Section 41 BNSS: Arrest by Magistrate (Formerly Section 44 CrPC)

Section 41 of Bharatiya Nagarik Suraksha Sanhita, 2023: Arrest by Magistrate

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Arrest Sec 35

Legal Commentary & Landmark Judgments: Section 41

Section 41 empowers a Magistrate (whether Executive or Judicial) to arrest or order the arrest of any person who commits an offence in the Magistrate's presence, within their local jurisdiction, and commit them to custody.

Commission in Presence: Offence committed directly in the presence of the Magistrate.
Within Local Jurisdiction: Occurs within the notified territorial jurisdiction of that Magistrate.
Custodial Committal: Magistrate may personally arrest, or orally order any person to arrest, and subject to bail provisions, commit the offender to custody.

Key Landmark Precedents:

Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627: The Supreme Court noted that Magistrates possess inherent statutory powers to suppress crimes committed in their presence, serving as active guardians of the peace.
State of Maharashtra v. Babulal (1993) Supp 3 SCC 419: Affirmed that an arrest by a Magistrate under Section 44 CrPC (Section 41 BNSS) is a judicial act subject to immediate recording of reasons.

Courtroom Practice & Strategic Litigation Guidance:

An arrest under Section 41 does not dispense with procedural fairness. The Magistrate must immediately record a memorandum of the incident, inform the arrestee of grounds, and pass a formal remand or bail order.