Understanding the Nuances of Arrest and Detention in Legal Investigations

Every time a police officer places a hand on someone’s shoulder and says “you’re under arrest,” a legally significant act begins. Arrest is not just a physical act – it is the formal deprivation of a person’s liberty by the State. How that liberty is taken away, under what conditions, and with what safeguards, defines the integrity of an entire criminal justice system. Under Indian law, now governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – which replaced the old Code of Criminal Procedure (CrPC) from July 1, 2024 – the rules around arrest and detention are both precise and layered with constitutional significance.

What is an arrest? 🔗

An arrest is the legal act of restraining a person, depriving them of their freedom of movement, so they can be brought before a court to face criminal charges. It is not a punishment – the person arrested has not yet been convicted of anything. The purpose is to ensure the accused is available for investigation and trial. Under Section 43 of the BNSS (corresponding to Section 46 of the old CrPC), an arrest is effected when a police officer physically touches or confines the body of the person. If the person voluntarily submits to custody – either through words or actions – physical contact is not necessary. In the case of a woman, verbal intimation of arrest is sufficient, and her submission is legally presumed unless there is reason to believe otherwise.

This moment of submission – however it happens – carries enormous legal weight. The arrested person immediately acquires a set of constitutional and statutory rights, and the police simultaneously take on a set of legally binding obligations.

Cognizable vs. non-cognizable offences: the power to arrest 🔗

One of the most fundamental distinctions in Indian criminal procedure is between cognizable and non-cognizable offences, because this classification directly determines whether the police can arrest without a warrant.

Cognizable offences 🔗

A cognizable offence, under Section 2(g) of the BNSS, is one where the police can register an FIR, investigate, and arrest the accused without needing a warrant or prior judicial permission. These are typically serious crimes – murder, rape, robbery, kidnapping, dacoity – where immediate police action is considered essential. The urgency of such crimes justifies the power to act first and seek judicial oversight afterwards. Under Section 35 of the BNSS (corresponding to Section 41 of the CrPC), a police officer may arrest without a warrant a person who commits a cognizable offence in the officer’s presence, or against whom credible information exists establishing a reasonable belief that such a person has committed the offence.

Importantly, the law requires more than mere suspicion. For offences punishable with more than seven years’ imprisonment, the officer must have credible information and a genuine reason to believe the person committed the offence – a casual or arbitrary arrest is not legally permissible.

Non-cognizable offences 🔗

A non-cognizable offence under Section 2(o) of the BNSS is one where the police cannot arrest or investigate without a magistrate’s permission. These are usually less severe crimes – defamation, simple hurt, minor cheating, public nuisance – where the law prioritises individual liberty over swift State action. The victim or complainant must first approach a magistrate, who may then direct the police to investigate. The core idea is judicial oversight before any deprivation of liberty can occur.

Constitutional safeguards on arrest 🔗

The Constitution of India directly governs how arrests must be conducted. Article 22(1) guarantees that no arrested person shall be detained without being informed of the grounds for their arrest. Article 22(2) mandates that every arrested person must be produced before the nearest magistrate within 24 hours of arrest, excluding travel time. These are not procedural suggestions – they are fundamental rights, and their violation renders an arrest illegal.

Beyond the Constitution, Section 47 of the BNSS (formerly Section 50, CrPC) requires that the arrested person be immediately informed of the reasons for their arrest and their right to bail, if applicable. The family or a nominated person must also be informed of the arrest and the place of detention. The BNSS strengthens this further by requiring State Governments to designate a police officer in every district to maintain publicly available records of all arrests – including digital display – under Section 37 of the BNSS.

Use of force during arrest 🔗

The law permits force during an arrest, but only within strict limits. Under Section 43(2) of the BNSS, if a person resists arrest or attempts to evade it, the police officer may use all means necessary to effect the arrest – but with a critical caveat: Section 43(4) explicitly prohibits causing the death of any person who is not accused of an offence punishable with death or life imprisonment. This provision reflects a fundamental principle – that the purpose of arrest is custody, not punishment, and that excessive force beyond what is required to secure the person is unlawful.

Handcuffing: a contested power 🔗

The BNSS introduced a provision that did not exist in the old CrPC – a statutory power to use handcuffs. Section 43(3) of the BNSS grants police officers the power to use handcuffs during arrest or while producing an accused in court, based on the nature and gravity of the offence. Handcuffs are permitted for habitual or repeat offenders, persons who have escaped from custody, and those accused of serious offences including organised crime, terrorism, drug trafficking, murder, rape, acid attacks, human trafficking, sexual offences against children, and offences against the State.

This provision has generated significant legal debate. The Supreme Court, in a series of landmark judgments, had consistently treated handcuffing as exceptional rather than routine. In Prem Shankar Shukla v. Delhi Administration (1980), the Court held that handcuffing should not be routine, especially for non-violent offences, and must be justified with recorded reasons approved by a judge. In D.K. Basu v. State of West Bengal (1996), the Court reiterated that handcuffing violates standards of decency and should be the last resort, not a default practice.

The Supreme Court as recently as 2025 reaffirmed that handcuffing without recorded justification and judicial oversight violates Articles 21 and 22(1) of the Constitution, clarifying that Section 43(3) of the BNSS cannot dilute constitutional protections – any use of handcuffs must satisfy the tests of fairness, necessity, and reasonableness. Critics of the BNSS provision argue that by making handcuffing a statutory default for broad categories of accused without requiring judicial approval, the law risks normalising a practice the courts have repeatedly condemned as incompatible with the right to life and personal liberty under Article 21.

