1. A private individual may arrest or arrange for the arrest of someone who commits a non-bailable and cognizable offence in their presence, or any proclaimed offender. This individual must hand over or ensure the individual arrested is handed over to a police officer without unnecessary delay, and within six hours of the arrest. In cases where a police officer is unavailable, the arrested individual should be taken into custody and brought to the nearest police station.
    
2. If there is credible evidence suggesting that the arrested individual falls under the regulations outlined in subsection (1) of section 35 of the BNSS (when police may arrest without warrant), a police officer is required to take that individual into custody.
    
3. If there is reasonable cause to believe the individual has committed a non-cognizable offence, and they refuse to provide their name and address upon the request of a police officer, or if they provide information that the officer suspects to be false, they will be subject to the provisions in section 39 BNSS )arrest on refusal to give name and address). However, if there is insufficient reason to believe that an offence has been committed, the individual must be immediately released.

Loopholes in Section 40 of the BNSS:
Section 40 of the BNSS introduces modifications to the regulations governing private arrests by establishing a stipulation that requires any individual who has conducted a private arrest to transfer the person arrested to the police within a timeframe of six hours. However, this section fails to provide guidance on the actions the arresting individual should take if they are unable to deliver the detained person to the police within this six-hour window due to circumstances beyond their control.

Notably, Section 40(2) of the BNSS replaces the phrasing “shall re-arrest him” with “shall take him into custody.” This change clarifies that when the police take possession of a person who has been privately arrested, it is not classified as a “re-arrest,” but rather as an act of simply “taking him into custody.” This distinction can have significant implications for the interpretation of the law surrounding the use of private arrests and the subsequent involvement of law enforcement.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565