Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023: The Complete Guide to Arrest Procedure and Police Duties
Introduction: Why Section 36 BNSS
Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023: The Complete Guide to Arrest Procedure and Police Duties
Introduction: Why Section 36 BNSS Matters to Every Citizen
Imagine you are walking home one evening, and suddenly a police officer approaches you. Your heart starts racing. What happens next? Do you know your rights? Does the officer know their duties? In a country governed by the rule of law, the moment of arrest is one of the most critical intersections between state power and individual liberty. This is exactly why Section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 exists — to ensure that when the police take away someone's freedom, they do it with transparency, accountability, and respect for human dignity.
The BNSS, 2023 replaced the old Code of Criminal Procedure (CrPC), 1973, and brought with it a fresh, modern framework for criminal justice in India. Section 36 BNSS is the heart of this new framework when it comes to arrests. It tells police officers exactly how they must behave, what documents they must prepare, and what rights they must respect. For ordinary citizens, understanding this section is not just legal knowledge — it is a shield against arbitrary detention and abuse of power.
In this comprehensive guide, we will break down everything you need to know about Section 36 BNSS in simple, human language. No complicated legal jargon. No boring textbook definitions. Just clear, engaging explanations that help you understand your rights and the duties of the police. Let's dive deep into the world of arrest procedures, police accountability, and citizen protection under India's new criminal law.
What is Section 36 BNSS? The Big Picture
At its core, Section 36 of the BNSS, 2023 is titled "Procedure of arrest and duties of officer making arrest." This section replaces the old Section 41B of the CrPC, but it does much more than just copy-paste the old rules. It modernizes them, strengthens them, and makes them more citizen-friendly.
The section has one simple goal: to make sure that every arrest is conducted openly, fairly, and with proper documentation. When a police officer arrests someone, they are not just catching a criminal — they are taking away a person's liberty, even if only temporarily. That is a very serious power. Section 36 makes sure this power is not abused.
Think of it this way: in the old days, arrests could sometimes happen in the shadows. A person could be picked up by the police, and their family wouldn't know where they were. There would be no record of who arrested them or why. Section 36 puts a stop to all that. It says: "If you arrest someone, you must show who you are, write down what you did, and tell someone about it."
This is a huge step forward for justice in India. It aligns with the Supreme Court's landmark guidelines in D.K. Basu v. State of West Bengal (1996), which laid down strict rules to prevent custodial torture and illegal detention. The BNSS has now made those guidelines part of the statutory law itself, giving them even more teeth.
The Three Pillars of Section 36: Identification, Documentation, and Communication
Section 36 stands on three strong pillars. These are not just legal formalities — they are the foundation of a fair arrest process. Let's explore each one in detail.
Pillar One: Clear Identification of the Arresting Officer
The first thing Section 36 demands is that every police officer making an arrest must wear accurate, visible, and clear identification showing their name and designation. This might sound like a small thing, but it is incredibly important.
Why does this matter? Because anonymity breeds abuse. When a police officer hides their identity, they can act with impunity. They might use excessive force, make illegal arrests, or harass citizens without fear of consequences. But when their name and rank are clearly displayed — on a name tag, badge, or uniform — they become accountable.
Imagine a scenario where an officer arrests someone using unnecessary force. If the officer's identity is hidden, the victim has no way to file a complaint or seek justice. But under Section 36, the officer must display their name prominently. This simple rule empowers citizens to know exactly who is dealing with them.
This requirement also helps in building trust between the police and the public. When you can see the officer's name, the interaction feels more human and less intimidating. It reminds the officer that they are public servants, not anonymous enforcers. And it reminds the citizen that they have the right to know who is exercising power over them.
The identification must be accurate, visible, and clear — not hidden under a jacket, not written in tiny letters, not fake or misleading. The law is very specific about this. Any officer who fails to display proper identification is violating Section 36 and can face disciplinary action.
Pillar Two: The Memorandum of Arrest
The second pillar of Section 36 is the memorandum of arrest. This is basically an official document that records the fact that an arrest has taken place. Think of it as a birth certificate for the arrest — it proves that the arrest happened, when it happened, who did it, and who witnessed it.
According to Section 36, this memorandum must have two critical features:
- Attestation by a Witness: The memorandum must be signed by at least one witness. This witness should ideally be a family member of the arrested person. If a family member is not present, then a respectable member of the locality where the arrest is made can sign it. This witness requirement is brilliant because it prevents secret arrests. When a local resident or family member signs the document, they become a guardian of truth. They can later testify that the arrest was conducted properly — or raise an alarm if it wasn't.
