Arrest, Summons, and

Proclamation
 Accused’s Presence for Trial
• Fair trial requires accused’s presence during trial where he is given a fair
chance to defend himself. Further, if accused found guilty at the end of trial,
he should be available to receive the sentence.

• How do you ensure the accused’s presence at trial?

Ensuring
accused’s
presence for trial

Arrest and
Summons
Detention
Arrest and Detention

Arrest

With Without
warrant warrant
(Chp VI.B) (Chp V)
Arrest of Persons
Chapter V, BNSS
Joginder Kumar v State of UP
& Ors. (SC, 1994)
• Indiscriminate arrests - how should the Court strike a balance between
human rights and the increasing crime rate?
• Existence of the power to arrest is one thing – justification for the
exercise of it is quite another. The police officer must be able to
justify the arrest apart from his power to do so.
• Arrest and detention can do incalculable harm to a person’s reputation and
self-esteem
• No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. No arrest should be made
without a reasonable satisfaction reached after some investigation as to
the genuineness and bona fides of a complaint and a reasonable belief as to
the person’s complicity and the need to effect arrest.
• Denying a person his liberty is a serious matter.
• Except in heinous offences, an arrest must be avoided if a police officer
issues notice to person to attend the Station House and not to leave the
Station without permission to do so.
 Joginder Kumar v State of UP
& Ors. (SC, 1994)
• The right of an arrested person arrested to have someone informed, the right to
consult privately with a lawyer, among others, are inherent in Arts. 21 and 22(1) of
the Constitution and require to be recognized and scrupulously protected. For
effective enforcement of these fundamental rights, the followed requirements are
issued:
• (i) An arrested person being held in custody is entitled, if he so requests to have
one friend, relative or other person who is known to him or likely to take an
interest in his welfare told as far as is practicable that he has been arrested and
where he is being detained.
• (ii) The police officer shall inform the arrested person when he is brought to the
police station of this right.
• (iii) An entry shall be made in the diary as to who was informed of the arrest.
• It shall be the duty of the Magistrate before whom the arrested person is
produced, to satisfy himself that the above requirements have been complied
with.
• Departmental instruction shall also be issued that a police officer making an arrest
should also record in the case diary, the reasons for making the arrest.
• The above requirements are to be followed in all cases of arrest till legal provisions
made in this behalf [Subsequently incorporated as S 50A in the CrPC (S 48 BNSS)].
• Without warrant (S 35)
• Arrest on refusal to give name and residence on commission of non-cognizable offence (S 39)

• Procedure of arrest and duties of officer making arrest (S 36)

• Designated police officer (S 37)
• Right of arrested person to meet advocate of choice during interrogation (S 38)
• Arrest how made (S 43)
• Search of place entered by person sought to be arrested (S 44)
• No unnecessary restraint (S 46)
• Person arrested to be informed of grounds of arrest and right to bail (S 47);
Friends/relatives/nominated person of arrested person to be informed (S 48)

• Medical examination of accused at the police officer’s request (S 51)

• Examination of arrested person by medical officer (S 53)
• Identification of arrested person (S 54)
• Health and safety of arrested person (S 56)
• Arrested person to be taken before Magistrate or officer in charge of police station (S 57)
• Arrested person not to be detained for more than 24 hours (S 58)
• Discharge of person apprehended (S 60)
• Arrest to be made strictly according to the Sanhita (S 62)
 When Police May Arrest
• Arrest = deprivation of a person of his liberty by legal authority

• S 35 shows that police officers have very wide powers of making arrests without warrant
in cases of cognizable offences. However, these powers are subject to limitations.
• ‘May’ - police officer’s discretion in making an arrest without a warrant.
• Requirement of reasonability and credibility intended to prevent misuse of such
powers.
• Malicious and excessive exercise of powers of arrest under these sections would be
punishable under the BNS (S 258).
• S 35(1)(b) provides an exhaustive list of circumstances which makes it effective in
preventing illegal arrests by police officers for certain offences. The proviso makes it
obligatory for the police to record reasons in writing if he decides to not arrest a person
covered under this sub-section.
• S 35(3)-(6) – Issuance of notice for appearance where arrest not required [S. 41A CrPC]
(See Form No. 1, Second Schedule)
• S. 35(7) – arrest of persons infirm or above 60 years of age [introduced under BNSS]

