Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Procedure of Arrest under the BNSS 2023
Procedure of Arrest under the BNSS, 2023: Section 36, the Memorandum of Arrest, the Manner of Arrest and the Documentary Trail
This topic is about the mechanics. It assumes that the decision to arrest has been taken lawfully under section 35 and asks what must then be done, in what order, and what record must be created at each step. The answer is spread across a dozen provisions of Chapter V of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the sequence in which they operate is not the sequence in which they appear in the statute.
The procedural provisions matter for a practical reason. An arrest that was substantively justified may still be challenged, and usually is challenged, on the footing that the procedure was not followed: that no memorandum was prepared, that no witness attested it, that the grounds were never communicated, that no relative was informed, that no medical examination was conducted. Section 62 provides that no arrest shall be made except in accordance with the provisions of the Sanhita, and the documentary trail examined below is the means by which compliance is proved or disproved.
Figure 1: The arrest sequence, step by step
1. The Act of Arrest: Section 43(1)
Section 43(1), BNSS 2023 In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest. |
The sub-section states an alternative and not a requirement. Either the body is touched or confined, or there is a submission to custody. Where a person is told he is under arrest and goes along, he has submitted and he is arrested; nothing further is needed, and the absence of physical contact does not mean that no arrest took place. The distinction matters because the twenty-four hours under section 58 run from the arrest, and a police officer cannot postpone the start of that clock by refraining from touching the person.
1.1 Arrest, custody and the moment at which each begins
📖 Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 Facts: Accused persons who had not been arrested by the police appeared before the Sessions Judge and applied for bail. It was objected that an application for bail is not maintainable unless the applicant is in custody, and that a person who has voluntarily presented himself before the court is not in custody at all. Held: The Supreme Court held that a person is in custody, within the meaning of the provisions on bail, when he surrenders before the court and submits to its directions. Custody in the sense the Code uses it is not confined to physical confinement by the police; it covers the position of a person who has submitted himself to the jurisdiction and control of the court. The Court observed that no lexical dexterity nor precedential profusion is needed to come to the conclusion that he who is under the control of the court, or in the physical hold of an officer with coercive power, is in custody for this purpose. Ratio: Custody is a legal condition and not merely a physical one. It begins on submission to the control of the law, whether that submission is to a police officer or to a court. |
1.2 Force, restraint and the limits on both
Provision | What it permits or forbids |
|---|---|
Section 43(2) | If the person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the officer or other person may use all means necessary to effect the arrest |
Section 43(4) | 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 |
Section 46 | The person arrested shall not be subjected to more restraint than is necessary to prevent his escape |
Section 43(3) | Handcuffs may be used, keeping in view the nature and gravity of the offence, in the categories the sub-section lists. The subject is examined separately in this series |
Section 44 | Where the 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; if ingress cannot be obtained the officer may break open any outer or inner door or window, with a proviso protecting the privacy of a woman occupying an apartment who is not the person to be arrested |
Section 45 | A police officer may, for the purpose of arresting without warrant a person he is authorised to arrest, pursue such person into any place in India |
Sections 43(2), 43(4) and 46 together state a rule of proportionality that runs through the chapter. Necessary force is permitted; lethal force is not, save against a person accused of the gravest class of offence, and even then the section does not authorise it but merely declines to prohibit it; and once the person is in custody the restraint must be no more than is necessary to prevent escape. A restraint that continues after the need for it has passed is not within section 46 however lawful it was when applied.
2. Section 36: the Duties of the Arresting Officer
Section 36, BNSS 2023 Every police officer while making an arrest shall — (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be — (i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made; (ii) countersigned by the person arrested; and (c) inform the person arrested that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest, unless the memorandum is attested by a member of his family. |
2.1 The identification requirement
Clause (a) requires identification that is accurate, visible and clear, and that will facilitate easy identification. Each adjective does work. A name tag that is obscured by a jacket is not visible; one that carries only a number or an abbreviation is not clear; one that is out of date is not accurate. The requirement exists because an officer who cannot be identified cannot be held accountable, and because the great majority of complaints about arrest founder on the inability of the complainant to say who did what.
