What to Do If You Are Arrested: Your Rights Under the Bharatiya Nagarik Suraksha Sanhita, 2023

An arrest is among the most disorienting experiences a citizen can undergo. The sudden deprivation of liberty, the coercive authority of the State, and the uncertainty of what follows can overwhelm even the most composed individual. Yet the law — if known and invoked — provides a robust shield against arbitrary arrest, custodial abuse, and unlawful detention. With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from 1st July 2024, the procedural framework governing arrests in India has been significantly modernised. This article is a comprehensive guide to your rights at the time of arrest and in the hours that follow.

I. The New Criminal Laws: An Overview

India’s criminal justice system was comprehensively overhauled through three landmark legislations notified on 25th December 2023 and brought into force on 1st July 2024:

Bharatiya Nyaya Sanhita, 2023 (BNS) — replaced the Indian Penal Code, 1860 (IPC), defining offences and their punishments.
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — replaced the Code of Criminal Procedure, 1973 (CrPC), governing the procedure for arrest, investigation, trial, and bail.
Bharatiya Sakshya Adhiniyam, 2023 (BSA) — replaced the Indian Evidence Act, 1872, modernising the law of evidence to accommodate electronic records.

For citizens, the most immediately relevant of these is the BNSS, which governs what the police can and cannot do when they arrest you, and what rights you are entitled to assert from the moment of arrest.

II. Types of Arrest: With and Without a Warrant

The BNSS provides for two categories of arrest:

1. Arrest with a Warrant

Governed by Sections 72 to 83 of the BNSS, an arrest warrant is a written order issued by a court, signed by the presiding officer, and bearing the court’s seal. The warrant remains valid until it is executed or cancelled by the issuing court. The police officer executing the warrant must carry it and produce it on demand. The court may allow the arrested person to be released on bail if they furnish a sufficient surety bond.

2. Arrest Without a Warrant

Under Section 35 of the BNSS (replacing Section 41 of the CrPC), a police officer may arrest a person without a warrant in cognisable offences — that is, offences in which police have the authority to arrest and investigate without prior judicial approval. However, the Supreme Court in Arnesh Kumar v. State of Bihar (2014) unequivocally held that arrest is not automatic in every cognisable offence punishable with less than seven years imprisonment. The police officer must record specific reasons justifying the necessity of arrest and present them to the Magistrate — a safeguard now embedded within the BNSS framework.

Important protection for elderly persons: Under Section 35(7) of the BNSS, police cannot arrest a person above 60 years of age or an infirm person for offences carrying a sentence of less than three years without first obtaining permission from an officer of the rank of Deputy Superintendent of Police (DSP) or above.

III. Your Rights at the Moment of Arrest

1. Right to Be Informed of the Grounds of Arrest (Section 47, BNSS)

As soon as you are arrested, the police officer is legally obligated to inform you of the full particulars of the offence for which you are being arrested. This right is also enshrined in Article 22(1) of the Constitution of India. You have every right to ask the arresting officer: “Under which law and section am I being arrested? What is the specific allegation against me?” If this information is withheld, your arrest may be challenged before a court as unlawful.

2. Right to Notify a Family Member or Friend (Section 48, BNSS)

Upon arrest, you have the right to have one person of your choice — a family member, relative, or friend — informed of your arrest and the place of detention without delay. The arresting authority is under a legal duty to communicate this information. Under the BNSS, digital notification through electronic means is now a recognised and required mode of communication. Do not allow the police to delay or deny this notification — it is your statutory right.

3. Right to Legal Representation (Article 22(1), Constitution; Section 341, BNSS)

You have an absolute right to consult a lawyer of your choice as soon as you are arrested. Under Section 38 of the BNSS, an arrested person may meet an advocate of their choice during interrogation. The State is also constitutionally obligated under Article 39-A and Section 341 of the BNSS to provide free legal aid to persons who cannot afford legal representation. If you cannot afford a lawyer, inform the police and the Magistrate — they are duty-bound to arrange legal aid for you through the District Legal Services Authority (DLSA).

