Introduction
India’s constitutional democracy guarantees that “no person shall be deprived of liberty except according to law” (Article 21). Yet, illegal arrests—where police ignore due procedure—remain a serious concern. With the new Bharatiya Nagarik Suraksha Sanhita (BNSS) replacing CrPC from July 2024, this guide explains what makes an arrest illegal, proper arrest procedures, and how to protect your rights.
What is an Illegal Arrest?
An arrest becomes illegal when police violate mandatory safeguards under:
- BNSS 2023 (replacing CrPC)
- Constitution of India (Article 21, 22)
- Supreme Court guidelines
Signs of an Illegal Arrest
🚨 Arrest without warrant or justification
🚨 Not informing the person of arrest grounds
🚨 No arrest memo prepared/signed
🚨 Family not notified within hours
🚨 Not produced before Magistrate within 24 hours
Legal Arrest Procedure Under BNSS (2023)
1. Section 35 BNSS – Arrest Without Warrant
Police can arrest only if:
✔ Person committed a cognizable offence
✔ Arrest is necessary (to prevent evidence tampering, repeat crime, or ensure investigation)
✔ For offences punishable under 3 years, police must issue notice first (Section 39 BNSS)
2. Section 39 BNSS – Notice Before Arrest
- Police must issue a notice (instead of arrest) for minor offences.
- Arrest allowed only if person ignores notice.
3. Section 36 BNSS – Grounds of Arrest
- Police must clearly state why you’re being arrested.
- Must inform you of right to a lawyer.
4. Section 56 BNSS – 24-Hour Rule
- Must be presented before Magistrate within 24 hours (excluding travel time).
5. Section 37 BNSS – Arrest Memo & Family Notification
- Police must prepare arrest memo (countersigned by witness).
- Family/friend must be informed immediately.
Supreme Court Guidelines on Arrest
✔ D.K. Basu v. State of West Bengal (1997)
- 11 safeguards to prevent custodial abuse:
- Police must wear name tags
- Arrest memo signed by witness/family
- Medical check-up every 48 hours
- Right to lawyer must be ensured
✔ Joginder Kumar v. State of UP (1994)
- “No arrest just because it’s legal—it must be necessary.”
- Police must justify arrest necessity.
Rights of an Arrested Person (Post-BNSS)
- Right to know arrest reason (BNSS Sec 36)
- Right to remain silent (Article 20(3))
- Right to lawyer (Article 22(1), BNSS Sec 36)
- Right to meet family/friend (BNSS Sec 37)
- Right to Magistrate hearing in 24 hrs (BNSS Sec 56)
- Right to free legal aid (Legal Services Authorities Act)
What to Do If Illegally Arrested?
- Ask for arrest reason & memo (Refuse to sign if false).
- Demand a lawyer immediately.
- Insist family is informed.
- File Habeas Corpus (High Court/Supreme Court).
- Complain to State Police Complaints Authority.
- Approach NHRC for urgent help.
Legal Remedies Against Police Misconduct
1. Criminal Action (BNS 2023 Sections)
| Offense | BNS Section |
|---|---|
| Wrongful confinement | 124 |
| Cheating by public servant | 316 |
| Criminal breach of trust | 73 |
| Forgery | 337-339 |
2. Compensation for Illegal Detention
- Supreme Court (Rudal Shah Case, 1983) ruled victims can claim monetary compensation.
- File a writ petition under Article 32/226.
Challenges & Reforms Needed
- Arrest misuse in civil disputes
- Targeting marginalized communities
- Delays in arrest memos & legal access
Solution: Police reforms + public awareness.
Key Resources
🔗 BNSS 2023 Full Text
🔗 National Human Rights Commission (NHRC)
🔗 Free Legal Aid – NALSA
Conclusion
An arrest without following BNSS rules is illegal & unconstitutional. If you or someone faces unlawful detention:
✅ Know your rights
✅ Demand proper procedure
✅ Take legal action immediately
Need a Lawyer? Contact Us!
B S Makar, Advocate
📞 +91-9878131111 | 🌐 www.makarlaws.com
📍 Expert in Criminal, Civil & Constitutional Litigation
Don’t suffer silently—fight for justice! ⚖️
