After the Arrest: Key Procedures and Rights in the Criminal Justice System

An arrest does not end with the police officer placing someone in custody. What happens in the hours immediately following an arrest is just as legally significant – and just as carefully regulated – as the arrest itself. Indian criminal procedure law, now governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure (CrPC) and came into effect on 1st July 2024, lays down a detailed set of post-arrest obligations. These exist for two reasons: to help the police gather evidence effectively, and to ensure the arrested person is treated with dignity and their fundamental rights are protected throughout the process.

The arrest memo: the first document that matters 🔗

The moment a person is taken into custody, the police are required to prepare an arrest memo. This is not a formality – it is a constitutional checkpoint. The memo must record the time and date of arrest, be attested by at least one witness (either a family member of the arrested person or a respectable member of the locality), and be counter-signed by the arrested person themselves.

This requirement flows directly from the Supreme Court’s landmark ruling in D.K. Basu v. State of West Bengal (1997), which laid down comprehensive guidelines for arrest and detention after the court took note of rising cases of custodial violence. These guidelines were later incorporated into the CrPC through the 2008 Amendment Act and are now reflected in Section 36 of the BNSS. The arresting officer must also bear a visible name tag with their designation, and details of all personnel handling the interrogation must be entered in a register. A copy of the arrest memo must be given to the arrested person.

Informing family and friends 🔗

One of the most important post-arrest obligations is notifying someone the arrested person trusts. Under Section 48 of the BNSS (previously Section 50A of the CrPC), the police are required to immediately inform a relative, friend, or any other person nominated by the arrested individual about the arrest and the place of custody.

A notable change under the BNSS is that the arrested person can now nominate any person to be informed – not just a friend or relative – broadening the scope of this protection. If the nominated person lives outside the district, the information must be communicated through the Legal Aid Organisation and the relevant police station within 8 to 12 hours of the arrest. Additionally, the police must inform the designated police officer of the district under Section 37 of the BNSS, and this information must be displayed publicly, including in digital form, at the district headquarters and police station.

Search of the arrested person 🔗

Following an arrest, the police have the authority to search the arrested individual. Under the provisions now mirrored in Chapter V of the BNSS (corresponding to Section 51 of the CrPC), a police officer making an arrest is permitted to search the person in custody whenever it is necessary for the purposes of investigation. All articles found on the arrested person – other than essential personal items like clothing – may be seized and kept in safe custody.

Crucially, if the arrested person is a female, the search must be conducted by a female police officer, with strict regard to decency. This is a non-negotiable procedural requirement designed to protect the dignity of women in custody.

Seizure of offensive weapons 🔗

Under Section 50 of the BNSS (previously Section 52 of the CrPC), the police officer effecting the arrest, or the officer in charge of a police station, has the authority to seize any offensive weapons found on the person being arrested. These weapons must be delivered to the court before which the arrested person is produced, or to the officer in charge of the police station – depending on the circumstances of the case.

This power serves a clear dual purpose: it disarms a potentially dangerous individual, and it preserves potential evidence that may be relevant to the offence for which the person has been arrested.

Medical examination of the arrested person 🔗

Medical examination after arrest is one of the most important procedural safeguards in Indian criminal law. It serves both the interest of the investigating agency and the protection of the arrested individual. The BNSS addresses this in multiple sections.

Examination at the request of police (Section 51 BNSS) 🔗

When a person is arrested on a charge where the police have reasonable grounds to believe that a medical examination of their person will yield evidence relevant to the offence, a registered medical practitioner (RMP) can be called upon to conduct such an examination. A significant change from the CrPC is that under the BNSS, any police officer can now request this examination – the earlier CrPC requirement of a Sub-Inspector or above has been removed, making the process more accessible and operationally flexible. The RMP must promptly forward the examination report to the investigating officer.

Special provisions for rape accused (Section 52 BNSS) 🔗

When a person is arrested on a charge of rape or attempted rape, a government-employed registered medical practitioner is authorised to conduct a medical examination of the accused, provided there are reasonable grounds to believe that such an examination will produce evidence. If a government RMP is not available within a 16-kilometre radius of the place where the offence occurred, any other RMP may carry out the examination. The time of the examination must be precisely recorded, and the practitioner is required to explain the reasoning behind every clinical finding in the report – ensuring transparency and aiding the court’s understanding of the medical evidence.

Mandatory examination of the arrested person (Section 53 BNSS) 🔗

Distinct from the investigative medical examination, Section 53 of the BNSS mandates that an arrested person be medically examined by a medical officer upon being brought to the police station. This provision exists primarily as a safeguard for the arrested person – it documents any pre-existing injuries and guards against custodial violence. A copy of the report must be furnished to the arrested person or their nominated representative.

The BNSS has added an important proviso here: the medical practitioner may conduct one additional examination if they consider it necessary. For female arrested persons, the examination must be conducted by or under the supervision of a female medical officer. The D.K. Basu guidelines additionally require that an arrested person in custody be medically examined by an approved doctor every 48 hours during their detention, with doctors drawn from a panel approved by the Director of Health Services of the concerned State or Union Territory.