4. Right Not to Be Detained Beyond 24 Hours Without a Magistrate’s Order (Section 58, BNSS)

This is one of the most critical rights in Indian criminal law. A person arrested without a warrant cannot be detained in police custody for more than 24 hours (excluding the time required to travel to the nearest Magistrate’s court). If the police wish to extend custody beyond 24 hours, they must produce you before a Magistrate, who alone has the authority to authorise further detention. Any detention beyond 24 hours without a Magistrate’s order is unlawful and actionable.

5. Right to a Medical Examination (Section 51, BNSS)

Every arrested person has the right to be medically examined by a doctor — both to protect their health and to document any pre-existing injuries, which can be critical evidence in cases of custodial abuse. The police must also prepare a custody memo recording the date, time, and place of arrest, attested by a witness and countersigned by the arrested person. This documentation is your protection against subsequent fabrication of custodial injuries.

6. Right Against Custodial Torture and Cruel Treatment (Section 56, BNSS)

The police are under an absolute legal duty to ensure the health and safety of the accused in custody. Custodial violence, torture, and inhuman treatment are both unconstitutional and criminal. If subjected to physical abuse while in custody, you or your family can file a complaint before the Magistrate, the State Human Rights Commission, or the National Human Rights Commission. The officer concerned can face criminal prosecution.

7. Right to Seek Compensation for Wrongful Arrest (Section 359, BNSS)

Section 359 of the BNSS empowers an arrested person to seek compensation from the court if the arrest is found to have been groundless. This provision serves as a statutory deterrent against arbitrary and vindictive arrests by police officers.

8. Special Protections for Women

Under Section 43(6) of the BNSS, no woman shall be arrested after sunset and before sunrise, except in exceptional circumstances, and only by a female police officer after obtaining prior permission from a Judicial Magistrate. Female police officers must carry out the arrest of women in all cases. Violation of this provision renders the arrest unlawful.

IV. The Arrest Memo: Your Most Important Document

At the time of arrest, insist on receiving — and examining — the Arrest Memo. This document must contain:

The exact time and date of arrest
The place of arrest
The name and designation of the arresting officer
The signature of at least one witness (preferably a family member or a local respectable person)
The countersignature of the arrested person

Never sign a blank or incomplete arrest memo. If the police refuse to provide an arrest memo, note the time and communicate this fact to your lawyer immediately.

V. Police Custody vs. Judicial Custody: What Is the Difference?

Understanding the distinction between police custody and judicial custody is essential:

Police custody means you are physically detained at a police station under the control of the police. Under the BNSS, police custody can be authorised for up to 15 days total, which may be granted in parts within the initial 40 or 60 days of the remand period (depending on the gravity of the offence).
Judicial custody means you are detained in prison (jail) under the supervision of the court and the judicial magistrate, not the police. This is the default form of custody once the initial period of police custody expires.

The BNSS further clarifies that judicial custody can only take place in a prison or a location specifically designated as a prison by the Central or State Government — a safeguard against informal and undisclosed detention.

VI. Bail: Your Path to Liberty

Bailable vs. Non-Bailable Offences

Offences are classified as bailable or non-bailable in the First Schedule to the BNSS. In a bailable offence, bail is a matter of right — the police or the court must release you on bail as soon as you furnish the required surety. In a non-bailable offence, bail is at the discretion of the Magistrate or the court, which will consider the nature of the offence, the likelihood of flight risk, and the possibility of tampering with evidence.

Anticipatory Bail

If you have reason to believe that you may be arrested in a non-bailable case, you can approach the Sessions Court or the High Court for anticipatory bail under Section 482 of the BNSS. If granted, this order protects you from arrest — or entitles you to immediate bail in the event of arrest — on the specified charges.

