides on the number and
placement of these courts. Furthermore, the State Government has the authority to create
Special Courts for particular cases or geographical areas, which then supersede the
jurisdiction of other Magistrate Courts. The High Court is responsible for appointing the
officers who preside over these courts.

Case law provides further insight into the functioning of these courts. In Mohd Aslam v
State of UP (2007), the Supreme Court ruled that minor procedural errors in the designation
of a Special Court, such as a lack of High Court consultation or an omitted crime number, can
be rectified by issuing a corrected notification after due consultation. Another significant
ruling, Dy Chief Controller of Imports & Exports v Roshanlal Agarwal (2003), established
that a Special Court created under the Imports and Exports (Control) Act, 1947, also
possessed jurisdiction over offenses under the Indian Penal Code, thereby extending its
scope beyond just economic crimes.

Additionally, the High Court has the power to grant Judicial Magistrate powers to Civil Court
Judges within the State's Judicial Service if it deems such a grant to be expedient or
necessary for effective judicial administration.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

Section 10 of the BNSS (formerly Section 12 Cr.P.C.) outlines the appointment of Chief
Judicial Magistrates (CJMs) and Additional Chief Judicial Magistrates (ACJMs). The High Court
appoints a first-class Judicial Magistrate as the CJM in each district to oversee justice
administration. The High Court can also appoint ACJMs with full or partial CJM powers,
allowing for workload distribution. First-class Judicial Magistrates in sub-divisions can be
designated as Sub-divisional Judicial Magistrates by the High Court, which can also relieve
them of specific duties. Sub-Divisional Judicial Magistrates, under the CJM's general control,
supervise and control other Judicial Magistrates (excluding ACJMs) in their sub-division, with
powers defined by the High Court.

Sec 23: Sentence which magistrate may pass:

Chief Judicial Magistrate (Section 23(1)): The Chief Judicial Magistrate is empowered to
Issue most sentences that are legally permissible with some exceptions.

Exceptions: Specifically barred from Issuing the most severe sentences; death, life
imprisonment, or imprisonment for more than seven years. This limitation ensures that such
grave sentences are reserved for higher courts.

Magistrate of the First Class (Section 23(2)):

Magistrates can now impose up to three years imprisonment and fines of up to fifty
thousand rupees, a significant increase. Community service is also a new sentencing option.
In Shivarajveerappa Purad v State of Karnataka, it was affirmed that a First Class Magistrate
can impose up to three years. However, if a harsher sentence is needed, the case can be
transferred to the Chief Judicial Magistrate (Section 364 Sanhita).

Magistrate of the Second Class (Section 23(3)):

Sentencing limited to one year imprisonment, reflecting less severe cases. The fine limit
doubled to ten thousand rupees, adapting to contemporary circumstances or emphasizing
financial penalties. Community service is now an option, indicating a broader shift towards
community-oriented punishments.

Introduction of Community Service as a form of Punishment in Sanhita:

Community service requires convicts to perform unpaid work beneficial to the community,
such as cleaning public spaces or working in community centers. This rehabilitative
punishment helps offenders develop social responsibility and reintegrate into society.
Special Judicial Magistrates (Section 11)

High Courts can appoint experienced individuals, especially those with government
backgrounds, as Special Judicial Magistrates for specific cases or case types within a local
area. These appointees must meet High Court-set qualifications and experience criteria and
serve a maximum one-year term per appointment.

Jurisdiction of judicial magistrate (section 12)

The Chief Judicial Magistrate, supervised by the High Court, defines the local jurisdiction of
Magistrates. A Magistrate's default authority covers the entire district unless specified.
Special Judicial Magistrates can preside anywhere in their designated area. If a Magistrate's
jurisdiction extends beyond their primary district, references to higher judicial authorities
adapt to their original district's corresponding authorities.

Section 13: Subordination of Judicial Magistrates.viens

Section 13 of the BNSS (formerly Section 15 of the Cr.P.C.) addresses the subordination of
Judicial Magistrates. Within the district's judicial hierarchy, the Sessions Judge is supreme,
followed by the Chief Judicial Magistrate (CJM), who oversees other Judicial Magistrates. The
CJM manages case distribution and judicial workload among them, issuing consistent rules
or orders as needed.

Executive Magistrates (Section 14)

Section 14 of the BNSS (formerly Section 20 of the Cr.P.C) provides for Executive Magistrates.
The State Government appoints Executive Magistrates, including the District Magistrate,
defining their jurisdiction and powers. An Additional District Magistrate can also be
appointed, with delegated powers for efficient administration.

There are five classes of Executive Magistrates:

(1) the District Magistrate:

(2) the Additional District Magistrate:

(3) the Sub-divisional Magistrate:

(4) Executive Magistrates:

(5) Special Executive Magistrates

The State Government appoints Executive Magistrates in each district, designating one as
the District Magistrate, based on the district's needs. The Supreme Court, in S Bharat Kumar
v Chief Election Commissioner of India, 1995 Cr LJ 2608 (AP), ruled that appointing police
officers as Executive Magistrates to control left-wing extremists was unconstitutional under
Article 21, violating the right to a fair trial.

