Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Escape from Custody and Retaking Section 61
Escape from Custody and Retaking under Section 61 BNSS: the Power to Pursue, the Machinery of Absconding, and the Offences That Follow
A person in lawful custody who escapes does not thereby become free. Section 61 of the Bharatiya Nagarik Suraksha Sanhita, 2023 confers on the person from whose custody he escaped an immediate power to pursue and retake him anywhere in India, without any fresh warrant and without any fresh authority. If he is not retaken, a second body of provisions comes into play: proclamation, attachment of property, forfeiture of his bond, and in a proper case trial in his absence. And the escape is itself an offence, as is the negligence of the officer who allowed it.
Everything in this topic turns on one word in section 61: lawful. The power to retake arises where the person escaped from lawful custody. Where the custody was itself unlawful, there is nothing to escape from within the meaning of the section, the person who leaves commits no offence of escape, and the officer who pursues has no authority under the section. The lawfulness of the original detention is therefore the first question in every case under this head, and it is the question that the whole of Chapter V exists to answer.
Figure 1: The consequences of an escape
1. Section 61: the Power to Pursue and Retake
Section 61, BNSS 2023 (1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. (2) The provisions of section 44 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest. |
1.1 The elements
- The custody must have been lawful. The section says “a person in lawful custody”. Custody under an arrest made contrary to section 62, or detention continued beyond twenty-four hours without an order under section 187, is not lawful custody, and the section does not apply to it.
- He must have escaped or been rescued. Escape is the act of the person himself; rescue is the act of another in taking him out of custody. The section covers both, and in the case of rescue the person rescuing commits a separate offence.
- The power belongs to the person from whose custody he escaped. It is not a general power conferred on the police at large. Any police officer may of course arrest such a person under section 35(1)(f), but the special power in section 61 belongs to the custodian.
- The pursuit must be immediate. The word in the sub-section is “immediately”. The power is directed at the situation created by the escape, and it is not a standing authority to arrest the person at leisure some weeks later, when the ordinary provisions apply.
- The reach is any place in India. As under section 45, a boundary is not a refuge.
1.2 The effect of sub-section (2)
Sub-section (2) applies section 44, which governs the search of a place entered by a person sought to be arrested, to an arrest under section 61, although the person making the arrest is not acting under a warrant and is not a police officer having authority to arrest. The consequence is significant. A custodian pursuing an escaped prisoner may require the person in charge of a place into which he has gone to allow free ingress and afford facilities for a search, and if ingress cannot be obtained may break open a door or window, with the proviso protecting the privacy of a woman occupying an apartment who is not the person sought.
The words “is not a police officer having authority to arrest” are there because a custodian need not be a police officer. A jail officer escorting a prisoner, a person to whom a warrant was directed under section 75, and a private person who has arrested under section 40 and not yet handed over, are all persons from whose custody an escape may occur, and each is given the power the section confers.
2. What Is Lawful Custody?
The expression is not defined in the Sanhita, and the meaning is supplied by the general law and by the provisions that create custody in the first place.
📖 State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 Facts: Candidates for public employment were required to declare whether they had ever been arrested. They had been named in criminal cases in which they had appeared before the court in answer to a summons and had been released on bail without ever being taken into physical custody by the police, and they had answered in the negative. Their appointments were cancelled for suppression. The question was whether a person who appears before a court and is released on bail has been “arrested” or has been in “custody”. Held: The Supreme Court examined the meaning of arrest and custody. It held that custody and arrest are not synonymous. A person may be in the custody of the court without having been arrested by the police: when he appears in answer to a process and submits to the jurisdiction of the court, he is in its custody for the purpose of applying for bail, but he has not been “arrested” in the sense in which the Code and the ordinary understanding use that word. Taking a person into physical control is arrest; submitting to the control of a court is custody. The candidates had therefore not made a false declaration. Ratio: Custody is a legal condition arising from submission to the control of the law; arrest is the physical act of taking a person into that control. Every arrested person is in custody, but not everyone in custody has been arrested. |
The distinction matters directly for section 61. Custody may arise from an arrest by the police, from a remand order under section 187, from a warrant of commitment after conviction, from an order of a court taking a person into custody under section 483, from surrender before a court, or from an arrest by a private person under section 40 pending the handing over. An escape from any of those, if lawful, engages section 61. What does not engage it is departure from a detention that had no lawful basis.
⚠ Where the custody was unlawful Three propositions follow, and they are worth stating separately because they are frequently run together. First, section 61 does not apply. The custodian has no special power to pursue and retake under that section, though he may arrest under section 35(1) if the conditions of that section are independently satisfied. Second, no offence of escape is committed. The offences in the Bharatiya Nyaya Sanhita relating to escape are framed by reference to lawful custody or lawful apprehension, and a person who leaves an unlawful detention is not within them. Third, resistance may be lawful. A person has a right of private defence against an unlawful arrest, within the limits the substantive law fixes; but the right does not exist against an act done by a public servant in good faith under colour of his office, even if the act is not strictly justifiable by law, which is a narrow but important qualification. |
3. If He Is Not Retaken: the Machinery of Absconding
Where the pursuit fails, the Sanhita provides a graduated sequence directed at securing the person’s appearance or, failing that, at proceeding without him.
