Your rights if you are arrested
Grounds in writing, arrest memo, informing family, lawyer, medical check, 24-hour rule, when police must not arrest (Sec 35 BNSS) and how to get bail.
In short
- You must be told why you are being arrested, and whether you can get bail Art 22(1) Sec 47 BNSS.
- Police must prepare an arrest memo with the date and time, signed by a witness and by you, and inform a relative or friend you name Secs 36, 48 BNSS.
- You must be produced before a Magistrate within 24 hours Art 22(2) Sec 58 BNSS.
- You can meet a lawyer, and if you cannot pay for one the State must provide one free: call 15100.
- For offences punishable up to 7 years, police should normally send a notice to appear instead of arresting (Sec 35 BNSS; Arnesh Kumar, 2014).
The Constitution and the Bharatiya Nagarik Suraksha Sanhita (BNSS), the criminal procedure law in force since 1 July 2024, give every arrested person rights that do not depend on guilt or innocence. Knowing them, and asking for them calmly, is the best protection against abuse.
When can police arrest without a warrant?
Police may arrest without a warrant for a cognizable offence (a serious offence where no warrant is needed). But Sec 35 BNSS (earlier Secs 41 and 41A CrPC) draws an important line:
- For offences punishable with up to 7 years, police may arrest only if they record in writing why arrest is necessary: to stop further offences, to prevent tampering with evidence or threats to witnesses, or because you would not otherwise appear. Normally they should instead issue a notice to appear. If you comply with it, you should not be arrested unless the officer records reasons.
- For a person who is above 60 or infirm, and the offence is punishable with less than 3 years, arrest needs prior permission from an officer of Deputy Superintendent rank or above.
- In Arnesh Kumar v State of Bihar (2014) the Supreme Court held that police must not arrest mechanically in such cases, and Magistrates must check the recorded reasons before authorising custody.
Your rights at the moment of arrest
- To know why. You must be told the grounds of arrest and the full particulars of the offence at once Art 22(1) Sec 47 BNSS. If the offence is bailable, you must be told that you are entitled to bail and can arrange sureties. The Supreme Court has held (Pankaj Bansal, 2023; Prabir Purkayastha, 2024) that the grounds should be given in writing; as of 2026 benches differ on whether writing is always compulsory. Ask for them in writing anyway.
- An arrest memo. The officer must wear a visible name tag and prepare a memorandum of arrest with the date and time, attested by a family member or a respectable local person and countersigned by you Sec 36 BNSS. This fixes when custody began.
- To inform someone. Police must tell a friend, relative or person you name about the arrest and where you are held, and note it in the station register Sec 48 BNSS. The names of arrested persons must be displayed at the police station and district control room Sec 37 BNSS.
- No unnecessary force. Handcuffs are allowed only in listed situations such as habitual offenders, escapees, or grave offences like terrorism, murder or rape Sec 43 BNSS.
- To meet a lawyer. You may consult an advocate of your choice, and meet them during interrogation though not throughout it Art 22(1) Sec 38 BNSS. If you cannot afford one, the State must provide a lawyer free (Art 39A; Legal Services Authorities Act, 1987).
- A medical examination. Soon after arrest a government doctor must examine you and record any injuries; a woman is examined by or under the supervision of a woman doctor. You or your nominee get a copy of the report Sec 53 BNSS.
- Before a Magistrate within 24 hours. Excluding travel time, you cannot be kept in police custody longer than 24 hours without a Magistrate's order Art 22(2) Secs 57, 58 BNSS. Tell the Magistrate about any ill-treatment.
Most of these safeguards come from D.K. Basu v State of West Bengal (1997), where the Supreme Court laid down arrest guidelines after custodial deaths; they are now written into the BNSS.
Special protection for women
Unless circumstances require otherwise, a woman is arrested by a woman police officer, and a male officer may not touch her. A woman is ordinarily not arrested after sunset or before sunrise; in an exceptional case a woman officer must first obtain the written permission of the Judicial Magistrate Sec 43(5) BNSS.
