Can Police arrest you anytime? Understanding police powers, arrest procedure and your rights under law

Introduction

Few situations feel more unsettling than hearing the words: “You are under arrest.”

The power to arrest is one of the strongest powers given to the police. It directly affects a person’s freedom, reputation, and dignity. For this reason, the law does not permit arrests to be made casually, arbitrarily, or merely on suspicion without procedure. Yet, many people still believe that the police can arrest anyone at any time and deprive them of libertywithout accountability. That is not the position in law. In India, the power of arrest is controlled by constitutional safeguards, statutory procedure, and judicial oversight.

Although the terms “arrest” and “custody” are often used interchangeably, they are not synonymous in law. Arrest refers to the formal act of depriving a person of their liberty by lawful authority on suspicion of involvement in an offence. It involves restraint of a person’s freedom of movement and is ordinarily accompanied by an intention to take the person into legal custody. Custody, on the other hand, is a broader concept and simply means that a person is under the control or supervision of the police or another lawful authority. A person may be in custody without being formally arrested. For instance, a person who voluntarily accompanies the police for questioning may be in police custody but not under arrest. However, every person who is arrested is necessarily in custody.

In India, power of police is strictly regulated by law, and they cannot arrest anyone arbitrarily. Arrests are governed by Nagarik Suraksha Sanhita, 2023 (BNSS) and the Constitution (Articles 21 & 22) of India. In practice, police can only arrest without a warrant in certain situations (mainly for serious cognizable offences). Even then, there must be a reasonable belief or information that you committed the crime and record the reasons for arrest. Recognising the growing concerns of custodial violence, illegal detention, and misuse of police powers, the Supreme Court in D.K. Basu v. State of West Bengal,(1997) 1 SCC 416, laid down detailed and mandatory safeguards to protect individuals during arrest and detention. The judgment became a landmark in strengthening civil liberties and ensuring accountability in police procedure.

The term ‘arrest’ is neither defined in the BNSS nor in the constitutional framework, however, in ordinary and natural interpretation, it signifies a state of apprehension, restraint or the total deprivation of an individual’s liberty.

The very concept of personal liberty is the bedrock of a constitutional democracy, an innate entitlement so inextricably linked to human that one cannot conceive of meaningful existence in its absence. Arrest is crystallized the moment the individual’s ambulatory providence is extinguished and his volition is subsumed by the coercive power of authority detaining him.¹

After making an arrest, the police must follow strict procedures (e.g. recording an arrest memorandum, informing the accused of the charges, allow legal aid). If they skip those steps or violate accused’s rights, they can challenge the arrest in court.

When can police arrest you?

Police arrest powers without a warrant are limited. Under BNSS, Section 35(1), an officer can arrest without a warrant if one commits a cognizable offence (serious crimes like murder, rape, theft) or if there is reasonable information or suspicion for the commission of such an offence. Even then, the police must satisfy specific conditions: they believe you committed the offence, and arrest is necessary to prevent further crime, ensure evidence isn’t tampered with, or guarantee your presence in court. Importantly, for minor offences (punishable by less than 7 years), the courts in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 stressed that arrests should not be “mechanical”. Police are required to issue a notice asking the suspect to appear for questioning instead of arresting, unless reasons for arrest (recorded in writing) truly exist. In short, police can’t arrest anyone arbitrarily and they need lawful grounds and often should use a notice first for less serious offences.

The Court through Arnesh Kumar (supra) , put a stop over police officers arresting the accused unnecessarily, or the Magistrate authorizing casual/mechanical detention. The Court suggested the authorities to strike a balance between individual liberty and societal order while exercising powers under Section 41 CrPC, when police may arrest without warrant.

When is a warrant required?

Warrant is a written order which is issued by a competent court authorizing a police officer or any other authorized person to arrest an individual and produce them before the court. The primary objective of an arrest warrant is to secure the attendance of a person who is accused of committing an offence or who is required by the court for the purpose of inquiry, trial, or execution of a sentence. Section 2(z) BNSS defines warrant case as a case punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Warrant is required for non-cognizable offences and situations not covered by Section 35(1) BNSS. Section 35(2) explicitly states that a person involved in a non-cognizable offence cannot be arrested without a warrant or magistrate’s order. In practice, police obtain an arrest warrant from the court by presenting evidence or testimony that an offence was committed, and anyone is the suspect. It, therefore, restricts arrest by Police Officer in a non-cognizable offence. The decision in Om Prakash v. Union of India, (2011) 14 SCC 1, makes it very clear that police officers lack any authority to arrest a person without warrant for non-cognizable offences. Thus, the law does not allow a police officer to arrest a person committing an offence without a warrant, unless facts and circumstances of the case warrant so in compliance with Section 35(1) BNSS.

