Arrest means the deprivation of a person's liberty by a legal authority — of someone accused of an offence, or under an apprehension that they may commit a crime. Arrest is a key step in ensuring a fair trial and must never be done arbitrarily; it must follow due process of law, keeping in mind Article 20 (protection in respect of conviction for offences) and Article 21 (life & personal liberty), with a procedure that is just, fair and reasonable.

Two Types of Arrest Under BNSS

The Sanhita contemplates two types of arrest:

1. Arrest with a warrant — made in pursuance of a warrant issued by a Magistrate. (A warrant is an order empowering an officer to arrest, or search and seize, or carry out a judicial sentence.)
2. Arrest without a warrant — made in accordance with a legal provision that permits arrest without a warrant.

Who Can Make an Arrest — and When?

Under BNSS, an arrest can be made by three authorities: police officers (Section 35), Magistrates (Section 41) and private persons (Section 40).

1. Arrest by a Police Officer (Section 35)

In all warrant cases — and in summons cases if necessary, or in case of breach of a bond — the police arrest through a warrant issued by a judge. But in several situations, a police officer may arrest without a warrant. Importantly, not every person committing a cognisable offence needs to be arrested, and a person accused of a non-cognisable offence can still be arrested in certain cases.

When Police MAY Arrest Without Warrant (Cognisable Cases)

• Section 35(1)(a): A person who commits a cognisable offence in the officer's presence.
• Section 35(1)(b): Where a reasonable complaint/credible information/reasonable suspicion exists that the person committed a cognisable offence punishable up to 7 years (with or without fine) — arrest is allowed only if the officer has reason to believe it, and at least one of five conditions is met, with reasons recorded in writing. The five conditions: to prevent further offences; for proper investigation; to prevent tampering with/disappearance of evidence; to prevent inducing/threatening witnesses; or where the person's court presence can only be ensured by arrest.
• Section 35(1)(c): Credible information that the person committed an offence punishable with more than 7 years, up to life imprisonment or death, and the officer believes it.
• Others (35(1)(d)–(j)): a proclaimed offender; a person found with suspected stolen property; one who obstructs a police officer or escapes lawful custody; a suspected army deserter; one who commits an act punishable as an offence in India; a released convict breaching Section 394(5); or a person for whose arrest a requisition is received from another officer.

When Police MAY NOT Arrest (Cognisable Cases) — the "Notice" Route

• Where a cognisable offence is alleged but arrest is not required, the officer must issue a notice (Section 35(3)) directing the person to appear. This was Section 41A of the old CrPC.
• The person must comply (35(4)); one who complies need not be arrested (35(5)) — but if the officer later finds arrest necessary, it may be made with reasons recorded.
• If the person stops complying or refuses to identify himself, he may be arrested (35(6)).
• Section 35(7) — a NEW safeguard: An infirm person, or a person above 60 years, accused of an offence punishable with less than 3 years, can be arrested only with the prior permission of an officer not below the rank of Deputy Superintendent of Police (DySP).

Arrest in Non-Cognisable Offences

Under Section 35(2), a person involved in a non-cognisable offence generally cannot be arrested except under Section 39, or under a warrant/order of a Magistrate. Section 39 (Arrest on refusal to give name and residence): if a person accused of a non-cognisable offence refuses to give (or gives a false) name and address, the officer may arrest to ascertain them. Once ascertained, the person is released on bond/bail bond; a non-resident of India must have the bond secured by an Indian citizen. If the name/address cannot be ascertained within 24 hours, or the person cannot furnish sureties, he must be produced before the nearest Magistrate.

2. Arrest by a Magistrate (Section 41)

• Section 41(1): When an offence (cognisable or non-cognisable) is committed in the presence of a Magistrate within his local jurisdiction, he may himself arrest, or order any person to arrest, the offender. (Here "presence," read with Section 210(1)(c), means the Magistrate takes cognisance on his own knowledge — arrest may not always follow.)
• Section 41(2): A Magistrate competent to issue a warrant may arrest, or direct the arrest of, a person — so the person does not escape investigation or trial. (Here "presence" is literal: the Magistrate must be present when the directed arrest happens.)

3. Arrest by a Private Person (Section 40)

Any private person may arrest someone who, in his presence, commits a non-bailable AND cognisable offence, or is a proclaimed offender. The private person must hand the arrested person over to a police officer (or the nearest police station) within 6 hours. The police then follow Section 35(1) if a cognisable offence was committed; if the police believe no offence was made out, they release the person. (In the old CrPC this was Section 43.)

Cognisable vs Non-Cognisable Offences (With Examples)

This is the classification that decides whether the police can act on their own. It is one of the most tested distinctions in Polity — and it drives the whole arrest process above.

Bailable vs Non-Bailable Offences (With Examples)

This classification decides whether bail is a right or the court's discretion. Note a common misconception: "non-bailable" does not mean bail can never be granted — it means bail is not a matter of right and is at the court's discretion.

How the Two Classifications Work Together

Constitutional Safeguards on Arrest

• Article 21: No deprivation of life or personal liberty except by a just, fair and reasonable procedure.
• Article 22: Protection against arbitrary arrest — grounds of arrest must be informed; right to consult a legal practitioner; production before a Magistrate within 24 hours.
• Article 20: Protection in respect of conviction (including 20(3) — no self-incrimination).
• D.K. Basu v. State of West Bengal (1997): Supreme Court guidelines to prevent custodial abuse (arrest memo, informing a relative/friend, medical examination, etc.).