An Executive Magistrate can also be appointed as an Additional District Magistrate, with

powers determined by the State Government. If the District Magistrate's office is vacant, the
officer temporarily overseeing executive administration assumes the powers and duties until
a State Government decision.

Executive Magistrates can be placed in charge of a sub-division by the State Government,

becoming Sub-Divisional Magistrates. The State Government can delegate the power to
appoint Sub-Divisional Magistrates to the District Magistrate. The State Government can also
confer Executive Magistrate powers on a Commissioner of Police under existing laws.

Section 24-Sentence of Imprisonment in Default of Fine

Section 24 of the BNSS (formerly Section 30 of the Cr.P.C.) addresses imprisonment for
defaulting on fines. If a fine is unpaid, an additional prison term can be imposed, even
alongside a substantive sentence. This section limits a Magistrate's power to impose such
imprisonment.

Under Section 24(1), a Magistrate can impose imprisonment for unpaid fines only within
legal limits. The term cannot exceed the Magistrate's sentencing powers (Section 23). If
imprisonment is part of the original sentence, the default term cannot exceed one-fourth of
the maximum imprisonment for the offense, excluding the fine default.

Section 24(2) clarifies that imprisonment for non-payment of a fine is additional to any
substantive sentence, adhering to Section 23's maximum limits.

Section 25-Sentence in Cases of Conviction of Several Offences at One Trial

Section 25 of the BNSS (formerly Section 31 Cr.P.C.) allows a court to issue separate,
consecutive, or concurrent punishments for multiple offenses committed in one trial,
considering the seriousness of each. The court has discretion to order concurrent sentences,
but this must be exercised judiciously, not mechanically (OM Cherian v State of Kerala, AIR
2015 SC 303)..

Section 26 - Mode of Conferring Power

Section 26 of the BNSS provides for Mode of Conferring Power. It was earlier provided under
Section 32 of the Cr.P.C.

Conferring Powers (Section 26(1)):

The High Court or State Government can confer powers under this Sanhita by:

 Name: Empowering specific individuals.

 Office: Empowering individuals based on their position.

 Class of Officials: Empowering groups of officials generally by their titles, allowing

broad delegation.

Effectiveness of the Order (Section 26(2)):

The order takes effect upon communication to the empowered person(s), ensuring
awareness of new responsibilities and their start date.

Section 28-Withdrawal of Power

Section 28 of the BNSS provides for Withdrawal of Power. It was earller provided under
Section 34 of the Cr.P.C.

Withdrawal of Powers

 High Court or State Government (Section 28(1)): Can withdraw any powers they
previously conferred on individuals or subordinate officers.

 Chief Judicial Magistrate or District Magistrate (Section 28(2)): Can withdraw

powers they conferred.

Arrest of a Person Without Warrant (Ss. 35 and 39 to 42 BNS)

INTRODUCTION:

The concept of arrest of a person is a critical element in the administration of criminal

justice. Governed primarily by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), an
arrest signifies the act of taking a person into custody under legal authority, usually on
suspicion or accusation of committing a criminal offense. It is a coercive measure used by
law enforcement agencies to ensure the presence of an accused during the investigation,
trial, or to prevent the commission of a crime.

WHAT IS ARREST?

Arrest, the act of taking someone into custody for a crime, is not defined in the Code, which
instead outlines procedures and circumstances for arrests. It derives from the French
"arreter," meaning "to stop or stay," and signifies a restraint of liberty.

If a person resists arrest, necessary and reasonable force, proportionate to the resistance,
may be used. Excessive force is prohibited. Resisting arrest can lead to conviction under
Sections 262 or 263 of the BNS.

"Arrest" and "custody" are distinct; all arrests involve custody, but not vice-versa. Arrest is
the physical seizure to restrain, while custody is submission to authority. Police can arrest
without a warrant in cognizable cases but require one from a competent Magistrate under
Section 174 BNSS for non-cognizable cases. Arrests can also be made for persons specified in
Sections 109 or 110 of the CPC.

In State of U.P. v. Deoman Upadhaya, AIR 1960 SC 1125, the Supreme Court ruled that an
accused person who approached a police officer investigating their case and offered
information relevant to the charge had submitted to custody by action under Section 35(1)
BNSS.

NEED FOR ARREST OF A PERSON:

Arrest is a crucial tool in criminal law, serving vital purposes in justice administration and
public order. It's needed when there's reasonable suspicion of a cognizable offense. The aim
is to secure presence for investigation, trial, or to prevent further crime, not to punish. Key
reasons include: ensuring presence during trial, aiding investigation, preventing further
offenses, maintaining public order, and protecting the accused or public. However, arrest
must be judicious, not arbitrary. The Supreme Court emphasizes it's an exception, not a rule,
especially for offenses punishable by less than seven years imprisonment.