- Countersignature by the Arrested Person: The arrested person themselves must also sign the memorandum. This is called a countersignature. It confirms that the person was informed about the arrest and understands what is happening. Of course, if the arrested person refuses to sign, the officer cannot force them. But the attempt to get their signature must be made, and any refusal should be noted.
The memorandum of arrest serves multiple purposes. It creates an official record that can be produced in court. It prevents the police from denying that an arrest took place. It gives the arrested person a document they can show to their lawyer or family. And it ensures that the arrest is not just a random act of power but a formal, documented legal process.
In practice, the memorandum should include details like:
- The date and time of arrest
- The place of arrest
- The name and designation of the arresting officer
- The name and address of the witness
- The signature of the arrested person (if willing)
- The nature of the offence
This documentation is not bureaucratic red tape. It is the difference between a lawful arrest and a kidnapping by the state.
Pillar Three: Right to Inform a Relative or Friend
The third pillar of Section 36 is about communication. The section says that unless the memorandum of arrest is already signed by a family member (which would mean the family already knows), the police officer must inform the arrested person that they have the right to have a relative, friend, or any other person named by them informed about the arrest.
This is a powerful safeguard against secret detention. In many countries around the world, including India in the past, people would simply "disappear" into police custody. Their families would spend days or weeks searching for them, not knowing if they were alive or dead. Section 36 makes this illegal.
When a person is arrested, they are often scared, confused, and vulnerable. They might not know what to do. By informing them of this right, the law ensures that they can reach out to someone who can help — a lawyer, a family member, a friend. This person can then arrange legal representation, inform other family members, or simply provide emotional support.
The officer must not just inform the arrested person of this right — they must actually facilitate the communication. This means providing access to a phone, allowing the message to be sent, and recording who was informed. Under Section 48 of the BNSS, the officer must also inform the designated police officer (a special officer appointed under Section 37) about the arrest, so that there is an official record at the district level.
This three-pillar system — identification, documentation, and communication — creates a web of accountability. No arrest can happen in secret. No officer can hide their identity. No family can be left in the dark. This is how a modern democracy should function.
How Section 36 Connects to Your Fundamental Rights
Section 36 is not just a procedural rule in a statute book. It is deeply connected to the Constitution of India, particularly Article 21 (Right to Life and Personal Liberty) and Article 22(1) (Protection against arrest and detention in certain cases).
Article 21 says that no person shall be deprived of their life or personal liberty except according to procedure established by law. Section 36 is exactly that — the procedure established by law for arrest. If the police skip these steps, they are violating not just the BNSS but the Constitution itself.
Article 22(1) says that every person who is arrested has the right to be informed of the grounds for their arrest and the right to consult a lawyer. While Section 36 focuses on the procedural aspects, other sections of the BNSS (like Section 47 and Section 38) protect these substantive rights. Together, they form a comprehensive shield for the arrested person.
The Supreme Court of India has been very protective of these rights. In D.K. Basu v. State of West Bengal (1996), the Court laid down eleven specific guidelines for arrest, including:
- Police personnel must wear accurate, visible identification
- An arrest memo must be prepared and signed by witnesses
- The next-of-kin must be informed
- The arrestee must be examined by a doctor
- All documents must be sent to the area magistrate
In Joginder Kumar v. State of Uttar Pradesh (1994), the Court held that an arrested person has the right to inform someone about their arrest. In Arnesh Kumar v. State of Bihar (2014), the Court criticized the culture of unnecessary arrests and emphasized that arrest should be the last resort, not the first response.
Section 36 of the BNSS takes these judicial guidelines and turns them into statutory law. This is important because judicial guidelines can sometimes be ignored or forgotten. But a statutory provision has mandatory force. Every police officer must follow it, and every court will enforce it.
The Arrest Process Step-by-Step: What Actually Happens on the Ground
Let's walk through what a lawful arrest should look like under Section 36 and related provisions of the BNSS. This will help you understand the real-world application of the law.
Step 1: The Decision to Arrest
Before any arrest happens, the police officer must have a valid reason. Under Section 35 BNSS, a police officer can arrest without a warrant in certain situations, such as:
- When a person commits a cognizable offence in the presence of the officer
- When there is credible information or reasonable suspicion that the person has committed a cognizable offence
- When the person is a proclaimed offender
- When the person is found with stolen property
But the power to arrest is not unlimited. The officer must be satisfied that arrest is necessary — for example, to prevent further crimes, to ensure proper investigation, to prevent tampering with evidence, or to ensure the person's presence in court. In many cases, especially for offences punishable with less than seven years, the officer can issue a notice of appearance instead of arresting the person.
