Arrest: concept, procedure, safeguards, proclamation and handcuffing

1. Concept of arrest

The Sanhita does not define arrest. It is the taking of a person into custody by legal authority so that he may be held to answer a criminal charge or to prevent an offence. Section 43(1) (old s.46) says how it is made: the officer actually touches or confines the body of the person, unless he submits to custody by word or action. Where a woman is arrested, her submission on oral intimation is presumed and, unless the officer is a woman, he shall not touch her. Force may be used if the person resists or tries to evade arrest (s.43(2)), but this does not give a right to cause the death of a person not accused of an offence punishable with death or life imprisonment (s.43(4)). No woman may be arrested after sunset and before sunrise save in exceptional circumstances, and then only by a woman officer with the prior permission of a first class Magistrate (s.43(5)).

2. Arrest without warrant by police: section 35 (old ss.41, 41A)

Any police officer may arrest without a Magistrate's order or a warrant a person:

• (a) who commits a cognizable offence in his presence;
• (b) against whom there is a reasonable complaint, credible information or reasonable suspicion of a cognizable offence punishable with imprisonment up to seven years, but only if the officer has reason to believe he committed it and is satisfied that arrest is necessary to prevent a further offence, for proper investigation, to prevent tampering with evidence, to prevent threats to witnesses, or to secure his presence in court. Reasons must be recorded for arresting and for not arresting;
• (c) against whom there is credible information of a cognizable offence punishable with more than seven years or death;
• (d) a proclaimed offender; (e) a person found with suspected stolen property; (f) one who obstructs a police officer on duty or escapes from lawful custody; (g) a suspected deserter from the Armed Forces; (h) a person liable to extradition; (i) a released convict breaching rules under s.394(5); (j) a person for whose arrest a requisition has been received from another police officer.

For a non-cognizable offence, no arrest without a warrant or order of a Magistrate (s.35(2)), except under s.39 (refusal to give name and residence).

Notice of appearance (s.35(3)–(6)): where arrest is not required under s.35(1), the officer must issue a notice directing the person to appear. If he complies, he is not to be arrested unless the officer records reasons; if he fails to comply or will not identify himself, he may be arrested.

New protection (s.35(7)): no arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police for an offence punishable with less than three years where the person is infirm or above sixty years of age.

These provisions carry the law laid down in Joginder Kumar v. State of U.P., 1994 INSC 170, (1994) 4 SCC 260 (no arrest merely because it is lawful; the officer must be able to justify it) and Arnesh Kumar v. State of Bihar, 2014 INSC 463, (2014) 8 SCC 273, where the Court directed that in offences punishable up to seven years the police must apply the checklist of necessity before arresting and the Magistrate must examine it before authorising detention.

3. Other arrests

• Private person (s.40, old s.43): may arrest a person who commits a non-bailable and cognizable offence in his presence, or a proclaimed offender, and must hand him over to the police within six hours.
• Magistrate (s.41, old s.44): may arrest, or order arrest of, a person who commits an offence in his presence within his local jurisdiction.
• Armed Forces (s.42): no arrest for acts in discharge of official duties without the consent of the Central Government.
• Arrest on warrant: ss.72–83 (Unit II note).

