Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Rights of an Arrested Person under the BNSS 2023
Rights of an Arrested Person under the BNSS, 2023: Grounds of Arrest, Legal Aid, the Right to Silence, Medical Examination and the Remedies for Breach
An arrested person has no fewer rights than anyone else. He has the same right to life and personal liberty, the same protection against compelled self-incrimination and the same entitlement to counsel. What changes on arrest is that he is in the physical control of the State, so that rights which elsewhere need no machinery to protect them suddenly do. Chapter V of the Bharatiya Nagarik Suraksha Sanhita, 2023 is that machinery.
This topic takes the rights one by one. For each it identifies the statutory provision, the constitutional source, and, most importantly, what happens if the right is broken. That last question is the one most often left unanswered, and it is where the practical value of the subject lies, because the Sanhita states the duties without prescribing any consequence for their breach.
Figure 1: Every right, its source, and what follows from a breach
1. The Right to Know the Grounds of Arrest
Section 47, BNSS 2023, and Article 22(1) of the Constitution Section 47(a). Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. Section 47(b). Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. Article 22(1). No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. |
Three points of substance. The duty is to communicate full particulars, not merely to name a section or recite the label of an offence: a person told only that he is arrested “under section 318” has not been told the grounds. The duty is forthwith, which is stricter than the constitutional formula “as soon as may be”. And section 47(b) adds a distinct duty in a bailable offence, to inform the person of his entitlement to bail and of his liberty to arrange sureties, which exists because a person who does not know he is entitled to be released will not ask.
The purpose is practical rather than formal. A person who does not know what he is said to have done cannot instruct a lawyer, cannot apply for bail intelligently, cannot decide whether to answer questions and cannot contest the arrest. The right to be told the grounds is therefore the foundation on which the other rights rest, and the courts have treated a failure to communicate grounds as going to the legality of the detention itself and not merely to the propriety of the officer’s conduct.
2. The Right to Have Someone Informed
Sections 36(c) and 48 work together. Section 36(c) requires the officer to tell 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. Section 48 requires the officer to give that information, and to give it to two recipients.
Sub-section | Requirement |
|---|---|
48(1) | The officer shall forthwith give the information regarding the 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 |
48(2) | 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 |
48(3) | An entry of the fact as to who has been informed of the arrest shall be made in a book to be kept in the police station in such form as the State Government may by rules provide |
48(4) | It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person |
Sub-section (4) is the provision that makes the right enforceable. Every other duty in the chapter has to be tested in some later proceeding, if at all. This one is tested at the first judicial hearing, by the Magistrate before whom the arrested person is produced, who is required to satisfy himself of compliance before he does anything else. A Magistrate who authorises detention without addressing that question has not performed the duty the section places on him.
The right serves two distinct purposes. It ends incommunicado detention, which is the condition in which custodial abuse is possible; and it enables the arrested person to arrange for a lawyer and for sureties, which is the condition in which bail becomes possible. The addition in the Sanhita of “any other person named by him” matters more than it looks: a migrant worker, a person estranged from his family or a person arrested far from home may have no relative or friend within reach, and the wider formulation lets him name whoever can actually help.
3. Rights Inside the Police Station
Figure 2: The rights that operate during interrogation
3.1 The right to silence
Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. Section 180(2) of the Sanhita gives it statutory effect at the investigation stage: a person examined by a police officer is bound to answer truly all questions relating to the case put to him, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
The protection is wider than it first appears in three respects and narrower in one. It is wider because it extends to the investigation stage and not only to the trial; because it is available to a person against whom a formal accusation has been made which may in the ordinary course result in prosecution, and not only to a person formally arraigned; and because it covers any answer that would furnish a link in the chain of evidence, not only a direct confession. It is narrower because it does not extend to material taken for comparison.
What is protected | What is not protected |
|---|---|
A confession or admission | Fingerprints and palm impressions |
An answer that furnishes a link in the chain of evidence | Specimen handwriting or signatures |
An answer tending to expose the person to a penalty or forfeiture | A voice sample ordered under section 349 |
Compelled testimonial communication in any form | Specimens taken on a medical examination under section 51, including blood, swabs, hair and nail clippings, and DNA profiling |
The volitional faculty itself: the person cannot be compelled to speak | The physical characteristics of the person, which convey no personal knowledge of the facts |
The distinction is between a communication that conveys the personal knowledge of the maker, which is testimony, and a specimen used for comparison, which is not. A voice sample identifies the speaker; it does not tell the investigator anything the speaker knows. The line has been tested at its edge by the techniques of narco-analysis, the polygraph and brain mapping, which sit between the two.