When Police may Arrest without Warrant (S. 35 BNSS):

Section 35 of the BNSS outlines eight circumstances allowing police arrest without a
warrant. This section is crucial in criminal law, defining when such arrests are permissible.
These circumstances can be remembered using the code CP-SODERR.

1. a person concerned in COGNIZABLE OFFENCE;

2. a person who has been PROCLAIMED OFFENDER;

3. in possession of STOLEN PROPERTY;

4. a person who OBSTRUCTS A POLICE OFFICER;

5. a person being a DESERTER FROM ANY OF THE ARMED FORCES;

6. under any law relating to EXTRADITION;

7. a person being a RELEASED CONVICT;

8. and on REQUISITION for Arrest from another police officer.

1. Arrest of a Person Concerned in Cognizable Offence (S. 35(1) (a) to S. 35(1) (c))

S. 35(1)(a) BNSS:

Police officers may arrest anyone who commits a cognizable offense in their presence,
without a magistrate's order or warrant. This discretionary power is not mandatory, and
officers must record their reasons in writing. Malicious or excessive arrests under these
sections are punishable by Section 258 of the BNS.

S. 35(1)(b) BNSS:

A police officer can arrest someone without a warrant or magistrate's order if there's a
reasonable complaint, credible information, or suspicion they've committed a cognizable
offense punishable by up to seven years in prison, with or without a fine. This is permitted if
the officer believes the person committed the offense and the arrest is necessary to:

 Prevent further offenses

 Aid investigation

 Prevent evidence tampering

  Stop them from influencing witnesses

 Ensure their court presence

The officer must record their reasons for the arrest in writing. If an arrest isn't required, the
officer must record the reasons for not making it. This clause applies to less serious offenses
(up to seven years imprisonment) and requires documented reasons for any arrest made
without a warrant.

S. 35(1)(c) BNSS:

Police can arrest individuals without a warrant or magistrate's order if there's credible
information they committed a cognizable offense punishable by over seven years
imprisonment or death, and the officer believes they did. This grants broad discretion for
serious offenses without requiring reasons like other clauses. Cases like Emperor v. Vimlabai
Deshpande emphasize this discretionary power must be reasonable and used only when
immediate action is necessary, with the burden on police to prove reasonable suspicion.
Joginder Kumar v. State of U.P. clarified arrests aren't made simply because they're lawful;
justification and a reasonable belief of complicity and necessity are required, as denying
liberty is serious. D.K. Basu v. State of West Bengal established arrest guidelines.

2. Arrest of a Person who has been Proclaimed Offender

S. 35(1) (d) BNSS:

Police can arrest proclaimed offenders without a warrant. S. 84(1) BNS allows courts to issue
a proclamation for absconding individuals against whom a warrant has been issued,
requiring their appearance within 30 days. If the offense carries a punishment of ten years or
more, life imprisonment, or death, and the person fails to appear, the court can declare
them a proclaimed offender per S. 84(4) BNS. Once declared, a police officer can arrest them
without a warrant.

3. Arrest of a Person in Possession of Stolen Property:

S. 35(1) (e) BNSS:

Police can arrest someone without a warrant if they reasonably suspect the person
possesses stolen property or committed a crime related to it. According to the Bharatiya
Nyaya Sanhita, 2023 (S. 317(1)), stolen property includes items obtained through theft,
extortion, robbery, cheating, criminal misappropriation, or criminal breach of trust. The
police's suspicion must be reasonable, based on factors like unsatisfactory answers during
questioning, to justify the arrest.

4. Arrest of a Person who Obstructs a Police Officer

S. 35(1) (f) BNSS:

Police can arrest without a warrant anyone who obstructs an officer in duty or
escapes/attempts to escape lawful custody. Obstructing a public servant is a non-cognizable
offense (BNS Section 221), but obstructing police allows warrant-less arrest. Escaping lawful
custody, regardless of initial offense, is punishable under BNS Section 262.

5. Arrest of a Person being a Deserter From any of the Armed Forces

S. 35(1) (g) BNSS:

A police officer may arrest, without a warrant or magistrate's order, anyone reasonably
suspected of deserting the Armed Forces of the Union.

6. Arrest of a Person under any Law Relating to Extradition

S. 35(1) (h) BNSS:

Police can arrest anyone without a warrant or magistrate's order if there's a reasonable
complaint, credible information, or suspicion they were involved in an act outside India that
would be an offense in India, and for which they can be extradited or detained. This applies
regardless of whether the act was an offense in the foreign country or if it was cognizable or
non-cognizable.

7. Arrest of a Person being a Released Convict

(S. 35(1) (i) BNSS:

Police can arrest released convicts without a warrant for violating rules under section 394(5)
regarding residence notification or changes..

8. Arrest of a Person on Requisition from another Police Officer

S. 35(1) (j) BNSS:

A police officer can arrest a person without a warrant if another officer issues a written or
oral requisition specifying the person, the offense, and that the issuing officer could have
lawfully made the arrest without a warrant. This facilitates distant arrests, though the
section doesn't detail when such requisitions are justified.

