Chapter 5 BNSS – Arrest of Persons Explained – Complete Guide 2026

When Can the Police Arrest a Person?

The police can arrest a person under various circumstances: when a warrant has been issued by a court, when a cognizable offence has been committed in the police officer's presence, when there is reasonable suspicion of involvement in a cognizable offence, when a person is proclaimed as an absconder, or when a person is found obstructing a police officer in the execution of duty.

For non-cognizable offences, the police cannot arrest without a warrant from a magistrate.

Arrest with Warrant

A warrant of arrest is issued by a court under Section 67 BNSS. The warrant must be in writing, signed by the presiding officer, and bear the court's seal. It must specify the person to be arrested and the offence. Warrants can be bailable or non-bailable.

A bailable warrant specifies the bail amount in the warrant itself - the person can be released on furnishing bail. A non-bailable warrant gives no such right.

Arrest Without Warrant

Under Section 41 BNSS, police can arrest without warrant any person who has committed or is reasonably suspected of committing a cognizable offence. Section 42 lists 14 categories of persons who can be arrested without warrant, including: proclaimed offenders, persons in possession of stolen property, persons obstructing police, deserters from armed forces, and persons released on bail who breach the bond.

The police must record the reasons for arrest without warrant.

Procedure for Arrest

Under Section 46 BNSS, the arresting officer must: physically touch or confine the person unless the person submits to custody, inform the person of the grounds of arrest (Section 51), use handcuffs only if necessary and justified, and not use more force than necessary.

The officer must also prepare a memorandum of arrest signed by a witness (Section 51(2)), inform a nominated person about the arrest, and produce the arrested person before a magistrate within 24 hours (Section 57).

Rights of the Arrested Person

An arrested person has several rights under BNSS and the Constitution: the right to know the grounds of arrest (Article 22(1)), the right to consult and be defended by a lawyer (Article 22(1)), the right to be produced before a magistrate within 24 hours (Article 22(2)), the right to silence (Article 20(3)), the right to inform a family member or friend (Section 51 BNSS), and the right to medical examination (Section 53 BNSS).

Violation of these rights can result in the arrest being declared illegal and compensation being awarded.

Arrest of Women

Section 51 BNSS provides special protections for women: a woman cannot be arrested after sunset and before sunrise except in exceptional circumstances with prior permission from a magistrate, a woman must be arrested only by a female police officer (unless exigent circumstances), and the search of a woman must be conducted by another woman with strict regard to decency.

These protections apply regardless of the nature of the offence.

Bail After Arrest

For bailable offences, the arrested person has the right to be released on bail under Section 478 BNSS. The police or court must release the person on bail if they are prepared to give bail. For non-bailable offences, the court has discretion to grant bail considering factors like the nature of the offence, evidence, and likelihood of flight.

If the investigation is not completed within 60-90 days (depending on the offence), the arrested person becomes entitled to default bail under Section 187 BNSS.

How Kolkata Courts Handle Criminal Cases

Kolkata's criminal justice system operates through a well-defined hierarchy of courts, each with specific jurisdiction. The Calcutta High Court stands at the apex, followed by the Sessions Courts at Alipore, Bankshall, Sealdah, and various district courts in the suburbs. Magistrate Courts handle less serious offences, while Sessions Courts deal with grave crimes like murder, rape, and dacoity.

The process begins with the filing of an FIR at the local police station, followed by investigation and submission of a chargesheet. The Magistrate then takes cognizance and either commits the case to Sessions Court or tries it summarily depending on the offence's gravity. Throughout this process, the accused has the right to legal representation, bail, and a fair trial under Article 21 of the Constitution.

Kolkata's courts have developed specialized procedures over decades of legal practice. For instance, the Bankshall Court complex houses the City Sessions Court, which handles the majority of criminal cases arising within the Kolkata Police jurisdiction. The Chief Judicial Magistrate Courts in Alipore and other districts manage the preliminary stages of criminal proceedings.

• ◆ Non-bailable warrants are typically issued for serious offences under the Bharatiya Nyaya Sanhita (BNS)
• ◆ The accused must be produced before a Magistrate within 24 hours of arrest as per BNSS provisions
• ◆ Kolkata courts maintain separate calendars for Sessions, Magistrate, and Executive cases
• ◆ Legal aid is available through the West Bengal State Legal Services Authority headquartered in Kolkata
• ◆ Victim compensation schemes are actively implemented through the District Legal Services Authority

Evidence and Witness Examination in Criminal Trials

The Bharatiya Sakshya Adhiniyam (BSA), 2023 governs the rules of evidence in criminal trials across Kolkata courts. Evidence is broadly classified as documentary, oral, and electronic. The prosecution bears the burden of proving the accused's guilt beyond reasonable doubt, a cornerstone of criminal jurisprudence that protects innocent individuals from wrongful conviction.

Witness examination follows a structured procedure: examination-in-chief by the party calling the witness, cross-examination by the opposing party, and re-examination to clarify matters arising from cross-examination. Kolkata's trial courts are known for their meticulous approach to witness testimony, often recording evidence in detail to ensure nothing is lost in appeal.

Electronic evidence, including emails, WhatsApp messages, CCTV footage, and call data records, has become increasingly significant in Kolkata's criminal trials. The courts apply the principles of admissibility under Section 65B of the BSA to such evidence. Our legal team at Advocate in Kolkata has extensive experience in presenting and challenging electronic evidence in criminal proceedings.

• ◆ Documentary evidence must be certified and properly marked before it can be tendered
• ◆ Hostile witnesses can be cross-examined by the party that called them with court permission
• ◆ The right against self-incrimination under Article 20(3) protects the accused from being compelled to testify
• ◆ Medical evidence, including injury reports and autopsy findings, is crucial in cases involving physical harm
• ◆ Forensic evidence, including DNA analysis and fingerprint matching, carries significant evidentiary weight

Sentencing and Appeals in Criminal Matters

After conviction, the sentencing phase begins. The court considers factors such as the nature and gravity of the offence, the criminal history of the accused, the impact on the victim, and any mitigating circumstances. Kolkata's Sessions Courts have wide discretion in sentencing, ranging from fines and probation to life imprisonment and, in rare cases, the death penalty.

The Bharatiya Nyaya Sanhita prescribes graded punishments for different offences. For example, murder under Section 103 BNS carries life imprisonment or death, while theft under Section 303 BNS is punishable with up to three years of imprisonment. The courts also have the power to order compensation to victims under the BNSS provisions.

Appeals from Magistrate Courts lie to the Sessions Court, while appeals from Sessions Courts go to the Calcutta High Court. The High Court's criminal appellate jurisdiction is vast, allowing it to review both factual and legal findings. A further appeal to the Supreme Court lies on substantial questions of law. The revision jurisdiction allows the High Court to examine the legality and propriety of any proceedings before subordinate courts.

• ◆ The Calcutta High Court has a dedicated Criminal Appellate Bench that hears appeals in rotation
• ◆ Mercy petitions can be filed to the Governor of West Bengal and the President of India in death penalty cases
• ◆ The limitation period for criminal appeals varies depending on the court and type of order
• ◆ Probation of Offenders Act applies to first-time offenders for certain categories of offences
• ◆ Kolkata's courts actively use plea bargaining provisions to reduce the burden on the criminal justice system

Frequently Asked Questions