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Chapter 5 of Bharatiya Nagarik Suraksha Sanhita, 2023: Comprehensive Analysis of Arrest Provisions

Introduction

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents a landmark transformation in India’s criminal procedure law, replacing the colonial-era Criminal Procedure Code, 1973 (CrPC) with effect from July 1, 2024. Chapter 5 of the BNSS, spanning Sections 35 to 62, deals comprehensively with “Arrest of Persons”—one of the most critical aspects of criminal law that directly impacts fundamental rights guaranteed under Articles 21 and 22 of the Indian Constitution[1].

This chapter establishes the legal framework governing when, how, and under what circumstances a person’s liberty may be curtailed through arrest. While retaining much of the CrPC’s foundational structure, the BNSS introduces significant reforms aimed at strengthening safeguards against arbitrary arrest, enhancing transparency, and balancing police powers with constitutional protections[2]. The chapter has expanded from 20 sections under the CrPC (Sections 41 to 60A) to 28 sections under the BNSS (Sections 35 to 62), reflecting more detailed procedural requirements and enhanced rights for arrested persons[3].

Constitutional Foundation and Legal Framework

Article 21: Right to Life and Personal Liberty

The power to arrest must be viewed through the constitutional lens of Article 21, which guarantees that no person shall be deprived of life or personal liberty except according to the procedure established by law. The Supreme Court has consistently held that this procedure must be fair, just, and reasonable[4]. Chapter 5 of the BNSS operationalizes these constitutional mandates by prescribing detailed procedures that law enforcement must follow when effecting an arrest.

Article 22: Protection Against Arrest and Detention

Article 22 of the Constitution provides specific safeguards to arrested persons, including the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner, and the right to be produced before a magistrate within 24 hours of arrest[5]. These constitutional protections are woven throughout Chapter 5 of the BNSS, with several provisions explicitly reinforcing these rights.

Section 35: When Police May Arrest Without Warrant

Overview and Key Provisions

Section 35 of the BNSS corresponds to Section 41 of the CrPC but incorporates significant modifications aimed at restricting arbitrary arrests. This section delineates the circumstances under which a police officer may arrest a person without obtaining a warrant from a magistrate[6].

Grounds for Arrest Without Warrant

Under Section 35(1), a police officer may arrest without warrant in the following situations:

A person who commits a cognizable offence in the presence of the police officer
A person against whom a reasonable complaint has been made or credible information received, or a reasonable suspicion exists that they have committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, provided certain conditions are satisfied
A person who has credible information that they have committed a cognizable offence punishable with imprisonment for seven years or more or with death
A person who has been proclaimed as an offender
A person in whose possession anything is found which may reasonably be suspected to be stolen property
A person who obstructs a police officer while in the execution of duty or who has escaped from lawful custody
A person reasonably suspected to be a military deserter
A person who has committed an offence outside India which, if committed in India, would be punishable as an offence
A released convict committing a breach of any rule
A person for whose arrest a requisition has been received from another police officer

The Notice of Appearance Provision

A crucial reform introduced in Section 35(3) to (7) is the integration of the “notice of appearance” mechanism (previously Section 41A of CrPC). For offences punishable with imprisonment for less than three years or where the punishment prescribed is fine only, police officers must first issue a notice requiring the person to appear before them, rather than immediately arresting the person[7].

This provision embodies the principle that arrest should be the exception, not the rule, particularly for less serious offences. The notice must specify the grounds and facts of the offence, and the person served with such notice is legally bound to comply. Failure to comply without reasonable cause, or providing false information, makes the person liable to arrest.

Mandatory Recording of Reasons

Section 35(2) requires that when a police officer arrests a person under sub-section (1), the officer must record in writing the reasons for such arrest. This documentation requirement serves multiple purposes: it ensures accountability, provides a basis for judicial review, and acts as a deterrent against arbitrary or unlawful arrests[8].

Prior Permission for Certain Arrests

Section 35(8) introduces another significant safeguard by requiring prior permission from an officer not below the rank of Deputy Superintendent of Police before arresting persons who are:

Infirm or sick persons
Women
Persons above sixty years of age
Persons with disabilities
Persons accused of offences punishable with imprisonment of less than three years

This provision reflects a more humane and proportionate approach to arrests, recognizing the vulnerability of certain categories of persons and the need for enhanced protection[9].