Bail: the basics
For a bailable offence, bail is your right: the officer in charge must release you when you offer a bond or sureties Sec 480 BNSS (earlier Sec 436 CrPC). A poor person who cannot find a surety within a week may be released on a personal bond. For a non-bailable offence, bail is at the court's discretion; a lawyer applies to the Magistrate or Sessions Court. If you fear arrest, anticipatory bail can be sought from the Sessions Court or High Court Sec 482 BNSS.
Step by step: what to do
- Stay calm. Do not resist or run. Resisting arrest is a separate offence and makes everything worse.
- Ask: "What am I being arrested for? Which section?" Ask for the grounds in writing and whether the offence is bailable.
- Name one person to be informed and give their phone number. Make sure the arrest memo records the correct date and time, and read it before you sign.
- Say you want a lawyer and that you will answer questions when one arrives. Do not sign blank papers or statements you have not read.
- Ask for a medical examination and mention every injury, old or new, to the doctor.
- At the 24-hour production, tell the Magistrate about any beating, threat or illegal detention, and ask for a legal aid lawyer if you have none.
Suresh, a 58-year-old shopkeeper in Kanpur, is picked up at 6 am over a money dispute that his neighbour has reported as "cheating". He asks the sub-inspector for the grounds in writing and the section; the offence is punishable with less than 7 years. He says politely that under Sec 35 BNSS and Arnesh Kumar he should get a notice to appear, not be arrested, and asks that his son be informed. His son calls 15100, and the legal aid lawyer at the Magistrate's court that afternoon points out that no reasons for arrest were recorded. Suresh is released on bail the same day.
Keep these ready
- FIR number, police station, the sections applied, and the name and rank of the arresting officer.
- A copy of the arrest memo, and the exact time of arrest.
- Name and number of the lawyer or the District Legal Services Authority; ID proofs of two people willing to stand surety.
- Any medical report, and photos of injuries, dated.
"Come to the station for questioning, you are not under arrest" can turn into hours of informal detention with no memo and no clock running. If you are not free to leave, you are in custody and all the rights above apply. Ask clearly: "Am I under arrest? Am I free to go?" and make sure someone outside knows where you are.
Where to go
- Free lawyer, any hour: NALSA helpline 15100; the District Legal Services Authority or the legal aid lawyer on duty at the Magistrate's court; nalsa.gov.in.
- Illegal detention beyond 24 hours: the Judicial Magistrate; a habeas corpus petition (an order to produce the person) in the High Court.
- Custodial violence: the Magistrate at production, the Superintendent of Police, the State Human Rights Commission or NHRC (14433).
- Emergency: 112.
Common questions
Can police arrest me without a warrant?
Yes, for a cognizable offence. But for offences punishable with up to 7 years, Sec 35 BNSS requires the officer to record why arrest is necessary and normally to issue a notice to appear instead. For non-cognizable (minor) offences a warrant or a Magistrate's order is needed.
Do I have to answer police questions?
You must give your correct name and address. Beyond that, you have a constitutional right not to incriminate yourself (Art 20(3)) and may say you will answer in the presence of your lawyer. A confession made to a police officer cannot be used against you in court; only a confession recorded by a Magistrate can.
How long can police keep me without bail?
Not more than 24 hours without producing you before a Magistrate, travel time excluded. After that the Magistrate decides on police or judicial custody. For a bailable offence you are entitled to bail from the police station itself under Sec 480 BNSS. Under Sec 479 BNSS an undertrial who has spent half of the maximum sentence in custody (one-third for a first-time offender) is ordinarily to be released on bond.
What if police arrested the wrong person?
Say so clearly at the first opportunity and again before the Magistrate, with any proof of identity or alibi, and ask the legal aid lawyer to apply for bail at once. Wrongful arrest can later be challenged in the High Court, and compensation claimed in a writ petition or before the human rights commission.
This article is general information for awareness, not legal advice. For your situation, consult an advocate or call free legal aid at 15100.
