Arrest and Detention under BNSS, 2023: Procedure, Rights, and Reforms

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Arrest and Detention under BNSS, 2023: Procedure, Rights, and Reforms

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has brought several critical reforms to the Indian criminal justice system, replacing the archaic Code of Criminal Procedure (CrPC), 1973. One of the key areas of transformation is in the process of arrest and detention. This blog explains in detail the procedure for arrest, rights of the arrested person, responsibilities of the police, and new protections introduced under BNSS.

📌 1. What is an Arrest?

An arrest is the act of legally taking a person into custody because they are suspected of committing a crime. The purpose of an arrest is to prevent the person from:

  • Committing further crimes

  • Destroying evidence

  • Threatening witnesses

  • Evading trial or investigation

📚 2. Relevant Provisions under BNSS

The following BNSS sections govern arrest and detention:

  • Section 35 – Arrest without warrant

  • Section 36 – Procedure of arrest

  • Section 37 – Information about arrest to relatives/friends

  • Section 38 – Medical examination of arrested person

  • Section 39 – Memorandum of arrest

  • Section 40 – Duty to inform accused of rights

  • Section 41 – Arrest by private persons

  • Section 42 – Arrest by Magistrate

  • Section 60-61 – Bail and production before Magistrate

🛑 3. When Can Police Arrest Without a Warrant? (Section 35 BNSS)

Police can arrest without a warrant if:

  • The person has committed a cognizable offence

  • There is a reasonable suspicion of such an offence

  • The arrest is necessary to:

    • Prevent further crime

    • Ensure attendance in court

    • Stop destruction of evidence

    • Protect society

BNSS requires police to record reasons in writing for arrest or non-arrest in such cases.

🧾 4. Procedure for Making an Arrest (Section 36 BNSS)

Police must follow these steps:

  1. Identify themselves with name and designation

  2. Show a warrant if required

  3. Touch or confine the body to indicate arrest

  4. Avoid excessive force or harm

  5. Prepare a "Memorandum of Arrest" signed by witnesses

👨‍👩‍👦 5. Rights of the Arrested Person under BNSS

BNSS reinforces several constitutional and legal rights:

Right Details
Right to know grounds of arrest Police must inform in simple language
Right to remain silent Cannot be forced to confess
Right to legal aid Can consult a lawyer of choice
Right to inform family/friends Police must inform a relative or friend
Right to be produced before Magistrate Within 24 hours of arrest
Right to medical examination To prevent custodial torture

📄 6. Memorandum of Arrest (Section 39)

BNSS mandates that every arrest must be documented through a Memorandum of Arrest, which includes:

  • Time and date of arrest

  • Name of arresting officer

  • Signature of at least one independent witness

  • Signature of arrested person

This ensures transparency and guards against illegal detention.

🩺 7. Medical Examination of Arrested Person (Section 38 BNSS)

To protect against police brutality, BNSS requires:

  • Mandatory medical examination of the accused at the time of arrest

  • Examination by a registered medical practitioner

  • Women to be examined only by female doctor

  • Medical exam to be repeated every 48 hours during custody

👩‍⚖️ 8. Arrest by Magistrates and Private Citizens

  • Section 41: A private person may arrest someone committing a non-bailable, cognizable offence and hand them over to police.

  • Section 42: A Magistrate can arrest or order arrest if the crime is committed in their presence.

These provisions help in public safety and allow judicial intervention where needed.

🕘 9. Time Limit for Production Before Magistrate

  • After arrest, the police must produce the person before a Magistrate within 24 hours

  • Failure to do so amounts to illegal detention, punishable under law

BNSS strictly enforces this constitutional safeguard under Article 22(2) of the Constitution.

🆕 10. Major BNSS Reforms in Arrest Law

Reform Benefit
Mandatory use of body cameras Prevents police abuse
Real-time digital record of arrest Transparent tracking
Citizens' portal for case status Increases public awareness
Online access to FIR and arrest memo Empowers victims and accused
Arrest not mandatory in minor offences Reduces jail crowding

🛠️ 11. Arrest in Non-Cognizable Offences

For non-cognizable offences (minor crimes like public nuisance, defamation), police cannot arrest without permission from a Magistrate.

This protects citizens from arbitrary harassment.

📦 12. Arrest of Women, Children, and Senior Citizens

BNSS provides special safeguards for vulnerable groups:

  • No arrest of women after sunset or before sunrise (unless permitted by Magistrate)

  • Women to be arrested by women officers only

  • Arrest of children to be done as per Juvenile Justice Act

  • Senior citizens to be treated with care and dignity

⚖️ 13. Arrest vs Summons: When is Arrest Necessary?

Police are advised not to arrest unless absolutely required. In some cases, summons or notices can be issued instead.

This reduces unnecessary jail time and pressure on the justice system.

🔎 14. Court’s Role in Preventing Illegal Arrests

Courts play a vital role in:

  • Monitoring custodial abuse

  • Granting anticipatory or regular bail

  • Releasing persons illegally detained

  • Awarding compensation to victims of illegal arrest

BNSS ensures that arrest powers are not misused.

🧑‍⚖️ 15. Judicial Review of Arrest and Detention

High Courts and Supreme Court can review arrests under:

  • Article 226 – Writ of Habeas Corpus

  • Article 32 – Fundamental rights violation

Citizens can approach courts directly if arrested unlawfully.

📱 16. Role of Technology in Modern Arrest Practices

BNSS promotes e-governance and digital documentation:

  • Arrest details uploaded to National Crime Records Portal

  • Family members alerted via SMS/Email

  • Police stations to have digital monitoring tools

  • Citizens can track arrest status online

This builds trust and accountability.

🔐 17. Bail Provisions for Arrested Persons

BNSS follows the traditional rules:

  • Bailable offences – Bail is a right

  • Non-bailable offences – Bail at court's discretion

  • Accused must be produced before Magistrate

  • Court decides on custody, remand, or release

👩‍⚖️ 18. Landmark Case Laws on Arrest Rights

  1. DK Basu v. State of West Bengal (1997) – Laid down 11 guidelines for arrest and detention

  2. Joginder Kumar v. State of UP (1994) – Arrest should not be routine

  3. Arnesh Kumar v. State of Bihar (2014) – No arrest in 498A cases without Magistrate’s permission

BNSS incorporates these principles into statutory law.

🎯 19. Conclusion: BNSS Ensures Fair and Legal Arrest Process

The BNSS, 2023 transforms the arrest and detention framework by ensuring:

  • Accountability of police

  • Protection of rights

  • Use of technology

  • Speedy procedures

The new law emphasizes minimal intrusion and maximum protection for citizens, ensuring that liberty is not compromised in the name of investigation.

📞 Facing wrongful arrest or legal harassment? Need expert advice on criminal law?
Contact Advocate Anurag Gupta
📱 Mobile: 8240642015
💬 WhatsApp: 8931942803
📧 Email: gripshawlaw2005@gmail.com


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