Default Bail for First-Time Offenders

Under Section 479 of the BNSS, a first-time offender (someone with no prior convictions) who has been in detention for a period extending up to one-third of the maximum imprisonment prescribed for the offence is entitled to be released on bail by the court. This is a significant reform designed to reduce overcrowding in Indian jails and aligns with the constitutional vision of liberty as the rule and detention as the exception.

VII. Zero FIR: A Key Reform

The BNSS has given statutory recognition to the concept of a Zero FIR — a First Information Report that can be registered at any police station regardless of where the offence was committed. Under the earlier CrPC framework, police frequently refused to register FIRs on jurisdictional grounds, causing significant delays and prejudice to victims. Under the BNSS, any police station must register a Zero FIR and transfer it to the appropriate station thereafter. This is particularly significant for victims of crimes committed in transit or away from their home city.

VIII. Landmark Cases on Rights of Arrested Persons

D.K. Basu v. State of West Bengal (1997) 1 SCC 416

The Supreme Court laid down 11 mandatory procedural guidelines for police officers during arrest and detention to protect citizens from arbitrary arrest and custodial violence. These guidelines — covering the obligation to display name tags, prepare arrest memos, inform family members, and ensure medical examination — are now codified within the BNSS framework.

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

In one of the most significant judgments on the law of arrest, the Supreme Court held that police officers must apply their mind before arresting a person and must record specific reasons in writing. “Arrest brings humiliation, curbs liberty and leaves scars forever,” the Court observed. Police now face accountability for every arrest through mandatory checklists submitted to Magistrates.

Maneka Gandhi v. Union of India (1978) 1 SCC 248

The Supreme Court expanded the scope of Article 21 to hold that no person can be deprived of life or personal liberty except by a procedure that is not only established by law, but that is also fair, just, and reasonable. This case remains the constitutional bedrock of all rights of arrested persons in India.

IX. What Should You Do If Arrested? A Step-by-Step Guide

Stay calm. Do not physically resist arrest, even if you believe the arrest is unlawful. Your remedy is the law, not resistance.
Ask for the grounds of arrest. Demand that the police officer state the specific offence and section under which you are being arrested.
Insist on the Arrest Memo. Read it carefully, check the time and date, and ensure a witness signs it.
Exercise your right to notify a family member or lawyer immediately. Ensure your family is informed of your arrest and place of detention.
Do not make any statement to the police without your lawyer present. You are not obligated to answer questions that may incriminate you.
Request a medical examination if you have any pre-existing injuries or health conditions.
Before the Magistrate: Inform the Magistrate if you have been subjected to any mistreatment, if an arrest memo was not prepared, or if your family was not notified.
Apply for bail at the earliest opportunity through your advocate.

X. Conclusion

The law of arrest in India, as shaped by the Constitution, the BNSS, and decades of Supreme Court jurisprudence, reflects a fundamental principle: liberty is the rule, and detention is the exception. The procedural safeguards embedded in the BNSS — from the mandatory arrest memo to the 24-hour production rule, from the right to legal aid to the right against custodial torture — exist precisely because the State’s power to deprive a citizen of liberty must be exercised within strictly defined legal boundaries.

Knowing your rights at the moment of arrest is not a challenge to law enforcement — it is the very exercise of the constitutional citizenship that the Indian legal order envisions. If you or a family member faces arrest, seek competent legal counsel immediately.

At the Law Chamber of Amit K Pateria, our criminal law team is available to advise on bail applications, anticipatory bail, wrongful detention, and all matters arising from arrest under the BNS and BNSS.

References & Notes

Bharatiya Nagarik Suraksha Sanhita, 2023 (No. 46 of 2023), Government of India.
Bharatiya Nyaya Sanhita, 2023 (No. 45 of 2023), Government of India.
D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
Press Information Bureau, Ministry of Home Affairs, Key Features of New Criminal Laws (December 2024).

Disclaimer: This article is published for educational and informational purposes only and does not constitute legal advice. For advice specific to your situation, please consult a qualified legal professional.