Arrest of Persons under the BNSS 2023 Sections 35 to 62

Arrest of Persons under the BNSS, 2023: Sections 35 to 62, Arrest Without Warrant, Notice of Appearance, Handcuffs, Rights of the Arrested Person and the 24-Hour Rule

Arrest is the point at which the criminal process first touches a person, and for a very large number of people it is the only part of the criminal law they ever encounter. It happens before any charge is framed, before any evidence is tested and long before guilt is determined. The whole of Chapter V of the Bharatiya Nagarik Suraksha Sanhita, 2023 is directed at the same problem: how to give the police a power they cannot do without, while confining it so that it is not used where it is not needed.

The chapter runs from section 35 to section 62, twenty-eight sections in all. Most of it is carried forward from Chapter V of the Code of Criminal Procedure, 1973, and a great deal of that was itself the codification of directions the Supreme Court had given in the 1990s. Five provisions have no counterpart in the older Code: the notice of appearance folded into section 35, the gatekeeping rule in section 35(7) for the elderly and infirm, the designated police officer in section 37, the statutory handcuff provision in section 43(3), and the six-hour rule for an arrest by a private person in section 40.

Figure 1: Chapter V at a glance

1. Arrest: Meaning and Concept

1.1 Arrest is nowhere defined

Neither the Sanhita nor the Code of Criminal Procedure defines arrest. Its content comes from section 43, which describes how an arrest is made, and from the decided cases. An arrest is the actual touching or confining of the body of the person to be arrested, unless there is a submission to custody by word or action. Nothing else is required: no formal words, no document, no order, and no removal to any particular place.

Two consequences follow. Arrest is a question of fact, not of form: a person who is told he is under arrest and submits is arrested, whether or not any register is filled in, and a person who is in fact confined is arrested whatever the police call it. And the moment of arrest is the moment from which the twenty-four hours under section 58 begin to run, so the characterisation is not academic.

1.2 Arrest, custody and detention

A person on bail remains in the constructive custody of the court, which is why conditions may be imposed on him and why his bond may be forfeited. A person surrendering before a court is in custody from the moment he submits. The expression therefore does not require physical confinement, and this matters for the right to apply for bail, which presupposes that the applicant is in custody.

2. Arrest Without Warrant: Section 35

Figure 2: The route through section 35

2.1 The categories in section 35(1)

Section 35(1) permits any police officer, without an order from a Magistrate and without a warrant, to arrest a person falling within the categories the sub-section lists. The categories are the traditional ones, carried forward from section 41 of the CrPC.

2.2 The necessity requirement: arrest for offences up to seven years

Clause (b) is the provision that matters most in practice, because the great bulk of cognizable offences fall in the band it covers. It does not permit arrest merely because the officer has credible information. It permits arrest only where the officer is satisfied that the arrest is necessary on one of the specified grounds, and requires him to record his reasons in writing.

The structure is deliberately symmetrical. The officer must record reasons if he arrests, and he must record reasons if he does not. The intention is to remove the unreasoned arrest from the process altogether, and to place the decision either way on a record that a Magistrate can examine at the remand stage.

2.3 Notice of appearance instead of arrest: section 35(3) to (6)

Where arrest is not required under sub-section (1), section 35(3) requires the officer to issue a notice directing the person to appear before him or at such other place as the notice specifies. Sub-section (4) makes it the duty of that person to comply. Sub-section (5) provides that so long as he complies and continues to comply, he shall not be arrested in respect of the offence mentioned in the notice, unless the officer, for reasons to be recorded, is of the opinion that he ought to be arrested. Sub-section (6) permits arrest where he fails to comply or is unwilling to identify himself, subject to any orders passed by a competent court.

The notice was section 41A of the CrPC, inserted in 2009. The Sanhita folds it into section 35, so that the power to arrest and the alternative to arrest now sit in one provision. The change is structural rather than substantive, and it has the advantage of making the alternative impossible to overlook.

The decision is important beyond its immediate subject. It marks the limit of the electronic architecture examined earlier in this series: section 530 permits trials, inquiries and proceedings to be held in electronic mode, but it is not a general licence, and where a step affects liberty directly the ordinary mode of service remains mandatory.

2.4 Arrest of the elderly and the infirm: section 35(7)

This has no counterpart in the CrPC. Two conditions must be satisfied together. The offence must be punishable with imprisonment of less than three years, and the person must be infirm or above sixty. A person of seventy accused of a six-year offence therefore gets the notice protection under section 35(3) but not the additional requirement of permission, because the punishment condition is not met.