Arrest without warrant in Case of Non-Cognizable Offence

S. 35(2) BNSS:

Typically, arrest for a non-cognizable offense requires a warrant or magistrate's order

(Section 39). However, Section 39 of the BNSS outlines exceptions where police can arrest
without a warrant, even for non-cognizable offenses.

When an Arrest of a Person is not Required under Section 35 (1) of BNSS:

  Notice for Appearance (S. 35(3) BNSS): Police officers are required to issue a notice
for appearance instead of making an arrest if a person is suspected of a cognizable
offense, provided that an arrest is not deemed necessary at that time.

 Mandatory Compliance (S. 35(4) BNSS): It is mandatory for the individual to comply
with the notice issued under S. 35(3).

 Protection from Arrest (S. 35(5) BNSS): Continued compliance with the notice
generally prevents arrest for the offense specified in the notice, unless the police
officer explicitly records the reasons for making an arrest.

 Conditions for Arrest (S. 35(6) BNSS): An individual can be arrested if they fail to
comply with the notice or refuse to identify themselves.

 DSP Permission for Arrest (S. 35(7) BNSS): For offenses punishable by less than three
years' imprisonment, an arrest cannot be made without prior permission from a
Deputy Superintendent of Police (DSP) if the person is infirm or over sixty years old.

Arrest on Refusal to Give Name and Residence

S. 39 BNSS:

 Police can arrest individuals for non-cognizable offenses if they refuse to provide or
give false name/address.

 The person is released on bond once their true identity is confirmed.

 If identity isn't confirmed within 24 hours or they fail to provide bond, they must go
before a Magistrate.

 This power is used only if the officer suspects the provided information is false (e.g.,
person won't show ID).

Arrest by Private Person and Procedure on Such Arrest

S. 40 BNSS:

 Private Arrests (S. 40(1) BNSS): Any private citizen can arrest someone committing a
non-bailable, cognizable offense in their presence, or a proclaimed offender. The
arrested person must be handed over to the police within six hours or taken to the
nearest police station.

 Police Custody (S. 40(2) BNSS): Police can take custody of someone arrested by a
private citizen if there's reason to believe the arrest falls under Section 35(1) BNS
(arrest without warrant).
  Arrest for Non-Cognizable Offenses (S. 40(3) BNSS): A person suspected of a non-
cognizable offense can be arrested if they refuse to provide their name and residence
or give false information. If there's no sufficient reason to believe they committed an
offense, they must be released immediately.

Arrest by Magistrate:

S. 41 BNSS:

 S. 41(1) BNSS: A Magistrate (Executive or Judicial) can arrest or order the arrest of an
offender who commits an offense in their presence within their jurisdiction. They can
then grant bail or commit the offender to custody.

 S. 41(2) BNSS: A Magistrate can arrest or direct the arrest of a person in their
presence, within their jurisdiction, for whom they could issue an arrest warrant. This
section does not grant the power to commit the arrested person to custody; this
must be done per Sections 58 and 187 BNSS.

Protection of Members of Armed Forces from Arrest:

S. 42 BNSS:

Members of the Armed Forces are protected from arrest for actions taken in their official
capacity, requiring Central Government consent. State Governments can extend this
protection to other forces maintaining public order, substituting "State Government" for
"Central Government" in such cases. This section safeguards official duties.

Conclusion:

Police have significant power to arrest without a warrant under the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) for cognizable offenses, crucial for swift justice. However, this
power is regulated by law, judicial precedents, and constitutional safeguards to prevent
abuse and protect individual liberty. Section 35 BNSS specifies circumstances, but arrests
must be based on reasonable necessity. This tool for law and order must be exercised
cautiously, transparently, and accountably, balancing state power with individual rights to
uphold fairness and the rule of law.

Rights of Arrested Persons (Ss. 38, 47-48, 55-59 BNSS)

"Innocent until proven guilty" is a core principle of a just legal system, upheld by the rights of
the accused. These rights ensure fairness, prevent abuse, and maintain public trust. From
arrest to sentencing, safeguards like the right to counsel, silence, and a fair, speedy trial are
crucial. Understanding these rights is vital for everyone, reflecting a society's dedication to
justice and human dignity. This article will explore the rights of arrested persons.

Presumption of Innocence:

Criminal law presumes innocence until proven guilty, as enshrined in Article 21 of the Indian
Constitution, Article 14(2) of the International Covenant of Civil and Political Rights (1966),
and Article 11 of the Universal Declaration of Human Rights. Section 104 of the Bharatiya
Sakshya Adhiniyam, 2023, mandates the prosecution to prove guilt beyond reasonable
doubt, upholding the accused's right to the presumption of innocence

No Arrest without Warrant:

Criminal law protects individuals from arrest without a warrant, unless they are reasonably
suspected of a cognizable offense (Section 35 BNSS). This critical safeguard, upheld in
Joginder Kumar v. State of U.P. (1994), prevents arbitrary detention by requiring judicial
justification for arrests, ensuring accountability and fairness.

