Section 36 of BNSS – Procedure of Arrest and Duties of Officer Making Arrest: A Complete Guide
Imagine waking up one morning to find out that someone
Section 36 of BNSS – Procedure of Arrest and Duties of Officer Making Arrest: A Complete Guide
Imagine waking up one morning to find out that someone you love has been taken away by the police. No one knows where they are. No one knows why. Their phone is switched off. The police station denies any knowledge. This nightmare scenario is exactly what Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) was designed to prevent. In simple words, this law makes sure that when the police arrest someone, they cannot do it secretly, arbitrarily, or without leaving a proper paper trail. It forces accountability, transparency, and basic human dignity into what is otherwise one of the most coercive powers the State possesses — the power to take away a person's liberty.
India's criminal justice system underwent a massive overhaul on 1st July 2024, when three new laws replaced colonial-era statutes. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the Code of Criminal Procedure, 1973 (CrPC). While the old CrPC had its own set of rules, the BNSS was crafted with modern constitutional values in mind. Section 36 BNSS is the beating heart of arrest procedures in this new framework. It doesn't just tell the police how to arrest; it tells them what they must do to respect the rights of the person being arrested. This article is your complete, detailed, and easy-to-understand guide to everything Section 36 stands for, why it matters, how it connects to other sections of the BNSS, and what it means for ordinary citizens like you and me.
What Is Section 36 BNSS and Why Should You Care?
Let's start with the basics. Section 36 of the BNSS is titled "Procedure of arrest and duties of officer making arrest." In plain English, this means the law lays down a step-by-step checklist that every police officer must follow when making an arrest. If they skip even one step, the arrest becomes procedurally defective, and the officer can face disciplinary action, or in serious cases, even legal consequences.
The section is not some abstract legal jargon meant only for lawyers and judges. It is a citizen's shield. It ensures that if you or someone you know is ever arrested, the police cannot simply drag you away in the middle of the night without telling anyone. They must identify themselves. They must document the arrest. They must inform your family. These are not polite suggestions — these are mandatory legal duties.
The importance of Section 36 cannot be overstated. Before this provision was strengthened, India had a dark history of secret detentions, custodial torture, and mysterious disappearances. The Supreme Court of India, in landmark judgments like D.K. Basu v. State of West Bengal (1997) and Joginder Kumar v. State of Uttar Pradesh (1994), had to step in and issue directions because the existing laws were not enough to protect citizens. Section 36 BNSS essentially codifies those Supreme Court guidelines into statutory law, making them binding, enforceable, and part of the everyday arrest process.
The Exact Wording of Section 36 BNSS
To truly understand this section, let's look at what the law actually says. The official statutory text of Section 36 BNSS states:
"Every police officer while making an arrest shall —(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;(b) prepare a memorandum of arrest which shall be —(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;(ii) countersigned by the person arrested; and(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest."
This is the law in its purest form. Three simple clauses — (a), (b), and (c) — but each one carries enormous weight. Let's break them down one by one so that even a person with zero legal background can understand exactly what rights are protected here.
Clause (a): The Police Officer Must Wear Clear Identification
Have you ever seen a movie where masked men in plain clothes show up, claim to be police, and drag someone away? In real life, that should never happen, and Section 36(a) makes sure of it. Every police officer making an arrest must bear accurate, visible, and clear identification of his name. This means:
- The officer must wear a name tag or some form of official identification that clearly shows who they are.
- The identification must be visible — not hidden inside a pocket or wallet.
- The name must be accurate — no fake names, no aliases, no "Inspector X" nonsense.
- The purpose is to facilitate easy identification so that the arrested person, witnesses, and family members know exactly who took the person into custody.
This clause is a direct response to countless cases where people were arrested by unidentified persons, sometimes in plain clothes, leading to confusion, false arrests, and even kidnappings disguised as police action. When an officer identifies himself, accountability is established from the very first moment. If something goes wrong later — if the arrested person is mistreated, not produced before a magistrate, or goes missing — there is a clear name attached to the arrest. The officer cannot hide behind anonymity.
Imagine a scenario: Rajesh is arrested by a police officer who refuses to show his ID badge. Rajesh's family doesn't know who took him or which police station he was taken to. Under Section 36(a), this arrest is already procedurally flawed. Rajesh or his family can demand to know the officer's identity, and if the officer refuses, they have grounds to challenge the arrest in court. This small requirement — a name tag — is actually a giant leap for personal liberty.