2.2 The memorandum of arrest
The memorandum is the central document of the arrest, and clause (b) prescribes two requirements for it.
- It must be attested by at least one witness, who is either a member of the family of the person arrested or a respectable member of the locality where the arrest is made. The alternative is deliberate: a family member may not be present, and an independent local witness then supplies the verification.
- It must be countersigned by the person arrested. The countersignature is his acknowledgment that the memorandum records what in fact occurred, and its absence, unexplained, is a matter the Magistrate is entitled to take into account.
⚠ Three practical points on the memorandum The section fixes a minimum of one attesting witness, not a maximum. Where the arrest is contested it is prudent to have more. The witness must be independent of the arresting party. A memorandum attested by another police officer, or by a person brought along by the police, does not satisfy the purpose of the clause even if it satisfies its letter, and the courts have said so repeatedly in the context of the identical direction in D.K. Basu. Where the memorandum is attested by a member of the family, clause (c) dispenses with the separate duty to inform the arrested person of the right to have someone told, since the family already knows. Where it is attested by a local witness instead, the duty under clause (c) remains and must be performed. |
2.3 The right to have someone informed
Clause (c) requires the officer to inform the person arrested that he has a right to have a relative, a friend or any other person named by him told of his arrest. Section 41B of the Code of Criminal Procedure spoke only of a relative or a friend. The Sanhita adds the third category, which accommodates a person with no family nearby, a person estranged from his family, a migrant worker, and a person who would prefer to inform an employer, a lawyer or a community elder. The choice is his.
Clause (c) is a duty to inform of the right. The duty to give the information to the person named is separate and is in section 48, which requires the officer to inform not only the nominee but also the designated police officer in the district, and requires an entry to be made in a book kept in the police station naming the person informed. Section 48(4) then requires the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
3. Procedure for Special Categories
3.1 Arrest of a woman
Three provisions apply in addition to the general procedure, and they operate at different points.
Provision | Requirement |
|---|---|
Section 43(1), proviso | Her submission to custody on an oral intimation of arrest is presumed unless the circumstances indicate otherwise; and unless the circumstances otherwise require or the officer is a female, the officer shall not touch her person for making the arrest |
Section 43(5) | Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise; and where such circumstances exist, the woman police officer shall obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made, by making a written report |
Section 49(2) | Whenever it is necessary to search a woman, the search shall be made by another woman with strict regard to decency |
Section 53, proviso | Where the arrested person is a female, the medical examination shall be made only by or under the supervision of a female medical officer or registered medical practitioner |
Section 179, proviso | A woman shall not be required to attend at any place other than the place in which she resides for examination as a witness |
📖 State of Maharashtra v. Christian Community Welfare Council of India, (2003) 8 SCC 546 Facts: The Bombay High Court, on a petition concerning custodial excesses, directed that no woman should be arrested without the presence of a lady constable and that in no case should a woman be arrested after sunset and before sunrise. The State appealed, contending that an absolute rule of that kind would make it impossible to arrest a woman in circumstances of urgency, particularly in rural areas and at night, where a lady constable may not be available. Held: The Supreme Court accepted the object of the direction but modified its form. It held that while the presence of a lady constable and the avoidance of a night arrest are the rule, an absolute and inflexible prohibition would in some situations defeat the very object of an arrest and hamper the investigation of serious offences committed by or against women. It therefore directed that the arresting authority should make all efforts to secure the presence of a lady constable and to avoid arresting a woman at night, and that where that is not possible the officer should record the reasons and obtain permission, either prior or, where prior permission is not feasible, post facto, from the Magistrate concerned. Ratio: The protection of a woman on arrest is a rule subject to a narrowly controlled exception, and the exception is controlled by the requirements of recorded reasons and magisterial permission rather than by being denied altogether. |
Section 43(5) of the Sanhita is the statutory settlement of the same question, and it is stricter than the direction in that case in one respect and more workable in another. It is stricter in requiring prior permission and a written report. It is more workable in expressing the exception as “exceptional circumstances” rather than treating the prohibition as absolute. The practical effect is that a night arrest of a woman is lawful only where the officer can point to circumstances that are genuinely exceptional and to a Magistrate’s permission obtained before the arrest.