Step 2: Approaching the Person
When the officer approaches the person to be arrested, the first thing they must do is identify themselves. The officer must display their name and rank clearly. This is not optional — it is a statutory duty under Section 36.
The officer should then inform the person that they are under arrest. This can be done through words, actions, or by physically touching the person. If the person submits to custody voluntarily — for example, by saying "I surrender" or by holding out their hands — the officer does not need to use force.
Step 3: Preparing the Memorandum of Arrest
Once the person is under arrest, the officer must immediately prepare the memorandum of arrest. This is a critical moment. The officer must find a witness — ideally a family member, or if not available, a respectable local resident. The witness must read the memorandum (or have it read to them) and sign it.
The arrested person must also be asked to sign the memorandum. If they refuse, the officer should note the refusal. The memorandum should contain all relevant details: date, time, place, officer's name, witness details, and the nature of the offence.
Step 4: Informing the Arrested Person of Their Rights
The officer must inform the arrested person that they have the right to have a relative or friend informed about the arrest. This is a crucial step. The officer cannot simply assume the person knows this right — they must explicitly communicate it.
If the memorandum is already signed by a family member, this step might be waived because the family already knows. But in most cases, the officer must actively inform the arrested person and help them exercise this right.
Step 5: Recording and Reporting
After the arrest, the officer must:
- Record the arrest in the police station's general diary
- Inform the designated police officer (appointed under Section 37 BNSS) about the arrest
- Send the arrest details to the district and state control rooms
- Ensure the arrested person is produced before a magistrate within 24 hours (excluding travel time), as mandated by Section 57 BNSS
The designated police officer is responsible for maintaining a digital record of all arrests in the district. This information is often displayed on a digital board at the police station and district headquarters, ensuring complete transparency.
Step 6: Medical Examination and Safety
Under Section 53 BNSS, the arrested person must be examined by a medical officer, usually within 48 hours. This examination documents the person's physical condition at the time of arrest, creating evidence against any later claims of custodial torture.
Under Section 56 BNSS, the police have a duty to take reasonable care of the health and safety of the arrested person. This includes providing food, water, medical care if needed, and safe custody.
Step 7: Production Before Magistrate
Within 24 hours of arrest (excluding travel time), the arrested person must be produced before the nearest magistrate. The magistrate will then examine whether the arrest was lawful, whether Section 36 was complied with, and whether the person should be remanded to custody or released on bail.
This 24-hour rule is one of the most important safeguards in the entire criminal justice system. It ensures that no person can be held in police custody indefinitely without judicial oversight.
Special Protections for Vulnerable Persons
Section 36 operates within a broader framework of protections for vulnerable individuals. The BNSS recognizes that not all arrests are the same, and some people need extra protection.
Protection for Women
The arrest of women requires special care under the BNSS. Here are the key rules:
- Female Officer Requirement: A woman should ideally be arrested by a female police officer. If a male officer must make the arrest, he should be accompanied by a female officer.
- No Touching by Male Officers: A male officer should not touch a woman to effect arrest unless absolutely necessary. If the woman submits to custody by word or action, physical contact should be avoided.
- Time Restrictions: A woman cannot be arrested after sunset and before sunrise except in exceptional circumstances. If such a nighttime arrest is necessary, the police must obtain prior written permission from a First Class Judicial Magistrate.
- Medical Examination: A female arrested person must be examined by a female medical officer or a female registered medical practitioner.
These rules exist to protect the dignity and safety of women during arrest. They recognize that women face unique risks in custody and that extra precautions are necessary.
Protection for Elderly and Infirm Persons
Under Section 35(7) BNSS, if a person is above 60 years of age or is infirm (suffering from serious illness or disability), and the offence is punishable with less than three years of imprisonment, the police cannot arrest them without prior written permission from an officer not below the rank of Deputy Superintendent of Police (DSP).
This is a compassionate provision. It recognizes that arresting an elderly or sick person for a minor offence can cause severe harm to their health and dignity. The DSP-level permission ensures that such arrests are carefully reviewed and justified.