2.5 Non-cognizable offences: section 35(2)

Section 35(2) provides that, subject to section 39, no person concerned in a non-cognizable offence, or against whom a complaint has been made or credible information received or reasonable suspicion exists of his having been so concerned, shall be arrested except under a warrant or order of a Magistrate. Section 39 is the exception: where a person accused of a non-cognizable offence refuses on demand to give his name and residence, or gives a name or residence the officer has reason to believe to be false, he may be arrested so that his name and residence may be ascertained. He must then be released on a bond within twenty-four hours, or forwarded to the nearest Magistrate.

3. Procedure of Arrest and the Duties of the Officer

Figure 3: The sequence of duties on making an arrest

3.1 Section 36: identification, memorandum and information

1. Identification. Every police officer while making an arrest shall bear an accurate, visible and clear identification of his name which will facilitate easy identification.
2. Memorandum of arrest. He shall prepare a memorandum of arrest which is attested by at least one witness, being a member of the family of the arrested person or a respectable member of the locality where the arrest is made, and countersigned by the arrested person.
3. Information of the right. He shall inform the arrested person that he has a right to have a relative, a friend or any other person named by him informed of the arrest, unless the memorandum is attested by a member of his family.

The third duty has been widened by the Sanhita. Section 41B of the CrPC spoke of a relative or a friend; section 36 adds any other person named by him, which accommodates a person with no family nearby and a person who prefers to inform an employer, a lawyer or a community member.

3.2 Section 37: the designated police officer

Section 37 requires every State Government to establish a police control room in every district and at State level, and requires the designation of a police officer not below the rank of Assistant Sub-Inspector in every district and every police station who shall be responsible for maintaining the information about the persons arrested, the nature of the offence, and their addresses, and shall display such information, including through digital mode, in every police station and district headquarters.

Section 41C of the CrPC required a control room and the display of names and addresses of persons arrested. Section 37 adds a named officer responsible for the information and requires its display in digital mode as well. The provision converts an occasional practice into a permanent institutional arrangement and makes the fact of an arrest publicly ascertainable rather than dependent on inquiry.

3.3 Section 38: the right to meet an advocate during interrogation

The provision is carried forward from section 41D of the CrPC. Its qualification is what gives it shape: the right is to meet counsel during interrogation, not to have counsel present throughout it. The limitation reflects the concern that continuous presence would obstruct effective questioning, and the entitlement reflects the concern that a person alone in a police station for many hours has no protection against what happens there. Whether the balance so struck is adequate is among the recurring questions in this area, and the answer depends heavily on Article 22(1), which guarantees the right to consult and to be defended by a legal practitioner of choice.

4. Who May Arrest, and Arrest by Persons Other Than the Police

5. The Manner of Arrest: Force, Handcuffs and Restraint

5.1 Use of force: section 43(2) and (4)

Section 43(2) provides that if a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest. Section 43(4) limits that: nothing in the section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

The two sub-sections together state a rule of proportionality. Necessary force is permitted; lethal force is not, save against a person accused of the gravest class of offence, and even then it is not authorised as such but merely not prohibited by the section. Section 46 adds the general restraint: the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

5.2 Handcuffs: section 43(3)

This is the most contested provision in the chapter. Section 46 of the CrPC contained no reference to handcuffs, and for four decades the law on the subject was judicial. In Prem Shankar Shukla v. Delhi Administration and in Citizens for Democracy v. State of Assam the Supreme Court held that handcuffing is prima facie inhuman, unreasonable and arbitrary; that it may be resorted to only where there is clear and present danger of escape which cannot be prevented otherwise; that the reasons must be recorded; and that the decision is subject to judicial scrutiny.

5.3 Arrest of women: section 43(5) and the provisos

Figure 4: The safeguards for women, the elderly and the infirm, and the disabled

Three requirements are stacked. The circumstances must be exceptional. The arrest must be made by a woman police officer. And the prior permission of a Judicial Magistrate of the first class must be obtained by written report. The provision is therefore not a bar on the arrest of a woman at night but a requirement of prior judicial authorisation for it, which is unusual in a chapter otherwise concerned with police discretion.

The proviso to section 43(1) adds that where a woman is to be arrested her submission to custody on an oral intimation of arrest is presumed unless the circumstances indicate otherwise, and that the police officer shall not touch her person for making the arrest unless the officer is a female or the circumstances otherwise require. Section 49(2) requires that where a woman is to be searched, the search be made by another woman with strict regard to decency; and the proviso to section 53 requires that a female arrested person be medically examined only by or under the supervision of a female medical practitioner.