Rights to a Fair Trial:

Article 21 of the Constitution, expanded by judicial interpretation, guarantees the right to

life and liberty, protecting against executive and legislative overreach. This principle aligns
with Article 9 of the International Covenant on Civil and Political Rights 1966. Articles 20 and
22 further reinforce these rights concerning arrest, detention, and conviction. The European
Convention for the Protection of Human Rights and Fundamental Freedoms, in Article 6,
enshrines the right to a fair trial and the presumption of innocence. While the BNSS doesn't
explicitly mention a fair trial, this right is derived from the Constitution, particularly Article
14's guarantee of equality before the law, and various judicial pronouncements, ensuring
equal treatment for all parties in a dispute.

Right against Ex-Post Facto Operation of Criminal Law:

No one can be convicted of an act that wasn't an offense when committed. This protects
against ex-post facto criminal law, guaranteed by Article 20(1) of India's Constitution and
Article 11(2) of the Universal Declaration of Human Rights. It also prevents harsher penalties
than those applicable at the time of the offense.

Protection against Double Jeopardy:

Article 20 (2) of the Indian Constitution and Section 337 BNSS prevent a person from being
punished twice for the same offense (double jeopardy), even if acquitted or convicted by a
competent court. However, a new trial is permissible if the act's consequences constitute a
separate offense, were unknown during the initial trial, or if the previous court was unaware
of them.

Right to Get Medical Assistance:

Upon arrival at the police station, arrested individuals must be informed of their right to
prompt medical assistance if requested. If the officer deems the arrested person requires
medical help but is unable to request it, assistance should be promptly arranged. All such
instances must be contemporaneously recorded. Female arrestees requesting medical help
should only be examined by a female registered medical practitioner.

Right of Silence and Immunity against Self-Incrimination:

The "right to silence," originating from common law principles, dictates that courts should
not infer guilt merely because an individual has not answered police or court questions.
Under the law of evidence, statements or confessions made to police officers are
inadmissible in court. The right to silence primarily concerns confessions, which, if made by
the accused, must be voluntary, without duress or inducement, and can occur before a
magistrate.

Article 20(3) of the Indian Constitution enshrines the fundamental right of an accused to
remain silent regarding alleged offenses. This privilege stems from the Doctrine of
Presumption of Innocence, a core principle in criminal justice administration globally.

Section 351(2) of the Sanhita incorporates this principle by prohibiting the administration of
an oath to the accused, reinforcing the tenet that the burden of proof in criminal cases lies
with the prosecution. Consequently, an accused cannot be compelled to testify against
themselves. However, if the accused provides answers during examination that can be used
as evidence, the prosecution is not barred from using them. Similarly, there is no prohibition
against compelling the accused to produce documentary or real evidence that may be used
against them.

In Nandini Sathpathy v. P. L. Dani (AIR 1978 SC 1025), the Supreme Court ruled against
forcibly extracting statements from the accused and affirmed the right to silence during
interrogation. In 2010, the Supreme Court further declared narco-analysis, brain mapping,
and lie detector tests to be violations of Article 20(3) of the Constitution.

Section 36 – Procedure of Arrest and Duties of Officer Making Arrest

This section codifies safeguards inspired by the D.K. Basu guidelines and aims to prevent
arbitrary arrests:

 Identification of Officer: The arresting officer must wear a visible and accurate name
badge for easy identification.

 Memorandum of Arrest: Must be prepared and:

 o Attested by a family member or a respectable local witness.

o Countersigned by the arrested person.

 Right to Inform: The arrested person has the right to inform a relative, friend, or any
person of their choice about the arrest—unless the memorandum is already attested
by a family member2.

Section 37 – Designated Police Officer

This section ensures oversight and transparency:

 Designation Requirement: Every police station must have a designated officer

responsible for maintaining arrest records and ensuring compliance with procedural
safeguards.

 Record Maintenance: The designated officer must maintain:

o Daily arrest registers

o Copies of memoranda

o Details of persons informed about the arrest

 Accountability: This officer acts as a nodal point for verifying lawful arrest
procedures and can be held accountable for lapses

Right of Arrested Person to Meet an Advocate of His Choice during Interrogation:

S. 38 BNSS:

An arrested person can meet an advocate during interrogation, though not throughout.
Section 38 BNSS and Article 22(1) of the Constitution affirm a prisoner's right to consult and
appoint a lawyer. Section 340 BNSS extends this right to those facing criminal proceedings.
Interrogations must occur in government-notified, accessible places, with relatives informed.
Methods must uphold rights to life, dignity, liberty, and protection from torture.

