Section 40: Arrest by Private Person and procedure for such arrest.
Section 40 provides the circumstances and the process through which a private citizen can detain a person who has committed some of the specified offenses in his presence. The provision is of particular importance since it empowers the private citizen to act in cases where police action is not readily available or possible, thus ensuring prompt action against the offenders.
A citizen has the power to arrest or make someone under arrest if he or she sees a person committing or has committed a non-bailable, cognizable offence, or if that person is a proclaimed offender. In this provision, the law entrusts power to citizens for such occasions when direct intervention by police personnel cannot be made possible.
The arrested person should be handed over without any delay or taken to the nearest police station to a police officer, as per Criminal Procedure Code: within six hours from the arrest time. Thus, the process is done within a legal framework that protects the rights of the arrested subject and proper
court procedures.
If there is a reasonable ground for believing that the arrested person falls within the ambit of Section 35 sub-section (1), which details offenses for detention is authorized; then a police officer should take such arrested person into custody. This ensures that the person arrested is forwarded to the competent authority once a private person has made an arrest.
In cases of non-cognizable offence, if the arrested person refuses to give his name and residence or, if the name and residence given are false, he shall be dealt with under Section 39 of the BNSS. In case there is not sufficient cause for believing that an offence has been committed, the arrested person shall forthwith be released. This ensures the rights of the individual are protected, and the arrest does not result in unjust detention.
Procedure for Arrest by Private Persons:
- Observation of the Offence:
The private individual must see the commission of a non-bailable and cognizable offence. This ensures that the arrest is based on actual observation rather than suspicion or hearsay.
- Arrest Implementation:
The person may physically restrain the offender, making sure that the force used is reasonable and proportionate. Using excessive force could result in legal action against the arresting private individual.
-Timely Transfer:
An arrested person should be transferred to police custody within six hours from the time of arrest. It must ensure that an arrested person is not detained beyond legal requirements and that legal procedures are followed as soon as possible.
- Documentation and Reporting :
Once the arrested person is handed over, the private person has to report all the facts and circumstances of arrest to the police and evidence and names of persons likely to give evidence so that law and order authorities could act in the matter appropriately.
Legal Consequences and Liability
-The Use of Force;,
The amount of force should reasonably correspond to the situation that may be demanded. There is a probable exposure to possible legal action where there is uncontrolled use of force. Among the actions likely to be made against them include assault and malicious detention.
In the event that the private person arrested someone without a valid reason or under circumstances that the law does not cover, the private person can be charged with false imprisonment or any other civil liability. The arrest should be made upon clear and valid reasons to prevent such an incidence.
- Cooperation with Police:
After the arrest, the private person should give total cooperation to the police and furnish all types of information that may be required, along with helping the arrested person to shift to the police custody. Without so doing, legal trouble might come over the head of the arrested person.