Protection for Juveniles
While the BNSS does not specifically detail juvenile arrest procedures in Section 36, the Juvenile Justice Act, 2015 provides additional protections for children in conflict with the law. These include:
- Arrest only as a last resort
- Immediate information to parents or guardians
- Production before the Juvenile Justice Board
- No detention with adult criminals
Use of Force and Handcuffs: Where Section 36 Draws the Line
One of the most sensitive aspects of arrest is the use of force. Section 36 and related provisions (particularly Section 43 BNSS) set clear boundaries.
When Force is Allowed
The police may use reasonable force to effect an arrest if:
- The person resists arrest
- The person attempts to evade arrest
- The person uses violence against the officer
However, the force must be proportionate to the situation. The officer cannot use more force than necessary to subdue the person and take them into custody.
Importantly, deadly force (force that could cause death) is only permitted in very limited circumstances:
- When the person to be arrested is accused of an offence punishable with death or imprisonment for life
- When the person is attempting to evade arrest and there is no other way to stop them
Even in these cases, the officer must have no other reasonable option. The law does not give police a license to kill.
Handcuffing Rules
The use of handcuffs is regulated under Section 43(3) BNSS. Handcuffs are not a routine tool. They can only be used in specific categories of serious cases, including:
- Habitual or repeat offenders
- Organized crime
- Terrorist acts
- Drug-related crimes
- Illegal possession of arms and ammunition
- Murder, rape, acid attack
- Counterfeiting of currency
- Human trafficking
- Sexual offences against children
- Offences against the State
This list makes it clear that handcuffs are for dangerous criminals, not for ordinary suspects. The decision to use handcuffs must be based on the nature and gravity of the offence, not on the officer's personal preference.
For regular arrests — especially for minor offences, first-time offenders, or cooperative suspects — handcuffs should not be used. The Supreme Court has repeatedly criticized the indiscriminate use of handcuffs, calling it a violation of human dignity.
What Happens When Police Violate Section 36?
If a police officer fails to follow the procedures laid down in Section 36, several consequences can follow:
The Arrest May Be Declared Illegal
If the arrest is not properly documented, if the officer's identity is hidden, or if the family is not informed, the arrested person (or their lawyer) can file a writ of habeas corpus in the High Court or Supreme Court. This is a powerful constitutional remedy that commands the police to produce the person before the court and justify the detention.
If the court finds that Section 36 was violated, it can:
- Declare the arrest illegal
- Order the immediate release of the arrested person
- Grant compensation for illegal detention
- Initiate contempt proceedings against the police officers
Disciplinary Action Against the Officer
Police officers who violate Section 36 can face:
- Departmental inquiries
- Suspension or dismissal
- Criminal charges for wrongful confinement (Section 342 IPC, now Section 127 BNS) or other offences
Exclusion of Evidence
If an arrest is conducted illegally, any evidence obtained as a result of that arrest may be challenged in court. While Indian law does not have a strict "fruit of the poisonous tree" doctrine like the United States, courts are increasingly willing to exclude evidence obtained through illegal arrests and custodial torture.
Civil Liability
The arrested person can file a civil suit for damages against the police department and the individual officers. The Supreme Court has awarded substantial compensation in cases of illegal arrest and custodial violence.
Section 36 BNSS vs. Section 41B CrPC: What Changed?
If you are familiar with the old CrPC, you might be wondering how Section 36 BNSS differs from the old Section 41B CrPC. Here is a simple comparison:
- Section 41B CrPC was added in 2009 as an amendment to incorporate the D.K. Basu guidelines. It required identification, arrest memo, and information to relatives.
- Section 36 BNSS retains all these requirements but places them in a more prominent position in the new code. It also integrates better with other BNSS provisions like Section 37 (Designated Police Officer), Section 48 (Obligation to inform relatives), and the digital display requirements.
The key improvements in the BNSS include:
- Digital transparency: The requirement to display arrest information in digital mode at police stations and district headquarters
- Better integration: Section 36 works seamlessly with Section 35 (arrest conditions), Section 43 (how arrest is made), and Section 56 (health and safety)
- Clearer handcuff rules: The BNSS explicitly lists the offences where handcuffs can be used, reducing arbitrary use
Practical Tips: What to Do If You or Someone You Know Is Arrested
Knowing the law is good, but knowing what to do in a real situation is even better. Here are some practical tips:
- Stay calm: Panicking will not help. Remember that the law is on your side if the arrest is unlawful.
- Ask for identification: Politely ask the officer to show their name and rank. Under Section 36, they must display it.
- Ask for the grounds of arrest: Under Section 47 BNSS, you have the right to know why you are being arrested.
- Do not resist unnecessarily: Resisting a lawful arrest can lead to additional charges. But if the arrest is clearly illegal, you have the right to resist unlawful force.
