How an arrest is made — what the law actually requires
An arrest is not a casual administrative act. Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the officer must wear a visible name badge, prepare a memorandum of arrest, inform a relative, record reasons in writing, and produce the arrested person before a Magistrate within 24 hours.
A police officer walks up to a man near a tea stall, says a few words, and the man gets into the jeep. A constable knocks on a door at nine in the morning, asks the householder to come along to the station, and the householder follows. In a third instance, two officers grip a woman by the arm at a market and walk her to a waiting vehicle. In law, only some of these are valid arrests. The difference is not what the officer felt was reasonable. It is what the officer did, in what order, with what record.
This guide explains how the law requires an arrest to be carried out in India under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 with effect from 1 July 2024. The companion guide on this site covers the rights of the arrested person and the D.K. Basu checklist; this one is about the procedure the officer must follow.
The law in plain English
An arrest, legally, means restraint of personal liberty. Section 43 of the BNSS [Section 46 of the CrPC] says it is effected in one of two ways: the officer actually touches or confines the body of the person to be arrested, or the person submits to custody by word or action. A bare oral declaration by the officer is not enough. If the officer never touched the person and the person never submitted, there has been no arrest in law — only an informal detention, which the Code does not authorise. The Supreme Court explained this in Directorate of Enforcement v. Deepak Mahajan (1994): an arrest is the taking of a person into custody under authority of law for the purpose of holding him to answer a criminal charge or preventing a criminal act.
Section 35 of the BNSS [Section 41 of the CrPC] sets out when a police officer may arrest without a warrant. The most common ground is a cognizable offence — committed in the officer's presence, or one for which there is a reasonable complaint, credible information or reasonable suspicion. For cognizable offences punishable with imprisonment up to seven years, the law adds something most readers do not know: arrest is not automatic. The officer must record, in writing, why arrest is necessary — to prevent further offences, to secure proper investigation, to prevent tampering with evidence, to prevent threats to witnesses, or to ensure presence in court. If none of these is in writing, the arrest is irregular. Equally, where the officer decides not to arrest, the officer must record reasons in writing for that too.
Where arrest is not required for this lower band of offences, the officer is supposed to issue a notice under Section 35(3) of the BNSS [Section 41A of the CrPC] — directing the person to appear at a stated place and time. The notice is an alternative to arrest. The person who complies with the notice cannot be arrested on the same offence unless the officer records fresh reasons for arresting. The Supreme Court in Joginder Kumar v. State of U.P. (1994) held that arrest must not be made because it is lawful to do so; the existence of the power and the justification for exercising it are different things.
Step-by-step procedure
What follows is what the law requires of the officer from the moment of approach to the moment of production before the Magistrate. The sequence is fixed; the documentation at each step is not optional.
Step 1 — Identification of the officer. Section 36 of the BNSS [Section 41B of the CrPC] requires every officer making an arrest to bear an accurate, visible and clear identification of his name. The name badge is not ceremonial. Without it, the person being arrested cannot later identify who arrested him, which is the precondition for every other right that follows. Officers in plain clothes are required to identify themselves at the moment of arrest.
Step 2 — Physical act of arrest. Under Section 43 BNSS, the officer either touches or confines the body of the person, or accepts the person's submission to custody. Where the person submits voluntarily, no physical contact is necessary. Where the person resists, Section 43(2) BNSS permits the officer to use "all means necessary" — but Section 43(3) BNSS forbids causing the death of any person who is not accused of an offence punishable with death or imprisonment for life.
Step 3 — Memorandum of arrest. Section 36(b) BNSS requires the officer to prepare a memorandum of arrest. The memorandum must be attested by at least one witness who is either a member of the arrested person's family or a respectable member of the locality where the arrest is made, and it must be countersigned by the arrested person. The memorandum is the documentary record that an arrest has taken place — the date, the time, the place, the officer's name. Without it, the State cannot later prove how the custody began.
