Arrest by a Private Person, by a Magistrate, and on Refusal to Give a Name
Chapter Ten
Syllabus topic 1.5, "Arrest of Persons- Section 41 to 60"
Pages 57 to 62 of 699
In one line
Three people other than a police officer acting on his own initiative can put a person under arrest: a police officer faced with somebody who will not give his name in a non-cognizable case, any private person who sees a grave offence committed, and a Magistrate.
In exam wording: sections 39 to 42 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide for arrest on refusal to give a name and residence, arrest by a private person and the procedure on such arrest, arrest by a Magistrate, and the protection of members of the Armed Forces from arrest.
Why the law has this at all
Section 35(2) shuts a door: in a non-cognizable case, no arrest without a Magistrate's warrant or order. That is right, but it leaves an obvious hole. A man commits a petty offence in front of a constable and refuses to say who he is. If the officer cannot arrest him he simply walks away and there is nobody to summon. Section 39 fills the hole, and it fills it narrowly: the arrest is for the purpose of ascertaining his name and residence, and it ends as soon as they are known.
Section 40 answers a different question. A police officer cannot be everywhere. Somebody who watches a robbery happen may be the only person who can stop the robber. So a private person is given a power to arrest, but a much narrower one than the police have, and a strict duty to hand the person over quickly.
Section 41 gives a Magistrate a power that is obvious once stated: an offence committed in front of a court cannot be allowed to proceed unanswered while somebody goes to find a police officer.
Some words this chapter uses
Non-cognizable and non-bailable are different ideas and this chapter uses both. Non-cognizable is about police powers of arrest, section 2(1)(o). Non-bailable is about the right to bail, section 2(1)(c). Section 40(1) requires the offence to be both non-bailable and cognizable.
Bond and bail bond are defined in section 2(1)(e) and (d): without and with a surety.
A surety is a person who undertakes to produce the accused and to forfeit a sum if he does not.
Section 39: arrest on refusal to give name and residence
Sub-section (1). Where a person, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence, and refuses on demand to give his name and residence, or gives a name or residence the officer has reason to believe is false, the officer may arrest him in order that his name or residence may be ascertained.
Every part of that is a limit. It applies to a non-cognizable offence, so it is the exception to section 35(2). It requires the offence to have been committed, or the accusation to be made, in the officer's presence. It requires a demand and a refusal, or a false answer the officer has reason to disbelieve. And the purpose is stated: to ascertain the name or residence.
Arrest by a Private Person, by a Magistrate, and on Refusal to Give a Name
Sub-section (2). Once the true name and residence have been ascertained, he shall be released on a bond or bail bond, to appear before a Magistrate if so required. The proviso adds that where the person is not resident in India, the bail bond must be secured by a surety or sureties resident in India.
Sub-section (3). If the true name and residence are not ascertained within twenty-four hours of the arrest, or if he fails to execute the bond or bail bond, or, if required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
So the section has its own clock, and it is twenty-four hours. That is a different twenty-four hours from the one in section 58, which applies to an arrest without warrant generally, and a student should be able to say which is which.
Section 40: arrest by a private person
Sub-section (1). Any private person may arrest, or cause to be arrested, any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender. He must then, without unnecessary delay, but within six hours from such arrest, make him over to a police officer, or, in the absence of a police officer, take him or cause him to be taken to the nearest police station.
Take the conditions one at a time.
"In his presence". A private person cannot arrest on suspicion, on information, or on what a neighbour told him. He must have seen it.
"Non-bailable and cognizable". Both, not either. That is a much narrower class than the police have under section 35(1).
"Or any proclaimed offender". This is the second limb and it does not require presence at any offence.
"Within six hours". New. The old Code said only "without unnecessary delay". A private person who holds somebody for longer than six hours is outside the section, and what he is then doing is wrongful confinement.
Sub-section (2). If there is reason to believe that the person comes under section 35(1), a police officer shall take him in custody.
Sub-section (3). If there is reason to believe he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives one the officer has reason to believe is false, he is dealt with under section 39. But if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Arrest by a Private Person, by a Magistrate, and on Refusal to Give a Name
Those last words are the safeguard that makes the private power tolerable. The police officer is not obliged to accept the private person's judgment. He forms his own view, and if there is no sufficient reason to believe an offence was committed, the man goes free immediately.
Section 41: arrest by a Magistrate
Sub-section (1). When an offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest, or order any person to arrest, the offender, and may then, subject to the provisions as to bail, commit the offender to custody.
Sub-section (2). Any Magistrate, Executive or Judicial, may at any time arrest, or direct the arrest, in his presence and within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
The difference between the two sub-sections is worth an exam sentence. Sub-section (1) is about an offence committed in front of him. Sub-section (2) is about a person he could have issued a warrant against anyway; instead of issuing paper, he arrests. Both require the person to be in his presence and within his local jurisdiction, and both are open to Executive as well as Judicial Magistrates.
Section 42: protection of members of the Armed Forces
Sub-section (1). Notwithstanding sections 35 and 39 to 41, no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.
Read the words carefully, because the protection is narrower than students assume. It covers an act done or purported to be done in the discharge of official duties. It does not protect a soldier from arrest for a private quarrel.
Sub-section (2). The State Government may, by notification, apply sub-section (1) to a class or category of members of a Force charged with the maintenance of public order, wherever serving, and then the consent required is that of the State Government instead of the Central Government.