📖 Selvi v. State of Karnataka, (2010) 7 SCC 263 Facts: Investigating agencies had begun to use narco-analysis, polygraph examination and the brain electrical activation profile test on accused persons, suspects and witnesses, in several instances without consent. The questions were whether the involuntary administration of these techniques violates Article 20(3) or Article 21, and what the evidentiary status of the results is. Held: The Supreme Court held that the involuntary administration of all three techniques is unconstitutional. It violates Article 20(3) because the results are of a testimonial character: they reveal the personal knowledge of the subject and are not comparable to fingerprints or handwriting samples, which are physical characteristics used only for identification. It also violates Article 21, because compulsory intrusion into the mental processes of a person offends the substantive due process required by that Article and amounts to cruel and degrading treatment. The Court held that the test results cannot be admitted as evidence, but that material subsequently discovered with the help of information voluntarily given may be admitted subject to the ordinary rules; and it laid down that where a person consents, the consent must be recorded before a Magistrate, the person must be informed of the consequences, and he must have access to a lawyer. Ratio: The protection against self-incrimination extends to the mental processes of the person and not only to what he says. A technique that extracts personal knowledge without volition is testimonial compulsion whatever its label, and consent to it must be judicially recorded. |
3.2 The right to counsel during interrogation
Section 38 provides that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation. The qualification is what gives the section its shape, and it reflects a compromise: continuous presence of counsel was thought to obstruct effective questioning, while total exclusion was thought to leave the person without any protection during the hours he spends alone in the station.
Article 22(1) is wider. It guarantees the right to consult and to be defended by a legal practitioner of choice, and it is not confined to the interrogation. The two must be read together: section 38 regulates the manner in which the constitutional right is exercised during interrogation, and it cannot be read as cutting the constitutional right down.
4. The Right to Legal Aid
Section 341 provides that where, in a trial before the Court of Session, the accused is not represented by an advocate and it appears that he has not sufficient means to engage one, the court shall assign an advocate for his defence at the expense of the State. Section 340 preserves the right of any person accused of an offence to be defended by an advocate of his choice. Article 39A directs the State to secure that the operation of the legal system promotes justice and to provide free legal aid to ensure that opportunities for securing justice are not denied by reason of economic or other disability.
📖 Khatri (II) v. State of Bihar, (1981) 1 SCC 627 Facts: The proceedings arose out of the blinding of prisoners in police custody in Bhagalpur. In the course of them the Court considered at what stage an indigent accused becomes entitled to free legal representation at State expense, and whether the obligation arises only at the trial. Held: The Supreme Court held that the right of an indigent accused to free legal services is implicit in the guarantee of a reasonable, fair and just procedure under Article 21, and that the obligation of the State arises not only when the trial commences but also when the accused is for the first time produced before the Magistrate, and at every subsequent remand. The Court held that the Magistrate or Sessions Judge is under an obligation to inform the accused of his entitlement to free legal services, because the right is of little value to a person who does not know of it, and that the State cannot avoid the obligation by pleading financial or administrative inability. Ratio: The right to free legal aid arises at the stage of first production before the Magistrate and at every remand, not merely at trial, and the court is bound to inform the accused that the right exists. |
⚠ The practical significance of the timing The stage at which the right arises is the stage at which it matters most. The decisions that shape the whole of a criminal case are taken at the first production and at the early remands: whether police custody is authorised, whether bail is applied for, whether the grounds of arrest are contested, whether the requirements of section 48 were complied with. An accused who is unrepresented at that stage has effectively no means of raising any of the objections examined in this topic. The obligation on the Magistrate to inform him of the entitlement to legal aid is therefore the point at which the rights in Chapter V become capable of being asserted at all. |
5. Bodily Rights: Medical Examination, Restraint and Care
Provision | The right |
|---|---|
Section 53 | Medical examination. Every arrested person shall be examined by a medical officer in the service of the Central or State Government, or in his absence a registered medical practitioner, soon after the arrest. A female is examined only by or under the supervision of a female practitioner. The report records any injuries or marks of violence and the approximate time when they may have been inflicted, and a copy is furnished to the arrested person or his nominee |
Section 51 | Examination in the interest of the investigation. Where there are reasonable grounds for believing that an examination will afford evidence, a registered medical practitioner may examine the person at the request of an officer not below the rank of Sub-Inspector, using such force as is reasonably necessary. The examination extends to blood, swabs, sputum, sweat, hair and nail clippings and DNA profiling |
Section 52 | Examination of a person accused of rape. The examination is by a practitioner employed in a Government or local authority hospital, or in the absence of one within sixteen kilometres, any registered practitioner, and the report is forwarded without delay to the investigating officer |
Section 46 | Freedom from unnecessary restraint. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape |
Section 43(3) | Handcuffs may be used only in the listed categories and keeping in view the nature and gravity of the offence; the subject is examined separately in this series |
Section 56 | Health and safety. It shall be the duty of the person having the custody of an accused to take reasonable care of his health and safety |
Section 49 | Search with decency. Articles other than necessary wearing apparel are placed in safe custody and a receipt is given; a woman is searched only by another woman, with strict regard to decency |
Sections 51 and 53 are constantly confused and serve opposite purposes. Section 51 is an examination conducted in the interest of the investigation, at the request of a police officer, to obtain evidence, and force may be used. Section 53 is an examination conducted in the interest of the arrested person, as a matter of course on every arrest, to record his condition, and a copy of the report goes to him. Read with section 56 and with the requirement of a magisterial inquiry into a custodial death under section 196(3), section 53 is the principal structural protection against custodial violence, because it fixes the condition of the person at the moment he entered custody.