Clause (b): The Memorandum of Arrest – Your Legal Birth Certificate in Custody
This is arguably the most critical part of Section 36. Clause (b) mandates that the arresting officer must prepare a memorandum of arrest. Think of this as the official birth certificate of your detention. It is a written document that records the fact that you have been arrested, when, where, and by whom. Without this memo, your arrest legally hangs in thin air.
The memorandum must satisfy two conditions:
(i) Attestation by a Witness
The arrest memo must be attested by at least one witness. This witness must be either:
- A member of the family of the person arrested, OR
- A respectable member of the locality where the arrest is made.
Why is this so important? Because an independent witness makes it impossible for the police to later deny that the arrest happened, or to change the time, place, or circumstances of the arrest. The witness acts as a human safeguard against police fabrication. If the police claim Rajesh was arrested at 10 AM at the police station, but the witness saw him being dragged from his home at 6 AM, the truth comes out.
The preference is for a family member because they have the arrested person's best interests at heart. But if no family member is present at the time of arrest, a respectable local resident — perhaps a neighbor, a shopkeeper, or a community leader — can step in. The word "respectable" is not defined in the law, but courts have interpreted it to mean a person of good standing in the community who is not affiliated with the police or the accused in a biased manner.
(ii) Countersignature by the Person Arrested
The memorandum must also be countersigned by the person arrested. This means the arrested person must sign the document. Now, you might wonder — what if the person refuses to sign? Or what if they are forced to sign under duress?
The law anticipates this. The countersignature is meant to confirm that the arrested person acknowledges the arrest and the contents of the memo. If the person refuses to sign, the officer must note this refusal on the memo itself. If the person is illiterate or unable to understand the document, the witness can attest on their behalf, but the officer must still make a note. The countersignature is not about forcing compliance; it is about creating a record that the arrested person was made aware of the documentation.
In practice, the arrest memo should contain:
- The name and designation of the arresting officer.
- The date and time of arrest.
- The place where the arrest was made.
- The name and address of the witness who attested.
- The signature or thumb impression of the arrested person (or a note if they refused).
- The reasons for arrest or the offence alleged.
This document becomes crucial evidence if the arrested person later alleges illegal detention, custodial violence, or delay in production before a magistrate. Courts have repeatedly held that non-preparation of an arrest memo raises a strong presumption that the arrest was illegal or that the accused was subjected to custodial abuse.
Clause (c): The Right to Inform Someone You Trust
The third and final clause of Section 36 is about communication. The law says that the arresting officer must inform the person arrested that they have a right to have a relative, friend, or any other person named by them informed about the arrest.
There is one exception: if the arrest memo is already attested by a family member, then the officer does not need to separately inform the arrested person of this right, because the family member is already aware. But in all other cases, the officer must explicitly tell the arrested person: "You have the right to inform someone about your arrest."
This clause is a direct descendant of the Supreme Court's judgment in Joginder Kumar v. State of U.P. (1994), where the Court held that an arrested person has the right to inform a friend or relative about their detention. The BNSS has now made this a statutory requirement, not just a judicial guideline.
Why does this matter? Because secret detention is the breeding ground for custodial torture. When the outside world knows where you are, the police are less likely to abuse you. Your family can arrange a lawyer. They can file a habeas corpus petition if you disappear. They can bring you medicines, food, or clothes. This simple right to a phone call — though the law doesn't explicitly say "phone call," it implies communication — is what stands between a lawful arrest and an abduction.
The BNSS goes even further. Section 48 BNSS (which we will discuss shortly) makes it mandatory for the police to actually communicate the arrest details to the nominated person, not just inform the arrested person of their right. So Section 36(c) is the first step — telling the arrested person they have this right — and Section 48 is the second step — actually making the call or sending the message.
How Section 36 Connects to the Broader BNSS Framework
Section 36 does not exist in isolation. It is part of a comprehensive web of safeguards woven throughout Chapter V of the BNSS (Sections 35 to 62). Understanding these connections is essential to grasp the full picture of arrest rights in India today.
Section 35 BNSS – When Police May Arrest Without Warrant
Before the police can even think about Section 36, they must have the power to arrest. Section 35 BNSS lays down the circumstances in which a police officer can arrest someone without a warrant. These include:
- When a person commits a cognizable offence in the presence of a police officer.