4. Procedure and the rights of the arrested person

• Identification and memo (s.36, old s.41B): the officer bears a visible name identification; prepares a memorandum of arrest attested by a family member or respectable local person and countersigned by the arrested person; and tells him of his right to have a relative or friend informed.
• Designated police officer and control room (s.37): in every district and police station, an officer not below Assistant Sub-Inspector maintains and displays the names and addresses of arrested persons and the offences charged, including in digital mode.
• Advocate during interrogation (s.38, old s.41D): the person may meet an advocate of his choice during interrogation, though not throughout it.
• Grounds and bail (s.47, old s.50): full particulars of the offence or grounds must be communicated forthwith; a person arrested for a bailable offence must be told he is entitled to bail and may arrange sureties. In Pankaj Bansal v. Union of India, 2023 INSC 866, and Prabir Purkayastha v. State (NCT of Delhi), 2024 INSC 414, the Court held (under the PMLA and UAPA) that the grounds of arrest must be furnished in writing, as a requirement of Article 22(1).
• Information to relative or friend (s.48, old s.50A): forthwith, and also to the designated police officer in the district; entry in a book; the Magistrate must check compliance.
• Search (s.49): a receipt for articles seized; a woman searched only by a woman.
• Medical examination (ss.51–53): at the request of police (s.51), of a person accused of rape (s.52), and of every arrested person by a medical officer soon after arrest, with a copy to the arrested person (s.53).
• Health and safety (s.56): the custodian must take reasonable care.
• Production within 24 hours (ss.57, 58, old ss.56, 57): exclusive of journey time; detention beyond that needs an order under s.187.
• Arrest only under the law (s.62, old s.60A).

Most of these began as the guidelines in D.K. Basu v. State of West Bengal, 1996 INSC 1508, (1997) 1 SCC 416, issued after deaths in police custody, and were written into the CrPC by the amendments of 2005 and 2008 before passing into the BNSS.

5. Remand: section 187 (old s.167)

If investigation cannot be completed in 24 hours, the accused is forwarded to the nearest Magistrate, who may authorise detention for up to fifteen days in the whole or in parts, at any time during the initial forty or sixty days of the total detention period. Total detention cannot exceed ninety days (offences punishable with death, life or ten years or more) or sixty days (other offences); after that the accused is released on bail if he furnishes it (default bail). Police custody needs production in person; judicial custody may be extended through audio-video means. A woman under eighteen is detained in a remand home or recognised social institution.

6. Proclamation and the proclaimed offender (ss.84–89, old ss.82–86)

If a Court has reason to believe that a person against whom it has issued a warrant has absconded or is concealing himself, it may publish a written proclamation requiring him to appear at a specified place and time, not less than thirty days from publication (s.84(1)). It is read publicly in his town or village, affixed to his house and to the court-house, and may be published in a daily newspaper (s.84(2)). If the person is accused of an offence punishable with ten years or more, life or death and fails to appear, the Court may declare him a proclaimed offender (s.84(4)). The Court may attach his movable or immovable property (s.85), and may seek attachment and forfeiture of property abroad through a contracting State on a request from an SP or Commissioner (s.86, new). Claims to attached property may be made within six months (s.87). Failure to appear in response to a proclamation is an offence under BNS s.209. A proclaimed offender may be tried in his absence (s.356).

7. Handcuffing: section 43(3) (new)

The police officer may, keeping in view the nature and gravity of the offence, use handcuffs while arresting, or while producing before the court, a person who is a habitual or repeat offender, who escaped from custody, or who committed organised crime, a terrorist act, a drug-related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, a sexual offence against children or an offence against the State.

The section must be read with Article 21. In Prem Shankar Shukla v. Delhi Administration, 1980 INSC 96, (1980) 3 SCC 526, the Court held that handcuffing is prima facie inhuman and may be used only where there is a clear and present danger of escape, with reasons recorded; routine handcuffing of undertrials violates Articles 14, 19 and 21 (following Sunil Batra v. Delhi Administration, 1978 INSC 147, (1978) 4 SCC 494, on bar fetters). The better reading of s.43(3) is that it lists the cases in which handcuffs may be used, not a direction to use them, so the officer still needs a reason in the particular case; s.46 says the arrested person shall not be subjected to more restraint than is necessary to prevent escape.

How this is examined

For “When can a police officer arrest without warrant?” reproduce s.35(1)(a) to (j), stress the necessity test in (b), the notice in s.35(3) and the DSP permission in s.35(7), and cite Joginder Kumar and Arnesh Kumar. For “Rights of an arrested person” list ss.36, 38, 47, 48, 53, 57 and 58 with Article 22 and D.K. Basu. Short notes: proclaimed offender (February 2025 and January 2026 papers), handcuffing, information regarding arrested persons (s.37).