Person Arrested to be Informed of Grounds of Arrest and of Right to Bail

S. 47 BNSS:

Section 47 of the BNSS mandates that anyone arrested without a warrant must be
immediately informed of the offense particulars or grounds for arrest in a comprehensible
language. This information must be recorded in police records, shown to the arrested
person, and a copy provided upon request. If the arrest is for a non-bailable offense, the
police officer must also inform the arrested person of their right to bail and their ability to
arrange for sureties. Timely communication of these grounds helps the arrested person
identify and correct any misunderstandings, apply for bail or a writ of habeas corpus, and
prepare their defense.

Obligation of Person Making Arrest to Inform about Arrest, etc., to Relative or Friend:

S. 48 BNSS:

Upon arrest, police must immediately inform a relative, friend, or nominated person, and a
designated police officer, of the arrest and location. The arrested person must be informed
of this right at the station. This information must be recorded in a police station log.
Magistrates must verify compliance with these requirements when the arrested person is
produced. This is a mandatory duty for police and magistrates under Section 48 BNSS.

Procedure when Police Officer Deputes Subordinate to Arrest without Warrant:

S. 55 BNSS:

Section 55 of the BNSS outlines the procedure for police officers to depute subordinates for
warrant-less arrests. The delegating officer must provide a written order specifying the
person and reason for arrest. The subordinate must then inform the arrested person of the
order's substance and show it upon request. This section does not affect a police officer's
power to arrest under section 35 of the BNSS, ensuring transparency in delegated warrant-
less arrests.

Health and Safety of Arrested Person:

S. 56 BNS:

It shall be the duty of the person having the custody of an accused to take reasonable care
of the health and safety of the accused.

If the arrestee has been remanded to Police custody under the orders of the court, the
arrestee should be subjected to medical examination by a trained Medical Officer every 48
hours during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the concerned State or Union Territory. At the time
of his release from the Police custody, the arrestee shall be got medically examined and a
certificate shall be issued to him stating therein the factual position of the existence or
nonexistence of any injuries on his person.

Person Arrested to be taken before Magistrate or Officer in Charge of Police Station:

S. 57 BNSS:
A police officer making a warrantless arrest must promptly bring the arrested person before
a jurisdictional Magistrate or the officer in charge of a police station, subject to bail
provisions (Section 57 BNSS).

Person Arrested not to be Detained more than Twenty-Four Hours:

S. 58 BNSS:

Police officers must report all warrantless arrests to the District or Sub-divisional Magistrate.
Section 78 BNSS mandates that arrested persons be produced before a court within 24
hours, excluding travel time. Section 77 BNSS requires notification of warrant particulars, as
failure to do so makes the arrest unlawful. Article 22(2) of the Constitution also mandates
production before a Magistrate within 24 hours, with failure leading to liability for wrongful
detention.

Right to Free Legal Aid:

Article 21 of the Constitution implicitly guarantees free legal aid for indigent accused,
commencing from their first appearance before a Magistrate (Section 58 BNSS). Article 39A
further obligates states to provide this aid for justice. The Khatri v. State of Bihar case
affirmed this right, stating it cannot be denied even if the accused doesn't apply for it.

The Supreme Court, in Khatri (II) v. State of Bihar, established a constitutional obligation for
the state to provide free legal aid to indigent accused persons, stemming from Article 21.
This right is active from the initial production before a magistrate, and failure to inform the
accused of it vitiates the trial. Magistrates and courts are thus mandated to inform indigent
accused of this right. Section 341 BNSS allows courts of session to appoint state-funded
pleaders for unrepresented or impecunious accused.

In Suk Das v. Union Territory of Arunachal Pradesh, it was ruled that this constitutional right
cannot be denied even if the accused failed to apply for it. The failure to provide free legal
aid to an indigent accused, unless refused, invalidates the trial and necessitates setting aside
conviction and sentence. While Section 304 CRPC (S. 341 BNSS) provides a means for the
accused to apply, the right's denial due to lack of application is prohibited.

Justice Krishna Iyer, in Ranchod Mathur Wasawa v. State of Gujarat, emphasized that
appointed pleaders must be competent to handle complex cases, not merely raw entrants.
He also stressed the importance of providing such lawyers sufficient time and facilities for
defense preparation to serve justice.

Police to Report Apprehensions:

S. 59 BNS:

Officers in charge of police stations shall report to the District Magistrate, or, if he so directs,
to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within
the limits of their respective stations, whether such persons have been admitted to bail or
otherwise.

Evidence to Be Taken In Presence of Accused:

Section 308 of the BNSS requires that all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his personal attendance
is dispensed with, in the presence of his pleader to ensure fair trial. The right created by the
section is further supplemented by S. 313 BNSS, which inter alia provides that wherever the
law requires the evidence of a witness to be read over to him after its completion, the
reading shall be done in the presence of the accused, or of his pleader if the accused
appears by pleader and in a language understood by the accused person (S. 314 and 355(2)
BNSS). Besides section 143 of the Bharatiya Sakshya Adhiniyam, 2023 gives the accused right
to test the evidence by cross examination.

