Arrest of Persons — Without Warrant, With Warrant, Rights of Arrested Person

The law of arrest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is contained in Sections 35 to 47 BNSS — corresponding broadly to Sections 41 to 50A of the Code of Criminal Procedure, 1973 (CrPC). It governs three distinct kinds of arrest: arrest by a police officer without warrant, arrest by a private person, and arrest by a Magistrate. It also sets out the procedure for the arrest itself, the rights that attach to the arrested person from the moment of restraint, and the cap on the period for which an arrested person may be held without production before a Magistrate. The architecture is the most heavily constitutional part of the Sanhita, because it is the part of procedural law that bears most directly on Articles 21 and 22 of the Constitution. The Supreme Court has, in a long line of cases — D.K. Basu v. State of West Bengal, AIR 1997 SC 610, Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260, and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 — turned that constitutional ground into operating discipline for the police, and that discipline survives the transition to the BNSS unchanged.

Two BNSS changes deserve flagging up-front. First, Sections 41 and 41A of the 1973 Code — the general arrest power and the notice-of-appearance machinery added by the 2008 Amendment Act — are merged in Section 35 BNSS, with a new sub-section (7) that bars arrest without prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable for less than three years and the accused is infirm or above sixty years of age. Second, Section 43(3) BNSS — corresponding to Section 46 CrPC — explicitly empowers the police to handcuff a habitual or repeat offender, an accused who has escaped from custody, or an accused charged with any of a list of grave offences (organised crime, murder, rape, acid attack and the like). The chapter below walks through the architecture and the leading authorities. For the sequence that follows arrest — registration of the FIR, the police-station custody, the production before the Magistrate — read this alongside the chapters on FIR and Zero FIR and police investigation powers and the rest of the CrPC and BNSS notes.

Section 35 BNSS — when the police may arrest without warrant

Section 35(1) BNSS empowers any police officer to arrest, without an order from a Magistrate and without a warrant, a person falling in any of the categories enumerated in clauses (a) to (i). The categories carry forward the structure of Section 41(1) CrPC. They include a person who commits a cognizable offence in the presence of the police officer; a person reasonably suspected of having committed a cognizable offence on credible information; a proclaimed offender; a person in possession of stolen property; a person who obstructs a police officer or escapes from lawful custody; a deserter from the Armed Forces; a person concerned in an extra-territorial offence punishable in India; a released convict in breach of conditions; and a person for whose arrest a written or oral requisition has been received from another police officer.

The exam-banker is in clause (b). Where the suspected offence is punishable with imprisonment for a term that may be less than seven years or which may extend to seven years (with or without fine), the power of arrest is qualified by a checklist. The police officer must, first, have reason to believe on the basis of the complaint, information or suspicion that the person has committed the offence. He must, second, be satisfied that the arrest is necessary on at least one of five grounds — to prevent further offences, for proper investigation, to prevent disappearance or tampering of evidence, to prevent inducement or threat to a witness, or because the person's presence in Court cannot otherwise be ensured. He must, third, record his reasons for the arrest in writing. The proviso adds a complementary obligation: where the police officer decides not to arrest, the reasons for not arresting too must be recorded in writing.

The Arnesh Kumar discipline

The clause-(b) checklist is not decorative. The Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, held that police officers should not arrest under Section 41 CrPC (now Section 35 BNSS) for an offence punishable with imprisonment of up to seven years merely because the offence is registered; the arrest must be justified by reference to the five grounds listed in clause (b). Magistrates are required to satisfy themselves on the recorded reasons before authorising further detention under Section 187 BNSS (previously Section 167 CrPC). Failure to comply attracts departmental action against the police officer and contempt against the Magistrate. The judgment was delivered in the context of Section 498A IPC and dowry-prohibition prosecutions, but its operating force extends to every offence within the seven-year band — and therefore to a very large slice of the Bharatiya Nyaya Sanhita.

The Supreme Court reinforced the discipline in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51, which divided offences into four categories — A through D — and prescribed bail-and-arrest discipline for each. Both Arnesh Kumar and Satender Antil apply to the BNSS regime; the Section 35 BNSS power is read against them. The chapter on bail and bonds takes the Satender Antil categorisation forward, and the chapter on inherent powers of the High Court deals with the related quashing-of-FIR jurisdiction under Section 528 BNSS.

Section 35(7) BNSS — the new infirm-or-elderly safeguard

Section 35(7) BNSS introduces a fresh restraint absent from the 1973 Code. No arrest shall be made, in respect of an offence punishable for imprisonment of less than three years, of a person who is infirm or above sixty years of age, without the prior permission of a police officer not below the rank of Deputy Superintendent of Police. The provision is a calibrated response to the felt need to shield two vulnerable categories from immediate arrest in respect of relatively minor offences. The DSP-level approval is not a formality; it requires an independent application of mind to whether the arrest is necessary, and the recorded permission is reviewable by the Magistrate at the first production hearing.

