Arrest in India: A Complete, Practical Guide for People Who Fear Arrest – or Want the Law to Act

If you are reading this, you are probably in one of two situations:

• You are afraid that you or a loved one may be arrested soon, or

• You are a victim and want to know how to get the accused arrested.

In both situations, the word “arrest” creates fear, confusion and a feeling of helplessness. As a practising lawyer, I can tell you: half of this fear comes from not knowing the law.

This article is written in simple English, from the point of view of a common person, but with the seriousness and depth that a senior advocate would bring. It focuses on current law after the new criminal codes (Bharatiya Nyaya Sanhita – BNS, Bharatiya Nagarik Suraksha Sanhita – BNSS) and also mentions the older CrPC section numbers that people still search for.

1. Which law applies today? BNSS vs CrPC

From 1 July 2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has replaced the Code of Criminal Procedure, 1973 (CrPC) for new cases. It lays down the procedure for arrest, investigation, trial and bail.

However:

• Older cases may still be governed by CrPC,

• The principles on arrest and rights remain broadly similar.

Throughout this article, I will write like this:

Section 35 BNSS (earlier Section 41 & 41A CrPC) – arrest without warrant

so that you can understand both the new and the old references that appear in FIRs, orders, and on the internet.

2. What exactly is “arrest”?

Arrest means taking a person into custody under legal authority, in such a manner that the person’s liberty is restrained and he/she is not free to leave.

It is different from:

• Calling to the police station for enquiry – where you are technically free to leave, though in practice this is often misused.

• Simple questioning at home or on the road – this alone is not arrest.

• Detention – sometimes police say “we have only detained you, not arrested you”. If you are not free to go, the law and courts may still treat it as arrest or illegal detention.

3. Who can arrest in India?

Under BNSS Chapter V – Arrest of Persons, the following can arrest:

1. Police officers

   • This is the most common. They can arrest with or without warrant depending on the case.

2. Private persons

   • A common citizen can arrest someone who commits a cognizable and non-bailable offence in his presence, like a serious violent crime, and must hand him over to the police immediately (Section 40 BNSS, earlier Section 43 CrPC).

3. Magistrates

   • A Magistrate can himself order and even personally arrest a person committing an offence in his presence (Section 41 BNSS, earlier Section 44 CrPC).

4. On refusal to give name and address

   • If a person is reasonably suspected of an offence and refuses to give his name and residence, police may arrest him to find these details (Section 39 BNSS, earlier Section 42 CrPC).

5. Preventive arrest by police

   • Under Section 170 BNSS (earlier Section 151 CrPC), police can make preventive arrest to stop the commission of a cognizable offence if it cannot be otherwise prevented.

4. When can police arrest without warrant? – Section 35 BNSS / Section 41 CrPC

This is the heart of modern arrest law.

4.1 General power

Under Section 35 BNSS, any police officer may arrest without a warrant in certain situations – for example, where a person:

• Commits an offence in the presence of the police officer.

• Is reasonably suspected of having committed a cognizable offence (serious offences like cheating above certain amounts, hurt, theft, rape, etc.).

• Is a proclaimed offender or is found with stolen property, etc.

4.2 The “necessity test” – police must justify arrest

The Supreme Court has repeatedly said: “Having the power to arrest is one thing, the justification to arrest is another.”

Section 35 BNSS (like old Section 41 CrPC) now builds this into the law. Police must consider whether arrest is necessary for reasons such as:

• To prevent further offences.

• To stop the accused from tampering with evidence.

• To prevent the accused from threatening or influencing witnesses.

• To ensure the accused appears in court.

If these reasons do not exist, police are expected not to arrest and instead use notice of appearance (see next part).

4.3 Special protection for elderly and infirm

Section 35(7) BNSS provides that no arrest shall be made for certain minor offences (punishable with less than 3 years) where the person is infirm or above 60 years, without prior permission of a senior police officer (not below DSP rank).

This is important if you are worried about arrest of elderly parents or sick persons in a family dispute.

5. Notice instead of arrest – the Arnesh Kumar principle

Under old CrPC, Section 41A allowed police to issue a notice to appear instead of arrest. Under BNSS, this concept is merged into Section 35 itself. 

The Supreme Court, in Arnesh Kumar v. State of Bihar, strongly criticised routine arrests, especially in offences like Section 498A IPC, and directed that:

• Police should first issue a notice asking the accused to join the investigation.

• Arrest should be made only if the accused does not cooperate or if the necessity test is satisfied.

Many High Courts continue to reinforce these directions even under BNSS.