Section 36: Procedure of Arrest and Duties of Officer Making Arrest

Section 36 prescribes the procedural requirements that must be followed when effecting an arrest. These provisions aim to ensure transparency and protect the dignity of the arrested person.

Identification and Documentation

Under Section 36(1), the police officer making the arrest must:

Bear an accurate, visible, and clear identification of their name
Prepare an attested memorandum of arrest at the time of arrest
Have such memorandum attested by at least one witness, who may be either a member of the arrested person’s family or a respectable person of the locality
Have the memorandum countersigned by the person arrested

This comprehensive documentation requirement creates a contemporaneous record of the arrest, which can serve as crucial evidence in any subsequent inquiry or trial regarding the legality or propriety of the arrest.

Informing the Arrested Person

Section 36(2) mandates that the police officer shall inform the arrested person of their right to have a relative or friend informed about the arrest and the place of detention. This ties in with Section 48, which deals with the obligation to inform relatives about the arrest.

Section 37: Designated Police Officer

Section 37 introduces a new institutional mechanism by requiring state governments to establish police control rooms and designate a police officer (not below the rank of Assistant Sub-Inspector) as the “Designated Police Officer” for every police station and district[10].

The Designated Police Officer has the responsibility to:

Maintain information regarding persons arrested
Display such information in conspicuous places in the police station
Make arrest information available through digital mode

This provision enhances transparency and enables family members, legal practitioners, and concerned citizens to access information about arrests, thereby reducing the possibility of illegal detention or custodial abuse.

Section 38: Right to Meet an Advocate During Interrogation

Section 38 of the BNSS explicitly recognizes the right of an arrested person to meet an advocate of their choice during interrogation, though not throughout the interrogation process. This provision balances the investigation needs of law enforcement with the constitutional right to legal representation guaranteed under Article 22(1)[11].

While the language specifies “during interrogation” rather than “throughout interrogation,” this still represents a significant safeguard, allowing the accused to receive legal advice and ensuring that their statements are made with awareness of their legal rights.

Section 39: Arrest on Refusal to Give Name and Residence

Section 39 deals with situations where a person commits a non-cognizable offence in the presence of a police officer but refuses to give their name and address or provides information that the officer has reason to believe is false.

In such circumstances, the police officer may arrest the person for the purpose of ascertaining their name and residence. Once the true name and residence are ascertained and the person executes a bond to appear before a magistrate, they shall be released. If the name and residence cannot be ascertained within 24 hours, or if the person fails to execute the bond, they must be forwarded to the nearest magistrate having jurisdiction.

Section 40: Arrest by Private Person

Section 40 (corresponding to Section 43 of CrPC) recognizes that in certain limited circumstances, a private person—not being a police officer—may also effect an arrest. A private person may arrest or cause to be arrested:

Any person who in their presence commits a non-bailable and cognizable offence
Any proclaimed offender

However, the private person must, without unnecessary delay, hand over the arrested person to a police officer or, in the absence of a police officer, take the person to the nearest police station within six hours[12]. The police officer receiving such a person shall proceed as if they had arrested the person themselves under the provisions of Section 35 (for cognizable offences) or Section 39 (for non-cognizable offences).

This provision acknowledges the role of citizens in maintaining public order while ensuring that the arrested person is quickly brought under proper legal authority.

Section 41: Arrest by Magistrate

Section 41 empowers a magistrate to arrest or direct the arrest of any person who commits an offence in their presence within their local jurisdiction. Additionally, a magistrate may direct any person to be arrested against whom a warrant has been issued by themselves or another magistrate for an offence committed within their local jurisdiction.

This provision ensures that judicial officers have the necessary authority to maintain order and enforce the law within their territorial limits.

Section 42: Protection of Armed Forces from Arrest

Section 42 provides special protection to members of the Armed Forces from arrest for acts done or purported to be done in the discharge of their official duties. No member of the Armed Forces can be arrested without the consent of the Central Government.

The state government may also extend this protection to members of forces charged with the maintenance of public order by notification. This provision recognizes the unique nature of military service and ensures that members of the armed forces are not subjected to frivolous arrests that could undermine discipline and operational effectiveness[13].

Section 43: Arrest How Made

Section 43 prescribes the manner in which an arrest must be effected and is one of the most debated provisions due to its sub-section dealing with handcuffing.

The Basic Manner of Arrest

Under Section 43(1), in making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there is submission to custody by word or action.