Section 36 BNSS — procedure of arrest

Section 36 BNSS (previously Section 41B CrPC) prescribes the procedure that the arresting officer must follow. Every police officer making an arrest shall (a) bear an accurate, visible and clear identification of his name, which shall facilitate easy identification; (b) prepare a memorandum of arrest, 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 countersigned by the arrested person; (c) inform the person arrested, unless the memorandum is so attested by a member of the family, that he has a right to have a relative or a friend named by him informed of his arrest. The BNSS adds the words "any other person" in clause (c), broadening the category of persons whom the arrested person may have informed.

Section 36 BNSS is the statutory absorption of the D.K. Basu guidelines. The Supreme Court in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, laid down eleven directions on the procedure to be followed by the police on arrest — name-tag, memo of arrest, intimation to next of kin, medical examination, inspection memo, entries in the police diary, copy to the Magistrate, right to legal counsel — and directed that compliance be enforced through contempt jurisdiction. The 2008 Amendment Act translated the directions into Section 41B CrPC, and the BNSS has carried that translation forward. The chapter on initiation of proceedings picks up the Magistrate-side enforcement of the discipline.

Section 37 BNSS — designated police officer in every district

Section 37 BNSS (previously Section 41C CrPC) requires the State Government to establish a police control room in every district headquarters and to designate a police officer not below the rank of Assistant Sub-Inspector who shall maintain a register of arrests and the place of detention. The names and addresses of the persons arrested, and the names and designations of the arresting officers, shall be displayed at the control room and on the State Government's website. The 2008 Amendment Act introduced this transparency requirement; the BNSS preserves it, with one drafting consolidation: sub-sections (2) and (3) of the 1973 provision are merged into sub-section (1)(b) of Section 37 BNSS, and the rank threshold is set at Assistant Sub-Inspector.

Section 38 BNSS — right to meet an advocate

Section 38 BNSS (previously Section 41D CrPC) preserves the right of the arrested person to meet an advocate of his choice during interrogation, though not throughout interrogation. The provision codifies, in part, the holding in Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025, that the right to consult counsel is part of the Article 22(1) protection. The Supreme Court in D.K. Basu further read into Article 21 the right of the arrested person to have a lawyer present, though not for the entire duration of interrogation. The BNSS provision sits at the intersection of the Article 22(1) right to consult counsel and the Article 20(3) right against self-incrimination.

Section 39 BNSS — arrest on refusal to give name and residence

Section 39 BNSS (previously Section 42 CrPC) deals with the case of a non-cognizable offence committed in the presence of a police officer where the offender refuses, on demand, to give his name and residence, or gives a name or residence that the officer has reason to believe to be false. The police officer may arrest such person to ascertain his name and residence; the arrest continues only until the true particulars are ascertained, after which the person must be released on his executing a bond or bail bond. The BNSS replaces the older formulation "a bond, with or without sureties" with "a bond or bail bond" — the consolidation flowing from the new BNSS definitions in Section 2(1)(d) and 2(1)(e).

Section 40 BNSS — arrest by a private person

Section 40 BNSS (previously Section 43 CrPC) empowers any private person to arrest a proclaimed offender, or any person who in his view commits a non-bailable and cognizable offence. The private person must, without unnecessary delay — and now, under Section 40(1) BNSS, within six hours from such arrest — make over the arrested person to a police officer, or take him to the nearest police station. The 1973 Code carried the open-ended phrase "without unnecessary delay"; the BNSS adds the six-hour outer limit. Sub-section (2) provides that where the offence is non-cognizable and the person refuses to give name and residence, he is taken into police custody under Section 39 BNSS — the BNSS replaces the 1973 word "re-arrest" with the simpler "take him in custody".

Section 41 BNSS — arrest by Magistrate

Section 41 BNSS (previously Section 44 CrPC) deals with arrest by a Magistrate. When an offence is committed in the presence of a Magistrate — Executive or Judicial — within his local jurisdiction, the Magistrate may himself arrest, or order any person to arrest, the offender, and may thereupon, subject to the provisions of the Sanhita as to bail, commit the offender to custody. The Magistrate's power of arrest is not co-extensive with the police officer's; it operates only on offences committed in his presence. The provision is rarely invoked in practice but is preserved as a residual safety net.

Section 43 BNSS — arrest how made; the new handcuff rule

Section 43 BNSS (previously Section 46 CrPC) lays down the manner of effecting an arrest. In making an arrest, the police officer or other person making the arrest 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. 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; physical touch is not necessary. Where the police officer is a woman, the arrest of a woman may be made by her without further conditions; arrest of a woman after sunset and before sunrise is permitted only in exceptional circumstances and only with the prior permission of the Magistrate.