Stage | Provision | Content |
|---|---|---|
Arrest without warrant | Section 35(1)(f) | Any police officer may arrest without warrant a person who has escaped, or attempts to escape, from lawful custody. The power is general and belongs to the police at large, unlike section 61 |
Warrant | Sections 72 to 83 | A warrant of arrest may be issued and may be executed at any place in India, with the machinery of endorsement and production examined in the topic on pursuit |
Proclamation | Section 84 | Where the court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself, it may publish a written proclamation requiring him to appear at a specified place and time not less than thirty days from the date of publication |
Attachment | Section 85 | The court may at any time after the issue of the proclamation order the attachment of any property, movable or immovable, belonging to the proclaimed person. Where he does not appear within the time specified, the property is at the disposal of the State |
Property abroad | Section 86 | The court may request assistance from a court or authority in a contracting State for the identification, attachment and forfeiture of property belonging to a proclaimed person situated outside India. This provision is new |
The bond | Sections 491 and 492 | Where a bond or bail bond has been forfeited by the failure to appear, the court may call on the person and his sureties to pay the penalty or to show cause; and may cancel the bond or bail bond and commit the person to custody |
Trial in absentia | Section 356 | Where a proclaimed offender has absconded to evade trial and there is no immediate prospect of arresting him, the court may, after ninety days from the framing of charge and after notice, publication and the appointment of an advocate at State expense, try him and pronounce judgment in his absence. The provision is new |
Handcuffs on recapture | Section 43(3) | A person who escaped from custody is one of the categories in which handcuffs may be used, keeping in view the nature and gravity of the offence |
Two of these are new. Section 86 extends the attachment machinery to property situated outside India through the reciprocal arrangements in Chapter VIII. Section 356 removes what had been the absconder’s most effective weapon, which was that by staying away he could prevent the trial from concluding, could delay the trial of his co-accused, and could rely on the death or fading memory of witnesses. The safeguards attached to it are examined in the topic on the new features of the Sanhita.
4. The Offences That Follow
The Sanhita creates the power to retake. The punishment comes from the Bharatiya Nyaya Sanhita, which contains a group of offences directed at the obstruction of lawful custody. Neither statute does the other’s work.
Conduct | Who is liable |
|---|---|
Escaping from any custody in which he is lawfully detained | The person escaping |
Resisting or obstructing his own lawful apprehension | The person resisting |
Resisting or obstructing the lawful apprehension of another person | The person resisting, and any person who rescues or attempts to rescue |
Intentionally omitting to apprehend, or intentionally suffering an escape | A public servant legally bound to apprehend or to keep in confinement |
Negligently suffering an escape | A public servant legally bound to keep in confinement |
Harbouring a person who has escaped from custody, or whose apprehension has been ordered | The person harbouring, with an exception in favour of the spouse of the offender |
Failing to appear after a proclamation, in the specified circumstances | The proclaimed person |
The graduation of the offences is worth noticing. The person who escapes is liable, and so is the officer who let him. The offence of negligently suffering an escape is directed at the custodian and exists because the custody of a person is a duty and not merely a task: a system that punished only the prisoner would provide no incentive to keep him. The offence of harbouring reaches the person who shelters him afterwards. And the penalties in each case are graded by reference to the gravity of the offence for which the person was in custody.
5. The Custodian’s Position
An escape places the custodian in a position of some difficulty, because the same body of law that authorises him to retake the person also regulates what he may do in doing so, and holds him answerable for the escape itself.
📖 Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488 Facts: A prisoner in Tihar Jail sent a letter to a Judge of the Supreme Court alleging that a fellow prisoner had been tortured by a warder to extort money from his family. The Court treated the letter as a petition and considered the rights of prisoners and the obligations of those who hold them in custody. Held: The Court held that a prisoner does not cease to be a person on entering prison, and that the rights under Articles 14, 19 and 21 continue to operate within the walls, subject only to the necessary incidents of confinement. Prison authorities are not immune from judicial oversight, and the courts will intervene where treatment is arbitrary or inhuman. The Court directed the establishment of grievance mechanisms, permitted visits by legal aid organisations, directed that District Magistrates and Sessions Judges visit prisons and receive complaints, and held that the Sessions Judge has a continuing responsibility in relation to prisoners within his jurisdiction. Ratio: Custody confers authority and imposes responsibility. The person who holds another in custody holds him subject to the Constitution, and the lawfulness of what is done in custody is open to judicial examination. |
5.1 The limits on retaking
- Force. Section 43(2) permits all means necessary where the person forcibly resists or attempts to evade arrest. Section 43(4) denies any right to cause the death of a person not accused of an offence punishable with death or imprisonment for life. A person who has escaped from custody in a minor case may not be killed to prevent his escape.