If you receive such a notice:

• Do not ignore it.

• Immediately contact a lawyer.

• Cooperate, but do not give self-incriminating detailed statements without legal advice.

6. Arrest with warrant – when does the court issue a warrant?

Arrest with warrant is regulated under BNSS “Processes to Compel Appearance” (corresponding to Chapter VI of CrPC).

A Magistrate may issue a warrant of arrest when:

• A complaint or police report (FIR/final report) is before the court.

• The court takes cognizance of an offence and finds that the presence of the accused is needed.

• The offence is serious or the accused has not responded to summons/notices.

Warrants may be:

• Bailable – the accused can be released on bail directly by the police on surety.

• Non-bailable – the accused has to approach the court for bail.

For someone fearing arrest, it is important to understand:

Often, anticipatory bail can be sought before the warrant is executed (see Section 12 below).

7. Preventive action and preventive arrest (Sections 126 & 170 BNSS)

The law also allows preventive measures to maintain peace and prevent offences:

1. Security for keeping peace – Section 126 BNSS (earlier Section 107 CrPC)

   • An Executive Magistrate can require a person likely to disturb public peace to execute a bond for keeping peace, failing which he may be detained.

2. Preventive arrest – Section 170 BNSS (earlier Section 151 CrPC)

   • Police can arrest a person to prevent the commission of a cognizable offence if it appears the offence cannot otherwise be prevented.

Courts and Human Rights Commissions have warned against misusing preventive provisions for illegal detention.

If you or your relative is detained under such sections without proper justification, a lawyer can challenge it before the Magistrate or High Court.

8. How should an arrest legally happen? Step-by-step

The procedure of arrest is mainly in Section 36 BNSS and in the famous D.K. Basu guidelines issued by the Supreme Court, which remain applicable.

8.1 Identification

• Police officers must have clear identification and name tags.

• You have a right to know which police station they belong to.

8.2 Informing the grounds of arrest

• The officer must tell you the reasons for arrest, in a language you understand.

• For some offences, they should show you a copy of the warrant or at least tell you the FIR details.

8.3 Memo of arrest

A written arrest memo must be prepared, containing:

• Date, time and place of arrest,

• Name of the person arrested,

• Names of police officers,

• Signature of one independent witness (relative or local respectable person),

• Signature of the arrested person.

A copy must be given to the arrestee and sent to the Magistrate.

8.4 Right to inform a relative / friend

• You have a right to have one relative, friend or lawyer informed of your arrest and place of detention.

• Police must make an entry in the case diary mentioning who was informed.

8.5 Medical examination

• The arrested person must undergo a medical examination at the time of arrest and repeatedly every 48 hours during custody by a government-approved doctor.

8.6 Production before Magistrate within 24 hours

• This is a constitutional right under Article 22 and is reflected in BNSS.

• The arrested person must be produced within 24 hours of arrest (excluding travel time), or the detention becomes illegal.

8.7 Right to meet a lawyer

• Section 38 BNSS specifically recognises the right of an arrested person to meet an advocate of his choice during interrogation (though not throughout the interrogation).

8.8 Special rules for women and children

• As a rule, women should not be arrested after sunset and before sunrise, except in exceptional circumstances with prior permission of a Magistrate.

• Female officers should handle the arrest and search of women.

• Children are governed by the juvenile justice system, not normal criminal procedure.

9. Your key rights if you are arrested or fear arrest

In simple words, you have the right:

1. To know why you are being arrested – clear information of the offence.

2. To remain silent – you must give basic identity details, but you cannot be forced to give self-incriminating answers.

3. To consult and be defended by a lawyer of your choice – and if you cannot afford one, to get legal aid.

4. To inform a relative/friend about your arrest.

5. To be produced before a Magistrate within 24 hours.

6. To be treated with dignity – no torture, inhuman treatment or illegal handcuffing.

7. To seek bail or anticipatory bail, depending on the offence.

If any of these are violated, your lawyer can seek release, compensation and even action against the officers in appropriate cases.

10. If you are afraid of being arrested – what should you do now?

If you have received a call from the police, a notice, or you suspect an FIR has been lodged, here is a practical roadmap:

10.1 Do not panic – but do not ignore

• Avoid aggressive behaviour, avoid absconding.

• Running away often strengthens the police case for custodial interrogation.

10.2 Immediately consult a criminal lawyer

• Share all information: FIR number, sections, notices, messages.

• The lawyer will assess whether the offence is bailable or non-bailable, and how serious the punishment is.