6. The Right to Be Produced Within Twenty-Four Hours
Section 58, BNSS 2023, and Article 22(2) Section 58. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. Article 22(2). Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. |
The right is absolute in the sense that it admits of no exception other than an order of a Magistrate. It is the single most important protection in the chapter, because it places every arrest before a judicial officer within a fixed and short period, and it is at that appearance that every other right in this topic becomes capable of being asserted. The twenty-four hours run from the arrest, which is why the moment at which an arrest occurs matters, and the only deduction permitted is the time necessary for the journey to the court.
Detention beyond the period without an order under section 187 is detention without authority of law. The remedy is a petition for habeas corpus, and release is not a matter of discretion. Section 62 reinforces the position by providing that no arrest shall be made except in accordance with the Sanhita.
7. Remedies for Breach
The Sanhita creates duties and prescribes no penalty for their breach. The consequences are found elsewhere, and it is useful to hold them as a list of five.
- Release. Where the detention has become unlawful, whether by the expiry of twenty-four hours without an order or by an arrest made contrary to section 62, the remedy is habeas corpus under Article 32 or Article 226, and release follows as of right rather than as a matter of discretion.
- Refusal of remand, and bail. Non-compliance with section 35 is material at the remand stage, and section 48(4) obliges the Magistrate to satisfy himself of compliance with section 48 before authorising detention. A Magistrate who finds the requirements unmet may decline to authorise detention.
- Exclusion or devaluation of the material obtained. A statement obtained in breach of the right to silence is inadmissible against the person; the results of an involuntarily administered technique are inadmissible; and a recovery made in breach of a procedural safeguard is open to attack on its weight even where it is not excluded.
- 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 proceedings for contempt of court.
- 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. The remedy is distinct from, and in addition to, an ordinary civil action, and sovereign immunity is no defence to it.
⚠ What breach does not do A breach of a procedural safeguard does not by itself vitiate the trial. Chapter XXXVII governs, and section 511 makes failure of justice the test rather than mere non-compliance. A conviction is not set aside because a memorandum of arrest was not attested, unless the defect has in fact occasioned a failure of justice. Nor does a breach by itself entitle the accused to acquittal. The consequences are directed at the detention, at the admissibility of what was obtained, and at the officer, rather than at the prosecution as a whole. The distinction is worth stating clearly, because it is the point at which arguments in this area most often overreach. The remedies are real, and they are specific. |
8. Rights of Particular Classes
Class | Additional protection | Provision |
|---|---|---|
Women | Submission on oral intimation presumed and no touching unless the officer is female; 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; search only by a woman with strict regard to decency; medical examination only by or under the supervision of a female practitioner; not required to attend elsewhere than at her residence as a witness | ss.43(1) proviso, 43(5), 49(2), 53 proviso, 179 proviso |
Persons above sixty or infirm | No arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable with less than three years; not required to attend elsewhere than at the residence as a witness; the restriction on bail in a non-bailable offence may be relaxed for the sick or infirm | ss.35(7), 179 proviso, 480 proviso |
Persons with disability | Where the person identifying is mentally or physically disabled, identification takes place under the supervision of a Judicial Magistrate and is recorded by audio-video electronic means; the statement of a disabled victim is recorded with an interpreter or special educator and videographed | ss.54 proviso, 176(1) proviso |
Children | A child in conflict with law is dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2015, which is a special law within section 5; the restriction on bail may be relaxed for a person under sixteen | s.5 with the Juvenile Justice Act; s.480 proviso |
Members of the Armed Forces | Not liable to arrest for anything done or purported to be done in the discharge of official duties except with the consent of the Central Government | s.42 |
Indigent persons | Legal aid at State expense in a Sessions trial, and the right arises at the first production and at every remand | s.341 with Art. 39A |
9. Key Takeaways
