The arrest is the very first stage in the investigation and trial of an offence. Arrest is a crucial process in the administration of criminal justice. Arrest means “apprehension of a person by legal authority resulting in deprivation of his liberty”. In other words, arrest means “taking of a person in custody under legal authority”. A person can be arrested with or without a warrant from the court. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973, contains comprehensive provisions regarding arrest, aiming to balance the need for law enforcement with the protection of individual liberties.

I. Purpose of Arrest:

The primary purposes of arrest are to:

Ensure the accused person appears before the court to face trial.

Prevent the person from committing further offenses.

Facilitate investigation by taking the accused into custody for questioning.

Prevent the person from tampering with evidence or influencing witnesses.

Bring a person before the court when they fail to comply with a summons.

II. Arrest Without a Warrant:

Sections 35 to 45 of the BNSS outline the circumstances under which a police officer can arrest a person without a warrant from the court. These broadly include:

When a cognizable offense is committed in the presence of the officer.

When there is a reasonable suspicion, credible information, or a reasonable complaint that the person has committed a cognizable offense punishable with imprisonment of seven years or more, or even less than seven years under certain conditions.

When the person is a proclaimed offender.

When the person possesses stolen property.

When the person obstructs a police officer or escapes from lawful custody.

In several other specific circumstances as detailed in Section 36 of the BNSS.

III. Arrest with a Warrant:

An ‘arrest warrant’ is a written order issued by a court directing a police officer or other person to arrest the individual named in the warrant. Provisions related to arrest warrants are primarily found in Sections 78 to 81 of the BNSS. Important aspects include:

Every warrant must be in writing, signed by the presiding officer of the court, and bear the seal of the court.

A warrant remains in force until it is executed or cancelled by the issuing court.

The police officer executing the warrant must notify the substance of the warrant to the person to be arrested and, if required, show them the warrant.

When a warrant is executed outside the local jurisdiction of the issuing court, the arrested person should ordinarily be brought before a court in that area unless the issuing court is within 100 kilometers and a police officer of the issuing court is present. Section 82(2) of BNSS mandates that in case of an arrest under a warrant executed outside the district, the arresting officer must inform a designated police officer in their district and the police officer of the district where the arrested person normally resides.

IV. Procedure of Arrest:

Sections 46 to 54 of the BNSS lay down the procedure to be followed during an arrest:

The police officer making an arrest must clearly identify themselves and inform the person being arrested of the grounds for the arrest and the fact that they are under arrest.

If the arrest is made under a warrant, the officer must notify the substance of the warrant to the person and show it if required.

The police officer has the power to search the arrested person and place in safe custody any offensive weapons found (Section 50).

Arrested women should only be searched by a female police officer with strict regard to decency (Section 53).

Every arrested person must be informed of their right to consult with and be defended by a legal practitioner of their choice as soon as practicable after the arrest (Section 49).

The arrested person has the right to have a relative or friend named by them informed of their arrest and the place of detention (Section 52). Police must inform them within a reasonable time.

The arrested person must be produced before the nearest Judicial Magistrate within 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate's1 Court (Section 59).

V. Rights of an Arrested Person under BNSS:

The BNSS safeguards the rights of arrested individuals, ensuring a fair and just process. These rights include:

Right to be informed of the grounds of arrest.

Right to consult a legal practitioner.

Right to be informed of the right to bail (if the offense is bailable, under Section 47(2)).

Right to be produced before a Magistrate without delay.

Right to have a friend or relative informed of the arrest.

Right to a medical examination (Section 54).

Right against self-incrimination (as per Article 20(3) of the Constitution).

VI. Use of Handcuffs:

Section 48 of the BNSS explicitly addresses the use of handcuffs. Handcuffs can only be used if:

The person is a habitual or repeat offender who has escaped from lawful custody.

The person is accused of offenses such as rape, acid attack, offenses relating to organized crime, offenses relating to terrorism, offenses against the State, or economic offenses.

VII. Police Custody and Remand:

Section 187 of the BNSS deals with remand.

When investigation cannot be completed within 24 hours, the police officer must produce the accused before a Judicial Magistrate.

The Magistrate can authorize detention in police custody for a period not exceeding 15 days in the whole or in part, within the initial 40 or 60 days of detention, based on the severity of the offense.

VIII. Arrest by a Private Person:

Section 40 of the BNSS empowers any private person to arrest or cause to be arrested anyone who, in their presence, commits a non-bailable and cognizable offense or is a proclaimed offender.

The private person must, without unnecessary delay and within six hours, hand over the arrested person to a police officer or take them to the nearest police station.

