(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, but within six hours from such arrest, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of sub-section (1) of section 35, a police officer shall take him in custody.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 39; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
Legal Commentary & Landmark Judgments: Section 40
Section 40 of the Bharatiya Nagarik Suraksha Sanhita, 2023 defines the powers and statutory procedure governing citizen's arrest of offenders by private persons.
If the person falls under Section 35, the police officer re-arrests them; if there is reason to believe they committed a non-cognizable offence and refuse their name, Section 39 applies; otherwise, they must be released immediately.
Section 40 balances civic assistance to law enforcement with safeguards against vigilantism. Private citizens exercising this power must act within strict statutory boundaries to avoid facing criminal charges for unlawful restraint or kidnapping.