Arrest Procedure in India: BNSS Sections 43-49 and Rights of Arrested Persons

CrPC and BNSS section comparison

Arrest: how made - BNSS Section 43 (CrPC Section 46)

Section 43 explains how an arrest is effected. Ordinarily the officer or other authorised person touches or confines the person being arrested, unless that person submits to custody by words or conduct. For a woman, submission on oral intimation is generally presumed unless circumstances indicate otherwise; a male officer ordinarily must not touch her to make the arrest.

Under Section 43(2), necessary means may be used where a person forcibly resists or attempts to evade lawful arrest. This power is not unlimited. Section 43(4) does not authorise causing the death of a person who is not accused of an offence punishable with death or imprisonment for life.

Section 43(3) permits the use of handcuffs, having regard to the nature and gravity of the offence, in specified situations involving repeat or habitual offenders, escapees and enumerated serious offences. It is not a blanket power to handcuff everyone arrested.

Section 43(5) ordinarily prohibits arrest of a woman after sunset and before sunrise. Exceptional arrests require a woman police officer's written report and prior permission of the competent Magistrate of the first class.

Search of premises - BNSS Section 44 (CrPC Section 47)

Where an officer executing an arrest warrant, or a police officer authorised to arrest, reasonably believes the person sought is inside premises, the occupant or person in charge must, on demand, allow entry and reasonable facilities for search under Section 44(1).

Under Section 44(2), when lawful entry cannot be obtained, the prescribed circumstances permit entry and breaking open a door or window after notifying authority and purpose and demanding admittance. Where an apartment is occupied by a woman who, according to custom, does not appear in public and who is not the person sought, notice and a reasonable opportunity to withdraw must first be given.

Section 44(3) also permits an authorised officer or person to break open doors or windows to free themselves or another person detained inside after lawful entry to make an arrest.

Pursuit across jurisdictions - BNSS Section 45 (CrPC Section 48)

A police officer authorised to arrest a person without warrant may pursue that person into any place in India for the purpose of making the arrest. This provision does not independently create a power to arrest without warrant: that power must otherwise exist under law.

No unnecessary restraint - BNSS Section 46 (CrPC Section 49)

A person arrested must not be subjected to more restraint than is necessary to prevent escape. The extent of restraint must therefore be assessed in the circumstances, rather than treated as automatic.

Grounds of arrest and right to bail - BNSS Section 47 (CrPC Section 50)

Section 47(1) requires an officer or other person arresting without a warrant to communicate promptly the full particulars of the offence or other grounds for arrest. The constitutional protection in Article 22(1) also requires communication of the grounds of arrest.

Under Section 47(2), where police arrest without warrant a person other than one accused of a non-bailable offence, the officer must inform the person of the entitlement to release on bail and the ability to arrange sureties. This does not mean that bail is automatically available in every non-bailable case.

Informing family or friends - BNSS Section 48 (CrPC Section 50A)

The person making an arrest must promptly inform a relative, friend or another person disclosed or nominated by the arrested person about the arrest and place of detention, and also inform the designated district police officer. The arrested person must be informed of this right on arrival at the police station. The Magistrate must satisfy himself or herself that these requirements have been complied with.

Search of the arrested person - BNSS Section 49 (CrPC Section 51)

Section 49 authorises a search of an arrested person in the circumstances specified in the provision, including certain arrests where bail cannot legally be granted or cannot be furnished. Articles found, other than necessary wearing apparel, may be placed in safe custody. Where any article is seized, the arrested person must receive a receipt identifying the articles taken.

Under Section 49(2), whenever a woman must be searched, the search must be conducted by another woman with strict regard to decency.

Other safeguards and practical steps

Article 22 of the Constitution protects the right to be informed of the grounds of arrest, to consult and be defended by a legal practitioner, and generally to be produced before the nearest Magistrate within 24 hours, excluding necessary travel time, subject to constitutional exceptions. BNSS Section 38 recognises the right of an arrested person to meet an advocate of choice during interrogation, though not throughout interrogation.

Ask for the grounds of arrest, note the arresting officer's identity, request that a nominated person be informed, seek legal assistance and obtain a receipt for any property seized. Do not physically resist a lawful arrest. Whether bail is available depends on the offence and the applicable legal procedure.

Official legislation and references

Ministry of Home Affairs - New Criminal Laws

Bureau of Police Research and Development - BNSS statutory text and comparison

India Code - official repository of central legislation

This article is general legal information. The exact statutory text, judicial decisions and facts of the case determine the applicable rights and procedures.