3.2 Arrest by a subordinate: section 55
Where an officer in charge of a police station, or a police officer making an investigation under Chapter XIII, requires a subordinate officer to arrest without a warrant a person who may lawfully be arrested without a warrant, he must deliver to the subordinate an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made. The subordinate must, before making the arrest, notify to the person the substance of the order and, if so required by that person, show him the order.
The provision is a small but important limit on delegation. It ensures that the decision to arrest is taken by the officer on whom the statute confers the power and not by the officer who physically makes the arrest, and it gives the arrested person a right to see the authority under which he is being taken.
3.3 Arrest by a private person and by a Magistrate
- Section 40. A private person may arrest a person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and must make him over to a police officer or take him to the nearest police station without unnecessary delay but within six hours. The six-hour limit is new. A private person has no power to handcuff and no power to interrogate; his authority is confined to the arrest and to the handing over.
- Section 41. A Magistrate, Executive or Judicial, before whom an offence is committed within his local jurisdiction may himself arrest or order any person to arrest the offender, and may thereupon commit him to custody. A Magistrate may also at any time arrest or direct the arrest, in his presence and within his jurisdiction, of any person for whose arrest he is competent to issue a warrant.
- Section 39. Where a person accused of a non-cognizable offence refuses on demand to give his name and residence, or gives one the officer has reason to believe to be false, he may be arrested so that his name and residence may be ascertained. He must be released on a bond within twenty-four hours, or forwarded to the nearest Magistrate.
4. The Documentary Trail
Figure 2: The seven documents a lawful arrest produces
The chapter is best understood as requiring the creation of a record at each stage, so that what happened can afterwards be established without depending on the recollection of the officers involved. Seven documents are produced, each by a different person and each serving a different purpose.
- The reasons for arresting, or for not arresting. Section 35(1)(b) requires the officer to record his reasons in writing where he arrests, and the proviso requires him to record reasons where he does not. The record goes to the Magistrate at the remand stage, where it is the primary material for deciding whether the arrest was necessary.
- The memorandum of arrest. Section 36(b), attested and countersigned. It fixes the time, the place and the fact of the arrest.
- The record of the grounds communicated. Section 47. The grounds must be communicated forthwith and in full particulars, and the communication should appear on the record.
- The entry in the station register. Section 48(3), naming the relative, friend or nominee who was informed of the arrest and the place of detention.
- The arrest information maintained and displayed. Section 37, by the designated officer not below the rank of Assistant Sub-Inspector, in the police station and at district headquarters, including in digital mode.
- The receipt for articles taken. Section 49, listing everything taken from the person other than necessary wearing apparel.
- The medical examination report. Section 53, recording any injuries or marks of violence and the approximate time when they may have been inflicted, with a copy furnished to the arrested person or his nominee.
⚠ Why the trail is the whole of the protection None of these documents is difficult to create, and none of them is expensive. Their importance lies in the fact that each is created at the time, by a different person, and is capable of being produced afterwards. The medical report under section 53 is the clearest example. It establishes the condition of the person at the moment he entered custody. If he is later found to have injuries, the report is what locates them in time, and its absence is what makes the allegation of custodial injury difficult to prove and equally difficult to disprove. Section 48(4) is the mechanism that makes the trail operative rather than archival: the Magistrate before whom the arrested person is produced is required to satisfy himself that the requirements have been complied with. The first judicial hearing is therefore also the first audit of the procedure. |
5. Production, Report and Release
Provision | Requirement |
|---|---|
Section 57 | A police officer making an arrest without a warrant shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station, subject to the provisions on bail |
Section 58 | No police officer shall detain in custody a person arrested without a warrant for a longer period than is reasonable, and that 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, and whether those persons have been admitted to bail |
Section 60 | No person 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 may immediately pursue and arrest him in any place in India |
Section 62 | No arrest shall be made except in accordance with the provisions of this Sanhita or any other law providing for arrest |
Section 60 deserves a note, because it is often overlooked. A police officer who has arrested a person cannot simply let him go. The release must take one of three forms: a bond executed by the person himself, bail, or a special order of a Magistrate. The purpose is to close the gap through which an arrest could be made, a person held for a period and then released with no record of either event. Read with section 59, which requires every warrantless arrest to be reported to the District Magistrate whether or not the person was bailed, the two provisions make an unrecorded arrest and release a breach of statutory duty rather than an untraceable occurrence.