10.3 Check the possibility of anticipatory bail – Section 482 BNSS (earlier 438 CrPC)

Under Section 482 BNSS, any person who has reason to believe that he may be arrested for a non-bailable offence may apply to the Sessions Court or High Court for anticipatory bail.

Key points:

• You do not need to wait for actual arrest.

• The court may impose conditions such as:

  • Cooperating with investigation,

  • Not threatening witnesses,

  • Not leaving India without permission.

• If anticipatory bail is granted and you are later arrested, the police must release you on bail as per the order.

Recent cases and commentary show that BNSS has eased some earlier state-level restrictions on anticipatory bail and strengthened personal liberty.

10.4 Cooperate, but use your rights

• Attend the police station with your lawyer if possible.

• Do not sign blank papers or statements that you have not read.

• Insist that the memo of arrest and grounds of arrest be properly recorded if they decide to arrest.

11. If you want someone to be arrested – what is realistically possible?

Many victims feel, “FIR ho gaya, abhi tak arrest kyun nahi kiya?”

It is important to understand:

11.1 FIR does not guarantee immediate arrest

After Arnesh Kumar and the changes in Section 35 BNSS, courts have made it clear that arrest is not automatic in every FIR, especially for offences punishable up to 7 years.

Police must first consider:

• Is arrest really necessary?

• Can the accused be investigated by issuing a notice?

11.2 What you can do if police are not acting

1. Written complaint to higher police officers

   • If FIR is not registered or no step is taken, you may approach the Superintendent of Police/Commissioner with a written complaint.

2. Approach the Magistrate

   • You can file an application/complaint before the Judicial Magistrate seeking directions to:

     • Register an FIR and investigate, or

     • Take cognizance directly and issue summons or warrant.

3. Writ petition / supervision by High Court

   • In serious cases of police inaction, illegal detention or bias, your lawyer may file a writ petition before the High Court for:

     • Proper investigation,

     • Transfer of investigation, or

     • Protection to the victim.

4. Human Rights / Police Complaint Authorities

   • In cases of illegal detention, torture or misuse of preventive sections (like 170 BNSS), complaints can be made to State Human Rights Commissions or Police Complaint Authorities.

Remember:

The legal system aims to balance victim’s rights and accused’s liberty.
Courts now discourage “arrest as revenge” and encourage proper investigation and fair trial.

12. Common questions people ask about arrest

Q1. Can police arrest me without telling me the reason?

No. You have a right to be informed of the grounds of arrest and the offence alleged, at the time of arrest and in writing.

Q2. Can I be kept in the police station for many hours if they say “you are only being questioned”?

If you are not free to leave, it may amount to illegal detention. Prolonged detention without showing you as “arrested” and without producing you before a Magistrate can be challenged.

Q3. Can police arrest me without FIR?

Normally, investigation and arrest follow an FIR in cognizable offences. In preventive arrest (Section 170 BNSS) or special laws, action may start on information of design to commit an offence even before an actual FIR, but such power is narrow and strictly scrutinised by courts.

Q4. Can a woman be arrested at night?

As a general rule, no arrest of women after sunset and before sunrise, unless there are exceptional circumstances and a Magistrate’s permission. Arrest and search should be by female police personnel.

Q5. Can I get a copy of the FIR?

Yes. Victims and accused are both entitled to a copy of the FIR, usually free of cost, and many states upload it on their police websites.

Q6. Can I talk to my lawyer during interrogation?

Under Section 38 BNSS, you have the right to meet your advocate during interrogation, though not necessarily throughout the entire questioning. In practice, courts insist that accused should not be cut off from legal advice.

Q7. If police arrest without following procedure, what remedy do I have?

Your lawyer can:

• Challenge the arrest before the Magistrate,

• Approach the High Court for illegal detention,

• Seek bail and in grave cases compensation and action against erring officers, relying on D.K. Basu guidelines.

13. Final word: Don’t fight arrest law with fear, fight it with knowledge

Arrest is the most powerful weapon the State has against a citizen – but it is also surrounded by safeguards:

• Strict conditions in Section 35 BNSS,

• D.K. Basu guidelines,

• Arnesh Kumar restrictions on routine arrest,

• Strong powers of anticipatory bail under Section 482 BNSS,

• Constitutional protection under Articles 21 and 22.

If you are in fear of arrest, or frustrated that the person who wronged you is roaming free, the answer is not emotion, but strategy.

Speak to a competent criminal lawyer, share all documents honestly, and use the law intelligently – whether to protect your liberty, or to ensure that the guilty are brought to justice.