IX. Safeguards Against Unlawful Arrest:

The BNSS incorporates several safeguards to prevent unlawful arrests, including:

The requirement for reasonable suspicion or credible information for arrest without a warrant.

The right to legal representation and to be informed of the grounds of arrest.

The mandatory production before a Magistrate within 24 hours.

Provisions for medical examination of the arrested person.

The power of the Magistrate to inquire into the legality of the detention.

Enhanced transparency through mandated detailed documentation and video recording of interrogations.

X. Changes from CrPC:

The BNSS introduces some key changes in arrest provisions compared to the CrPC, most notably:

Explicit provisions for the use of handcuffs in specific categories of offenses and offenders.

Modification in the timeline for police custody, allowing it to be authorized in parts within the initial detention period.

Increased emphasis on informing the arrested person about their rights and ensuring these rights are protected.

Focus on using audio-video electronic means for recording procedures, enhancing transparency.

B) SEARCH:-

I. General:-

Search and seizure are the natural concomitants of the investigation process. Producing documents, things, and other material relevant to investigation, inquiry, or trial is necessary. The right to search and seizure is necessary for the investigation. So, relevant documents, things, and other material must be produced before the court for inquiry and trial. The topic deals with the process to compel accused the production of things, documents, or other relevant materials. Search means trying to find something by seeing or examining it thoroughly and carefully.

Search refers to the process of conducting a search of a place or taking possession of any property, article or thing. It is described as a procedure undertaken by investigators and is an essential step in criminal cases.

II. Circumstances for Conducting a Search-

Searches under the BNSS can be conducted under various circumstances, either with or without a warrant issued by a court.

1. Search with a Warrant-

A search warrant can be issued by a Court in several situations.

a. When court / judicial magistrates can issue a search warrant-

A Court may issue a search warrant under Section 96 of the BNSS when it has reason to believe that a person summoned or requested to produce a document or thing will not do so. The warrant can also be issued if the person in possession of a necessary document or thing is unknown to the Court. Furthermore, a warrant for a general search or inspection can be issued if the Court considers it necessary for the purposes of any inquiry, trial, or other proceeding under the BNSS. The warrant can specify only a particular place or part to be searched if the court has reason to believe the item is only in that part. Only a District Magistrate, Chief Judicial Magistrate, or Sessions Judge has the authority to grant a warrant to search for a document, parcel, or other thing in the custody of a postal authority.

b. When Executive Magistrates can issue a search warrant-

Under Section 97 of the BNSS, a District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class can issue a search warrant for places suspected to contain stolen property, forged documents, or other objectionable articles. This requires the magistrate to conduct a necessary inquiry to believe such items are sold, produced, or deposited there. Objectionable articles for which a warrant can be issued under Section 97(2) include counterfeit coin, pieces of metal made in contravention of the Coinage Act, 2011 or Customs Act, 1962, counterfeit currency notes, counterfeit stamps, forged documents, false seals, obscene objects as defined in S. 294 BNS, 2023, and instruments or materials used for their production. A police officer above the rank of constable may be authorised to execute such a warrant. Directions in the warrant under Section 97(1)(a)-(e) can include entering a place with assistance, conducting the search only in the specified manner, taking possession of the property or article, conveying the property to a magistrate or guarding it, and taking into custody any person from the place of search.

Additionally, the State government can order the forfeiture and seizure of books, newspapers, or documents containing matter punishable under certain sections of the BNS (such as those related to endangering the safety of India, promoting enmity, or obscene content) by notification, which a Magistrate can then authorise a police officer not below the rank of sub-inspector to search for in suspected premises.

c. Warrant to search for persons wrongfully confined (S. 100)-

Similar to a writ of habeas corpus, a search warrant can be issued by a District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class to search for persons wrongfully confined. An order can be made to restore a detained woman to her liberty or a girl to her parents/guardian, authorising the use of force if necessary.

2. Search Without a Warrant-

a) Search in magistrates' presence (S.108):-

Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a warrant.

b) Search by Police officer (S.185):-

A police officer may conduct a search in person under Section 185 of the BNSS if they have reasonable grounds to believe a document or thing necessary for an investigation cannot be obtained without undue delay. The officer must record their belief and details in the case diary. The search conducted under this section shall be recorded through audio-video electronic means, preferably by mobile phone. Copies of any such record shall be sent within 48 hours to the Magistrate empowered to take cognizance of the offence.