- When there is reasonable complaint, credible information, or reasonable suspicion that the person has committed a cognizable offence punishable with imprisonment up to seven years, provided the officer records reasons in writing.
- When there is credible information of a cognizable offence punishable with more than seven years or death.
- When the person is a proclaimed offender.
- When the person is found with stolen property.
- When the person obstructs a police officer, escapes custody, or is a deserter from the Armed Forces.
Importantly, Section 35(7) adds a new safeguard: if the offence is punishable with less than three years of imprisonment, and the person is infirm or above 60 years of age, no arrest can be made without prior permission of an officer not below the rank of Deputy Superintendent of Police (DSP). This prevents the harassment of elderly and vulnerable persons for minor offences.
Section 37 BNSS – Designated Police Officer
This is a brand-new provision introduced in the BNSS. Section 37 mandates that the State Government shall:
- Establish police control rooms at the district and state levels.
- Designate a police officer in every district and police station (not below the rank of Assistant Sub-Inspector) who shall maintain information about:
- Names and addresses of arrested persons.
- Nature of the offence with which they are charged.
- This information must be prominently displayed at every police station and district headquarters, including in digital mode.
This means that if your relative is arrested, you can walk into any police station or check online (where digital facilities exist) to find out where they are being held and what they are accused of. This is a game-changer for transparency and eliminates the old problem of "secret arrests" where families would run from station to station searching for their loved ones.
Section 38 BNSS – Right to Meet an Advocate During Interrogation
Once arrested, the person has the right under Section 38 BNSS to meet an advocate of their choice during interrogation. This right is not continuous — the lawyer cannot sit through the entire interrogation — but the arrested person must be given reasonable opportunity to consult their lawyer. This is a vital safeguard against coercive interrogation and forced confessions. It gives effect to Article 22(1) of the Constitution, which guarantees the right to consult and be defended by a legal practitioner.
Section 43 BNSS – Arrest How Made
While Section 36 deals with the duties and documentation of arrest, Section 43 BNSS deals with the physical manner in which an arrest is made. It states that:
- The officer must actually touch or confine the body of the person to be arrested, unless the person submits to custody by word or action.
- If the person resists or attempts to evade arrest, the officer may use all means necessary to effect the arrest.
- However, no person shall be caused death unless they are accused of an offence punishable with death or imprisonment for life.
- Handcuffs may be used only for specific categories of serious offenders: habitual offenders, repeat offenders, those who escaped custody, or those involved in organised crime, terrorist acts, drug-related crimes, illegal arms possession, murder, rape, acid attacks, counterfeiting, human trafficking, sexual offences against children, or offences against the State.
- Special rules apply to women: a woman shall not be arrested after sunset and before sunrise, except in exceptional circumstances with prior written permission of a Magistrate of the first class. A male officer shall not touch a woman during arrest unless absolutely necessary, and preferably a female police officer should make the arrest.
Section 47 BNSS – Right to Be Informed of Grounds of Arrest and Bail
This section replaces the old Section 50 CrPC and is a cornerstone of arrest rights. It mandates that:
- Every police officer arresting without a warrant must forthwith communicate to the arrested person the full particulars of the offence and the grounds for arrest.
- If the offence is bailable, the officer must inform the arrested person that they are entitled to be released on bail and may arrange sureties.
This is a constitutional right under Article 22(1) of the Indian Constitution. The word "forthwith" means immediately, without delay. The police cannot take you to the station, keep you overnight, and then tell you why you were arrested. You must know the grounds at the time of arrest.
Section 48 BNSS – Obligation to Inform Relative or Friend
Building on Section 36(c), Section 48 BNSS imposes a mandatory duty on the arresting officer to:
- Forthwith give information regarding the arrest and the place of detention to:
- Any relative, friend, or other person nominated by the arrested person.
- The designated police officer in the district (as established under Section 37).
- Inform the arrested person of their rights under this section as soon as they are brought to the police station.
- Make an entry in a book kept at the police station regarding who has been informed.
- The Magistrate before whom the arrested person is produced must satisfy himself that these requirements have been complied with.
This is a triple-layered safeguard: the arrested person is told of their right (Section 36), the outside world is actually informed (Section 48), and a judicial officer verifies compliance (Section 48(4)).
Section 53 BNSS – Medical Examination of Arrested Person
Under Section 53 BNSS, every arrested person must be examined by a medical officer soon after arrest. The medical officer must:
- Record any injuries or marks of violence on the person's body.