Conclusion:

In conclusion, the rights of arrested persons serve as a fundamental safeguard in any

democratic legal system, ensuring that justice is administered fairly and human dignity is
preserved. These rights — including the right to remain silent, the right to legal counsel,
protection against unlawful detention, and the right to be informed of charges — are
enshrined in national constitutions and international human rights instruments. They
function not only to protect individuals from abuse of power but also to uphold the integrity
of the justice system itself. While the enforcement of these rights may vary by jurisdiction,
the underlying principles remain universal. It is crucial that both law enforcement agencies
and the public remain informed and vigilant about these rights to prevent violations and
promote accountability. Awareness and education about the legal protections afforded to
arrested individuals help maintain a balance between state authority and individual
freedom. Ultimately, a society that respects and enforces the rights of the accused reinforces
its commitment to justice, fairness, and the rule of law. As legal systems evolve, continuous
efforts are needed to strengthen these protections and ensure their effective
implementation for all, regardless of social or economic status.

Powers of Superior Officers of Police and Aid to the Magistrates and the Police (Ss. 30-34
BNSS)
Police are crucial for maintaining law and order. They have significant powers under the
Bharatiya Nagarik Suraksha Sanhita, 2023, including investigating crimes, arresting,
searching, and gathering evidence. They must exercise these powers fairly, transparently,
and with respect for human rights, upholding the rule of law, and protecting individual
rights. Their role in investigations is vital for societal order, justice, and community well-
being. This article discusses the powers of superior police officers and citizens' roles in crime
investigation.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) streamlines law enforcement in India.
Chapter IV, Sections 30-34, clarifies the powers of superior police officers and the public's
duty to assist law enforcement, ensuring effective policing and public cooperation.

Powers of Superior Officers of Police (S. 30 BNSS):

o According to Section 30 of the Bharatiya Nagarik Suraksha sanhita, 2023 police

officers superior in rank to an officer in charge of a police station may exercise the
same powers, throughout the local area to which they are appointed, as may be
exercised by such officer within the limits of his station.

This Section confers powers upon a Superior Police Officer, the power that is conferred on
officers-in-charge of a Police Station.

In Babu v. State of Karnataka, 2007 CrLJ 3802 (3805) (DB) case, the Court observed that the
non use of the provisions of Section 36 CrPC (S. 30 BNSS) by the SP and other Senior Police
Officers has resulted in free and unfettered situation to IOs to conduct the investigation in a
casual and cavalier manner and also to dishonestly manipulate the final report submitted
under Section 173 CrPC (S. 193 BNSS)

Powers of the Superior Officer of Police:

o Power to Supervise Investigation: The Superior Officer of Police has the power to
supervise the investigation of criminal cases conducted by subordinates. This
includes the power to transfer cases from one investigating officer to another.

o Power to Order Investigation: The Superior Officer of Police has the power to order
an investigation into a criminal offence even if no FIR (First Information Report) has
been filed.

o Power to Arrest without Warrant: The Superior Officer of Police has the power to
arrest a person without a warrant in certain circumstances, such as when there is a
reasonable suspicion that the person has committed a cognizable offence.

o Power to Release on Bail: The Superior Officer of Police has the power to release an
accused person on bail if the offence is bailable.
 o Power to Order Preventive Detention: The Superior Officer of Police has the power
to order the preventive detention of a person under certain provisions of the law.

o Power to Issue Search Warrants: The Superior Officer of Police has the power to
issue search warrants to search for and seize relevant evidence in connection with an
investigation.

o Power to Seize Property: The Superior Officer of Police has the power to seize
property that is suspected to be connected to the commission of a crime.

It’s important to note that while Superior Police Officers are vested with these powers, they
are also bound by legal principles and guidelines aimed at ensuring fairness, transparency,
and respect for the rights of individuals during the investigation and law enforcement
process. Misuse of these powers can lead to legal consequences and remedies for the
affected individuals.

In State of Bihar v. J A C Saldanha, AIR 1980 SC 326 case, the Supreme Court held that if the
Inspector General (Vigilance) is an officer superior to the officer in charge of the police
station he can exercise the powers of that officer throughout the territory to which the
superior officer has been appointed, which, in this case is the entire territory of Bihar.

State of Kerala v. P.B. Sourabhan (AIR 2016 SC 1194): The Supreme Court upheld that the
state police chief could appoint superior officers to investigate cases beyond their territorial
jurisdiction.

Babu v. State of Karnataka (2007 CrLJ 3802): The court observed that failure of senior
officers to utilise their powers resulted in unregulated investigations.

Public When to Assist Magistrates and Police (S. 31 BNSS):

ection 31 imposes a legal obligation on every citizen to assist magistrates and police officers
when reasonably required in:

 Arrest Assistance: Preventing the escape of individuals authorised for arrest.

 Suppressing Breaches of Peace: Assisting in maintaining public order.

 Protection of Public Property: Preventing damage to common utilities and historical

sites.