3. General Procedures Relating to Searches (Section 103 of BNSS)-

Section 103 of the BNSS outlines the general procedures to be followed when conducting a search. These procedures are designed to ensure reliable evidence is obtained and to prevent malpractices.

a. Search of police officer and witnesses-

Before commencing the search, the police officer and witnesses should ideally be searched to prevent suspicion of planting items. This practice has been supported by court observations.

b. Person in charge of the closed place to allow search:-

When searching a closed place, the person in charge must allow the police officer free entry upon production of the warrant and provide reasonable facilities. If free entry is not granted, the officer can use force to break open any door or window to enter. If the place is occupied by a female, notice must be given to allow her to withdraw before using force to enter.

c. Search for a person concealing an article:-

The officer may search any person present in the place if suspected of concealing something sought in the search. A woman must be searched by another woman with strict regard to decency. A list of items taken from a searched person must be itemised and a copy provided to the searched person.

d. Two respectable witnesses:-

The officer should call upon two respectable witnesses from the locality to attend and witness the search. If local witnesses are unavailable, persons from another locality can be called. This order can be in writing. Witnesses must attend and sign the list of seized items. Refusal to witness without reasonable cause is an offence under Section 222 of the BNS.

e. Occupant to attend search-

The occupant of the place searched or their representative must attend the search and receive a copy of the list of items seized after signing by witnesses.

A list of all things seized and where they were seized must be prepared and signed by witnesses and the occupant. Copies of this list, signed by witnesses, are given to them with acknowledgment obtained. The search list should be prepared in triplicate upon completion: one copy for the owner/occupant (given free of cost), the original sent to the Magistrate within 48 hours, and the third with the case diary to a superior officer.

While daylight is preferable for searches, it is not mandatory, especially if immediate action is needed to prevent evidence concealment or destruction. Searches must be systematic and thorough, avoiding indiscriminate searching and property damage.

The officer is required to prepare a record indicating the reasonable grounds for the search, the place to be searched, the items sought, and why they cannot be obtained without undue delay, along with the reasons for the urgency.

4. Search and Seizure of Digital Evidence-

The BNSS and related laws place significant emphasis on the handling of digital evidence, treating electronic/digital evidence on equal footing with traditional documentation for admissibility. The definition of "document" explicitly includes electronic and digital records.

Specific procedures exist for searching and seizing digital evidence. These steps include securing the crime scene to prevent alteration or destruction of evidence. This involves identifying potential evidence such as computers, mobile phones, and storage devices. Details of the devices must be documented, including type, brand, model, storage capacity, serial number, state, location, and any security measures like passwords or PINs. Any relevant annotation related to passwords, settings, email accounts, and SIM card details should also be documented for subsequent analysis.

Methods like hash functions (such as SHA-1, SHA-2, SHA-3) are essential to verify the integrity of data collected from electronic records. Hashing procedures must be performed before packing hard disks and the hash values must be recorded in the seizure memorandum. This maintains the sanctity of digital evidence.

Using blockers, either software or firmware, is necessary to access the contents of memory devices without altering them. For optical discs, a CD/DVD reader that does not allow writing should be used.

Specific information to search for in digital evidence can include handles, User IDs, passwords, IP addresses, date and time stamps, decryption keys, activity logs, and details from storage devices. For cryptocurrencies, this includes unencrypted Private Keys, passwords, PINs, credentials, QR codes, and seeds. Evidence of additions, deletions, or modifications in databases is also relevant.

Legal permissions or warrants must be obtained for accessing data from digital sources. The Investigation Officer can issue a notice under Section 94 of BNSS to produce an electronic device. Sections 112 and 113 of BNSS and Sections 61 and 63 of BSA are also relevant in this context. Section 61 and 63 of BSA deal with the admissibility of electronic records.

Documentation of search and seizure of digital evidence includes creating an inventory of collected evidence and preparing a detailed report summarizing findings, screenshots, downloaded data, and relevant metadata. Every page of electronically typed evidence or statements should have a footer with the crime number and page number. Legal compliance with admissibility criteria under BSA 2023 and other laws is crucial. Certification under Section 63(4)(c) of BSA by the handler and a Forensic Expert is necessary for electronic records obtained through audio-video recordings.

5. Mandatory Audio-Video Recording of Search and Seizure (Section 105 of BNSS)-

Section 105 of the BNSS introduces a mandatory requirement that the entire process of conducting search and seizure shall be recorded through any audio-video electronic means. This includes the preparation of the list of seized items and the signing of the list by witnesses. The recording should preferably be done using a mobile phone.

This is a significant departure from the previous legal procedures under the Criminal Procedure Code (CrPC), which did not mandate electronic documentation. The lack of mandatory recording under the CrPC often led to potential doubts about the integrity of the process.

