Arrest under BNSS
Sections 35–62 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) contain the principal statutory framework governing arrest without warrant, the procedure of arrest, notice instead of arrest, handcuffing, communication of grounds, access to an advocate, medical examination, information to relatives, production before the Magistrate and safeguards against unlawful detention.
This article should be read with our complete BNSS 2023 section-by-section guide, the detailed note on Section 35 notice before arrest, the guide to Zero FIR and e-FIR under Section 173 BNSS, and our explanation of anticipatory bail under Section 482 BNSS.
- An FIR does not automatically justify arrest; registration and arrest are distinct procedural stages.
- For offences punishable up to seven years, the Supreme Court in Satender Kumar Antil v. CBI, 2026 INSC 115, has clarified that a Section 35(3) notice is the rule and arrest is the exception.
- Section 36 requires identifiable arresting officers and an arrest memorandum with prescribed attestation and countersignature.
- Section 38 gives an arrested person the right to meet an advocate of choice during interrogation, though not throughout interrogation.
- Section 43 permits handcuffing only within the statutory framework and specified categories, while Section 46 prohibits unnecessary restraint.
- Section 47 requires communication of the offence particulars or grounds of arrest; Article 22(1) independently protects the right to know the grounds and consult a lawyer.
- Section 48 requires information regarding arrest and place of detention to be given to a relative, friend or nominated person and to the designated police officer.
- Article 22(2) requires production before the nearest Magistrate within twenty-four hours, excluding necessary journey time; Section 57 requires production without unnecessary delay.
- A Magistrate considering remand must examine whether mandatory arrest safeguards have been complied with.
- Constitutional framework: Articles 21 and 22
- Section map: BNSS Sections 35–62
- Arrest without warrant and the necessity test
- Section 35(3) notice instead of arrest
- Arrest memo, designated police officer and lawyer access
- How arrest is made and when handcuffs may be used
- Grounds of arrest, right to bail and information to relatives
- Search, medical examination, health and safety
- Production before Magistrate and the twenty-four-hour rule
- Special safeguards for women and older/infirm persons
- Magistrate’s duty at remand
- Leading Supreme Court cases and exam tools
Official Statutory Framework
The official BNSS text is available on India Code. Sections 35–62 form the arrest chapter immediately before the provisions relating to processes compelling appearance. The Constitution remains the controlling source of fundamental-rights protection; the official constitutional text is available through the Legislative Department.
Part I — Constitutional Protection Against Arbitrary Arrest
Article 21 — Procedure Must Be Fair, Just and Lawful
Arrest directly interferes with personal liberty under Article 21. A statutory power to arrest therefore cannot be treated as an unrestricted licence to take a person into custody. The authority must act within the conditions imposed by the BNSS and the Constitution. The classic distinction is between the existence of a power to arrest and the justification for exercising that power in the particular case.
Article 22 — Three Immediate Protections
The arrested person must be informed, as soon as may be, of the grounds of arrest.
The arrested person cannot be denied the right to consult and be defended by a legal practitioner of choice.
Production before the nearest Magistrate must occur within twenty-four hours, excluding necessary journey time.
BNSS Sections 35–62 at a Glance
| Section | Subject |
|---|---|
| 35 | When police may arrest without warrant; notice where arrest is not required |
| 36–38 | Arrest procedure, designated police officer and access to advocate during interrogation |
| 39–42 | Refusal to disclose identity, private-person arrest, arrest by Magistrate and Armed Forces protection |
| 43–46 | Manner of arrest, handcuffing, search for person, inter-jurisdiction pursuit and unnecessary restraint |
| 47–50 | Grounds of arrest, bail information, notification to relatives, search and seizure of weapons |
| 51–56 | Medical examination, identification, subordinate officer procedure, health and safety |
| 57–62 | Production, twenty-four-hour safeguard, reporting, discharge, escape and strict statutory compliance |
Part II — Section 35: Arrest Without Warrant
Section 35 is the central provision governing police arrest without warrant. It does not treat every cognizable accusation alike. The conditions differ according to the nature and punishment of the offence, and the provision contains an explicit notice mechanism where custody is not required.
Offences Punishable Up to Seven Years
For the category addressed by Section 35(1)(b), a reasonable complaint, credible information or reasonable suspicion is not enough by itself. The police officer must have reason to believe that the person committed the offence and must also be satisfied that arrest is necessary for one or more statutory purposes—such as preventing further offences, enabling proper investigation, preventing disappearance or tampering with evidence, preventing inducement or threats to witnesses, or ensuring the person’s presence before the Court.
The official judgment can be read here: Satender Kumar Antil v. CBI, 2026 INSC 115.
Section 35(3) Notice Instead of Arrest
Where arrest is not required, the police officer issues a notice directing appearance.
The recipient is legally required to comply with the terms of the notice.
Continued compliance protects against arrest unless recorded reasons justify subsequent custody.
Even non-compliance does not convert arrest into an automatic consequence. The 2026 Supreme Court clarification stresses that the investigating agency must still assess whether arrest is genuinely necessary. For a detailed treatment of the provision, see our Section 35 BNSS guide.