• S 39 - arrest on refusal to give name and residence on commission of non-

cognizable offence in the presence of PO
 Arnesh Kumar v S of Bihar
(SC 2014)
• Arrest brings humiliation, curtails freedom and casts scars forever. The attitude to arrest first
and then proceed with the rest is despicable.
• The existence of the power to arrest is one thing, the justification for the exercise of it is quite
another. No arrest can be made in a routine manner on a mere allegation.
• S 41(1)(b) [S 35(1)(b) BNSS] –
• Accused cannot be arrested only on the PO’s satisfaction that he has committed the offence.
PO has to be further satisfied that such arrest is necessary under any of the specified grounds
in S 41(1)(b)(ii) (i.e., to prevent the person from committing further offences; for proper
investigation, etc.).
• The requirement to record reasons in writing while making arrest/where arrest not required.
• Therefore, before arrest, PO must ask why arrest, if really required, purpose served, object
achieved, and arrest only after these questions are addressed and one or the other condition
u/s 41(1)(b)(ii) is satisfied.
• Accused arrested without warrant has the constitutional right u/Art. 22(2) and u/s 57 CrPC
to be produced before the Magistrate.
• S 41A CrPC [S 35(3)-(6) BNSS] –
• Aimed to avoid unnecessary arrest or threat of arrest - requires to be vitalized. At this stage
also, the condition precedent for arrest u/s 41 CrPC has to be complied with and shall be
scrutinized by the Magistrate.
• See SC’s directions
 Manner of Arrest
• S 36 Procedure of arrest and duties of officer making arrest – visible identification;
arrest memo; right of arrestee to have a friend/relative informed

• S 37 Designated police officer – police control room in every district and state level;
designated PO to maintain and display information about persons arrested at every
PS and at district HQ

• S 38 Right of arrestee to meet an advocate of choice during interrogation - though

not throughout interrogation.

• S 43 Arrest how made – confining an arrestee; woman arrestee; if arrestee resists/

evades arrest; use of handcuffs in certain cases [introduced in BNSS]; no right to
cause death; no woman shall be arrested after sunset and before sunrise save in
exceptional circumstances.

• S 46 No unnecessary restraint to prevent an arrestee’s escape.

• S 44 Search of place entered by person sought to be arrested

 Manner of Arrest
• S 47 Person arrested to be informed of grounds of arrest and of right to
bail

• Art. 22(1) of the Constitution – “No person who is arrested shall be

detained in custody without being informed as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice”.

• Right to be informed of the grounds of arrest is a precious right of the

arrested person. This allows the arrestee to move the proper court for bail,
or a writ of habeas corpus (if the circumstances require), or arrange for his
defence.

• S 48 Obligation of person making arrest to inform about arrest etc. to

relative or friend
 Prabir Purkayastha v State (NCT
of Delhi) (SC 2024)
• Any person arrested for allegation of commission of offences under the UAPA or for that matter any other
offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing
and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of
course and without exception at the earliest.
• Purpose – this information the only effective means for the arrested person to consult his Advocate, to
oppose police custody remand, and to seek bail. Any other interpretation would dilute the sanctity of Art.
22(1).
• Right to be informed of grounds of arrest flows from Art. 22(1) and any infringement of this FR would
vitiate the process of arrest and remand. That Chargesheet has been filed would not validate the illegality
and the unconstitutionality committed at the time of arrest and the grant of initial police custody remand.
• Even in the case of Art. 22(5) (preventive detention), SC has held that the grounds on which the liberty of
a citizen is curtailed must be communicated in writing to enable him to seek remedial measures.
• Difference between ‘reasons to arrest’ and ‘grounds of arrest’ – the former is formal and general and
would commonly apply to any person arrested on a charge of a crime; whereas the latter would be required
to contain all such details in hand of the IO which necessitated the arrest of the accused and must convey
all basic facts on which he was being arrested to provide him an opportunity to defend himself against
custodial remand and to seek bail. Therefore, interpretation given by the HC Single Judge that grounds of
arrest were conveyed to the accused in writing vide the arrest memo was unacceptable. The memo did not
indicate the grounds of arrest but simply set out the ‘reasons for arrest’.
 Post-Arrest Procedures
• S 51 Examination of accused by • S 53 – Examination of arrested
medical practitioner at the person by medical officer
request of police officer
• BNSS changes –
• BNSS changes • first proviso – medical officer may
• ‘any police officer’ (CrPC – a PO not conduct one more examination if
below the rank of sub-inspector); he thinks it necessary
• medical practitioner to send
examination report to IO, without
delay.

• What does ‘examination’ include?

