Illegal Arrest and Compensation under the | BNSS 2023

Illegal Arrest and Compensation under the BNSS, 2023: Section 62, Section 399, Habeas Corpus and Compensation in Public Law

An arrest may be illegal for several different reasons, and the reason determines the remedy. It may be illegal because no power to arrest existed at all; because the power existed but the conditions attached to it were not satisfied; because the procedure prescribed for making it was not followed; or because the detention, lawful when it began, has since become unlawful. Section 62 of the Bharatiya Nagarik Suraksha Sanhita, 2023 states the governing principle in a single line: no arrest shall be made except in accordance with the provisions of this Sanhita or any other law providing for arrest.

What the Sanhita does not do is attach any general consequence to a breach. It creates duties and provides no penalty. The consequences are found in the Constitution, in the general law, and in one small provision of the Sanhita itself, section 399. This topic assembles them.

Figure 1: The six routes to a remedy

1. When Is an Arrest Illegal?

Kind of illegality	Examples	Character
No power at all	Arrest for a non-cognizable offence without a warrant, contrary to section 35(2); arrest by a person not authorised; arrest under a warrant that was never issued	The arrest is without jurisdiction from the outset
Power exercised without the statutory condition	Arrest in an offence punishable with up to seven years without satisfaction of necessity under section 35(1)(b); arrest of a person infirm or above sixty in a minor offence without the permission of a Deputy Superintendent under section 35(7); arrest of a woman at night without the prior permission of a Magistrate under section 43(5)	The power existed but was not lawfully exercised
Procedure not followed	No memorandum of arrest under section 36(b); no grounds communicated under section 47; no relative informed under section 48; no medical examination under section 53	The arrest itself may be justified; the manner of it was not
Lawful arrest, unlawful continuation	Detention beyond twenty-four hours without an order under section 187; continued detention after the expiry of the period in section 187 without a police report; continued detention after an order of release	The detention has become unlawful although the arrest was not
Arrest for a collateral purpose	Arrest to extract a confession, to settle a civil dispute, or at the instance of a person with an interest in the outcome	An abuse of the power, however regular the form

The distinction matters because the remedies differ. A detention that has become unlawful is answered by release; an arrest procedurally defective is answered at the remand stage and by action against the officer; an arrest for a collateral purpose is answered by quashing and by compensation. And none of them, without more, answers the question whether the trial that follows is affected, which is dealt with separately below.

2. Release: Habeas Corpus

Where the detention is unlawful, the first and most important remedy is release. A petition for a writ of habeas corpus lies to the High Court under Article 226 or to the Supreme Court under Article 32, and the question the court asks is a narrow one: is there lawful authority for the detention at this moment? If there is not, release follows; it is not a matter of discretion and it does not depend on the merits of the allegation against the person.

Situation	Position on habeas corpus
Detention beyond twenty-four hours without an order under section 187	The detention is without authority of law; release follows
Detention on a remand order made by a Magistrate	The writ ordinarily does not lie, because there is a judicial order supporting the detention. The remedy is to challenge the remand order, or to apply for bail
Detention where the remand order was passed mechanically, without the Magistrate applying his mind	The order may be examined. A remand order that records no satisfaction is not an answer to the writ in the same way as a considered order
Detention after the period in section 187 has expired without a police report	The right to default bail has accrued; the remedy is an application for default bail, and continued detention after it is claimed is unlawful
Arrest made contrary to section 62	The arrest is one the Sanhita forbids; the detention founded on it has no lawful basis

⚠ The limit of habeas corpus after a remand order

Once a person has been produced before a Magistrate and remanded, the detention rests on a judicial order, and a writ of habeas corpus is not the ordinary means of testing whether the arrest that preceded it was lawful.

The objection to the arrest must be taken at the remand stage, where section 48(4) obliges the Magistrate to satisfy himself that the requirements have been complied with, and where the reasons recorded under section 35 are before him. That is the point at which an illegal arrest can most effectively be challenged, and the point at which challenges are most often not made.