- Demand the arrest memo: Ask the officer to prepare the memorandum of arrest and ensure a witness signs it.
- Exercise your right to inform someone: Tell the officer you want a specific relative or friend informed. Give them the name and contact number.
- Ask for a lawyer: Under Section 38 BNSS, you have the right to meet a lawyer of your choice during interrogation.
- Document everything: If possible, note the time, place, officer's name, witness names, and any injuries you have.
- Get a medical examination: Demand to be examined by a doctor to document your physical condition.
- Do not sign anything without reading: If you are asked to sign documents, read them carefully. Do not sign blank papers.
- Remember the 24-hour rule: You must be produced before a magistrate within 24 hours. If this is violated, your lawyer can file a habeas corpus petition.
The Bigger Picture: Section 36 and the Future of Policing in India
Section 36 BNSS is more than just a legal provision. It represents a philosophy of policing that balances crime control with human rights. In the 21st century, a police force cannot function effectively without public trust. And public trust cannot exist without transparency and accountability.
By mandating identification, documentation, and communication, Section 36 creates a culture of open policing. It tells the police: "You are servants of the law, not masters of the people." And it tells the citizens: "The law protects you, even when you are accused of a crime."
As India moves forward with the implementation of the BNSS, 2023, it is crucial that:
- Police training academies teach Section 36 as a core subject, not just a footnote
- Citizens are educated about their rights under this section
- Courts enforce this section strictly, punishing violations
- Civil society organizations monitor arrests and document violations
- Technology is used to make the digital display of arrest information effective and accessible
The success of Section 36 will depend not just on the text of the law but on the commitment of every stakeholder — police, judiciary, lawyers, and citizens — to uphold its spirit.
Conclusion: Your Liberty, Your Law, Your Protection
Section 36 of the BNSS, 2023 is a powerful tool for justice. It ensures that the moment of arrest — one of the most vulnerable moments in a person's life — is governed by rules that protect dignity, ensure transparency, and prevent abuse.
Whether you are a law student, a legal practitioner, a police officer, or an ordinary citizen, understanding this section is essential. It reminds us that in a democracy, even the accused have rights. It reminds us that power must always be checked by procedure. And it reminds us that the law is not just a weapon against criminals — it is a shield for all of us.
The next time you see a police officer making an arrest, remember Section 36. Look for the name tag. Ask about the arrest memo. Demand that families be informed. Because these small details are what separate a police state from a democratic republic.
Know your rights. Protect your liberty. Uphold the law.
Source Links
- Pahuja Law Academy — Section 36 BNSS: Procedure of Arrest and Duties of Police Officer Making Arrest
https://www.pahujalawacademy.com/section-36-procedure-of-arrest-and-duties-of-police-officer-making-arrest - Go Legal Consultancy — Section 36 BNSS: Procedure of Arrest and Duties of Officer Making Arrest
https://golegalconsultancy.com/bnss-act/section-36-bnss-procedure-of-arrest-and-duties-of-officer/ - LexiBal — Section 36 BNSS: Procedure of Arrest and Duties of Police Officer
https://lexibal.com/section-36-bnss-procedure-of-arrest-duties-police/ - Judex Tutorials — Procedure of Arrest and Rights of Arrested Persons in BNSS
https://judextutorials.com/blog/procedure-of-arrest-and-rights-of-arrested-persons-in-bnss - Indian Kanoon — Section 36 in Bharatiya Nagarik Suraksha Sanhita, 2023
https://indiankanoon.org/doc/194054929/ - BPRD (Bureau of Police Research and Development) — BNSS Handbook & SOP on Arrest
https://bprd.nic.in/uploads/pdf/BNSS_Handbook_English.pdf - BPRD — Section-wise BNSS Provisions (Sections 36–62)
https://bprd.nic.in/uploads/table_c/Section%20of%20BNSS%2036-62,82.pdf - India Code — The Bharatiya Nagarik Suraksha Sanhita, 2023 (Official PDF)
https://www.indiacode.nic.in/bitstream/123456789/21544/1/the_bharatiya_nagarik_suraksha_sanhita%2C_2023.pdf
- PRS India — Bharatiya Nagarik Suraksha Sanhita, 2023 (Bill Analysis)
https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nagarik_Suraksha_Sanhita,_2023.pdf - YouTube — BNSS Section 36 | Procedure of Arrest & Duties of Officer
https://www.youtube.com/watch?v=AcK7stfZwCw
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