Understanding Arrests in India: Legal Framework and Procedure
Introduction
Arrest in layman understanding means apprehension of person by any legal authorities resulting in the deprivation of the personal liberty of the person being arrested. Under a. 21 of the Constitution of India lays the right of personal liberty of an individual and further states that no person shall be deprived of his life and liberty except in accordance with law. In India, the law governing arrests has undergone significant reforms with the introduction of the new procedure i.e., Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) which replaces the Criminal Procedure Code, 1973 (‘CrPC’), while retaining its essence overall. Through this article, we will analyse the provisions of CrPC corresponding to BNSS relating to arrest.
Legal Definition of Arrest
The BNSS, like the CrPC, does not define “arrest” but judicial pronouncements have interpreted it to mean “the restraint of a person’s liberty by legal authority”. Arrest may be actual (physical custody) or constructive (submission to authority).
Grounds and Types of Arrest
1. Arrest with Warrant
• Ordered by a magistrate under BNSS Sections (formerly CrPC Sections 70–81).
• Applicable for non-cognizable offences or where the court deems it necessary.
2. Arrest without Warrant (Section 35 BNSS)
Police may arrest without a warrant in cognizable offences where:
• A person commits a cognizable offence in their presence.
• They have a reasonable complaint, credible information, or suspicion.
• To prevent the person from committing further offences, fleeing, or tampering with evidence.
The officer must record reasons in writing for the arrest or for not making an arrest.
3. Arrest by Private Person
Permitted under Section 39 BNSS in specific circumstances (e.g., a person committing a non-bailable and cognizable offence in the presence of a private person).
4. Arrest by Magistrate
A magistrate (even without jurisdiction) may arrest or order arrest if an offence is committed in their presence (Section 40 BNSS).
Procedure for Arrest
Key procedural requirements during arrest under BNSS and constitutional protections (Article 21 & 22):
• Informing Grounds of Arrest: Section 36 BNSS mandates that the arrested person be informed of the reasons for arrest.
• Right to Inform a Friend or Relative: Section 48 BNSS ensures the right to inform someone about the arrest.
• Medical Examination: A medical examination of the arrestee is required to prevent custodial torture.
• Memo of Arrest: Must be prepared, attested by a witness, signed by the accused, and countersigned by the officer.
• Production Before Magistrate: Within 24 hours of arrest (excluding travel time) under Article 22(2) of the Constitution and Section 57 BNSS.
Rights of an Arrested Person
Under Indian law and landmark judicial rulings (esp. D.K. Basu v. State of West Bengal), arrested individuals have the following rights:
• Right to remain silent (Article 20(3) – no self-incrimination).
• Right to legal counsel (Article 22(1); reaffirmed in Hussainara Khatoon v. State of Bihar).
• Right to be produced before a magistrate within 24 hours.
• Right to be informed of grounds of arrest and charges.
• Right against handcuffing unless justified by specific circumstances.
• Right to free legal aid (Section 304 of Bharatiya Nyaya Sanhita).
Remedies against Unlawful Arrest
• Writ of Habeas Corpus: Can be filed before High Courts or Supreme Court under Article 226 or 32 respectively, challenging illegal detention.
• Compensation: Courts have awarded compensation in cases of arbitrary arrest and custodial violence.
• Departmental Action: Officers making unlawful arrests can face disciplinary action or prosecution.
Bailable vs Non-Bailable Offences
• In bailable offences, police must grant bail as a matter of right.
• In non-bailable offences, bail can only be granted by the Magistrate or Sessions Court.
Post-Arrest Process
1. Filing of FIR (if not already done).
2. Investigation and gathering of evidence.
3. Filing of chargesheet within statutory timeline.
4. Trial begins upon framing of charges.
If arrest is unwarranted or rights are violated, the entire investigation and trial may be vitiated.
Recent Legal Developments and Judicial Trends
• Section 41A CrPC (now mirrored in BNSS): Introduced to curb unnecessary arrests by mandating notice of appearance in lieu of arrest for offences punishable with less than 7 years.
• In Arnesh Kumar v. State of Bihar (2014), the Supreme Court emphasized non-arrest in routine cases and required written justification for arrests.
• The courts increasingly call for “custodial interrogation” to be an exception, not the rule.
Conclusion
Arrest is a powerful instrument that must be used with caution, transparency, and within the limits of law. The new BNSS reinforces procedural safeguards, compels accountability from the police, and strengthens constitutional protections for the accused. Awareness of arrest rights and remedies plays a crucial role in upholding personal liberty and procedural fairness in India’s criminal justice system.