Where the remand order itself is passed without any application of mind, the position is different, and the order is open to examination.

3. Compensation under the Sanhita: Section 399

Section 399, BNSS 2023: compensation to persons groundlessly arrested

(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.

(2) In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding one thousand rupees, as the Magistrate thinks fit.

(3) All compensation awarded under this section may be recovered as if it were a fine, and if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for a term not exceeding thirty days, unless such sum is sooner paid.

Section 399 reproduces section 358 of the Code of Criminal Procedure without change, including the ceiling of one thousand rupees, which has stood since 1974. Four features of it should be noticed.

It is directed at the private complainant, not at the police. The compensation is payable by the person who caused the police officer to arrest. It provides no remedy against an arrest the police made on their own initiative.
The test is whether there was sufficient ground for causing the arrest, not whether the accused was ultimately convicted or acquitted. An acquittal does not by itself show that there was no sufficient ground.
The ceiling is one thousand rupees per person arrested. In a matter involving several persons the Magistrate may award that sum to each, but the individual ceiling stands.
Enforcement is by the fine machinery, with simple imprisonment up to thirty days in default. That is a real sanction against a person who causes a groundless arrest, whatever the size of the sum.

⚠ The limits of section 399

The ceiling of one thousand rupees, fixed in 1974 and carried forward unchanged in 2023, bears no relation to the loss a person actually suffers from even a short unlawful detention. The provision is now more significant as a finding that the arrest was groundless than as a source of compensation.

It gives no remedy against the State or the police officer. A person arrested without sufficient ground by the police acting on their own has to look elsewhere, and in practice looks to the public law remedy under Articles 32 and 226.

A related provision, section 273, permits a Magistrate in a warrant case instituted otherwise than on a police report, on discharging or acquitting the accused, to order the complainant or informant to pay compensation where the accusation was made without reasonable cause, after recording reasons and after giving that person an opportunity to show cause. Its ceiling is the amount of fine the Magistrate is empowered to impose, which is considerably higher.

4. Compensation in Public Law

Figure 2: How the doctrine was built

📖 Rudul Sah v. State of Bihar, (1983) 4 SCC 141

Facts: The petitioner was acquitted of murder in 1968 but was kept in jail until 1982, a period of more than fourteen years after his acquittal, on the footing that he was of unsound mind. He petitioned under Article 32 for release and for compensation for the illegal detention. The State offered no explanation for the detention worth the name.

Held: The Court held the detention wholly unjustified and ordered his release. On compensation it held that Article 32 is not confined to issuing a writ of release: if the Court were limited to that, the right to personal liberty would be a paper right, since the State could violate it and then let the victim pursue the ordinary remedies at his own expense and over many years. The power to grant relief under Article 32 includes the power to award compensation for the contravention of a fundamental right, and such an order is not a substitute for, and does not bar, a suit for damages. The Court awarded compensation in addition to a sum already paid.

Ratio: A court enforcing a fundamental right under Article 32 may award monetary compensation. Without that power the remedy for an unlawful deprivation of liberty would be illusory.

Ten years later the basis of the jurisdiction was put on a firmer footing. Compensation in such a case is a remedy available in public law, founded on strict liability for the contravention of a fundamental right, distinct from and in addition to the private law remedy in tort. Sovereign immunity, which may be a defence to a civil action for a tort committed in the exercise of a sovereign function, is no defence to a claim founded on the breach of a fundamental right, because the right under Article 21 is a right against the State itself. That reasoning appears in Nilabati Behera v. State of Orissa, examined in the topic on arrest.

📖 Sube Singh v. State of Haryana, (2006) 3 SCC 178

Facts: The petitioner alleged that he and members of his family had been illegally detained and tortured by the police in the course of an investigation, and sought compensation under Article 32. The allegations were disputed, the medical evidence did not establish serious injury, and inquiries had produced conflicting findings.