A police officer cannot arrest any person without warrant as per their whims and fancies. The Supreme Court in Hema Mishra v. State of U.P., (2014) 4 SCC 453, laid that Section 41(1) CrPC [Section 35(1) BNSS] makes it compulsory for the police officer to record reasons of arrest, or even for not arresting a person in a particular case. The Court further explained that when arrest is not made under Section 41(1) CrPC, police officer must compulsorily issue a notice of appearance under Section 41-A to such accused. The unwillingness of the alleged accused to whom notice under Section 41-A is issued to identify himself, could be grounds for arrest.

Your rights during arrest

Recognising the danger of “Power tends to corrupt, and absolute power corrupts absolutely”, as devised by British historian Lord Acton in 1887, the Constitution of India ensures that even a person under arrest does not lose his basic human rights. An arrest may restrict physical freedom, but it cannot take away constitutional protections guaranteed under Articles 20, 21 and 22 of the Constitution. The law does not treat an arrested person as rightless, rather, it places strict safeguards against arbitrary arrest or illegal detention, custodial torture and transgression of power by police. Therefore, every arrested person is entitled to important legal protections such as —

1. Right to consult a legal practitioner

Right of an arrested person to consult and to be defended by a legal practitioner is fundamental right enshrined by Article 22(1) of the Constitution. Section 38 BNSS, also provides an arrested person right to meet an advocate of his choice during interrogation, however, this right does not extend throughout the interrogation.

2. Right to know the grounds of arrest

1. Article 22(1) ensures that any person who is arrested and is detained in custody, should be informed as soon as maybe, of the grounds of such arrest. Section 47 BNSS makes it a duty of every police officer or other person arresting any person without warrant, to immediately communicate the grounds of their arrest and their entitlement to bail.

2. Section 48 BNSS makes it necessary for the police officer to inform the arrested person of his rights regarding such arrest and place where he is being held, to any of his relatives, friends or any person nominated by him for giving such information, as soon as he is brought to the police station. In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the Supreme Court noted the arrest has to be reasonable and open as for the routine and unnecessary arrests. The Court also noted that to support the public confidence in the criminal justice system, procedural protections, such as making an announcement of arrest, are needed.

3. Protection against unnecessary restraint

The person arrested is protected under Section 46 BNSS from being subject to restraint than is necessary to prevent his escape. This Section ensures protection of human dignity and acts as a shield for any unnecessary physical harm or psychological distress.

The BNSS introduces discretionary powers for the police to use handcuffs, keeping in mind the ‘nature and gravity of offence’ upon arrest, which can be done only after following conditions are met-where the offender is a habitual or repeat offender, or has escaped from custody, or has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offence against children or offence against the State. This has been introduced as a statutory power under the BNSS. In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, the right against solitary confinement was recognised, the Supreme Court held justified use of handcuffs by law enforcement authorities and that it should not be used as a form of punishment.

4. Right to receipt of articles

Section 49 BNSS deals with the procedure for conducting search of persons arrested. The officer arresting the accused, or to whom he may be handed over, is allowed to search him. In that search the arresting officer will confiscate whatever articles are found upon him, excluding necessary clothing, and a receipt showing articles taken in possession by the police officer shall be given to such person. This requirement ensures transparency in the process, providing a record that may be used in court.

5. Right to be produced before a magistrate without unnecessary delay

In case of arrest one safeguard which is requirement of production of individual detained before the nearest magistrate, within a reasonable time and by the latest by twenty-four hours of arrest, stands as the primary bulwark against the dark peril of incommunicado detention. This procedural exigency, enshrined in Section 58 BNSS and anchored in the bedrock of Article 22(2) Constitution, is designed to facilitate an instantaneous judicial audit of the executive’s action. The procedural mandate contained in Section 58 BNSS/ Article 22(2) of the Constitution serves a dual, sacrosanct purpose: firstly, to verify the vires and legality of the arrest, and secondly, to submit the necessity of further detention for judicial scrutiny.

