The Legal Procedure of Arrest: What You Need to Know

When a police officer arrests someone, it is not – and should not be – an arbitrary act. Indian law lays down a precise set of procedures that govern every step of an arrest: from how physical contact must be made, to when handcuffs can be used, to how far a police officer can chase a suspect across state lines. Since 1 July 2024, these rules are governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the old Code of Criminal Procedure, 1973 (CrPC). Understanding how an arrest is legally made is fundamental – both for law students and for every citizen whose liberty these rules protect.

What does “arrest” actually mean?
The physical act of arrest: touch, confinement, or submission
Special protection for women during arrest
Use of force during arrest
When can handcuffs be used?
What the Supreme Court had already said on handcuffing
Searching the place where a suspect is hiding: Section 44
Pursuing offenders across state lines: Section 45
The D.K. Basu guidelines: the Supreme Court’s framework for dignified arrest
Informing the arrested person of grounds of arrest
Arrest must be made strictly in accordance with the BNSS

What does “arrest” actually mean?

There is no single statutory definition of “arrest” in Indian law. However, as clarified in official police guidance under the BNSS, arrest generally means the actual seizure of a person’s physical movement or liberty. It is a formal process of taking a person into police custody and depriving them of their personal freedom. It follows, then, that the act of arrest must meet a specific legal standard – it cannot be a vague or casual act.

The physical act of arrest: touch, confinement, or submission

The mechanics of how an arrest is actually made are set out in Section 43 of the BNSS. The provision requires that, in making an arrest, the police officer or other authorised person must actually touch or confine the body of the person to be arrested – unless there is a submission to custody by word or action. In other words, if a person verbally agrees to go with the police or physically indicates compliance (such as putting their hands up), no physical touch is required to complete a valid arrest.

This is a meaningful legal distinction. An arrest is not just a declaration or a statement – it must involve either a physical act of restraint or a voluntary submission. This prevents police from claiming an arrest occurred when only a conversation took place.

Special protection for women during arrest

Section 43 carries an important proviso specifically for women. Where a woman is to be arrested, her submission to custody on an oral intimation of arrest shall be presumed, and unless circumstances otherwise require or a female police officer is present, the arresting officer shall not touch the person of the woman. Simply informing a woman that she is under arrest is presumed sufficient – unless the situation specifically demands otherwise.

Additionally, no woman shall be arrested after sunset and before sunrise except in exceptional circumstances. If such exceptional circumstances do exist, a female police officer must obtain prior written permission from a Judicial Magistrate of the First Class in whose local jurisdiction the arrest is to be made. This is a significant protection against harassment and misuse of police power during night hours.

Use of force during arrest

What happens when a person resists arrest or tries to flee? Section 43(2) of the BNSS permits the police officer to use all means necessary to effect the arrest if the person forcibly resists or attempts to evade. However, this power is not unlimited. Section 43(4) draws a critical line: nothing in this section gives police the right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

This proportionality principle is central. A petty thief cannot be shot while being arrested. Force must be calibrated to the resistance offered and the nature of the offence. The law also reinforces this through Section 46 of the BNSS, which states that the person arrested shall not be subjected to more restraint than is necessary to prevent escape. Even in legitimate arrests, dignity and proportionality must be maintained.

When can handcuffs be used?

Handcuffing is one of the most regulated aspects of the arrest process, with both the BNSS and the Supreme Court drawing clear limits. Under Section 43(3) of the BNSS, a police officer may use handcuffs while making an arrest or producing a person before court – but only in specific categories. Handcuffs are permissible for habitual or repeat offenders, persons who have escaped from custody, or those accused of offences such as organised crime, terrorism, drug-related crimes, illegal possession of arms and ammunition, murder, rape, acid attacks, counterfeiting, human trafficking, sexual offences against children, or offences against the State.

This codification of handcuffing powers under the BNSS is a departure from the earlier CrPC, which had no explicit provision for handcuffing at all. However, it has also drawn criticism. Analysts at PRS Legislative Research have noted that permitting handcuffs even in cases of economic offences contradicts existing Supreme Court directions on the matter.

What the Supreme Court had already said on handcuffing

Long before the BNSS was enacted, the Supreme Court addressed handcuffing in a series of landmark judgments. The general judicial position has been that handcuffing is not routine and must be justified. The broader framework for dignified arrest was established in the foundational case of D.K. Basu v. State of West Bengal (AIR 1997 SC 610), where the Court made clear that prisoners and detainees cannot be deprived of their fundamental rights under Article 21, and only legally permissible restrictions may be imposed on them. Routine or unjustified use of physical restraints would violate this principle.

Searching the place where a suspect is hiding: Section 44

What if a suspect ducks into a building or house to avoid arrest? Section 44 of the BNSS directly addresses this. If a police officer with authority to arrest has reason to believe that the person to be arrested has entered into or is within any place, any person residing in or in charge of that place must allow the officer free entry and all reasonable facilities for a search. If entry is refused after a prior announcement of authority and purpose, the officer may break open any outer or inner door or window to enter.

The law goes further: a police officer who has lawfully entered a premises to make an arrest and finds themselves detained inside may also break open doors or windows to liberate themselves or others. These are practical powers designed to prevent buildings from becoming safe havens for those evading lawful arrest.

