Procedure of Arrest and Duties of Officer Making Arrest under Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Provision regulating the manner of arrest and duties of police officers during arrest.

Introduction

Arrest is not merely the act of taking a person into custody but must be carried out in accordance with prescribed legal procedures. To protect individuals from arbitrary or unlawful detention, the law provides safeguards governing how an arrest must be conducted.

Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure that police officers must follow while making an arrest. The provision ensures transparency, accountability, and protection of the rights of the arrested person. It corresponds substantially to Section 41B of the Code of Criminal Procedure, 1973.

Objective of Section 36

The main objectives of Section 36 are:

• To ensure lawful and transparent arrest procedures.
• To protect the fundamental rights of arrested persons.
• To prevent misuse of police powers.
• To establish accountability of police officers.

The provision reinforces the protection of personal liberty guaranteed under Article 21 of the Constitution of India.

Identification of the Police Officer

Section 36 requires that every police officer making an arrest must bear accurate, visible, and clear identification of their name.

The officer must also ensure that their designation is clearly displayed so that the arrested person and others present can identify the officer responsible for the arrest.

This requirement promotes transparency and prevents anonymous or unlawful arrests.

Preparation of Memorandum of Arrest

One of the most important safeguards introduced by the law is the requirement to prepare a Memorandum of Arrest.

The police officer making the arrest must prepare a memorandum at the time of arrest. This memorandum must include details of:

• The date of arrest
• The time of arrest
• The place of arrest

The memorandum must be attested by at least one witness.

Who Can Be the Witness

The witness may be:

• A member of the family of the arrested person, or
• A respectable person from the locality where the arrest is made.

The arrested person must also countersign the memorandum of arrest.

This ensures that the arrest is documented and prevents false allegations regarding the time or manner of arrest.

Right to Inform a Relative or Friend

Section 36 provides that the police officer must inform the arrested person that they have the right to inform a friend, relative, or another person about their arrest.

This safeguard protects the arrested person from secret detention and ensures that someone is aware of their custody.

This principle was strongly emphasized in the landmark decision of:

• D.K. Basu v. State of West Bengal

Principle from D.K. Basu Case

The Supreme Court laid down detailed guidelines regarding arrest procedures, including the requirement of an arrest memo and informing relatives of the arrested person.

These guidelines later became incorporated into statutory law, including the provisions now reflected in Section 36 BNSS.

Maintenance of Arrest Records

The police officer must also ensure that details of the arrest are properly recorded in official police records. This includes maintaining registers and records showing the identity of the arrested person and the officer responsible for the arrest.

These records help ensure accountability and enable courts to verify the legality of arrests.

Duties of the Officer Making the Arrest

The officer making the arrest must perform several duties under Section 36:

1. Clearly identify themselves with name and designation.
2. Prepare a memorandum of arrest at the time of arrest.
3. Ensure the memorandum is attested by a witness.
4. Obtain the signature of the arrested person on the memorandum.
5. Inform the arrested person of their right to inform a relative or friend.
6. Maintain proper records of the arrest in official registers.

Failure to follow these duties may render the arrest unlawful and may lead to legal consequences.

Connection with Other Provisions of BNSS

Section 36 works together with several other provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 dealing with arrest procedures.

Important related provisions include:

• Section 35 – Arrest of persons
• Section 37 – Designated police officer for maintaining arrest records
• Section 38 – Right of arrested person to meet advocate
• Section 39 – Right of arrested person to inform relatives or friends

Together these provisions form the procedural framework governing lawful arrest in India.

Illustrative Example

If a police officer arrests an individual suspected of committing theft, the officer must:

• Display their identity and designation.
• Prepare a memorandum recording the date, time, and place of arrest.
• Obtain the signature of the arrested person.
• Ensure that a witness attests the memorandum.
• Inform the arrested person of their right to inform a relative or friend.

Failure to follow these steps may lead to the arrest being challenged in court.

Important Points for Examination

• Section 36 BNSS corresponds to Section 41B CrPC.
• Police officers must clearly identify themselves during arrest.
• A memorandum of arrest must be prepared at the time of arrest.
• The memorandum must be attested by a witness and signed by the arrested person.
• The arrested person must be informed of their right to inform relatives or friends.

Conclusion

Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes an important safeguard governing the procedure of arrest and duties of police officers. By mandating identification of officers, preparation of arrest memoranda, and notification rights, the provision ensures transparency, accountability, and protection of personal liberty within the criminal justice system.