Inclusion of Police Powers Under BNSS

Source: Madras High Court 

Why in News? 

Justice Sunder Mohan of the Madras High Court in the case of Vimal Chinnappan v. The State of Tamil Nadu and Another (2026) set aside a police notice issued to a journalist under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), holding that police lack the power to summon or question individuals without a registered case.

What was the Background of Vimal Chinnappan v. The State of Tamil Nadu and Another (2026) Case? 

• The petitioner, a journalist, challenged a notice issued by the Deputy Superintendent of Police calling upon him to provide an explanation for an article published in a journal. 
• The article allegedly contained defamatory statements against the police. 
• The Inspector of Police, Srivilliputhur Town Police Station, had come across the article while investigating another case. 
• The police forwarded certain questions to the petitioner along with a notice seeking explanation under Section 35(3) of the BNSS. 
• The notice did not disclose the case number or crime number in which the petitioner was being summoned. 
• The investigation in the earlier case (in which the police had come across the article) had already been completed and the final report had been filed. 
• No separate case had been registered against the petitioner for allegedly making defamatory statements against the police. 
• The petitioner contended that if a cognizable offence was made out, the police should first register a case and then summon him in accordance with law. 
• The police conceded during the hearing that the investigation in the main case had been completed and no separate case had been registered against the petitioner for making defamatory statements. 

What were the Court's Observations? 

• The Court observed that Section 35(1)(b) of the BNSS only specifies circumstances under which a police officer may arrest a person without a warrant. 
• The Court held that Section 35 does not empower police to summon or question a person in the absence of any registered case. 
• The Court noted that if the petitioner was required for enquiry in any other case, the police ought to have referred to the crime number of such case. 
• The Court emphasized that no case had been registered against the petitioner for the alleged defamatory statements. 
• The Court held that the police did not have power to summon or question without registration of a case. 
• The Court set aside the impugned notice issued to the petitioner. 
• However, the Court clarified that if any case was registered against the petitioner and his presence was required for enquiry in such case, the police could proceed in accordance with law. 
• The Court thus quashed the notice while preserving the police's right to proceed lawfully if a case is properly registered in the future. 

What is Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023? 

About: 

• Section 35 of the BNSS 2023 is a provision that empowers police officers to arrest any person without obtaining a warrant from a Magistrate in specific circumstances involving cognizable offences. 

Grounds for Arrest Without Warrant: 

Immediate Arrest Situations: 

• When a person commits a cognizable offence in the presence of a police officer. 
• When credible information is received that a person has committed a cognizable offence punishable with imprisonment for more than seven years, with or without fine, or with death sentence. 
• When a person has been proclaimed as an offender under BNSS or by State Government order. 
• When stolen property is found in someone's possession and they are reasonably suspected of committing an offence related to it. 
• When a person obstructs a police officer in execution of duty or has escaped or attempts to escape from lawful custody. 
• When a person is reasonably suspected of being a deserter from the Armed Forces. 
• When a person is involved in an act committed outside India which would be punishable as an offence if committed in India. 
• When a released convict breaches rules made under Section 394(5). 
• When a requisition for arrest is received from another police officer. 

Conditional Arrest for Offences Up to Seven Years:  

• For cognizable offences punishable with imprisonment for less than seven years or extending up to seven years, arrest is permitted only if specific conditions are satisfied: 
  • The police officer has reason to believe the person committed the offence based on reasonable complaint, credible information, or reasonable suspicion. 
  • The police officer is satisfied that arrest is necessary for preventing further offences, proper investigation, preventing evidence tampering, preventing inducement or threats to witnesses, or ensuring court appearance. 
  • The police officer must record reasons in writing while making the arrest. 
• Notice Procedure (Alternative to Arrest):  
  • When arrest is not required under the above provisions, the police officer must issue a notice directing the person to appear before him or at a specified place.  
  • The person has a duty to comply with the notice terms, and as long as they comply, they cannot be arrested unless the police officer records specific reasons for arrest necessity. 
• Consequences and Safeguards:  
  • If a person fails to comply with the notice or is unwilling to identify themselves, the police officer may arrest them for the offence mentioned in the notice, subject to any orders passed by a competent court.  
  • For offences punishable with imprisonment of less than three years, prior permission from an officer not below the rank of Deputy Superintendent of Police is required before arresting infirm persons or those above sixty years of age. 
  • The provision includes a mandatory safeguard requiring police officers to record reasons in writing when arrest is not made, ensuring accountability and preventing arbitrary arrests while balancing law enforcement needs with protection of individual liberty.