Special Protection for Certain Older or Infirm Persons
Section 35(7) provides an additional safeguard where the alleged offence is punishable with imprisonment of less than three years and the person is infirm or above sixty years of age. In that situation, arrest cannot be made without prior permission of an officer not below the rank of Deputy Superintendent of Police.
Part III — Procedure After the Decision to Arrest
Section 36 — Identification and Arrest Memorandum
Section 36 converts important arrest safeguards into express statutory duties. The arresting police officer must carry clear identification. A memorandum of arrest must be prepared, attested by at least one prescribed witness and countersigned by the arrested person. Unless a family member has attested the memorandum, the arrested person must also be informed of the right to have a relative, friend or another named person informed of the arrest.
Section 37 — Designated Police Officer and Arrest Information
Section 37 requires police control rooms at district and State level and a designated police officer in every district and police station, not below the prescribed rank, to maintain information about arrested persons. The statutory design aims to make arrest information traceable rather than leaving family members to search informally for the place of detention.
Section 38 — Right to Meet an Advocate During Interrogation
Where an arrested person is interrogated by police, Section 38 entitles that person to meet an advocate of choice during interrogation, though not throughout interrogation. This statutory rule must be read together with Article 22(1), which protects the right to consult and be defended by a legal practitioner of choice.
Part IV — How Arrest Is Made and the Handcuffing Rule
Section 43 — Physical Manner of Arrest
Ordinarily, arrest is made by actually touching or confining the body unless the person submits to custody by word or action. Where a person forcibly resists or attempts to evade arrest, necessary means may be used to effect the arrest, subject to the statutory and constitutional limits.
When May Handcuffs Be Used?
Section 43(3) expressly permits police, keeping in view the nature and gravity of the offence, to use handcuffs while arresting or producing before Court a person falling within specified categories. These include habitual or repeat offenders, persons who escaped custody, and persons accused of specified serious offences such as organised crime, terrorist acts, drug-related crime, illegal arms possession, murder, rape, acid attack, counterfeiting currency, human trafficking, sexual offences against children and offences against the State.
Prem Shankar Shukla v. Delhi Administration and Citizens for Democracy v. State of Assam remain important constitutional authorities on routine handcuffing. The modern statutory position must now be studied with Section 43(3), rather than by applying pre-BNSS case law in isolation.
Special Rules for Arrest of Women
Section 43 recognises presumed submission to custody on oral intimation in the ordinary case and restricts physical touching by a male police officer unless circumstances require otherwise.
Save in exceptional circumstances, a woman shall not be arrested after sunset and before sunrise; the statutory exceptional route requires a woman police officer’s written report and prior Magistrate permission.
Search of a female must be by another female with strict regard to decency; body examination under Section 53 is by or under supervision of a female medical professional.
Part V — Rights Immediately After Arrest
Section 47 — Grounds of Arrest and Right to Bail
Section 47 requires the person making an arrest without warrant to communicate forthwith the full particulars of the offence or other grounds for arrest. Where the arrested person is not accused of a non-bailable offence, the police must also inform the person of entitlement to release on bail and the ability to arrange sureties.
Read the official judgment: Vihaan Kumar v. State of Haryana, 2025 INSC 162.
Section 48 — Relative or Friend Must Be Informed
The person making the arrest must forthwith communicate information regarding the arrest and the place of detention to a relative, friend or other person nominated by the arrested person and also to the designated police officer in the district. The police officer must inform the arrested person of this right, and the fact of notification must be recorded.
Section 48 also gives the Magistrate an express supervisory role: when the arrested person is produced, the Magistrate must satisfy himself regarding compliance with the statutory notification requirements.
Sections 49 and 50 — Search and Offensive Weapons
Where the statutory conditions for search of an arrested person are satisfied, articles may be taken into safe custody and a receipt must be given for articles seized. A female search must be conducted by another female with strict regard to decency. Section 50 separately permits seizure of offensive weapons from the arrested person for delivery to the Court or competent officer.
Sections 51–53 — Medical Examination
The BNSS distinguishes evidentiary medical examination from the general medical examination of an arrested person. Section 51 permits examination at police request where bodily examination may afford evidence of the offence. Section 52 contains the special rule for a person accused of rape. Section 53 requires medical examination of an arrested person soon after arrest and a record of injuries or marks of violence, including the approximate time when they may have been inflicted.
Section 56 — Health and Safety in Custody
Section 56 imposes a duty on the person having custody of an accused to take reasonable care of the arrested person’s health and safety. This is a continuing custodial obligation, not merely a formality to be completed at the time of arrest.
Part VI — Production Before Magistrate and the 24-Hour Rule
Section 57 — No Unnecessary Delay
A police officer making an arrest without warrant must, without unnecessary delay and subject to bail provisions, take or send the arrested person before the Magistrate having jurisdiction or before the officer in charge of a police station.
Article 22(2) and Section 58 — Twenty-Four Hours
Article 22(2) supplies the controlling constitutional rule: every person arrested and detained in custody must be produced before the nearest Magistrate within twenty-four hours of arrest, excluding the time necessary for the journey from the place of arrest to the Magistrate’s Court. Continued custody beyond that period requires judicial authority. Section 58 sits within the BNSS arrest chapter as the statutory twenty-four-hour detention safeguard.