The new sub-section (3) of Section 43 BNSS — the most operationally significant change in this chapter — empowers the police officer to use handcuffs while making an arrest of a person who is a habitual or repeat offender, who has escaped from custody, who has committed an offence of organised crime, terrorist act, drug offence, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coin and currency, human trafficking, sexual offence against children, or offence against the State. The provision is a sharp departure from the long-established rule, traceable to a 1980 Supreme Court ruling on handcuffing of undertrials, that handcuffing is an exceptional measure and must be justified by reference to specific risks of escape or violence. The BNSS reads down that older rule for the enumerated category of offences; outside that category, the rule continues to govern.

The Supreme Court in Citizens for Democracy v. State of Assam, (1995) 3 SCC 743, had held that handcuffing must not be used as a routine measure and that the law-enforcement agency must record reasons. Section 43(3) BNSS preserves the recording-of-reasons discipline by reference to the categories of offences enumerated; the power is not at large, even within the enumerated categories. A handcuffing without reasoned recording would still be challengeable on Article 21 grounds.

Section 47 BNSS — right to be informed of grounds and right to bail

Section 47 BNSS (previously Section 50 CrPC) enacts in statutory form the Article 22(1) constitutional safeguard. 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. Where the offence is bailable, the arresting officer shall further inform the arrested person that he is entitled to be released on bail and that he may arrange for sureties on his behalf. The Supreme Court in Pankaj Bansal v. Union of India, (2024) 7 SCC 576, has held that the grounds of arrest must be furnished in writing — an oral communication is not sufficient — and that the writing must enable the arrested person to meaningfully exercise his Article 22(1) and Article 22(2) rights. The discipline applies with equal force to Section 47 BNSS.

Sections 44 to 46 BNSS — search, restraint, pursuit

Section 44 BNSS (previously Section 47 CrPC) empowers a police officer pursuing a person to be arrested to enter and search any place where the person is believed to be. Section 45 BNSS (previously Section 48 CrPC) permits the arresting officer to pursue the offender into other jurisdictions; the arrest is not invalidated merely because the police officer crossed his territorial limits in pursuit. Section 46 BNSS (previously Section 49 CrPC) prohibits the use of more restraint than is necessary to prevent the escape of the arrested person. The three provisions, taken together, ensure that the act of arrest does not become an act of disproportionate force.

Constitutional overlay — Articles 21 and 22

The arrest provisions of the BNSS are read against Articles 21 and 22 of the Constitution. Article 21 — as elaborated in Maneka Gandhi v. Union of India, AIR 1978 SC 597 — requires that the procedure leading to deprivation of personal liberty be fair, just and reasonable. Article 22(1) requires the arrested person to be informed, as soon as may be, of the grounds of arrest, and confers the right to consult and to be defended by a legal practitioner of his choice. Article 22(2) requires the arrested person to be produced before the nearest Magistrate within twenty-four hours, excluding the time of journey from the place of arrest to the Magistrate's Court, and prohibits detention beyond that period without the authority of the Magistrate. The arrest provisions of the Sanhita are the statutory machinery through which these rights are made operational; where the statute falls short of the constitutional standard, the standard prevails.

The Supreme Court in Vihaan Kumar v. State of Haryana, (2025) — the most recent restatement — has emphasised that the Section 47 BNSS / Article 22(1) communication of grounds is the lifeblood of the arrest's legality. An arrest without effective communication of grounds is unlawful, and the consequent custody is liable to be set aside in habeas corpus. The arresting officer's recorded reasons under Section 35 BNSS, the memo of arrest under Section 36 BNSS, the entry in the Section 37 BNSS designated-officer register, the right to counsel under Section 38 BNSS, and the communication of grounds under Section 47 BNSS — these together form the legality fence that the Magistrate examines at the first remand hearing.

Production before Magistrate and remand

Section 58 BNSS (previously Section 57 CrPC) caps the period of detention without judicial authorisation at twenty-four hours, exclusive of journey-time. Section 187 BNSS (previously Section 167 CrPC) governs the Magistrate's power to authorise detention beyond twenty-four hours, and contains the limits of fifteen, sixty and ninety days that have generated a vast jurisprudence on default bail. The Supreme Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, settled the position on the indefeasible right to default bail; that doctrine is unaltered under the BNSS. The detailed treatment of remand and default bail is in the chapter on default bail and remand under Section 187 BNSS; the broader machinery of investigation is in the chapter on police investigation under Sections 173 to 196 BNSS; and the wider procedural sequence is in the introduction and scheme of the Sanhita.

