Rights of Arrested Person: D.K. Basu and BNSS

1. Arrest does not remove your basic rights

An arrest can be frightening for the person involved and for everyone waiting at home. The law nevertheless requires police to act within constitutional and statutory limits. An allegation is not a conviction, and custody is not permission to punish, humiliate or extract a confession. Your immediate priorities should be understanding why you are being arrested, contacting a lawyer, ensuring someone knows where you are and raising any urgent medical needs clearly.

The Constitution protects personal liberty, access to legal advice and safeguards against compelled self-incrimination. These protections operate alongside the criminal procedure statute applicable to the case. Cooperate with lawful directions without physically resisting, concealing evidence or signing statements you do not understand. If you believe a safeguard is being ignored, record the details through your lawyer or trusted contact and raise the issue before the Magistrate at the earliest realistic opportunity.

2. Identify the applicable law and arrest power

The BNS, BNSS and BSA came into force on 1 July 2024. Offences before that date remain governed by the applicable old substantive law, including the IPC. Pending investigations and proceedings may continue under the CrPC through transitional savings. Therefore, the date of the alleged offence and the status of earlier proceedings both matter. A current arrest does not automatically mean that every substantive and procedural issue falls under the new codes.

BNSS section 35 [CrPC sections 41 and 41A] regulates important arrest powers and notices of appearance. For specified offences punishable up to seven years, police must assess statutory necessity rather than treating arrest as automatic. In Arnesh Kumar v. State of Bihar (2014), the Supreme Court stressed disciplined use of arrest powers under the earlier provisions. That judgment is not immunity from arrest, but it rejects routine arrest simply because an allegation exists.

Need help with this? Read our guide to Anticipatory Bail under Section 482 BNSS.

3. Ask for the grounds and the officer’s identity

BNSS section 47 [CrPC section 50] requires an arrested person to be informed of the grounds of arrest and, in applicable bailable cases, the right to bail. This is more than a vague statement that a complaint exists. Ask for an explanation you can understand and tell your lawyer what was communicated. The precise requirements governing communication of grounds can depend on the arrest context and any special statute involved in the case.

BNSS section 36 [CrPC section 41B] requires arresting police personnel to bear clear identification and follow arrest-memo requirements. Ask the officer’s name, designation and station without obstructing their work. Family members should independently verify where the person is being taken rather than relying on an unfamiliar caller. If officers are not in uniform, verification is particularly important, but do not turn a request for identification into physical resistance or an attempt to flee.

4. Check the arrest memo and family notification

The arrest memo is an important contemporaneous record, not a formality to complete later. Under BNSS section 36 [CrPC section 41B], it must be attested by a family member or a respectable member of the locality where arrest occurs and countersigned by the arrested person. Check the recorded time and date carefully. If something is inaccurate, tell your lawyer and raise the discrepancy promptly instead of signing blank or incomplete paperwork without question.

BNSS section 48 [CrPC section 50A] requires information about the arrest and place of detention to be given to a relative, friend or another nominated person. The arrested person must be informed of this right, and the notification must be recorded. Give a usable telephone number and an alternative contact if necessary. The Magistrate has a role in checking compliance, so tell the court if nobody was informed or the recorded notification is incorrect.

5. Understand the D.K. Basu safeguards

D.K. Basu v. State of West Bengal (1997) established influential safeguards addressing custodial violence and opaque detention. They include identification of arresting personnel, an arrest memo, notification of someone interested in the arrested person’s welfare, custody records and medical safeguards. Several protections were later reflected in legislation. The practical lesson is that arrest should leave a reliable documentary trail identifying who acted, when detention began and where the person was held.

The judgment also recognised access to a lawyer during interrogation, though not necessarily throughout it, and periodic medical examination during detention. Its safeguards should be read with the applicable statute and later judicial directions, not as an internet checklist detached from the facts. A breach can support appropriate judicial remedies or other proceedings, but it does not automatically cancel an FIR, end a prosecution or guarantee immediate release in every criminal case.