5.4 Search of a place and pursuit: sections 44 and 45

Section 44 provides that where a person to be arrested has entered or is within any place, the person residing in or in charge of it shall on demand allow free ingress and afford all reasonable facilities for a search; and if ingress cannot be obtained, the officer may break open any outer or inner door or window in order to effect entry, with a proviso protecting the privacy of a woman occupying an apartment who is not the person to be arrested. Section 45 permits a police officer, for the purpose of arresting without warrant a person he is authorised to arrest, to pursue such person into any place in India.

6. The Rights of the Arrested Person

Figure 5: The rights and their statutory and constitutional sources

6.1 Grounds of arrest and the right to bail: section 47

Every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Where the arrest is without warrant for a bailable offence, the officer shall inform him that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

The duty is immediate and it is a duty to state particulars, not merely to name a section. It gives statutory effect to Article 22(1), under which no person arrested shall be detained in custody without being informed, as soon as may be, of the grounds for the arrest. The purpose is practical: a person who does not know what he is said to have done cannot instruct counsel, cannot apply for bail intelligently and cannot contest the arrest.

6.2 Information to a relative, friend or nominee: section 48

Section 48 requires every police officer or other person making an arrest to forthwith give the information regarding such arrest and the place where the arrested person is being held to any of his relatives, friends or such other person as may be disclosed or nominated by him, and also to the designated police officer in the district. The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station, and an entry of the fact as to who has been informed shall be made in a book kept in the police station. Sub-section (4) requires the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

Sub-section (4) is the enforcement mechanism. The duty is not left to be tested only in a later proceeding; the Magistrate at the remand stage is required to check compliance, which places the question on the record at the first judicial hearing.

6.3 Search, seizure and medical examination

7. After the Arrest: Sections 57 to 62

Figure 6: The twenty-four hour clock and what must happen within it

• Section 57. A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions on bail, take or send the person arrested before a Magistrate having jurisdiction, or before the officer in charge of a police station.
• Section 58. No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court, in the absence of a special order of a Magistrate under section 187.
• Section 59. Officers in charge of police stations shall report to the District Magistrate, or if he so directs to the Sub-divisional Magistrate, the cases of all persons arrested without warrant within the limits of their stations, whether those persons have been admitted to bail or otherwise.
• Section 60. No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.
• Section 61. If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India, and the provisions on arrest apply as though the arrest were being made under a warrant.
• Section 62. No arrest shall be made except in accordance with the provisions of this Sanhita or any other law for the time being in force providing for arrest.

Section 62 is short and is the provision on which every objection in this chapter ultimately rests. An arrest made otherwise than in accordance with the Sanhita is not merely irregular; it is an arrest the statute forbids. Read with section 58 and Article 22(2), it means that detention beyond twenty-four hours without an order of a Magistrate is detention without authority of law, for which the remedy is habeas corpus and for which release is not a matter of discretion.

8. The Constitutional Overlay

The protection against self-incrimination bears on interrogation in a particular way. It is available to a person against whom a formal accusation has been made which may in the ordinary course result in prosecution, and it operates at the investigation stage and not merely at trial. It covers not only a direct confession but any answer that would furnish a link in the chain of evidence. It does not, however, extend to material taken for comparison, such as fingerprints, handwriting, a voice sample under section 349 or a specimen taken on a medical examination under section 51, because such material is not a testimonial communication conveying personal knowledge.

9. The Three Decisions That Shaped This Chapter

A very large part of Chapter V is the codification of directions the Supreme Court gave in three cases. They are best read in sequence, because each answers a question the previous one left open.

The correspondence between those directions and the present chapter is close and deliberate. The name tag is section 36(a); the memorandum is section 36(b); the information to a friend or relative is sections 36(c) and 48; the diary entry is section 48(3); the medical examination is section 53; the right to meet a lawyer during interrogation is section 38; the control room and the display of arrest information are section 37; and the Magistrate’s duty to check compliance is section 48(4). The chapter is, in substantial part, D.K. Basu in statutory form.

The directions in Arnesh Kumar are now largely reflected in the text of section 35 itself, which requires reasons to be recorded both where an arrest is made and where it is not, and folds the notice into the same section. The one element that remains judicial rather than statutory is the duty of the Magistrate to record his own satisfaction on the officer’s report before authorising detention. That duty sits outside section 35, in the remand jurisdiction under section 187 and in section 48(4), and it is the point at which the whole apparatus of Chapter V is meant to be tested.

10. Illegal Arrest, Custodial Violence and Compensation

The Sanhita creates duties but attaches no consequence to their breach beyond what Chapter XXXVII provides generally. The consequences of an unlawful arrest are therefore found outside the chapter, in four places.