Step 4 — Notification of the right to inform a relative. Section 36(c) BNSS requires the officer to inform the arrested person, unless the memorandum is attested by a member of the family, that he has a right to have a relative or friend named by him be informed of the arrest. This is the trigger for Section 48 BNSS [Section 50A CrPC], which then obliges the officer to actually inform that nominated person — the fact of arrest and the place where the person is being held.
Step 5 — Grounds of arrest. Section 47 BNSS [Section 50 CrPC] requires the officer to forthwith communicate to the arrested person the full particulars of the offence for which he is being arrested or the other grounds of arrest. This is not optional — it gives constitutional effect to Article 22(1) of the Constitution, which guarantees that no person who is arrested shall be detained in custody without being informed of the grounds. Where the offence is bailable, the officer must also inform the person of the right to be released on bail and to arrange for sureties.
Step 6 — Right to meet a lawyer. Section 38 BNSS [Section 41D CrPC] gives the arrested person the right to meet an advocate of his choice during interrogation, though not throughout. The lawyer can be present at the police station; the lawyer cannot stay through every minute of every interrogation. The right to consult was recognised by Joginder Kumar as a Constitutional right under Articles 21 and 22, and Section 38 BNSS codifies it.
Step 7 — Medical examination. Section 51 BNSS [Section 53 CrPC] permits, and Section 52 BNSS read with the BNSS arrest framework requires, the arrested person to be medically examined by a registered medical practitioner soon after arrest. The examination records injuries the person already had at the time of arrest and protects both the person and the State from later allegations about custodial injury. If the arrested person is a woman, the examination must be conducted by, or under the supervision of, a female registered medical practitioner.
Step 8 — Entry in the police control room database. Section 37 BNSS [Section 41C CrPC] requires every State to establish police control rooms at the district and State level. The names and addresses of arrested persons and the names and designations of arresting officers must be displayed on the notice board of the district control room, and the State headquarters must maintain a database accessible for general public information.
Step 9 — Production before a Magistrate within 24 hours. Article 22(2) of the Constitution, given statutory form in Section 58 of the BNSS [Section 57 CrPC], requires the arrested person to be produced before the nearest Magistrate within 24 hours of arrest. The 24-hour clock excludes time necessary for travel from the place of arrest to the Magistrate's court. Detention beyond 24 hours without a Magistrate's order is illegal.
What to watch for
The procedure is straightforward on paper. The five places where it tends to fail are familiar to anyone who has dealt with arrests on the ground.
The "come with us to the station" routine. A common practice is for the officer to ask a person to accompany him to the station without formally arresting. The person goes along thinking he is helping with an enquiry; once at the station, his movements are restricted. The Supreme Court has held that the moment a person's liberty is restrained at the police station, he is in custody — regardless of whether the officer used the word "arrest." If the officer is going to detain you, the law requires him to do so formally, with the memorandum, the grounds, the nominee call. An informal detention without these is a wrongful confinement punishable under the law.
The reasons-in-writing requirement for offences up to seven years. Where the offence is punishable with imprisonment up to seven years, the officer must record in writing why arrest is necessary. In a large number of cases — bailable offences in particular, but also lower-band cognizable offences — the officer arrests first and rationalises later. If you are being arrested in this band and ask to see the recorded reasons, you are not being obstructive; you are asking to see what the BNSS requires the officer to prepare.
The memorandum of arrest attested by an unconnected witness. The memorandum is supposed to be attested by a family member or a respectable member of the locality where the arrest is made. In practice, it is sometimes attested by a constable or a person picked up off the street outside the police station who has no connection to the locality. The point of the requirement is independent verification. An attestation by a person who happens to be sitting in the police station defeats the purpose.
Handcuffing of a person who is not violent and not a flight risk. The Supreme Court in Prem Shankar Shukla v. Delhi Administration (1980) condemned routine handcuffing. The only valid principle, the Court said, is the need to prevent the prisoner from escaping or becoming violent. Handcuffing as a default — particularly during production before a Magistrate, where escape is not realistically a concern — is unlawful. The State Governments have laid down rules for the guidance of officers; in most ordinary arrests, handcuffs have no place.