6. Request a lawyer and understand self-incrimination

BNSS section 38 [CrPC section 41D] recognises the arrested person’s right to meet an advocate of their choice during interrogation, though not throughout interrogation. Article 22 also protects consultation and defence by a legal practitioner. Request contact with your lawyer clearly and repeat the request before the Magistrate if it is not honoured. Do not assume that police must allow a lawyer to sit beside you continuously during every investigative interaction.

Article 20(3) protects an accused person against compelled self-incrimination. It does not create a general right to obstruct lawful investigation, destroy documents or refuse every legally authorised procedure. Ask for legal advice before signing a statement or responding to questions whose implications you do not understand. If language, disability or literacy is a barrier, say so. Never sign a blank sheet or accept an explanation that you can correct everything after signing it.

7. Insist on medical care and report injuries

BNSS section 53 [CrPC section 54] provides for medical examination of an arrested person and recording of injuries or marks of violence. Tell the medical professional about pain, recent injuries, medication, pregnancy, disability and existing conditions. Ask that relevant findings be recorded accurately and that the examination report be made available as the law provides. Urgent treatment should not be postponed merely because the injury is inconvenient or the medical problem existed before arrest.

BNSS section 56 [CrPC section 55A] places responsibility for reasonable care of an arrested person’s health and safety on the person having custody. If violence, threats or denial of treatment occurs, inform your lawyer and the Magistrate, identifying dates, places and persons where possible. Family members can preserve photographs, prescriptions and messages lawfully available to them. Do not exaggerate injuries; accurate clinical records are usually more useful than a dramatic but unsupported account.

8. Know the twenty-four-hour production rule

BNSS sections 57 and 58 [CrPC sections 56 and 57], read with Article 22, require production before the appropriate Magistrate without unnecessary delay and ordinarily within twenty-four hours, excluding necessary journey time. Police cannot simply keep extending station detention on their own authority. Note the actual time when your liberty was restrained, not merely the time written later on a form. Disputes about informal detention should be raised with supporting details immediately.

Further detention requires judicial authorisation under the applicable remand law, including BNSS section 187 [CrPC section 167]. Police custody and judicial custody are different, and the available periods depend on the statutory framework. The BNSS permits its fifteen-day police-custody total in parts within specified initial windows; it does not authorise sixty or ninety days of police custody. Ask your lawyer to explain the remand request and raise injuries or procedural violations before the court.

9. Recognise additional safeguards for women and others

BNSS section 43(5) [CrPC section 46(4)] generally prohibits arrest of a woman after sunset and before sunrise, subject to the statutory exceptional procedure involving a woman police officer and prior Magistrate permission. The provision is not a blanket exemption from arrest. Separate rules govern searches and dignity. Tell your lawyer about pregnancy, breastfeeding responsibilities, disability or urgent caregiving needs so the court can consider appropriate arrangements within the applicable legal framework.

Children are governed by the Juvenile Justice framework rather than simply being treated as smaller adults in police custody. If age is disputed, produce available school or birth records and seek immediate legal help. BNSS section 35(7) also requires prior permission from an officer not below Deputy Superintendent of Police before arresting an infirm person or someone above sixty for an offence punishable with less than three years. These protections require fact-specific assessment.

10. What families and lawyers should do first

Confirm the police station, arrest time, alleged offences and next production court. Arrange a lawyer, provide necessary medication through authorised channels and keep identity documents and relevant case papers ready. Do not pay unofficial money for access or release, contact witnesses to align accounts, or erase the arrested person’s phone. If the location is unknown or detention appears unlawful, a lawyer can assess urgent court remedies, including a habeas corpus petition where appropriate.

A person in custody is eligible for legal services under the Legal Services Authorities Act, subject to the applicable statutory framework. Contact the District Legal Services Authority or seek assistance through the court if private representation is unaffordable. Bail, medical intervention, production and complaints about mistreatment may require different applications. Keep expectations realistic: proving an arrest irregularity and deciding whether an accused should receive bail are related issues, but they are not always the same legal question.