Special provisions apply to the arrest of women: arrest cannot be made after sunset and before sunrise except in exceptional circumstances and with prior written permission from a magistrate. Additionally, when a woman is arrested, information must be provided to her relatives, friends, or any other person disclosed by her about the place where she is being held.

Use of Force

Section 43(2) permits the use of force if the person forcibly resists arrest or attempts to evade arrest. However, the provision explicitly states that nothing in this section gives the right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life[14].

The Handcuffing Provision

Section 43(3) represents a significant and controversial addition to arrest procedure. It states:

“The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.”

Constitutional Concerns

This provision has attracted considerable criticism from legal experts and civil society for potentially conflicting with Supreme Court jurisprudence on handcuffing. The Supreme Court has consistently held that handcuffing is a violation of human dignity and should be used only as a last resort when there is a demonstrable risk of escape or violence[15].

In the landmark case of Prem Shankar Shukla v. Delhi Administration (1980), the Supreme Court held that handcuffing is prima facie inhuman and degrading, violating Article 21[16]. The Court laid down that handcuffs should be used only when the police officer has reasonable grounds to believe that the arrested person is likely to escape or cause harm.

The BNSS provision, by categorically authorizing handcuffing for broad categories of offences, may be seen as granting excessive discretion to police officers and normalizing a practice that should be exceptional. Critics argue that it shifts from the constitutional standard of “necessity” to a more permissive standard based on the “nature and gravity of offence”[17].

Implementation Concerns

The provision also lacks requirements for:

Judicial oversight or prior approval
Recording of specific reasons for handcuffing in each case
Clear definition of terms like “habitual offender” or “repeat offender”
Safeguards for vulnerable groups

The National Human Rights Commission (NHRC) has issued guidelines stating that handcuffing should be avoided unless absolutely necessary and should never be routine[18]. The BNSS provision’s compatibility with these guidelines and constitutional principles remains a subject of ongoing legal debate.

Section 44: Search of Place Entered by Person Sought to be Arrested

Section 44 authorizes police officers to enter and search any place that a person sought to be arrested has entered or is reasonably suspected to have entered. The person in charge of such place must allow the police officer free ingress and afford all reasonable facilities for a search.

If ingress is not freely allowed, the police officer may break open any outer or inner door or window of the place to effect entry, provided that:

The officer has notified their authority and purpose
Ensured that a woman occupying such place has been given opportunity to withdraw
Given reasonable notice before breaking open the door or window

The provision also permits breaking open doors to liberate a police officer or other person detained inside.

Section 45: Pursuit into Other Jurisdictions

Section 45 empowers a police officer to pursue and arrest a person in any place in India for an offence committed outside their local jurisdiction. This provision recognizes the practical reality that criminals do not respect jurisdictional boundaries and ensures that law enforcement can effectively pursue offenders across state and district lines.

Section 46: No Unnecessary Restraint

Section 46 embodies a fundamental principle of criminal procedure: the person arrested shall not be subjected to more restraint than is necessary to prevent escape. This provision gives statutory recognition to the principle of proportionality in the use of force and restraint during arrest[19].

Section 47: Person Arrested to be Informed of Grounds and Right to Bail

Section 47 operationalizes Article 22(1) of the Constitution by mandating that the police officer or other person arresting any person shall forthwith communicate to them the full particulars of the offence for which they are arrested or other grounds for such arrest.

For persons arrested without warrant for a non-bailable offence (except where arrested under a warrant not providing for bail), the officer must inform the arrested person of their right to be released on bail and that they may arrange for sureties.

This provision ensures that the arrested person is immediately aware of:

Why they are being arrested
The specific offence or grounds
Their right to bail (where applicable)
Their right to arrange sureties

Section 48: Obligation to Inform Relatives or Friends

Section 48 imposes an affirmative obligation on the person making the arrest to inform the arrested person that they are entitled to have a relative, friend, or other person of their choice informed of the arrest and the place of detention.

The person making the arrest must also inform:

The relative, friend, or nominated person about the arrest and detention place
The Designated Police Officer (as per Section 37) about the arrest

An entry of this information must be made in the general diary or station diary. When producing the arrested person before a magistrate, the police officer must verify compliance with this requirement.

This provision serves multiple purposes: it prevents illegal detention, enables family members to take steps for bail, allows access to legal representation, and creates accountability through documentation[20].

