Establishes mandatory safeguards and documentation requirements during arrest by police officers.
Introduction
Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) prescribes the procedure to be followed by police officers while making an arrest and outlines their statutory duties during the arrest process. It ensures transparency, accountability, and protection of the rights of arrested persons.
This provision is a statutory embodiment of constitutional safeguards under Article 21 and Article 22(1) of the Constitution of India, preventing arbitrary and secret detentions.
Objective of the Provision
The objectives of Section 36 BNSS are
- to regulate the manner in which arrests are carried out
- to ensure identification and accountability of arresting officers
- to protect the rights and dignity of arrested persons
- to prevent custodial abuse and illegal detention practices
The section operationalizes arrest safeguards evolved through judicial precedent.
Meaning / Concept
Procedural Safeguards During Arrest
Section 36 introduces mandatory procedural requirements that must be followed by police officers while arresting a person. These safeguards ensure that arrest is not carried out arbitrarily or secretly.
Accountability of Arresting Officer
The provision requires the arresting officer to disclose identity and prepare official documentation of arrest, ensuring traceability and legal scrutiny of police action.
This strengthens transparency in custodial procedures. ⚖️
Detailed Explanation of the Section
Section 36 BNSS mandates the following duties for police officers making an arrest.
Clear Identification of Police Personnel
Every police officer making an arrest must
- bear accurate, visible, and clear identification
- display name tags indicating official designation
This ensures that the identity of the arresting officer is known.
Preparation of Arrest Memorandum
The arresting officer must prepare a memorandum of arrest, which shall
- be attested by at least one witness
- preferably be a family member of the arrested person or a respectable person of the locality
- be countersigned by the arrested person
The memorandum records the time and date of arrest.
Informing a Relative or Friend
The arrested person has the right to have
- a friend
- relative
- nominated person
informed about the arrest as soon as possible.
This is a mandatory safeguard against secret detention.
Entry in Police Records
The arrest details must be recorded in official police documentation, ensuring traceability of custody.
These procedural safeguards collectively ensure lawful arrest practices.
Procedure or Legal Framework
The procedural framework under Section 36 BNSS includes
- identification of arresting officer through name and designation
- preparation of arrest memorandum
- attestation by witness
- countersignature of arrested person
- communication of arrest to nominated person
- recording arrest details in police records
Non-compliance with these steps may render the arrest procedurally defective.
Judicial Interpretation
The safeguards reflected in Section 36 BNSS originate from constitutional jurisprudence developed by the Supreme Court.
In D.K. Basu v. State of West Bengal, detailed arrest guidelines were issued requiring preparation of arrest memo, identification of officers, and communication to relatives.
In Joginder Kumar v. State of Uttar Pradesh, the Court held that arrested persons have a right to inform someone about their detention.
In Arnesh Kumar v. State of Bihar, the Court reinforced procedural safeguards against unnecessary arrest and emphasized compliance with statutory arrest protocols.
These judgments form the doctrinal foundation of Section 36 BNSS.
Importance of the Provision
Section 36 BNSS is important because
- it ensures transparency in arrest procedures
- it protects individuals from secret or illegal detention
- it strengthens accountability of police authorities
- it operationalizes constitutional arrest safeguards
It plays a central role in preventing custodial violations and abuse.
Connection with Other Sections
Section 36 operates within the broader arrest framework under BNSS
- Section 35 BNSS – When police may arrest without warrant
- Section 37 BNSS – Designated police officer and arrest-related safeguards
- Section 38 BNSS – Right of arrested person to meet an advocate
- Section 48 BNSS – Obligation to inform grounds of arrest
Corresponding Provision under Old Law
Section 36 BNSS corresponds to Section 41B of the Code of Criminal Procedure, 1973.
Illustrative Example
A police officer arrests a suspect in a cheating case. The officer wears an identification badge, prepares a memorandum of arrest signed by a local witness and the accused, and immediately informs the accused’s brother about the arrest. The arrest procedure complies with Section 36 BNSS.
Conclusion
Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes mandatory procedural safeguards governing arrests by police officers. By requiring identification, documentation, and communication with relatives, the provision strengthens accountability, protects personal liberty, and ensures compliance with constitutional standards during custodial processes.
