BNSS Section 40: Arrest by a private person and procedure on such arrest (2026)

Explainer · Criminal Procedure · BNSS

Updated for 2026 · Claw Editorial

Section 40 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) lets a private person arrest someone in limited situations and sets out what must happen next. It is the new home of the rule that lawyers knew as Section 43 of the Code of Criminal Procedure (CrPC). If you searched for "BNSS Section 40", this is the provision on citizen arrest. The BNSS came into force on 1 July 2024 and renumbered the old CrPC, so the number is new even where the rule is familiar. This explainer sets out when a private person may arrest, the duty that follows, how it maps to the old law, and the limits. Last verified October 2026.

01Why this section matters

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. It renumbered the old code, so the section numbers are new, even where the underlying rule is carried over.

Section 40 of the BNSS is the rule on arrest by a private person, sometimes called citizen arrest. It is a narrow power. Most people assume a private person can detain anyone they suspect, but the law allows it only in defined situations, and it places a clear duty on the person who makes the arrest. Getting the limits right matters, because an arrest outside them can itself become wrongful confinement.

02What Section 40 allows

Section 40 of the BNSS lets any private person arrest, or cause to be arrested, a person who:

• in his presence commits a non-bailable and cognizable offence; or
• is a proclaimed offender.

Both limbs are narrow. The offence must be committed in the private person's presence, and it must be both non-bailable and cognizable. A proclaimed offender is a person a court has declared as such after he failed to answer a proclamation. The power does not extend to petty offences, to mere suspicion, or to offences the person did not see.

03The duty after the arrest

Once a private person makes an arrest under Section 40, a duty follows at once. The person must, without unnecessary delay, hand over the arrested person to a police officer, or, if there is no police officer, take the arrested person to the nearest police station.

The police then take over. If there is reason to believe the arrested person falls within the police power of arrest, the police deal with him under that power. If the offence is bailable and the person gives his name and address, or the police otherwise have no sufficient reason to arrest, he may be released on the ordinary terms.

A private person has no power to keep the arrested person in his own custody. The whole design of Section 40 is to pass the person to the police quickly.

04Old to new: CrPC 43 to BNSS 40

Section 43 of the CrPC is now Section 40 of the BNSS. The power and the duty are carried over.

Because the rule is carried forward, older judgments on Section 43 of the CrPC continue to guide how Section 40 is read.

05Limits to the power

The power under Section 40 is bounded in several ways:

• the offence must be committed in the presence of the private person, unless the person arrested is a proclaimed offender;
• the offence must be both non-bailable and cognizable, so it does not cover petty or bailable offences;
• the arrested person must be handed over to the police without unnecessary delay; and
• the private person must not use more force than is reasonable to make the arrest.

An arrest that steps outside these limits is not protected by Section 40 and can expose the person making it to civil or criminal liability.

06What changed from the old law

For this provision, the change is mainly the number. The core power to arrest a proclaimed offender or a person committing a non-bailable cognizable offence in one's presence, and the duty to hand over to the police, are carried over from Section 43 of the CrPC.

The practical point is the transition. Arrests and procedure on or after 1 July 2024 follow the BNSS and cite Section 40, while steps taken earlier follow the CrPC, because the procedure that applies is the procedure in force when the step is taken.

07Where Claw fits

Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.

The validity of an arrest reaches the courts often, on bail, on quashing and in writ petitions about illegal detention. Claw lets you search its 30 crore+ judgments and track the cases, orders and hearings on such a challenge across 9,102 courts, benches and forums, with each search returning in under 5 seconds. Case search runs from the Supreme Court in 1950 and the High Courts in 1990, so you can trace how the limits on a citizen arrest have been read over the years, or follow a live matter by party or advocate name.

Claw keeps customer case documents out of its AI model training, so your research stays yours. Create a free Claw account to study how courts have tested the validity of an arrest, or to keep watch on a pending challenge. To search the wider body of law, see case search across Indian courts.

08Sources and further reading

• India Code (official text of the BNSS, 2023): indiacode.nic.in
• PRS Legislative Research (BNSS overview and CrPC comparison): prsindia.org
• Section 40, BNSS (bare text): devgan.in
• Claw: clawlaw.in

This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text and take advice from counsel before you act.

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