Search of the arrested person 🔗

Once an arrest is made, the police have the power to search the arrested person. This power is not absolute. Under the BNSS, where the arrested person is a woman, the search must be conducted by a female police officer and with strict regard to decency. Any articles found during the search may be seized, but a receipt must be provided to the person. The search procedure is governed by the overarching principle that the dignity of the person arrested must be maintained throughout.

A notable protection concerns women and night arrests. Under Section 43 of the BNSS, a woman cannot ordinarily be arrested between sunset and sunrise. In exceptional circumstances where such an arrest is unavoidable, a female police officer must prepare a written report and obtain prior permission from a magistrate. This provision exists specifically to protect women from the risk of misuse of police authority during night hours.

Detention limits and judicial oversight 🔗

An arrested person cannot simply be held indefinitely. The law draws a clear boundary between arrest and prolonged detention, requiring judicial intervention at every stage beyond the initial 24-hour window.

Under Section 187 of the BNSS, a magistrate may authorise detention of the accused in such custody as deemed fit for periods of 15 days at a time. The BNSS introduced a significant change from the old CrPC: police custody is no longer limited to the first 15 days from the date of remand. Instead, police custody can now be authorised during the initial 40 days of a 60-day maximum period (for lesser offences) or the initial 60 days of a 90-day maximum period (for offences punishable with death, life imprisonment, or imprisonment of 10 years or more). Beyond these outer limits, the accused must be released on bail if a charge sheet has not been filed – this is sometimes called the “default bail” or “statutory bail” provision.

The Supreme Court has repeatedly held that bail is the rule and incarceration is the exception, emphasising that detention before trial should be the minimum necessary – not the default – in a system that presumes innocence until guilt is proven.

Special protection for aged and infirm persons 🔗

The BNSS introduced an important addition that was absent from the CrPC. Under Section 35(7) of the BNSS, for offences punishable with imprisonment of less than three years, the police cannot arrest a person who is infirm or above 60 years of age without first obtaining prior permission from an officer not below the rank of Deputy Superintendent of Police (DSP). This is a meaningful protection for vulnerable individuals who might otherwise be subjected to the physical and psychological trauma of arrest for relatively minor offences.

Arrest by private persons 🔗

The power to arrest is not exclusively held by the police. Under the BNSS, a private individual can arrest a proclaimed offender or someone who commits a cognizable and non-bailable offence in their presence. However, unlike the old CrPC which only required handing over the arrested person to police “without unnecessary delay,” the BNSS now prescribes a fixed six-hour window within which the private person must hand over the arrested individual to the police. This time-bound requirement brings clarity and accountability to citizen arrests, which were previously governed only by a vague standard of reasonableness.

Why these nuances matter 🔗

The rules around arrest and detention are not bureaucratic technicalities. They are the legal architecture that stands between the coercive power of the State and the freedom of every individual. An illegal arrest – one made without proper grounds, without informing the person of their rights, or in violation of constitutional protections – is not just procedurally flawed. It can render all subsequent evidence gathered tainted, expose officers to personal liability, and undermine the prosecution’s case entirely. Courts have consistently held that an accused does not lose their fundamental rights upon arrest. The procedural rules are designed to ensure that the investigation of crime does not itself become a source of injustice.

As India transitions to the BNSS framework, some provisions – particularly around extended police custody and statutory handcuffing – continue to attract scrutiny from legal scholars and constitutional courts alike. The tension between investigative efficiency and individual liberty remains a live and evolving debate.

What do you think? Given that the BNSS now allows police custody to be authorised at multiple points within the investigation period (rather than being strictly limited to the first 15 days), does this change strike the right balance between effective investigation and the rights of an undertrial accused? And with courts already holding that Section 43(3) cannot dilute constitutional protections, should the use of handcuffs require explicit magistrate approval even in cases of serious offences listed under the BNSS?

References

1. https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023
2. https://law4u.in/top-answer/975/what-is-bnss-section-43
3. https://kamalandcoadvocates.com/insights/cognizable-and-non-cognizable-offences-in-india/
4. https://www.scobserver.in/supreme-court-observer-law-reports-scolr/failure-to-inform-grounds-of-arrest-vihaan-kumar-v-state-of-haryana/
5. https://lawrato.com/indian-kanoon/criminal-law/what-is-a-cognizable-and-non-cognizable-offence-in-india-612
6. https://kapildixitco.com/your-rights-when-arrested-india-comprehensive-legal-guide/
7. https://thelawsuits.in/impact-bnss-police-powers-handcuffing/
8. https://www.livelaw.in/articles/chaining-freedom-the-conflict-between-use-of-handcuffs-under-bnss-and-right-to-life-and-personal-liberty-263793
9. https://www.alec.co.in/show-blog-page/handcuffing-necessity-or-violation-of-rights
10. https://lexiconlegal.in/handcuffing-of-accused-the-interplay-of-bnss-and-article-21/
11. https://www.scconline.com/blog/post/2025/11/26/bodies-of-control-handcuffing-and-the-return-of-the-carceral-state-under-bnss/
12. https://marriagesolution.in/bnss_section_/section-43-of-bnss/
13. https://www.lexology.com/library/detail.aspx?g=b0d161a1-1d33-43ec-96c4-eaaa119e8238
14. https://prsindia.org/billtrack/prs-products/prs-legislative-brief-1702469369