Arrest Rights under BNSS: What Police Can and Cannot Do

Arrest rights under BNSS matter the moment the police detain you, yet many people do not know what the police may and may not do. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Article 22 of the Constitution give every arrested person a set of rights. This article explains them in plain language so that you or your family can act quickly and correctly.

When can the police arrest without a warrant?

Section 35 BNSS lists the situations. In general, the police can arrest without a warrant where a cognizable offence is committed in their presence, or where they have credible information or reasonable suspicion about a cognizable offence of a serious kind, along with the conditions the law lays down.

Notice of appearance instead of arrest

For offences punishable with imprisonment up to seven years, the police should ordinarily issue a notice of appearance under Section 35(3) rather than arresting. The Supreme Court stressed this in Arnesh Kumar v. State of Bihar (2014): arrest should not be a routine step, and the police must record reasons. If you comply with the notice, you are generally not to be arrested unless the officer records reasons that arrest is necessary. Ignoring the notice, however, can lead to arrest.

Your arrest rights under BNSS

• Know the grounds. Under Section 47 BNSS the police must tell you the full particulars of the offence or the grounds of arrest. The Supreme Court has also emphasised that grounds should be communicated in a meaningful way, and in some cases in writing, for example in Pankaj Bansal v. Union of India (2023).
• Right to bail. Where the offence is bailable, you must be told you are entitled to be released on bail and to arrange sureties.
• Inform a relative or friend. The police must give information of your arrest and place of detention to a person of your choice or a relative.
• Identification of police. The arresting officer should bear an accurate and visible name tag (Section 36).
• Arrest memo. The arrest memo should be attested by a witness, who may be a family member or a respectable member of the locality, and countersigned by you.
• Medical examination. You have the right to be examined by a medical practitioner, and any injury should be noted.
• Right to meet an advocate. Section 38 allows you to meet an advocate of your choice during interrogation, though not throughout. Legal aid is also available if you cannot afford a lawyer.

The 24-hour rule

Under Article 22(2) of the Constitution and Section 58 BNSS, a person arrested must be produced before the nearest Magistrate within 24 hours, excluding travel time. Any detention beyond that without a magistrate’s order is illegal.

Police custody and judicial custody

• Police custody: The Magistrate can authorise police custody under Section 187. The total police custody in the initial period is limited to a maximum of 15 days as the law provides, and the BNSS allows it to be taken in parts within the overall period.
• Judicial custody: The accused is sent to jail. For a long investigation, the maximum period of detention before the police must file the charge sheet is 60 or 90 days depending on the offence, after which default bail becomes available (see default bail under BNSS s.187).

Special protections

• Women have a special safeguard under Section 43(5) BNSS: save in exceptional circumstances, no woman is to be arrested after sunset and before sunrise, and in such a case a woman police officer must make a written report and obtain the prior permission of the Magistrate of the first class.
• Children in conflict with law are governed by the Juvenile Justice Act, which provides a different procedure.
• Handcuffing is restricted. Section 43(3) BNSS allows handcuffs only for listed categories, such as habitual or repeat offenders, persons who escaped custody, and serious offences like organised crime, terrorist acts, drug-related crime, murder and rape, keeping in view the nature and gravity of the offence. The Supreme Court has also held that handcuffing cannot be routine.

D.K. Basu guidelines

In D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down binding guidelines to prevent custodial torture, including arrest memos, medical examination and informing family. These guidelines continue to guide courts.

What to do if your rights are violated

• Record the date, time and officers involved.
• Ask for your lawyer immediately and ensure your family knows.
• Raise the violation before the Magistrate at the first production.
• A petition for habeas corpus can be filed before the High Court in case of illegal detention.
• Complaints can be made to the Superintendent of Police, the State Human Rights Commission or the court.

What to do if arrest is likely

• Consider anticipatory bail under BNSS Section 482 if you fear arrest in a non-bailable case.
• Appear when a notice is served, with documents and a lawyer.
• Do not sign blank papers or statements you do not understand.
• Read the relevant sections of the Sanhita on India Code.

Frequently Asked Questions

This article is general legal information and not a substitute for advice on your specific case. Consult an advocate before acting.