Section 62 — Arrest Strictly According to Law
Section 62 closes the chapter with a simple but important principle: no arrest shall be made except in accordance with the BNSS or another law in force providing for arrest. For examination purposes, this provision links the whole chapter back to Article 21—liberty may be curtailed only through legally authorised procedure.
Part VII — Magistrate’s Duty at Remand
Production before a Magistrate is intended to operate as judicial supervision, not as an automatic administrative extension of police custody. The Magistrate should examine the legality of arrest, the applicable statutory conditions, the arrest memorandum, grounds communication, notification of relatives and other mandatory safeguards before authorising detention.
FIR, Arrest, Remand and Bail — Do Not Confuse the Stages
| Stage | Legal Function | Key Point |
|---|---|---|
| FIR | Sets criminal investigation in motion in a cognizable case | Does not establish guilt and does not automatically require arrest |
| Arrest | Takes a person into lawful custody | Requires independent statutory justification |
| Remand | Judicial authorisation for continued custody where law permits | Magistrate must apply judicial mind to legality and necessity |
| Bail | Release from custody subject to legal conditions | Bailable, non-bailable and anticipatory bail rules differ |
Leading Cases at a Glance
Existence of power to arrest is distinct from justification for arrest; arrest cannot be routine.
Foundational custodial safeguards including arrest documentation and notification.
Police must not arrest mechanically in offences within the statutory punishment range; necessity must be assessed and recorded.
Grounds-of-arrest communication is mandatory; Magistrate must check compliance at remand.
For offences punishable up to seven years, Section 35(3) notice is the rule and arrest is the exception.
How to Solve an Arrest Problem Question
- Identify whether arrest is with or without warrant.
- Identify the offence and its maximum punishment.
- For Section 35 arrest, ask whether the applicable statutory conditions exist.
- If the offence is punishable up to seven years, test the Section 35(3) notice framework and the 2026 Satender Kumar Antil rule.
- Check whether reasons for arrest or non-arrest were required and recorded.
- Check Section 36: officer identification and arrest memorandum.
- Check Sections 43 and 46: method of arrest, handcuffs and unnecessary restraint.
- Check Section 47 and Article 22(1): effective communication of grounds.
- Check Section 48: notification to relative/friend and police record.
- Check medical examination and health/safety safeguards.
- Apply Article 22(2), Sections 57–58 and the twenty-four-hour rule.
- At remand, examine whether the Magistrate independently scrutinised legality.
- Then consider bail, anticipatory bail or challenge to unlawful custody as the facts require.
Frequently Asked Examination Questions
- Explain the power of arrest without warrant under Section 35 BNSS.
- Is arrest mandatory after registration of a cognizable FIR?
- Explain notice of appearance under Section 35(3) BNSS.
- What is the legal effect of compliance with a Section 35 notice?
- Discuss the 2026 Supreme Court ruling in Satender Kumar Antil v. CBI.
- What are the duties of an arresting officer under Section 36?
- Explain the right to an advocate under Section 38 and Article 22(1).
- When may handcuffs be used under Section 43 BNSS?
- What is the rule against unnecessary restraint under Section 46?
- What must be communicated under Section 47?
- Explain the duty to inform a relative or friend under Section 48.
- What is the significance of medical examination under Section 53?
- Explain the twenty-four-hour rule under Article 22(2) and BNSS.
- What is the Magistrate’s duty when an arrested person is produced for remand?
- Discuss Vihaan Kumar v. State of Haryana on grounds of arrest.
Exam Answer Toolkit
State Section 35, explain necessity of arrest and notice, mention Section 47 grounds, Article 22 safeguards and one leading case.
Add Sections 36–62, arrest memo, advocate access, handcuffs, relative notification, medical examination, twenty-four-hour production, remand scrutiny and current Supreme Court law.
One-Minute Revision
| Question | Answer |
|---|---|
| Arrest without warrant? | Section 35 |
| Arrest memorandum? | Section 36 |
| Advocate during interrogation? | Section 38 |
| Handcuff provision? | Section 43(3) |
| No unnecessary restraint? | Section 46 |
| Grounds of arrest? | Section 47 + Article 22(1) |
| Inform relative/friend? | Section 48 |
| Medical examination after arrest? | Section 53 |
| Health and safety? | Section 56 |
| Production without delay? | Section 57 |
| 24-hour constitutional rule? | Article 22(2) |
| Arrest strictly according to law? | Section 62 |
The BNSS treats arrest as a legally controlled interference with liberty—not as the automatic consequence of an accusation. Sections 35–62 build safeguards around the decision to arrest, the manner of arrest, communication of reasons, contact with family and counsel, medical protection and prompt judicial supervision.
Exam sequence: power to arrest → necessity → Section 35 notice → arrest procedure → grounds and rights → restraint/handcuffs → medical and family safeguards → twenty-four-hour production → judicial scrutiny.
Academic note: This material is intended for legal education and examination preparation. Students should consult the latest official BNSS text, the Constitution and full judgments before relying on any proposition in practice.