The right to be informed of grounds of arrest 🔗

This is one of the most fundamental rights of an arrested person. Under Section 47 of the BNSS (previously Section 50 of the CrPC) and Article 22 of the Constitution, every arrested person must be informed of the grounds for their arrest without delay. The Supreme Court has firmly held, most recently reiterated in cases involving the UAPA, that this is not a mere procedural formality but a vital safeguard – it enables the arrested person to seek bail, prepare a defence, and consult legal counsel effectively. Written grounds of arrest must be furnished to the arrested person at the earliest, without exception.

Where an arrest is made on a warrant, the officer executing it must also show the warrant to the person being arrested if demanded, as required under Section 75 of the CrPC (now mirrored under the BNSS).

The right to bail 🔗

If the offence for which a person is arrested is a bailable offence, they have an enforceable right to be released on bail. The police officer or magistrate is required to inform the arrested person of this right immediately upon arrest, under Section 47(2) of the BNSS. For non-bailable offences, bail may be applied for before the magistrate. Additionally, if the police fail to file a charge sheet within 90 days of the arrest, the arrested person becomes entitled to what is often called the mandatory bail provision under the default bail rule.

Production before a magistrate within 24 hours 🔗

Perhaps the most critical time-bound obligation in post-arrest procedure is the requirement to produce the arrested person before a magistrate. Section 57 of the BNSS (previously Section 56 of the CrPC) and Article 22(2) of the Constitution make it clear that no person arrested without a warrant can be kept in police custody for more than 24 hours without being produced before a magistrate. This 24-hour window excludes the time necessary for the journey from the place of arrest to the court.

The purpose of this rule is to bring immediate judicial oversight to bear on every arrest – the magistrate can examine the legality of the detention and, if necessary, order release or grant bail. Failure to produce the arrested person within 24 hours renders the continued detention unlawful. Under a new BNSS provision, even production before a magistrate without jurisdiction is permitted within these first 24 hours, removing the earlier procedural bottleneck.

The right to legal counsel 🔗

Under Article 22(1) of the Constitution, an arrested person has the right to consult and be represented by a legal practitioner of their choice. This right cannot be denied or delayed. Those who cannot afford private counsel are entitled to free legal assistance under Article 39A and the Legal Services Authorities Act, 1987. The Supreme Court in Khatri v. State of Bihar (1981) held that denial of this right constitutes a violation of Article 21. The police must inform the arrested person of this right.

No unnecessary restraint and health in custody 🔗

The BNSS explicitly provides that an arrested person must not be subjected to more restraint than is necessary to prevent escape. Section 56 of the BNSS requires the police to take reasonable care of the health and safety of every arrested person while in custody. Handcuffing is now regulated more strictly – under Section 43(3) of the BNSS, handcuffs may only be used in specified circumstances, such as for habitual offenders, those who have previously escaped custody, or those arrested for grave offences like murder, rape, or terrorism. Arbitrary use of handcuffs is no longer permissible.

Report of arrests to the district magistrate 🔗

Under Section 59 of the BNSS (previously Section 58 of the CrPC), the officer in charge of a police station is required to send periodic reports of all arrests made without warrant to the District Magistrate. This reporting requirement is a systemic accountability mechanism – ensuring that senior officials and the judiciary are kept informed of all custodial situations within their jurisdiction. One copy of all arrest-related documents, including the arrest memo and inspection memo, must also be sent to the concerned Magistrate for record.

Consequences of non-compliance 🔗

These procedural safeguards are not optional. An arrest carried out in violation of these requirements is legally vulnerable and may constitute false imprisonment, entitling the arrested person to damages. Officers who fail to comply with the D.K. Basu guidelines face both departmental action and contempt of court proceedings before the jurisdictional High Court. The BNSS itself reinforces this in Section 62, which explicitly states that all arrests must be made strictly in accordance with the Sanhita. Beyond individual liability, the State itself can be held responsible and directed to pay compensation in cases of unlawful detention or custodial harm – a principle firmly established by the Supreme Court and recognised under Article 9(5) of the International Covenant on Civil and Political Rights.

What do you think? Given that these post-arrest protections have existed in Indian law for decades, why do you think instances of custodial violence still surface periodically – and what systemic reforms, beyond legal provisions, might be needed to close that gap? Also, with the BNSS introducing digital tools like video recording of arrests and electronic intimation to family members, do you think technology will meaningfully improve compliance with post-arrest procedures on the ground?

References

1. https://www.indiacode.nic.in/bitstream/123456789/20340/1/bnss,_2023.pdf
2. https://www.drishtijudiciary.com/code-of-criminal-procedure/dk-basu-v-state-of-west-bengal-1997-6-scc-642
3. https://www.myjudix.com/post/section-50-bnss-section-55-bnss-section-54-bnss-section-51-bnss-section-52-bnss-section-53-bnss
4. https://legalmaestros.com/bnss/sections-52-53-bharatiya-nagarik-suraksha-sanhita-2023-medical-examination-of-accused-and-arrested-persons/
5. https://www.humanrightsinitiative.org/download/1589358673DK%20Basu%20guidelines%20English.pdf
6. https://www.scobserver.in/supreme-court-observer-law-reports-scolr/communication-of-grounds-of-arrest/
7. https://kapildixitco.com/your-rights-when-arrested-india-comprehensive-legal-guide/
8. https://www.sairamlawassociates.in/post/section-56-crpc-section-57-bnss-mandatory-production-of-arrested-person-before-magistrate
9. https://prashasthalegal.com/rights-of-arrested-person/