In Emperor v. Joti Prasad, (1920) 42 All 314 case, The Court observed that the law does not
intend that police officers should have general power of calling upon membersof the public
to join them in doing the work for which they are paid, such as tracing out the whereabouts
of an absconding criminal or collecting evidence to warrant his conviction.

Aid to Person, Other than Police Officer, Executing Warrant (S. 32 BNSS):
According to Section 32 of the Bharatiya Nagarik Suraksha sanhita, 2023 when a warrant is
directed to a person other than a police officer, any other person may aid in the execution of
such warrant, if the person to whom the warrant is directed be near at hand and acting in
the execution of the warrant.

Public to Give Information of Certain Offences (S. 33 BNSS):

According to Section 33(1) of the Bharatiya Nagarik Suraksha sanhita, 2023 every person,
aware of the commission of, or of the intention of any other person to commit, any offence
punishable under any of the following sections of the Bharatiya Nyaya Sanhita, 2023,
namely:—

(i) sections 103 to 105 (both inclusive);

(ii) sections 111 to 113 (both inclusive);

(iii) sections 140 to 144 (both inclusive);

(iv) sections 147 to 154 (both inclusive) and section 158;

(v) sections 178 to 182 (both inclusive);

(vi) sections 189 and 191;

(vii) sections 274 to 280 (both inclusive);

(viii) section 307;

(ix) sections 309 to 312 (both inclusive);

(x) sub-section (5) of section 316;

(xi) sections 326 to 328 (both inclusive); and

(xii) sections 331 and 332,

shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie
upon the person so aware, forthwith give information to the nearest Magistrate or police
officer of such commission or intention.

According to Section 33(2) of the Bharatiya Nagarik Suraksha sanhita, 2023 for the purposes
of this section, the term “offence” includes any act committed at any place out of India
which would constitute an offence if committed in India.

In State of Gujarat v. Anirudh Singh, AIR 1997 SC 2780 case, the Supreme Court observed
that this Section imposes a duty on every person to give information of certain offences
specified in clauses (i) to (xii) of Subsection (1). Every citizen who has knowledge of the
commission of a cognizable offence has a duty to lay information before the police and co-
operate with the investigating officer who is enforced to collect the evidence and if
necessary summon the witness to give evidence.
In S N Naik v. State of Maharashtra, 1996 Cr LJ 1463 (1465) case, the Court observed that
there is no statutory obligation on a citizen to inform the police about other offences which
are not mentioned in Section 39 CrPC (S. 33 BNSS).

Penalty for Breach of Duty under Section 33 BNSS:

Penalty for breach of duty under Section 33 BNSS is prescribed in Sections 211 and 239 of
the Bharatiya Nyaya Sanhita, 2023 (BNS). Penalty for furnishing false information is
prescribed under Section 212 of BNS.

Duty of Officers Employed in Connection with Affairs of a Village to Make Certain Report
(s. 34 BNSS):

Section 34 mandates that village officers and residents must report specific criminal
activities to the nearest magistrate or police station, such as:

1. Presence of Criminals: Notorious receivers of stolen property or suspected

offenders.

2. Planned Crimes: Information about ongoing or intended crimes.

3. Unnatural Deaths: Reporting suspicious deaths, disappearances, or unidentified

corpses.

Definitions

 Village: Includes all lands under village jurisdiction.

 Proclaimed Offender: A person declared a fugitive under Indian law.

 Village Officials: Includes panchayat members, headmen, and other administrative

officers.

Reporting Procedure

 Information must be conveyed to the nearest police station or magistrate.

Duties and Expectations from People Towards Police:

o Aid Magistrates/Police (Section 31 BNSS).

o Report serious crimes (Section 33 BNSS).

o Can arrest for non-bailable/cognizable offenses or if the person is a proclaimed

offender (Section 40 BNSS).

o Allow police ingress for arrests/searches (Sections 44 & 103 BNSS).

o Assist in searches when requested in writing (Section 103 BNSS).

 o Give truthful evidence; do not provide false information.

o Cooperate with police in crime prevention and maintaining order.

o Protect public property.

o Road users must follow traffic laws and assist accident victims.

o Drivers causing accidents must seek medical aid for the injured (Section 134 Motor
Vehicle Act, 1988).

o Medical professionals must attend to injured persons immediately (Section 134

Motor Vehicle Act, 1988).

o Support community policing.

o Be truthful when reporting complaints to the police and avoid exaggerating facts or
using inducements.

o Uphold Constitutional values and do not expect police to use unlawful means.

Conclusion:

The duties of the general public towards the police in investigations are essential for
maintaining law and order, promoting justice, and ensuring the safety of communities.
Citizens play a crucial role by promptly reporting crimes, providing accurate information, and
cooperating with law enforcement officers during investigations. By respecting legal
procedures, preserving evidence, and supporting the efforts of law enforcement, individuals
contribute to the effective functioning of the criminal justice system. Ultimately, these
responsibilities foster a partnership between the public and the police, enhancing the overall
security and well-being of society.