Yes. Under Indian law, the police can arrest a person without a warrant in certain circumstances. However, they cannot arrest someone arbitrarily merely because an allegation has been made.
Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) governs the circumstances in which police may arrest without a warrant.
What is a cognizable offence?
A cognizable offence is one in which the police have statutory authority to investigate without first obtaining an order from a Magistrate and may arrest without a warrant where the legal requirements are satisfied.
Examples include murder and rape. However, a cognizable offence is not necessarily synonymous with a heinous offence, and the classification of an offence must be checked under the applicable law.
Can the police arrest someone whenever a cognizable offence is alleged?
No. The fact that an allegation concerns a cognizable offence does not automatically mean that arrest is necessary.
For offences punishable with imprisonment of up to seven years, Section 35 of the BNSS imposes specific requirements. The police must have the legally required basis for believing that the person committed the offence and must be satisfied that arrest is necessary for one of the reasons specified in the section.
Where arrest is not required, the police may issue a notice directing the person to appear before them. The law provides safeguards for a person who complies with that notice.
What about non-cognizable offences?
For non-cognizable offences, the police generally require an order from a competent Magistrate to investigate under Section 174 of the BNSS. The rules governing arrest are separate and must also be considered.
Therefore, an ordinary disagreement or neighbour dispute does not automatically justify arrest. The specific allegations, the offence involved and the applicable legal provisions matter.
Can the police arrest someone at night?
There is no general rule prohibiting the arrest of every person at night.
However, Section 43(5) of the BNSS provides special protection for women: except in exceptional circumstances, a woman must not be arrested after sunset and before sunrise. Where an exception applies, the prescribed written report and prior permission of a Magistrate of the first class are required.
What if an offence is committed in the presence of a police officer or Magistrate?
Section 35 provides for warrantless arrest when a cognizable offence is committed in the presence of a police officer, subject to the statutory framework.
Section 41 separately provides for the power of a Magistrate to arrest or order the arrest of a person in specified circumstances when an offence is committed in the Magistrate’s presence within the relevant local jurisdiction.
The mere presence or rank of a senior police officer does not remove the legal requirements governing arrest.
What are your rights if you are arrested?
Article 22 of the Constitution and the BNSS protect arrested persons. Important safeguards include being informed of the grounds of arrest, access to legal counsel, informing a nominated relative or friend as required by law, and production before a Magistrate within the constitutionally prescribed period.
Conclusion
The police can arrest without a warrant, but only when the law authorises it and the applicable requirements are satisfied. Whether an arrest is lawful depends on the specific facts and circumstances of the case.
This article provides general legal information. The legal position in an individual case depends on the facts and applicable law.