Bharatiya Nagarik Suraksha Sanhita, 2023
Section 39
Arrest on refusal to give name and residence
(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses on demand of such officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on a bond or bail bond, to appear before a Magistrate if so required: Provided that if such person is not resident in India, the bail bond shall be secured by a surety or sureties resident in India.
(3) If the true name and residence of such person is not ascertained within twenty-four hours from the time of arrest or if he fails to execute the bond or bail bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
Why this exists
Non-cognizable offences are minor, and ordinarily police cannot arrest without a warrant for them. But if an offender refuses to identify themselves, police would have no way to proceed against them later — summons or notices need a name and address. This provision (carried over from Section 42 of the old Code of Criminal Procedure, 1973) creates a narrow, purpose-limited arrest power: not to punish, but solely to establish identity, after which the person must be quickly released on bond.
How courts read it
Courts have consistently held that this arrest power is strictly limited to ascertaining identity and cannot be used as a backdoor to detain or investigate a non-cognizable offence generally. Once the name and address are verified, continued detention is unlawful, and the police must release the person on bond as mandated. The 24-hour cap also aligns with the constitutional safeguard against detention beyond 24 hours without magisterial oversight (Article 22(2) of the Constitution).
Common misconceptions
- Myth: This section lets police arrest and hold someone for any small offence indefinitely.
Fact: The arrest is only for the purpose of ascertaining identity, and the person must be released on bond within 24 hours once identity is confirmed, or produced before a Magistrate. - Myth: Police can use this power even if the person gave their correct name and address.
Fact: The power applies only when the person refuses to give their name/address or the officer has reason to believe the details given are false.