While S 51 enables a PO to compel an arrested person to undergo a medical

examination to facilitate investigation, S 53 gives the accused the right to have himself
medically examined to enable him to establish that the offence was not committed by
him or that he was subjected to physical injury.
 Post-Arrest Procedures
• S 54 Identification of person arrested
• test identification parade

• S 56 Health and safety of arrested person

• S 57 Person arrested to be taken before Magistrate or officer in charge of police station

• S 58 Person arrested not to be detained more than twenty-four hours (BNSS change - “whether
having jurisdiction or not”)
• Art. 22(2) Constitution – Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the authority of a magistrate.
• Objective – (i) to prevent arrest and detention for extracting confessions or as a means of compelling
people to give information; (ii) to prevent PS from being used as prisons; (iii) to afford an early
recourse to a judicial officer for bail, discharge etc.

• S 60 Discharge of person apprehended

• S 62 Arrest to be made strictly according to the Sanhita

Rights of Arrested Persons
Summons; Warrant of
Arrest; Proclamation
Chapter VI, BNSS
 Summons and Warrant Cases
• Summons or arrest is decided by a judicial officer, but the judicial discretion is
guided, and to an extent controlled, by BNSS provisions.

• What is the standard used to make the initial decision of arrest or summons?
Seriousness of the offence? Why?
• In a summons case, the consequences of trial are less serious to the accused than those
in a warrant case, hence less likely that the accused would abscond and disobey the
summons to attend his trial (Failure to appear is a punishable offence u/s 208 BNS). In
a warrant case, the risk of absconding is higher.

• Therefore, BNSS gives the general direction that in a summons case, a

summons is issued, and a warrant in a warrants case, but the judicial officer has
the discretion to depart from this rule if required by the circumstances.

• See S 227 BNSS

 Meaning and Form of Summons
• ‘Summons’ is an authoritative call to the accused person to appear in court to
answer a charge of an offence.
• S 63 Form of Summons:
• See Form No. 2, Second Schedule, BNSS (Form indicates that the court issuing
the summons may permit the accused to appear through his lawyer.)
• BNSS change – Summons may also be in the form of electronic
communication and shall bear the image of the Court’s seal or digital
signature.
• S 64 Summons how served (BNSS changes – S 64(1) proviso; S 64(2)
proviso)
• S 66 Service when persons summoned cannot be found by exercise of due
diligence [requirement of adult ‘male’ member removed in BNSS]
• S 70(3) – All summons served through electronic communication u/s 64 to 71
shall be considered as duly served + copy of such summons shall be attested
and kept as proof of service
 Meaning and Form of Warrant
of Arrest
• ‘Warrant of arrest’ is a written order issued and signed by a Magistrate and
addressed to a police officer or some other person specially named, and
commanding him to arrest the body of the accused person named in it.
• Decision to issue or not to issue a warrant – requires a balancing of social
interests (that an accused be arrested and detained so that he can be put on trial) and
interests of the individual accused (should not be arrested before his guilt is established
through a fair trial). Hence, decided by a judge.
• No general warrant of arrest, i.e., a warrant to arrest all persons committing a
particular offence(s). It would be illegal to issue such a warrant.
• An arrest warrant remains in force till it is executed or cancelled by the court
issuing it.
 Form and Content of Warrant of
Arrest
• S 72 Form of warrant of arrest and duration
• See Form No. 3, Second Schedule, BNSS (Must mention name of the person to be arrested, offence
he is charged with, person with the authority to arrest)
• S 73 Power to direct security to be taken (Bailable Warrant of Arrest)
• See Form No. 3, Second Schedule, BNSS
• S 77 Notification of substance of warrant
• S 78 Person arrested to be brought before Court without delay
S 90 - Issue of warrant in lieu
of, or in addition to, summons
• A court may,

• In any case in which it is empowered to issue a summons for the

appearance of any person,

• Issue, after recording reasons in writing, a warrant for his arrest –

• (i) If the Court sees reason to believe that he has absconded or will not obey the
summons, or
• (ii) If at such time, he fails to appear, even when the summons is proved to have
been duly and timely served and no reasonable excuse is offered for such failure.

• See Form No. 10, Second Schedule, BNSS

• Object – A warrant ought not to be issued when a summons suffices, and

care should be exercised by the court (hence, the need to record reasons) to
satisfy itself that, upon the materials before it, it was necessary to issue a
warrant.
Proclamation and Attachment
• S 84 Proclamation for person absconding
• BNSS change in S. 84(4) – “accused of an offence which is made
punishable with imprisonment of ten years or more, or
imprisonment for life or with death under the Bharatiya Nyaya
Sanhita, 2023 or under any other law for the time being in force…”
• See Form Nos. 5-6, Second Schedule, BNSS

• S 85(1) Attachment of property of person absconding

• See Form Nos. 7-8, Second Schedule, BNSS

• A proclamation cannot be issued without first issuing a warrant

of arrest.