Section 105 of the BNSS mandates that the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. For searches conducted under Section 185, copies of the recording must be sent within 48 hours to the Magistrate empowered to take cognizance of the offence. The entire audio-video recording, along with a certificate under Section 63 of BSA 2023, should be submitted before the concerned court while reporting the seizure to the Magistrate within 48 hours.

This mandatory electronic documentation aims to enhance transparency and accountability in police investigations. It makes it harder for law enforcement officers to tamper with evidence or misrepresent facts. The recordings play a crucial role in safeguarding the integrity of the investigation. This provision is applicable to searches under Chapter VII and Section 185 of the BNSS. Section 105 also applies to taking possession of any property, article or thing under Chapter VII or pursuant to a search made under any provision in that Chapter. The Patna High Court has held that if a special statute requires compliance with the procedure for search and seizure according to the Code, the search and seizure under that special statute shall be made in compliance with Section 105 of the BNSS. The Madhya Pradesh High Court in Jigar @ Jikar v. State of Madhya Pradesh [MS.C.N 44280/2024] examined a case where electronic documentation was mandated by Section 105, emphasizing its role in safeguarding investigation integrity.

The effective implementation of this provision depends on the availability of necessary technological facilities and infrastructure in the Magistrate's Court for the receipt and storage of electronic evidence. State Governments and the Union Government are incumbent upon to provide necessary infrastructure for efficient and timely implementation. This provision would help protect the rights of both the accused and the victims.

C) SEIZURE:-

‘Seizure’ is the ‘taking possession of property by an officer under legal process. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) includes several provisions related to search and seizure, emphasizing transparency and the use of technology. Key provisions include:

1. Mandatory Audio-Video Recording of Search and Seizure (Section 105):

This is a significant new provision in the BNSS, departing from previous procedures under the Code of Criminal Procedure (CrPC) which lacked such strict requirements. Section 105 of the BNSS mandates that all search and seizure procedures be recorded using audio-video electronic means, preferably a mobile phone. This includes the preparation of the list of seized items and witness signatures.

The police officer must forward this recording to the District Magistrate, Sub-divisional Magistrate, or Judicial Magistrate of the first class without delay. This requirement is mandatory, indicated by the word "shall" in the provision. The purpose is to enhance the credibility and transparency of the justice delivery system, make it harder for officers to tamper with evidence, and ensure independent witnesses. This provision applies to searches conducted under Chapter VII or Section 185 of the BNSS.

2. While recording of the Crime Scene (Section 176(3)):

For offences punishable by seven years or more, the video-recording of the crime scene is mandated.

3. Seizure from Arrested Person (Section 49):

A police officer has the power to search a person who has been arrested and seize articles found on them. A receipt showing the articles taken must be given.

4. Seizure of Offensive Weapons (Section 50):

If an offensive weapon is seized from an arrested person, it must be sealed, and the police officer must deliver it to the Court having jurisdiction forthwith. A private person making an arrest can also attempt to seize an offensive weapon if they believe it is dangerous, until the police arrive.

5. Attachment and Forfeiture (Section 107 & 117):

Section 107 of the BNSS deals with the attachment, forfeiture, or restoration of property. This section is new and grants wide powers to police and magistrates to attach property, potentially even property found during a search that is proceeds of a different crime. This can be done at any stage, even before the pronouncement of judgment. Section 117 requires court confirmation within 30 days for orders of seizure or attachment.

6. Custody and Disposal of Property Pending Trial (Section 497):

This section addresses the custody and disposal of property pending trial, including property seized by police during investigation. The Magistrate must prepare a statement of the property within 14 days of its production. While Section 497 mentions photographs or videographs, a related section (Section 503, dealing with property in police custody not produced before the Magistrate) does not explicitly mandate these, suggesting a need for State Government rules.

7. Admissibility of Electronic Evidence (BSA Sections 61 & 63):

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) provides for the admissibility of electronic or digital records as evidence. Electronic evidence collected during seizure must meet tests of relevancy, admissibility, and proof under the BSA. Section 61 states that nothing in the BSA denies the admissibility of electronic or digital records. Hashing procedures are required for digital evidence before packing to maintain sanctity.

While the BNSS mandates audio-video recording of search and seizure, sources note challenges such as the lack of clear protocols for situations where individuals refuse to serve as witnesses for searches involving audio-visual documentation and potential issues with insufficient resources, like officers' personal mobile phones for video documentation. Effective implementation of these provisions depends on the availability of necessary technological facilities and training.

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