- Estimate the approximate time when such injuries were inflicted.
- If the arrested person is a female, the examination must be conducted by or under the supervision of a female medical officer or a female registered medical practitioner.
- A copy of the medical report must be furnished to the arrested person or their nominee.
This provision is a powerful deterrent against custodial torture. If the police beat a person during arrest, the medical examination will document those injuries, and the police will have to answer for them.
Section 56 BNSS – Health and Safety of Arrested Person
Section 56 imposes a continuous duty on the person having custody of the arrested person to take reasonable care of their health and safety. This includes:
- Providing medical assistance when required.
- Ensuring safe and humane detention conditions.
- Preventing custodial violence or neglect.
- Protecting the person from physical and mental abuse.
This provision corresponds to Section 55A of the CrPC and derives its strength from Article 21 of the Constitution, which guarantees the right to life and personal liberty.
Section 57 BNSS – Production Before Magistrate
Under Section 57 BNSS, a police officer making an arrest without a warrant must, without unnecessary delay, take or send the arrested person before a Magistrate having jurisdiction or the officer in charge of a police station. This is the first step in judicial oversight.
Section 58 BNSS – The 24-Hour Rule
This is one of the most famous safeguards in criminal law. Section 58 BNSS states that no police officer shall detain a person arrested without warrant for more than twenty-four hours, excluding the time necessary for the journey from the place of arrest to the Magistrate's Court. Beyond 24 hours, the police must obtain remand orders from a Magistrate under Section 187 BNSS. This prevents indefinite police custody and ensures that a judicial mind reviews the necessity of continued detention.
The Constitutional Foundation: Why Section 36 Matters
Every provision we have discussed — from the arrest memo to the 24-hour rule — is not just a statutory formality. It is rooted in the fundamental rights guaranteed by the Constitution of India.
- Article 21 guarantees that no person shall be deprived of their life or personal liberty except according to procedure established by law. The Supreme Court has interpreted this to mean that the procedure must be fair, just, and reasonable. Section 36 ensures that the procedure of arrest meets this standard.
- Article 22(1) guarantees that every arrested person has the right to be informed of the grounds of arrest and the right to consult a legal practitioner. Sections 36, 47, and 38 give effect to this.
- Article 22(2) mandates that every arrested person must be produced before the nearest magistrate within 24 hours. Section 58 codifies this.
In D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down 11 detailed guidelines for arrest and detention, including:
- Police personnel must bear accurate, visible, and clear identification.
- A memo of arrest must be prepared, attested by a witness, and countersigned by the arrestee.
- The arrestee must be informed of their right to have someone informed of their arrest.
- A medical examination must be conducted.
- Police control rooms must display arrest information.
The BNSS has now enshrined these guidelines into statutory law, making them enforceable not just as constitutional directions but as criminal procedure mandates.
Similarly, in Joginder Kumar v. State of U.P. (1994), the Supreme Court held that no arrest should be made in a routine manner merely because the police have the power to do so. Arrest must be justified by necessity and reasonableness. In Arnesh Kumar v. State of Bihar (2014), the Court further emphasized that for offences punishable with up to seven years, arrest should be the exception, not the rule, and reasons must be recorded.
Section 36, read with Sections 35 and 48, operationalizes these constitutional and judicial principles.
Practical Scenario: How Section 36 Works in Real Life
Let's walk through a real-world example to see how all these provisions work together.
Scenario: Amit, a 30-year-old software engineer, is suspected of being involved in a cheating case. The police receive credible information and decide to arrest him.
Step 1 — Power to Arrest (Section 35): The police verify that cheating is a cognizable offence and that they have reasonable grounds to believe Amit's involvement. Since the offence is punishable with up to seven years, they must record their reasons in writing before making the arrest.
Step 2 — Identification (Section 36(a)): The arresting officer, Inspector Sharma, wears his official ID badge clearly showing his name and rank. He approaches Amit at his home.
Step 3 — Grounds of Arrest (Section 47): Inspector Sharma immediately tells Amit: "You are being arrested under Section 318 of the Bharatiya Nyaya Sanhita for cheating. You have the right to be informed of the grounds, which are that you allegedly defrauded Mr. Verma of ₹5 lakhs."