In Anuj Kumar Singh v. UOI, 2026 SCC OnLine P&H 5458, it was held that the twenty-four hour period under Section 58 BNSS begins from exact moment of physical arrest. The clock of liberty begins the moment an individual’s volition is subsumed by the arresting authority’s coercive power and he/she is no longer free to depart, regardless of when a formal declaration is made.

6. Right to be examined by a medical practitioner

For protecting the accused from torture, ill treatment, or custodial violence during confinement in custody, medical examination is stipulated under Section 53 BNSS. Every arrested person has the right to be medically examined soon after arrest by a medical officer in service of the Central or a State Government or by a registered medical practitioner. Any injuries or marks of violence must be recorded, and a copy of the medical report must be provided to the arrested person or a person nominated by them, as this would ensure transparency and accountability in the process. In the case of a female arrestee, it provides, the examination to be conducted only by or under the supervision of a female medical officer or female registered medical practitioner. Section 56 BNSS makes it a duty for the person having the custody to take reasonable care of health and safety of the accused.

FAQs

What must police do after arrest?

Every police officer after making an arrest in India, should prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. The police must present the accused before a magistrate within 24 hours and ensure a mandatory medical examination.

What police cannot do?

Police officer cannot make an arrest without a warrant for non-cognizable offenses and cannot restrain them more than is necessary to prevent his escape. They cannot force a confession, search private property without a warrant (except in urgent, specific scenarios), or arrest women at night, except in exceptional circumstances. The arresting officer cannot be without accurate, visible, and clear identification, as according to Section 36 BNSS and D.K. Basu (supra) guidelines. He cannot refuse to disclose the grounds of arrest, cannot secretly detain a person without official records, cannot skip the memo, Police cannot torture, threaten, or use third-degree methods in custody as custodial violence and coercion violate constitutional protections and the safeguards laid down in D.K. Basu (supra).

Where do these rights come from? (D.K. Basu v. State of West Bengal)

The rights available to an arrested person do not come from a single source. They flow from the Constitution of India, the BNSS, and important judicial decisions of the Supreme Court like D.K. Basu (supra), Arnesh Kumar (supra), Joginder Kumar (supra), etc.

Can police arrest without a warrant?

A police officer can arrest without a warrant in cognisable offences, where immediate action is necessary to prevent further crimes, protect evidence, or ensure the suspect’s presence. However, this cannot be done arbitrarily as the police officer must record the reasons of arrest or even for no arrest. The rule otherwise requires police officers to obtain an order from a Magistrate along with a warrant authorizing arrest of a person, as provided under Section 35 BNSS.

Can you refuse arrest?

No. A person cannot lawfully refuse or physically resist an arrest. Section 43(2) of the BNSS provides that where a person forcibly resists arrest or attempts to evade it, the police officer or other person effecting the arrest may use all means necessary to carry out the arrest, subject to the limitations prescribed by law.

However, special safeguards apply to the arrest of women. As a general rule, no woman shall be arrested after sunset and before sunrise. In exceptional circumstances, a woman police officer may effect such an arrest only after making a written report and obtaining prior permission from the Judicial Magistrate of the First Class having jurisdiction over the area concerned.

Therefore, a person cannot physically resist a lawful arrest. However, they are entitled to ask for the grounds of arrest, seek legal assistance, and challenge the legality of the arrest before a court.

What if police do not follow procedure?

If an arrest is found to be illegal or if mandatory procedural safeguards have been violated, the accused may challenge the legality of the arrest before the appropriate court and seek suitable relief. However, in many cases, pursuing prolonged litigation solely to obtain a declaration that the arrest was unlawful may take considerably more time than seeking bail. Therefore, an accused person may often be better served by promptly applying for regular bail and relying on the procedural lapses committed by the police to question the legality and bona fides of the arrest. This approach may provide quicker relief and help avoid unnecessary detention.

Arrest is a serious exercise of State power, but it is not unchecked. Constitutional guarantees, statutory safeguards under the BNSS, and judicial precedents ensure that no person is deprived of liberty except according to procedure established by law. Awareness of these rights is often the first safeguard against arbitrary arrest and illegal detention.