Section 49: Search of Arrested Person

Section 49 authorizes the search of an arrested person when such person is not released on bail or when bail is not available. The provision permits police officers to:

Place articles found on the arrested person in safe custody
Prepare a list of such articles, which should be witnessed
Deliver the articles to court or appropriate officer
Issue a receipt for the articles to the arrested person

An important safeguard is that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. This provision protects the dignity and modesty of women while allowing necessary searches.

Section 50: Power to Seize Offensive Weapons

Section 50 empowers police officers to seize any offensive weapon found upon the person arrested and, if necessary, to deliver it to the court or officer as the court directs. This provision aims to prevent harm during custody and ensures that weapons are not available to the arrested person.

Section 51: Examination of Accused by Medical Practitioner

Section 51 permits examination of an arrested person by a medical practitioner at the request of a police officer not below the rank of Sub-Inspector. Such examination may be conducted when the practitioner has reason to believe it will afford evidence regarding the commission of an offence.

The provision explicitly permits collection of:

Blood stains
Semen
Swabs (vaginal, oral, anal)
Hair samples
Fingernail clippings
DNA samples

The medical practitioner may use force if necessary, but examinations of females must be conducted by female practitioners. The practitioner must submit a report to the investigating officer, who forwards it to the magistrate.

This provision facilitates modern forensic investigation while maintaining safeguards for the dignity of the examined person[21].

Section 52: Examination of Person Accused of Rape

Section 52 mandates specific procedures for medical examination of persons accused of rape. The examination must be conducted by a registered medical practitioner employed in a government hospital or local authority hospital, or in the absence of such facilities, by any registered medical practitioner in the nearest hospital.

The medical practitioner must prepare a detailed report including:

Name and address of the accused
Age, height, and general built
Marks of injury, if any
Description of material found on the accused
DNA profile from forensic material
Other relevant material

The report must be forwarded to the investigating officer, who transmits it to the magistrate. This provision ensures thorough forensic documentation in rape cases, which is crucial for prosecution[22].

Section 53: Examination of Arrested Person by Medical Officer

Section 53 requires that when a person is arrested on a charge of committing an offence of such a nature that there are reasonable grounds for believing that examination of their person will afford evidence regarding the commission of the offence, such person shall be examined by a government medical officer or, at the request of the arrested person, by a registered medical practitioner.

This examination must be conducted soon after arrest. If the arrested person is a female, the examination shall be made only by or under the supervision of a female medical officer. The medical officer must record all injuries or marks on the person and forward a copy of the report to the arrested person or their nominated person.

Section 54: Identification of Person Arrested

Section 54 empowers courts to direct that any person arrested or in lawful custody be subject to identification procedures. For persons with disabilities affecting their ability to identify, the identification must be done under the supervision of a magistrate with audio-video recording.

This provision ensures that identification procedures are conducted fairly and with appropriate safeguards, particularly for vulnerable persons[23].

Section 55: Procedure When Police Officer Deputes Subordinate

Section 55 addresses situations where a police officer, having authority to arrest without warrant, deputes a subordinate to make the arrest. In such cases, the deputing officer must issue a written order specifying the person to be arrested and the offence or other cause for arrest.

The subordinate officer must notify the substance of the order to the person to be arrested and, if required, show the order. This provision ensures that even delegated arrest powers are exercised with proper documentation and notification.

Section 56: Health and Safety of Arrested Person

Section 56 imposes a crucial duty on the custodian of an arrested person to take all reasonable care of the health and safety of the arrested person. This provision recognizes the state’s responsibility for persons in its custody and aims to prevent custodial deaths, torture, and ill-treatment[24].

The provision has significant implications for custodial violence and is read in conjunction with constitutional protections and various Supreme Court guidelines on arrest and detention.

Section 57: Person to be Taken Before Magistrate or Police Station

Section 57 requires that a police officer making an arrest without warrant shall, without unnecessary delay and subject to bail provisions, take or send the arrested person before a magistrate having jurisdiction or before the officer in charge of a police station.

This provision ensures that arrested persons are promptly brought before legal authority, preventing prolonged detention without oversight.

Section 58: Person Not to be Detained More Than 24 Hours

Section 58 operationalizes Article 22(2) of the Constitution by mandating that no police officer shall detain in custody a person arrested without warrant for a longer period than 24 hours (exclusive of journey time) without the authority of a magistrate[25].