Special rules for arrest of women are routinely ignored. Section 43 BNSS [Section 46 CrPC] contains two important protections for women. First, the proviso to Section 43(1) presumes that a woman submits to custody on oral intimation of arrest — meaning the officer is not to touch the person of the woman to effect the arrest unless the officer is herself female, or the circumstances clearly require otherwise. Second, Section 43(4) BNSS forbids arrest of a woman after sunset and before sunrise, except in exceptional circumstances, and even then only by a female police officer who has first obtained the prior permission, in writing, of the Judicial Magistrate of the First Class within whose jurisdiction the offence was committed or the arrest is to be made. Both provisions are mandatory.
If things go wrong
If the procedure has been violated, three remedies exist. Each operates in a different forum and on a different timeline.
Habeas corpus before the High Court or Supreme Court. A petition for habeas corpus under Article 226 (High Court) or Article 32 (Supreme Court) of the Constitution is the fastest remedy where the arrest itself is unlawful — for instance, where the grounds were not communicated, the production before a Magistrate did not happen within 24 hours, or the memorandum of arrest was not prepared. The High Court can direct the immediate release of the person. The petition can be filed by a relative, a friend, or a lawyer; the arrested person does not need to file it himself.
Application to the Magistrate at the first production. When the arrested person is produced before the Magistrate within 24 hours, the Magistrate has the duty to verify that the BNSS arrest formalities — the memorandum, the nominee notification, the medical examination, the recording of grounds — have been complied with. The arrested person, through his lawyer, can place on record any failure at this point. The Magistrate can refuse remand and direct release where the procedure has not been followed.
Suit for damages and complaint against the officer. An arrest without authority of law amounts to false imprisonment. The arrested person can file a civil suit for damages against the officer and the State. Independently, illegal arrest can be the subject of departmental action and, where it is corrupt or malicious, a criminal complaint under offences relating to wrongful confinement by a public servant. The National Human Rights Commission (NHRC) and the State Human Rights Commissions also accept complaints about custodial illegality and can recommend compensation.
Resources
Statutory references. BNSS Section 35 (when police may arrest without warrant); Section 35(3) BNSS [Section 41A CrPC] (notice of appearance — alternative to arrest); Section 36 BNSS [Section 41B CrPC] (procedure of arrest and duties of the officer); Section 37 BNSS [Section 41C CrPC] (police control rooms); Section 38 BNSS [Section 41D CrPC] (right to meet advocate during interrogation); Section 43 BNSS [Section 46 CrPC] (how arrest is made; special rules for women); Section 47 BNSS [Section 50 CrPC] (grounds of arrest and right to bail intimation); Section 48 BNSS [Section 50A CrPC] (information to nominated person); Sections 51–52 BNSS [Sections 53–54 CrPC] (medical examination); Section 58 BNSS [Section 57 CrPC] (production before Magistrate within 24 hours). Constitutional anchors: Article 21 (right to life and personal liberty); Article 22(1) (grounds of arrest); Article 22(2) (24-hour production).
Where to verify. The bare text of the BNSS is on the official India Code portal at indiacode.nic.in. Police control room records — names of arrested persons and the names of arresting officers — are required to be displayed at every district control room and maintained at the State headquarters; this is the first place to check if a relative has disappeared into custody.
Where to complain about custodial illegality. The National Human Rights Commission accepts complaints at nhrc.nic.in. State Human Rights Commissions accept State-level complaints. Both can recommend compensation. The District Legal Services Authority — reachable through the eCourts services portal at ecourts.gov.in — provides legal aid where the arrested person cannot afford a lawyer.
Outcome
An arrest carried out under the BNSS is a procedure with eight or nine identifiable steps and a paper trail at every step. The officer must wear a visible name badge, prepare a memorandum, communicate the grounds, notify a nominee, allow access to a lawyer, ensure a medical examination, log the arrest in the control room, and produce the person before a Magistrate within 24 hours. A custody that skips any of these is a custody the State cannot defend in court. The arrested person, or anyone acting for him, has the right to test the procedure at the first production and to seek habeas corpus where the procedure has failed.