1. Release. Detention beyond twenty-four hours without an order under section 187, or an arrest made otherwise than in accordance with the Sanhita contrary to section 62, is detention without authority of law. The remedy is a petition for habeas corpus, and release is not discretionary.
2. Bail. Non-compliance with section 35 is a material consideration at the remand and bail stage, and a Magistrate is required by section 48(4) to satisfy himself that the requirements have been complied with.
3. Criminal and departmental liability. Wrongful confinement and custodial harm are offences under the Bharatiya Nyaya Sanhita; and non-compliance with the directions in D.K. Basu and Arnesh Kumar renders the officer liable to departmental action and to contempt of court.
4. Compensation in public law. A court exercising jurisdiction under Article 32 or Article 226 may award compensation for the infringement of the right to life and personal liberty, as a remedy in public law distinct from a civil action for damages.

Two further points complete the position. Section 196(3) of the Sanhita requires a magisterial inquiry where a person dies or disappears, or a woman is alleged to have been raped, while in the custody of the police, in addition to any inquiry or investigation held under any other law. And section 194 requires the police to inquire and report on unnatural deaths generally. The combination of a mandatory medical examination on arrest under section 53, a duty of care in custody under section 56, and a mandatory magisterial inquiry into a custodial death under section 196(3) is the Sanhita’s structural answer to the problem D.K. Basu and Nilabati Behera identified.

11. What the BNSS Changed in the Law of Arrest

12. Key Takeaways

13. Frequently Asked Questions

Is arrest defined in the BNSS?

No. Section 43(1) describes how an arrest is made, namely by actually touching or confining the body unless there is submission to custody by word or action, and the content of the expression comes from that provision and from the case law.

What is the difference between arrest and custody?

Arrest is the act of taking a person into the control of the law; custody is the state that follows and continues until release. A person released on bail is still in the constructive custody of the court, which is why conditions may be imposed and a bond forfeited.

When can the police arrest without a warrant under section 35?

In the categories listed in section 35(1). For a cognizable offence punishable with up to seven years the officer must additionally be satisfied that arrest is necessary to prevent further offences, for proper investigation, to prevent tampering with evidence, to prevent inducement or threats to witnesses, or because the person’s presence in court cannot otherwise be ensured, and he must record his reasons in writing.

Can a notice under section 35 be sent on WhatsApp?

No. The Supreme Court held in July 2025 in Satender Kumar Antil v. CBI that service through WhatsApp or other electronic communication is not a valid substitute for the modes prescribed by the Sanhita, because non-compliance with the notice can lead to arrest and the mode of service therefore bears directly on liberty.

Can a woman be arrested at night?

Only in exceptional circumstances, and then only by a woman police officer who has obtained the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence was committed or the arrest is to be made, by making a written report: section 43(5).

Can the police handcuff an arrested person under the BNSS?

Section 43(3) permits it, keeping in view the nature and gravity of the offence, for a habitual or repeat offender, a person who escaped from custody, or a person who has committed one of the listed grave offences. The permission is conditional, and it is read with section 46 and Article 21, under which restraint must be no more than necessary and handcuffing remains the exception requiring justification on the facts.

Is medical examination of an arrested person compulsory?

Yes. Section 53 requires every arrested person to be examined by a medical officer soon after the arrest, a female only by or under the supervision of a female practitioner, with injuries and marks of violence recorded and a copy of the report furnished to the arrested person or his nominee.

What happens if a person is detained beyond twenty-four hours?

The detention becomes unlawful. Section 58, read with Article 22(2), permits detention beyond twenty-four hours, exclusive of journey time, only under a special order of a Magistrate under section 187. In the absence of such an order the remedy is habeas corpus, and release is not a matter of discretion.

Can a person get compensation for an illegal arrest?

Yes. A court exercising jurisdiction under Article 32 or Article 226 may award compensation as a public law remedy for the infringement of the right to life and personal liberty, distinct from and in addition to a civil action. Sovereign immunity is no defence: Nilabati Behera v. State of Orissa.

Related Topics

• Processes to Compel Appearance: Chapter VI, BNSS
• Section 187 BNSS: Remand, Police Custody and Default Bail
• Bailable and Non-Bailable Offences under the BNSS, 2023
• Bail and Bonds under the BNSS, 2023: Sections 478 to 496
• Police Powers and Public Assistance: Sections 30 to 34, BNSS
• Information in Cognizable Cases: Section 173, Zero FIR and e-FIR