The position stated shortly 1. Section 47 requires the full particulars of the offence or other grounds of arrest to be communicated forthwith, and in a bailable offence requires the person to be told of his entitlement to bail and to arrange sureties. Article 22(1) is the constitutional source. 2. Sections 36(c) and 48 require the arrested person to be told of his right to have a relative, friend or any person named by him informed, the information to be given to that person and to the designated police officer, and an entry to be made in the station register. 3. Section 48(4) requires the Magistrate to satisfy himself of compliance before authorising detention. It is the only self-enforcing safeguard in the chapter. 4. Article 20(3) and section 180(2) protect against compelled self-incrimination at the investigation stage, and cover any answer furnishing a link in the chain of evidence. They do not cover specimens taken for comparison. 5. The involuntary administration of narco-analysis, polygraph and brain mapping violates both Article 20(3) and Article 21; consent must be recorded before a Magistrate with access to a lawyer: Selvi. 6. Section 38 entitles the arrested person to meet an advocate of his choice during interrogation, though not throughout. Article 22(1) is wider and is not confined to the interrogation. 7. The right to free legal aid arises at the first production before the Magistrate and at every remand, not only at trial, and the court must inform the accused that it exists: Khatri (II). 8. Section 53 requires the medical examination of every arrested person with a copy of the report to him; section 51 is a different thing, an examination in the interest of the investigation. 9. Section 58 with Article 22(2) caps detention at twenty-four hours exclusive of journey time in the absence of an order under section 187. Detention beyond it is without authority of law. 10. The five remedies for breach are release on habeas corpus, refusal of remand or grant of bail, exclusion or devaluation of the material obtained, criminal and departmental liability, and compensation in public law. A breach does not by itself vitiate the trial: section 511 makes failure of justice the test. |
10. Frequently Asked Questions
What are the rights of a person arrested in India?
To be told the full particulars of the offence or other grounds of arrest; to be told of the right to bail in a bailable offence; to have a relative, friend or nominee informed; to consult and be defended by a lawyer, and to meet an advocate during interrogation; to be produced before a Magistrate within twenty-four hours; to a medical examination and a copy of the report; to freedom from unnecessary restraint; to reasonable care of health and safety; to silence; and to free legal aid if he cannot afford counsel.
Must the police tell an arrested person why he has been arrested?
Yes, forthwith, and in full particulars of the offence or other grounds: section 47(a). Article 22(1) requires the grounds to be communicated as soon as may be, and the statutory duty is stricter.
Does an arrested person have a right to a lawyer during police questioning?
Section 38 entitles him to meet an advocate of his choice during interrogation, though not throughout it. Article 22(1) guarantees the wider right to consult and be defended by a legal practitioner of his choice, and section 38 regulates the manner of its exercise during interrogation rather than cutting it down.
Can an arrested person refuse to answer police questions?
He is bound to answer truly all questions relating to the case, other than those the answers to which would have a tendency to expose him to a criminal charge, penalty or forfeiture: section 180(2). The exception is wide, and it covers any answer furnishing a link in the chain of evidence.
Can the police compel a narco-analysis or lie detector test?
No. The Supreme Court held in Selvi v. State of Karnataka that the involuntary administration of narco-analysis, polygraph examination and brain mapping violates Article 20(3) and Article 21. Where the person consents, the consent must be recorded before a Magistrate, he must be told of the consequences, and he must have access to a lawyer.
When does the right to free legal aid begin?
At the first production before the Magistrate, and at every subsequent remand, not only at the trial. The Magistrate is also under a duty to inform the accused that the right exists: Khatri (II) v. State of Bihar.
What is the remedy if these rights are violated?
Release on habeas corpus where the detention has become unlawful; refusal of remand or the grant of bail; exclusion or devaluation of the material obtained; criminal and departmental liability, and contempt proceedings; and compensation in public law under Articles 32 and 226. A breach does not by itself vitiate the trial, where the test is failure of justice under section 511.
Related Topics
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Procedure of Arrest under the BNSS, 2023
- Handcuffing under the BNSS, 2023: Section 43(3)
- Section 187 BNSS: Remand, Police Custody and Default Bail
- The Victim under the BNSS, 2023
- Criminal Procedure: Meaning, Nature, Objects and Importance