Held: The Supreme Court accepted the principle that compensation may be awarded in a writ proceeding for the violation of Article 21, but held that it is not awarded as a matter of course in every case of alleged custodial ill-treatment. Compensation in a writ proceeding is appropriate where the violation is patent and incontrovertible, where it is established beyond doubt, and where the gravity of the violation shocks the conscience of the court, as in cases of custodial death, disappearance in custody, or long unlawful detention. Where the allegation is disputed and its determination requires the examination of witnesses and the assessment of evidence, the court will ordinarily leave the party to a civil suit, to a complaint before the Human Rights Commission, or to a criminal prosecution, rather than deciding contested questions of fact summarily.

Ratio: The public law remedy in compensation is available where the breach is clear and grave. Where the facts are genuinely in dispute, the writ court will ordinarily relegate the claimant to the forum equipped to try them.

4.1 The principles in short

Compensation in a writ proceeding is a public law remedy, based on strict liability for the contravention of a fundamental right.
It is distinct from and in addition to the private law remedy in tort, and an award does not bar a suit for damages, though the sum awarded is set off.
Sovereign immunity is no defence, because the right is a right against the State.
The State is liable for the acts of its officers in this respect, and may recover from the officer responsible.
The remedy is exercised where the violation is patent and incontrovertible and its gravity is such as to require immediate relief.
Where the facts are disputed and require evidence, the court relegates the claimant to a civil suit, to the Human Rights Commission, or to prosecution.

5. The Other Remedies

Remedy	Forum	Content
Civil action for damages	The civil court	A suit in tort for wrongful confinement, malicious prosecution, assault and battery. Malicious prosecution requires proof that the proceeding was instituted without reasonable and probable cause and with malice, and that it terminated in the plaintiff’s favour
Criminal prosecution of the officer	The criminal court	Wrongful restraint and wrongful confinement, and the aggravated forms of them, are offences under the Bharatiya Nyaya Sanhita; so is the causing of hurt to extort a confession. Section 218 of the Sanhita requires sanction for the prosecution of a public servant for an act done in the discharge of official duty, and the sanction must be decided within one hundred and twenty days, failing which it is deemed granted
Departmental action	The disciplinary authority	Non-compliance with the safeguards, and in particular with the directions in D.K. Basu and Arnesh Kumar, is a ground for departmental proceedings
Contempt of court	The High Court or the Supreme Court	The directions in D.K. Basu and Arnesh Kumar were issued under Articles 32 and 142 and their breach was expressly made punishable as contempt
Human Rights Commission	The National or State Commission	A complaint of the violation of human rights by a public servant. The Commission may inquire, recommend compensation, and recommend prosecution or departmental action
Compensation under the Sanhita	The Magistrate trying the case	Section 399, up to one thousand rupees, against the person who caused the arrest; section 273 in a warrant case instituted otherwise than on a police report

6. What an Illegal Arrest Does Not Do

Three propositions limit the consequences, and they are as important as the remedies themselves.

An illegal arrest does not vitiate the trial. Chapter XXXVII governs, and section 511 makes failure of justice the test. A conviction is not set aside because the memorandum of arrest was unattested or the grounds were not communicated, unless the defect has in fact occasioned a failure of justice. The remedies are directed at the detention, at the officer, and at compensation, not at the prosecution as a whole.
An illegal arrest does not entitle the accused to acquittal. The evidence is assessed on its own merits. What may follow is the exclusion or devaluation of material obtained in consequence of the illegality, which is a narrower thing.
An illegal arrest does not deprive the court of jurisdiction over the accused. A person brought before a court by an irregular arrest is nonetheless before the court, and the court proceeds. The irregularity is a matter for a separate remedy, not a bar to the proceeding.

⚠ Where the law is moving

The Law Commission of India, in its 277th Report on Wrongful Prosecution, recommended a statutory framework for compensating persons who have suffered wrongful prosecution and incarceration, with a special court to determine claims and provision for both pecuniary and non-pecuniary relief. India has no such statute.