- Restraint. Section 46 forbids restraint beyond what is necessary to prevent escape. Section 43(3) permits handcuffs on a person who escaped from custody, keeping in view the nature and gravity of the offence, and the question of necessity on the facts survives.
- Entry and search. Section 44 applies by force of section 61(2), with the proviso protecting the privacy of a woman occupying an apartment who is not the person sought.
- Afterwards. The person retaken is again in custody, and the whole of the chapter applies to him again, including section 53 on medical examination, section 56 on health and safety, and section 58 on production before a Magistrate.
⚠ The point most often missed A person retaken under section 61 is not thereby remanded. He is back in custody, and the ordinary rules apply to that custody: it must be reported, it must be justified, and it must be brought before a Magistrate. Where the person had been remanded before the escape and the remand period has not expired, the custody continues under the existing order. Where it had expired, or where the escape occurred from police custody before any remand, the twenty-four hour rule in section 58 operates from the retaking. The escape does not enlarge the custodian’s powers. It restores them. |
6. Key Takeaways
The position stated shortly 1. Section 61: where a person in lawful custody escapes or is rescued, the person from whose custody he escaped may immediately pursue and arrest him in any place in India. 2. The power belongs to the custodian, is exercisable immediately, and reaches the whole of India. Section 44, on entry and search of a place, applies although the person making the arrest is not acting under a warrant and is not a police officer having authority to arrest. 3. The custody must have been lawful. Where it was not, section 61 does not apply, no offence of escape is committed, and the position is governed by the ordinary law. 4. Custody and arrest are not synonymous: arrest is the physical act of taking a person into the control of the law, custody is the legal condition of being under it, and a person who submits to a court is in custody without having been arrested: Dinesh Kumar. 5. Independently of section 61, any police officer may arrest without warrant a person who has escaped or attempts to escape from lawful custody: section 35(1)(f). 6. Where the person is not retaken, the sequence is warrant, proclamation under section 84 requiring appearance not less than thirty days after publication, attachment under section 85, attachment of property abroad under section 86, and forfeiture and cancellation of the bond under sections 491 and 492. 7. Section 356 permits the inquiry, trial or judgment in absentia of a proclaimed offender who has absconded to evade trial, subject to its safeguards. It is new to the Sanhita. 8. A person who escaped from custody is one of the categories in which handcuffs may be used under section 43(3), subject to the requirement of necessity. 9. The Bharatiya Nyaya Sanhita punishes escape, resistance to a lawful apprehension, rescue, the intentional omission to apprehend, negligently suffering an escape, and harbouring. The Sanhita supplies the power; the penal statute supplies the punishment. 10. A person retaken is back in custody and the whole of Chapter V applies to him again, including medical examination, the duty of care, and production before a Magistrate. |
7. Frequently Asked Questions
What does section 61 of the BNSS provide?
That where a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India, and that section 44 on entry and search applies to such an arrest although the person making it is not acting under a warrant and is not a police officer having authority to arrest.
Is a fresh warrant needed to retake a person who has escaped?
No. Section 61 confers the power directly on the custodian, and section 35(1)(f) permits any police officer to arrest without warrant a person who has escaped or attempts to escape from lawful custody. A warrant becomes relevant only where the person is not retaken and the court proceeds under Chapter VI.
What if the custody was unlawful?
Section 61 does not apply, because it operates only where the person was in lawful custody. No offence of escape is committed, since the offences in the penal statute are framed by reference to lawful custody or lawful apprehension, and the lawfulness of the original detention is therefore the first question in any case under this head.
What is the difference between arrest and custody?
Arrest is the physical act of taking a person into the control of the law, by touching or confining him or by his submission. Custody is the legal condition of being under that control, and it may arise without any arrest, as where a person appears before a court in answer to process and submits to its jurisdiction: State of Haryana v. Dinesh Kumar.
What happens if a person who has escaped is not found?
The court may issue a warrant, publish a proclamation under section 84 requiring him to appear at a place and time not less than thirty days from publication, attach his property under section 85 and, where it is situated abroad, seek assistance under section 86; his bond may be forfeited and cancelled; and where he is a proclaimed offender who has absconded to evade trial, he may be tried in his absence under section 356.
Is the officer who allowed the escape liable?
He may be. The Bharatiya Nyaya Sanhita punishes a public servant legally bound to apprehend or to keep a person in confinement who intentionally omits to do so or who intentionally suffers an escape, and separately punishes one who negligently suffers an escape. The penalties are graded by the gravity of the offence for which the person was in custody.
Related Topics
- Release of a Person Arrested under the BNSS, 2023
- Pursuit of Offenders into Other Jurisdictions: Section 45, BNSS
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Proclamation and Attachment: Sections 84 to 89, BNSS
- Trial in Absentia of a Proclaimed Offender: Section 356, BNSS
- Handcuffing under the BNSS, 2023: Section 43(3)