Pursuing offenders across state lines: Section 45

India’s federal structure raises a practical question: can a Delhi police officer chase a suspect who flees to Maharashtra? The answer under Section 45 of the BNSS is a clear yes. A police officer authorised to arrest without warrant may pursue the person into any place in India, without requiring a fresh warrant or special permission from authorities in the new jurisdiction. The pursuit can happen immediately, ensuring that jurisdictional boundaries do not give suspects a procedural escape route.

This provision matters enormously in practice. India is a country where internal migration is common and suspects frequently attempt to evade arrest by crossing into neighbouring states. Section 45 ensures seamless law enforcement authority across the entire country.

The D.K. Basu guidelines: the Supreme Court’s framework for dignified arrest

The single most important judicial contribution to the law of arrest in India is the D.K. Basu v. State of West Bengal decision delivered by the Supreme Court in 1996. The case arose when D.K. Basu, Executive Chairman of Legal Aid Services in West Bengal, wrote to the Supreme Court drawing attention to news reports of deaths in police custody. The Court treated the letter as a Public Interest Litigation and ultimately issued comprehensive guidelines binding on all central and state investigating agencies.

These guidelines, which were later incorporated into the CrPC through the Code of Criminal Procedure (Amendment) Act, 2008, effective from 1 November 2010, remain the bedrock of arrest procedure in India and continue under the BNSS framework. The key requirements include:

Visible identification: Police personnel making the arrest and handling interrogation must wear accurate, visible, and clear name tags with their designations. Details of all such personnel must be recorded in a register.
Arrest memo: The arresting officer must prepare a memo of arrest at the time of arrest. It must be attested by at least one witness – a family member or a respectable person from the locality – signed by the arrested person, and must record the time and date of arrest.
Right to inform a nominated person: The arrested person has the right to have a friend, relative, or any other nominated person informed of the arrest promptly. Under the BNSS, the person can nominate any person – not just a friend or relative – an improvement over the earlier CrPC provision.
Telegraphic communication within 8-12 hours: If the nominated person lives outside the district, the information must be sent through the Legal Aid Organisation and the local police station within 8 to 12 hours of arrest.
Medical examination: The arrested person must be medically examined every 48 hours during detention, by a doctor from the panel approved by the Director of Health Services of the concerned State or Union Territory.
Informing of rights: The arrested person must be made aware of their right to have someone informed of the arrest as soon as they are put under arrest.
Control room notification: The arresting officer must inform the Police Control Room – which must be established at all district and state headquarters – of the arrest and place of custody within 12 hours. This information must be displayed on a visible notice board at the Control Room.
Right to consult a lawyer: The arrested person has the right to meet and consult a lawyer during interrogation.
Copies to Magistrate: Copies of all documents relating to the arrest, including the arrest memo and inspection memo, must be sent to the Area Magistrate for record.

Failure to comply with these requirements makes the concerned official liable for departmental action as well as contempt of court proceedings. These are not optional guidelines – they are mandatory.

Informing the arrested person of grounds of arrest

A particularly critical requirement under Section 47 of the BNSS (mirroring the earlier Section 50 of CrPC) is that every police officer arresting someone without a warrant must forthwith communicate full particulars of the offence or other grounds for arrest. The Delhi High Court, in a 2025 judgment in Marfing Tamang v. State, firmly held that “forthwith” means immediately upon arrest – not sometime within the 24 hours before production before court. Providing grounds only at the stage of the remand application deprives the accused of the opportunity to arrange legal representation and challenge their remand effectively.

The distinction between “grounds of arrest” and “reasons for arrest” in the arrest memo also matters. Grounds are specific to the evidence in the case; reasons in an arrest memo often contain routine legal recitals. The arrested person is entitled to the former, not just the latter.

Arrest must be made strictly in accordance with the BNSS

Section 62 of the BNSS closes the loop on all arrest provisions with a categorical direction: arrest must be made strictly according to the Sanhita. An arrest that does not comply with the procedural requirements laid down – whether on physical touch, disclosure of grounds, documentation, or notification – is not merely irregular; it is an infringement of the arrested person’s fundamental rights under Articles 21 and 22 of the Constitution.

The Supreme Court has also, in Arnesh Kumar v. State of Bihar, directed that arrests should not be made in a routine or casual manner – police officers must be able to justify the necessity of arrest on the basis of a preliminary investigation, particularly in cases involving offences where the punishment is less than seven years of imprisonment.

The legal framework for arrest in India is therefore not about giving police unchecked power. It is a careful balance: the state’s authority to apprehend those who break the law, and the individual’s constitutional right to liberty, dignity, and fair treatment – even at the moment of being taken into custody.

What do you think? Given that the BNSS now expressly permits handcuffing in cases of economic offences – which critics argue contradicts Supreme Court directions – should the legislature codify judicial guidelines on handcuffing more precisely? And do the D.K. Basu guidelines, now nearly three decades old, go far enough in protecting the dignity of arrestees in the digital age, or do they need to be updated for new contexts like cyber-crime arrests?

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Table of Contents

What does “arrest” actually mean? 🔗

The physical act of arrest: touch, confinement, or submission 🔗

Special protection for women during arrest 🔗

Use of force during arrest 🔗

When can handcuffs be used? 🔗

What the Supreme Court had already said on handcuffing 🔗

Searching the place where a suspect is hiding: Section 44 🔗

Pursuing offenders across state lines: Section 45 🔗

The D.K. Basu guidelines: the Supreme Court’s framework for dignified arrest 🔗

Informing the arrested person of grounds of arrest 🔗

Arrest must be made strictly in accordance with the BNSS 🔗