Arrest and Custody under BNSS, 2023: Know Your Rights and Police Powers

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Arrest and Custody under BNSS, 2023: Know Your Rights and Police Powers

With the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replacing the Criminal Procedure Code (CrPC), the law relating to arrest and custody has undergone essential reforms. The goal of the new legislation is to ensure accountability, transparency, and the protection of individual liberty while preserving police authority to maintain law and order.

This blog explores what the new law says about arrest and custody, what changes have been made compared to the CrPC, and how these reforms affect both the public and law enforcement agencies.

🚓 1. What is an Arrest?

An arrest is the act of taking a person into custody under legal authority. It restricts the person’s freedom, typically because they are suspected of committing a crime. Arrest can be:

  • With a warrant (from a magistrate).

  • Without a warrant (in certain situations, by police).

BNSS provides more clarity on when and how a person can be arrested.

⚖️ 2. Key Objectives of BNSS Reforms on Arrest

BNSS focuses on:

  • Preventing arbitrary arrests.

  • Ensuring police accountability.

  • Safeguarding fundamental rights under Article 21 (Right to Life and Liberty).

  • Speedy trial and pre-trial processes.

📜 3. Important Sections Related to Arrest under BNSS

Here are the main provisions in BNSS related to arrest and custody:

  • Section 35: When police may arrest without warrant.

  • Section 36: Arrest in non-cognizable offences.

  • Section 38: Manner of making an arrest.

  • Section 39: Arrest of women.

  • Section 41: Duty to inform family or friend.

  • Section 43: Arrest memo and digital record.

  • Section 44: Right of arrested person to meet an advocate during interrogation.

  • Section 45: Medical examination of accused.

These sections emphasize transparency, procedural fairness, and humane treatment.

🧑‍✈️ 4. When Can Police Arrest Without a Warrant? (Section 35)

A police officer may arrest without warrant if:

  • The offence is cognizable and punishable with imprisonment.

  • The person is likely to flee, tamper with evidence, or repeat the offence.

  • Arrest is necessary to maintain public order.

Important change: BNSS insists that reasons must be recorded in writing if arrest is made — and also if it is not made, in appropriate cases.

👉 This discourages unnecessary arrests and protects innocent individuals.

👩‍⚖️ 5. Arrest in Non-Cognizable Offences (Section 36)

In non-cognizable cases (where police can't arrest without magistrate permission), BNSS continues CrPC’s safeguard but ensures quicker decision through digital communication with magistrates.

🧍‍♂️ 6. Arrest of Women (Section 39)

BNSS provides strong protections for women:

  • No arrest after sunset and before sunrise unless in exceptional cases (with magistrate’s permission).

  • Only female police officers can make arrests of women.

  • Dignity and privacy of the woman must be respected.

These are crucial steps toward gender-sensitive policing.

📩 7. Mandatory Information to Family or Friend (Section 41)

Immediately after arrest:

  • Police must inform a family member or friend.

  • Enter the details in a register at the police station.

  • Update the arrest memo digitally, accessible to courts.

This strengthens transparency and accountability.

🧾 8. Arrest Memo and Digital Record (Section 43)

Police must prepare a memo of arrest, which must:

  • Include date, time, place of arrest.

  • Be signed by a witness (either a family member or local person).

  • Be digitally uploaded and accessible to the judiciary.

👉 This ensures record-keeping and protection from illegal detention.

⚖️ 9. Advocate During Interrogation (Section 44)

BNSS grants a crucial right:

The arrested person has the right to consult an advocate of their choice during interrogation.

This right protects against coerced confessions, custodial torture, and ensures legal guidance throughout.

🏥 10. Medical Examination of Accused (Section 45)

The arrested person must be medically examined by a registered medical practitioner:

  • Upon arrest.

  • Every 48 hours during custody.

This protects individuals from custodial violence and acts as a deterrent to police brutality.

🔄 11. Judicial Oversight and Remand

Under BNSS:

  • Accused must be produced before a magistrate within 24 hours.

  • Police custody cannot exceed 15 days.

  • Judicial custody may extend to 60 or 90 days depending on the offence.

All procedures are subject to judicial review, and bail must be considered in suitable cases.

📉 12. Impact of Reforms on Police and Judiciary

✅ Advantages:

  • Reduces misuse of arrest powers.

  • Encourages investigation-led policing, not arrest-led.

  • Empowers magistrates to monitor detentions.

  • Makes the process more humane and transparent.

⚠️ Challenges:

  • Need for training police officers.

  • Lack of digital infrastructure in remote police stations.

  • Slow rollout of legal aid mechanisms.

BNSS implementation will require both legal awareness and infrastructure development.

🧠 13. Rights of the Arrested Person

Under BNSS, every arrested individual has the right to:

  1. Know the reason for arrest.

  2. Inform a relative or friend.

  3. Be produced before a magistrate within 24 hours.

  4. Consult a lawyer during interrogation.

  5. Apply for bail.

  6. Be medically examined regularly.

  7. Not be handcuffed unnecessarily.

  8. Not be tortured or forced to confess.

These rights align with the Supreme Court guidelines and constitutional guarantees.

📱 14. Digital Integration: The Future of Arrest Protocols

BNSS encourages digital arrest records:

  • E-memo generation.

  • Family alert system via SMS/email.

  • Online case tracking portals.

This helps create a paperless, efficient, and trackable arrest process, especially in sensitive cases.

🔍 15. Real-Life Example

Case: A man is arrested on suspicion of theft under BNS.

Under CrPC:

  • Arrested without informing family.

  • Kept in custody for 3 days without being produced in court.

  • No memo, no lawyer during questioning.

Under BNSS:

  • Arrest memo created with witness signature.

  • SMS sent to brother of accused.

  • Advocate present during questioning.

  • Medical check-up every 48 hours.

🛡️ Result: No abuse, full compliance, and a fair trial. Justice is more secure under BNSS.

📌 16. Conclusion: BNSS Protects Citizens, Empowers Police with Limits

The BNSS, 2023 reflects India’s changing priorities — security with civil liberties. In a democratic nation, arrest should not be a tool for harassment, but a necessary and lawful step when required.

With this new law:

  • Citizens are better protected.

  • Police work becomes more professional and accountable.

  • Courts have greater clarity and oversight.

These reforms are not just legal changes — they are a step toward civilized justice in a modern democracy.

📞 Need help in bail matters, illegal arrest, or police complaint?
Contact Advocate Anurag Gupta
📱 Mobile: 8240642015
💬 WhatsApp: 8931942803
📧 Email: gripshawlaw2005@gmail.com


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