A worked example
Priya is standing outside a jewellery shop in Dadar when she sees a man snatch a chain and run. Snatching under the Bharatiya Nyaya Sanhita is cognizable and non-bailable.
May she arrest him? Yes. The offence was committed in her presence and it is both non-bailable and cognizable, so section 40(1) applies.
Arrest by a Private Person, by a Magistrate, and on Refusal to Give a Name
What must she do next? Hand him to a police officer without unnecessary delay and in any event within six hours, or take him to the nearest police station.
What does the police officer do? If he has reason to believe the man falls under section 35(1), he takes him into custody, under section 40(2).
Change the facts. Priya sees a man abusing a shopkeeper, which is a non-cognizable offence, and detains him. She had no power to arrest, because section 40(1) requires a non-bailable and cognizable offence. If she takes him to a police officer and there is no sufficient reason to believe he committed any offence, section 40(3) requires his immediate release.
Change them again. A constable is present when the abuse happens. The offence is non-cognizable, so section 35(2) bars arrest without a Magistrate's order. The man refuses to give his name. Now section 39(1) applies and the constable may arrest him to ascertain his name and residence. Once ascertained, section 39(2) requires his release on a bond or bail bond. If they are not ascertained within twenty-four hours, or he will not execute the bond, section 39(3) requires him to be forwarded forthwith to the nearest Magistrate.
And once more. The abuse happens in the courtroom, in front of the Magistrate, within his local jurisdiction. He may arrest the man himself, or order anyone present to do so, under section 41(1).
Distinctions
| Police officer, section 35 | Private person, section 40 | |
|---|---|---|
| Offence | Any of the ten grounds, mostly cognizable | Non-bailable and cognizable, or a proclaimed offender |
| Basis | Presence, complaint, information, suspicion | Presence only, except for a proclaimed offender |
| What follows | Sections 47 onwards | Hand over within six hours |
| Release if no offence | Section 60 governs discharge | The officer must release at once, section 40(3) |
| Section 39 | Section 58 | |
|---|---|---|
| Applies to | Arrest to ascertain name and residence in a non-cognizable case | Any arrest without warrant |
| The twenty-four hours | Time within which the name and residence must be ascertained, failing which he goes to a Magistrate | Maximum police detention before production before a Magistrate |
| Section 41(1) | Section 41(2) | |
|---|---|---|
| Trigger | An offence committed in the Magistrate's presence | A person for whose arrest he could issue a warrant |
| Requirement | Within his local jurisdiction | In his presence and within his local jurisdiction |
| He may then | Commit the offender to custody, subject to bail | Arrest or direct the arrest |
What this does NOT mean
Section 39 is not a general power to arrest in non-cognizable cases. The purpose is to ascertain a name and residence, and once they are known the person is released on a bond.
A private person's power is not the police's power. He needs an offence that is both non-bailable and cognizable, committed in his presence.
Arrest by a Private Person, by a Magistrate, and on Refusal to Give a Name
Detaining somebody for eight hours is not covered by section 40. The section says within six hours, and outside it the private person has no authority at all.
Section 42 does not make a soldier immune from arrest. It requires Government consent only for acts done or purported to be done in the discharge of official duties.
Quick revision
- Section 39: non-cognizable offence in the officer's presence, plus refusal or a false name, permits arrest to ascertain name and residence. Release on a bond or bail bond once ascertained; a non-resident's bail bond needs sureties resident in India; failing ascertainment within twenty-four hours, forward to the nearest Magistrate.
- Section 40: a private person may arrest for a non-bailable and cognizable offence committed in his presence, or a proclaimed offender, and must hand over within six hours. The police officer takes custody if section 35(1) applies, deals with him under section 39 if it is non-cognizable and he will not identify himself, and releases him at once if there is no sufficient reason to believe he committed any offence.
- Section 41: a Magistrate, Executive or Judicial, may arrest for an offence committed in his presence within his local jurisdiction, and may arrest in his presence anyone for whose arrest he could issue a warrant.
- Section 42: no arrest of a member of the Armed Forces of the Union for an act done or purported to be done in the discharge of official duties without the Central Government's consent; extendable by notification to a Force charged with maintenance of public order, with the State Government consenting.
Test yourself
1. A private person sees a bailable but cognizable offence committed. May he arrest? No. Section 40(1) requires the offence to be non-bailable and cognizable.
2. Within what time must a private person hand over the person he has arrested? Without unnecessary delay and in any event within six hours of the arrest, under section 40(1). The old Code prescribed no fixed period.
3. For what purpose may a police officer arrest under section 39? So that the person's name or residence may be ascertained, where he has committed or is accused of a non-cognizable offence in the officer's presence and refuses or gives a false name or residence.
4. What happens if the name and residence cannot be ascertained within twenty-four hours? He shall forthwith be forwarded to the nearest Magistrate having jurisdiction, section 39(3). The same follows if he fails to execute the bond or furnish sureties.
5. May an Executive Magistrate arrest? Yes. Section 41 applies to a Magistrate "whether Executive or Judicial".
Arrest by a Private Person, by a Magistrate, and on Refusal to Give a Name
6. Is the consent of Government needed to arrest a soldier for a private assault unconnected with duty? No. Section 42(1) protects only acts done or purported to be done in the discharge of official duties.
7. A private person hands over a man; the police officer finds no sufficient reason to believe any offence was committed. What must he do? Release him at once, under section 40(3).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.