The careful reader will close this chapter with three propositions in mind. The arrest power under Section 35 BNSS is not at large; it is narrowed by the clause-(b) checklist for offences punishable with up to seven years' imprisonment, by the new sub-section (7) for the infirm or elderly accused, and by the constitutional fence of Articles 21 and 22. The procedure under Sections 36, 37 and 47 BNSS — name-tag, memo of arrest, designated-officer register, right to counsel, communication of grounds — is enforceable in habeas corpus and through contempt jurisdiction. The handcuffing rule under Section 43(3) BNSS is the most operationally consequential change in this block; it expands the police's power of physical restraint for the enumerated offences, but does not displace the recording-of-reasons discipline laid down by the Supreme Court in its handcuffing line of cases — most notably in Citizens for Democracy. Read these together with the chapters on summons, warrants and proclamation and preventive action of police for the full picture.

Frequently asked questions

What is the new safeguard for elderly or infirm persons under Section 35(7) BNSS?

Section 35(7) BNSS — which has no counterpart in the 1973 Code — provides that no arrest shall be made, in respect of an offence punishable for imprisonment of less than three years, of a person who is infirm or above sixty years of age, without the prior permission of a police officer not below the rank of Deputy Superintendent of Police. The provision is a calibrated response to the perceived overuse of arrest powers against vulnerable categories in low-gravity cases. The DSP-level permission is not a formality; it requires independent application of mind to whether the arrest is necessary, and the recorded permission is reviewable by the Magistrate at the first remand hearing.

Does the Arnesh Kumar discipline apply to arrests under Section 35 BNSS?

Yes. The Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, laid down a five-ground checklist for arrest in offences punishable with imprisonment of up to seven years, derived from Section 41(1)(b) CrPC. Section 35(1)(b) BNSS reproduces the checklist verbatim. The discipline therefore continues without break: the police officer must record the reasons that justify the arrest, and the Magistrate at the first remand hearing must satisfy himself that those reasons exist before authorising further detention under Section 187 BNSS. Failure to comply attracts departmental action against the officer and contempt of court against the Magistrate.

When can the police use handcuffs under Section 43(3) BNSS?

Section 43(3) BNSS — a new provision — empowers the police to use handcuffs while making an arrest of (i) a habitual or repeat offender, (ii) an accused who has escaped from custody, or (iii) an accused who has committed any of an enumerated set of grave offences — organised crime, terrorist act, drug offence, illegal possession of arms, murder, rape, acid attack, counterfeiting, human trafficking, sexual offences against children, or offence against the State. Outside the enumerated categories, the older Supreme Court rule on handcuffing of undertrials continues — handcuffing is exceptional and must be justified on the record. Even within the enumerated categories, the recording-of-reasons discipline applies; a handcuffing without reasoned recording is challengeable on Article 21 grounds.

What is the time-limit on private-person arrest under Section 40 BNSS?

Section 40(1) BNSS empowers any private person to arrest a proclaimed offender or a person who in his view commits a non-bailable and cognizable offence. The arrested person must be made over to a police officer or taken to the nearest police station 'without unnecessary delay' — and now, under the BNSS, within six hours of the arrest. The six-hour outer limit is new in the BNSS and replaces the open-ended phrase that the 1973 Code carried. The six-hour clock runs from the moment of arrest, irrespective of journey-time; the only valid exit from the clock is delivery to the police.

What are the procedural safeguards under Sections 36, 37 and 47 BNSS taken from D.K. Basu?

Section 36 BNSS requires the arresting officer to bear an accurate, visible name-tag; to prepare a memorandum of arrest attested by a family-member witness or a respectable member of the locality and countersigned by the arrested person; and to inform the arrested person of his right to have a relative, friend, or any other person informed of his arrest. Section 37 BNSS requires the State to designate a police officer not below the rank of Assistant Sub-Inspector to maintain an arrest register at every district control room, with names of arrested persons and arresting officers displayed at the control room and on the State website. Section 47 BNSS requires the arresting officer to communicate the grounds of arrest forthwith — and, after Pankaj Bansal v. Union of India, (2024) 7 SCC 576, the communication must be in writing.

What happens if the police hold an arrested person beyond twenty-four hours without producing him before a Magistrate?

Section 58 BNSS (previously Section 57 CrPC) caps police detention at twenty-four hours, exclusive of journey-time. Article 22(2) of the Constitution does the same. Detention beyond that period without judicial authorisation under Section 187 BNSS (previously Section 167 CrPC) is unlawful. The arrested person can apply for habeas corpus; the Magistrate at the first production must enquire into the reason for any delay; the police officer responsible for the delay is liable to disciplinary action and, in serious cases, to prosecution under Section 222 BNS (previously Section 220 IPC) for wrongful confinement by a person empowered to arrest.