6. Key Takeaways
The position stated shortly 1. An arrest is made by actually touching or confining the body, unless there is submission to custody by word or action: section 43(1). Submission is enough, and the twenty-four hours run from that moment. 2. Custody is a legal condition, not merely a physical one; a person who surrenders to the control of a court is in custody: Niranjan Singh. 3. Section 43(2) permits all means necessary against forcible resistance; section 43(4) denies any right to cause death save against a person accused of a capital or life offence; section 46 forbids restraint beyond what is necessary to prevent escape. 4. Section 36 imposes three duties: accurate, visible and clear identification; a memorandum of arrest attested by a family member or respectable person of the locality and countersigned by the arrested person; and information of the right to have a relative, friend or any person named by him told. 5. The Sanhita widened the third duty from “relative or friend” to include any other person named by the arrested person. 6. For a woman: her submission on oral intimation is presumed and she is not to be touched unless the officer is female (s.43(1) proviso); no arrest after sunset and before sunrise save in exceptional circumstances, by a woman officer with the prior written permission of a Judicial Magistrate of the first class (s.43(5)); search only by a woman (s.49(2)); medical examination only by or under the supervision of a female practitioner (s.53 proviso). 7. An absolute prohibition on the night arrest of a woman was held unworkable, and the answer is recorded reasons and magisterial permission: Christian Community Welfare Council. Section 43(5) adopts that solution and requires the permission to be prior and in writing. 8. Section 55 requires a written order where a subordinate is deputed to arrest, and the subordinate must notify its substance and show it if required. 9. Seven documents are produced: the reasons under s.35, the memorandum under s.36, the grounds under s.47, the register entry under s.48(3), the display information under s.37, the receipt under s.49, and the medical report under s.53. Section 48(4) makes the Magistrate the auditor of the trail. 10. A person arrested cannot simply be let go: section 60 requires a bond, bail or a special order of a Magistrate, and section 59 requires every warrantless arrest to be reported to the District Magistrate. |
7. Frequently Asked Questions
How is an arrest made under the BNSS?
By actually touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action: section 43(1). No formal words or document are required, and an arrest is complete on submission.
What is a memorandum of arrest?
The document required by section 36(b), recording the arrest. It must be attested by at least one witness who is a member of the family of the arrested person or a respectable member of the locality where the arrest is made, and must be countersigned by the arrested person.
Must a police officer wear a name tag while making an arrest?
Yes. Section 36(a) requires every police officer while making an arrest to bear an accurate, visible and clear identification of his name which will facilitate easy identification.
Whom may an arrested person have informed about his arrest?
A relative, a friend, or any other person named by him, under sections 36(c) and 48. The Sanhita widened the category from the CrPC, which spoke only of a relative or friend. The information also goes to the designated police officer in the district, and an entry is made in the station register.
Can a woman be arrested at night under the BNSS?
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 a police officer send a constable to make an arrest?
Yes, but under section 55 he must deliver to the subordinate an order in writing specifying the person to be arrested and the offence, and the subordinate must notify the substance of that order to the person and show it to him if required.
Can a person who has been arrested simply be released by the police?
No. Under section 60 a person arrested by a police officer may be discharged only on his own bond, on bail, or under the special order of a Magistrate, and under section 59 the arrest must in any event be reported to the District Magistrate.
Related Topics
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Rights of an Arrested Person under the BNSS, 2023
- Handcuffing under the BNSS, 2023: Section 43(3)
- Section 187 BNSS: Remand, Police Custody and Default Bail
- Search and Seizure under the BNSS, 2023: Chapter VII
- Processes to Compel Appearance: Chapter VI, BNSS