The present position is therefore that a person wrongfully arrested and prosecuted has a remedy in public law where the breach is clear, a remedy in tort where he can prove malice and the absence of reasonable and probable cause, and, under the Sanhita, one thousand rupees.

A balanced treatment of this topic notes both the strength of the public law remedy as developed since 1983 and the absence of any general statutory scheme to which an ordinary claimant can turn.

7. Key Takeaways

The position stated shortly

1. Section 62: no arrest shall be made except in accordance with the Sanhita or another law providing for arrest. The Sanhita attaches no general consequence to a breach.

2. An arrest may be illegal because there was no power, because the statutory condition was not satisfied, because the procedure was not followed, because the detention has since become unlawful, or because the power was used for a collateral purpose.

3. Where the detention is unlawful the remedy is habeas corpus under Article 32 or Article 226, and release is not discretionary. After a remand order, the objection is ordinarily taken at the remand stage rather than by writ.

4. Section 48(4) obliges the Magistrate at the first production to satisfy himself that the requirements have been complied with. That is the most effective point at which an illegal arrest can be challenged.

5. Section 399 permits a Magistrate to award up to one thousand rupees against a person who caused a police officer to arrest another without sufficient ground, recoverable as a fine with simple imprisonment up to thirty days in default. It gives no remedy against the police.

6. A court enforcing a fundamental right may award compensation in public law: Rudul Sah. It is based on strict liability, is distinct from a civil action, and sovereign immunity is no defence.

7. The writ remedy is exercised where the violation is patent and incontrovertible and grave; where the facts are disputed the claimant is relegated to a civil suit, the Human Rights Commission, or prosecution: Sube Singh.

8. The other remedies are a civil action for wrongful confinement or malicious prosecution, prosecution of the officer subject to sanction under section 218, departmental action, contempt, and a complaint to a Human Rights Commission.

9. An illegal arrest does not vitiate the trial, does not entitle the accused to acquittal, and does not deprive the court of jurisdiction over him.

10. India has no statute on compensation for wrongful prosecution, notwithstanding the recommendation of the Law Commission in its 277th Report.

8. Frequently Asked Questions

When is an arrest illegal under the BNSS?

Where there was no power to arrest, where the conditions attached to the power were not satisfied, where the prescribed procedure was not followed, where a lawful detention has become unlawful by effluxion of time, or where the power was exercised for a collateral purpose. Section 62 provides that no arrest shall be made except in accordance with the Sanhita.

What is the remedy for an illegal detention?

A petition for a writ of habeas corpus under Article 32 or Article 226. The question is whether there is lawful authority for the detention at that moment, and if there is not, release follows as of right.

Can compensation be claimed for a wrongful arrest?

Yes, in three ways. Up to one thousand rupees under section 399 against a person who caused the arrest without sufficient ground. Compensation in public law under Articles 32 and 226 where the violation of Article 21 is patent and grave. And damages in a civil suit for wrongful confinement or malicious prosecution.

How much compensation does section 399 allow?

Not exceeding one thousand rupees for each person arrested, payable by the person who caused the arrest, recoverable as a fine, with simple imprisonment for up to thirty days in default. The ceiling has stood unchanged since 1974.

Is sovereign immunity a defence to a claim for custodial harm?

No. A claim founded on the breach of a fundamental right is a claim against the State itself, and the defence of sovereign immunity, which may answer a tort committed in the exercise of a sovereign function, does not answer it.

Does an illegal arrest invalidate the trial?

No. Chapter XXXVII governs, and section 511 makes failure of justice the test rather than mere non-compliance. The remedies for an illegal arrest are release, compensation, and action against the officer; they do not extend to the invalidity of the proceeding.

Related Topics

Custodial Violence and Custodial Death under the BNSS, 2023
Arrest of Persons under the BNSS, 2023: Sections 35 to 62
Rights of an Arrested Person under the BNSS, 2023
Release of a Person Arrested under the BNSS, 2023
Section 187 BNSS: Remand, Police Custody and Default Bail
Irregular Proceedings: Sections 506 to 512 and the Test of Failure of Justice