Step 4 — Arrest Memo (Section 36(b)): Inspector Sharma prepares an arrest memo. Amit's father, who is present at home, acts as the family witness and signs the memo. Amit also countersigns it. The memo records the date (15th June 2026), time (7:30 AM), place (Amit's residence), and the offence.
Step 5 — Right to Inform (Section 36(c) & Section 48): Since Amit's father has already attested the memo, the officer does not need to separately inform Amit of his right under Section 36(c). However, under Section 48, the officer must still inform Amit's father (as the nominated person) and the designated police officer at the district control room about the arrest and the place of detention.
Step 6 — Physical Arrest (Section 43): Amit does not resist. He submits to custody verbally. The officer does not need to use force or handcuffs, as cheating is not one of the grave offences listed in Section 43(3).
Step 7 — Medical Examination (Section 53): At the police station, Amit is examined by a government medical officer. No injuries are found. A copy of the medical report is given to Amit.
Step 8 — Right to Lawyer (Section 38): Amit requests to meet his lawyer. The police allow him to consult his advocate for 30 minutes before interrogation begins.
Step 9 — Production Before Magistrate (Section 57 & 58): Within 24 hours, Amit is produced before the nearest Judicial Magistrate. The Magistrate verifies that:
- The arrest memo was prepared (Section 36).
- Amit was informed of the grounds (Section 47).
- His father was informed (Section 48).
- He was medically examined (Section 53).
- He was not detained beyond 24 hours (Section 58).
If any of these steps were skipped, the Magistrate can refuse remand, order Amit's release, or initiate action against the police officer.
What Happens If Police Violate Section 36?
The law is only as strong as its enforcement. So what happens if a police officer ignores Section 36?
Procedural Consequences
If the police fail to prepare an arrest memo, fail to identify themselves, or fail to inform a relative, the arrest becomes procedurally illegal. This means:
- The arrested person can file a writ of habeas corpus in the High Court or Supreme Court challenging the detention.
- The person can apply for bail on the ground that the arrest was unlawful.
- Any evidence obtained during an illegal arrest may be challenged as inadmissible.
- The Magistrate can refuse to grant police remand if procedural safeguards were not followed.
Disciplinary Action
Police officers who violate Section 36 can face:
- Departmental inquiries and suspension.
- Contempt of court proceedings, especially if they violate Supreme Court guidelines.
- Criminal prosecution for wrongful confinement under the Bharatiya Nyaya Sanhita, 2023.
Compensation
In cases of serious violation — such as secret detention, custodial torture, or death — the courts can award monetary compensation to the victim or their family. This was established in cases like Nilabati Behera v. State of Orissa (1993) and Rudal Shah v. State of Bihar (1983).
Section 36 BNSS vs. Old Section 41B CrPC
For those familiar with the old law, Section 36 BNSS replaces Section 41B of the CrPC, 1973. While the substance is similar, the BNSS version is clearer, more comprehensive, and better aligned with constitutional rights. Key improvements include:
- Section 36(c) now explicitly allows the arrested person to nominate "any other person" beyond just relatives or friends, giving more flexibility.
- The BNSS creates a designated police officer system (Section 37) which did not exist in the CrPC.
- The obligation to inform relatives is now tighter and linked to magisterial verification (Section 48).
- The medical examination provision (Section 53) now explicitly allows for one more examination if the medical officer deems it necessary.
Conclusion: Section 36 as the Guardian of Liberty
In a democracy, the power to arrest is necessary but dangerous. Necessary, because without it, criminals would roam free and justice would be impossible. Dangerous, because unchecked, it becomes a tool for harassment, revenge, and tyranny. Section 36 of the BNSS stands as a guardian at the gate, ensuring that every arrest is accountable, documented, and transparent.
It tells the police: "You can arrest, but you cannot hide."
It tells the citizen: "If they take you, they must tell the world."
It tells the courts: "Here is the paper trail. Judge for yourself."
From the simple act of wearing a name tag to the complex documentation of an arrest memo, from the immediate communication of grounds to the mandatory intimation of family, Section 36 weaves a protective cocoon around the arrested person. It does not stop the police from doing their job; it stops them from doing it arbitrarily.
As India moves forward with its new criminal laws, Section 36 BNSS reminds us of a timeless truth: liberty is not a gift the State gives; it is a right the State must respect. And when the State takes that liberty away, even for a moment, it must do so with its hands visible, its papers in order, and its conscience clear.
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