This is one of the most fundamental safeguards against arbitrary detention. Any detention beyond 24 hours requires judicial sanction through remand proceedings, ensuring that continued detention is subject to judicial scrutiny.

Section 59: Police to Report Apprehensions

Section 59 requires police officers in charge of stations to report to the District Magistrate or Sub-Divisional Magistrate all arrests made without warrant within their jurisdiction. This creates an additional layer of oversight and accountability.

Section 60: Discharge of Person Apprehended

Section 60 mandates that no person apprehended shall be discharged except on their own bond, on bail, or under the special order of a magistrate. This provision ensures that releases from custody are properly documented and authorized.

Section 61: Power to Pursue and Retake on Escape

Section 61 empowers persons lawfully authorized to arrest or detain another person to pursue that person into any place in India and recapture them if they escape from custody. Section 44 (relating to search of places) applies to such pursuit and recapture.

Section 62: Arrest to be Made Strictly According to Sanhita

Section 62 serves as a reminder that arrests must be made strictly in accordance with the provisions of the BNSS or any other law for the time being in force. This provision emphasizes the rule of law and ensures that arbitrary or extra-legal arrests are not permitted.

Comparative Analysis: Changes from CrPC to BNSS

While the BNSS retains the foundational structure of the CrPC, several significant changes enhance procedural safeguards and accountability:

Aspect	CrPC 1973	BNSS 2023
Number of Sections	20 sections (41-60A)	28 sections (35-62)
Notice of Appearance	Separate Section 41A	Integrated into Section 35(3)-(7)
Arrest Memo	Not explicit	Mandatory under Section 36
Designated Police Officer	No provision	Section 37 introduces this
Right to Meet Advocate	Not explicit	Section 38 explicitly recognizes
Handcuffing Provision	Not specified	Section 43(3) explicitly authorizes
Prior Permission for Vulnerable	Limited	Section 35(8) expands categories
Medical Examination	Sections 53-54 CrPC	Sections 51-53 BNSS with more detail

Table 1: Comparison of arrest provisions between CrPC 1973 and BNSS 2023

Judicial Interpretation and Landmark Cases

Arnesh Kumar v. State of Bihar (2014)

The Supreme Court in Arnesh Kumar v. State of Bihar held that arrest should not be routine in cases where the offence is punishable with imprisonment less than seven years[26]. The Court directed that police officers must record reasons for arrest and magistrates must satisfy themselves about the necessity of arrest before authorizing detention.

This judgment significantly influenced the drafting of Section 35 of the BNSS, particularly the notice of appearance mechanism.

D.K. Basu v. State of West Bengal (1997)

In D.K. Basu v. State of West Bengal, the Supreme Court laid down comprehensive guidelines to prevent custodial violence and deaths[27]. These guidelines include:

Police officer must bear accurate identification
Memorandum of arrest must be prepared and attested
Person arrested must be informed of right to have someone informed
Entry must be made in station diary
Medical examination must be conducted
Copies of relevant documents must be provided to arrested person

Many of these guidelines have been incorporated into Chapter 5 of the BNSS, particularly in Sections 36, 48, and 53.

Joginder Kumar v. State of U.P. (1994)

The Supreme Court in Joginder Kumar v. State of U.P. emphasized that arrest brings humiliation and loss of reputation and should not be made simply because an offence is cognizable[28]. The Court held that arrest should be made only when necessary and justified.

Prem Shankar Shukla v. Delhi Administration (1980)

As discussed earlier, this case established that handcuffing violates human dignity and Article 21. The Court held that handcuffs should be used only when there is a demonstrable risk of escape or violence[29].

Rights of Arrested Persons: A Summary

Based on Chapter 5 provisions, arrested persons enjoy the following rights:

Right to Know Grounds of Arrest (Section 47, Article 22(1))
Right to Be Informed of Right to Bail (Section 47)
Right to Consult Legal Practitioner (Section 38, Article 22(1))
Right to Have Relatives Informed (Section 48)
Right to Be Produced Before Magistrate Within 24 Hours (Section 58, Article 22(2))
Right to Medical Examination (Sections 51-53)
Right Against Self-Incrimination (Article 20(3))
Right to No Unnecessary Restraint (Section 46)
Right to Health and Safety in Custody (Section 56)
Right to Compensation for Groundless Arrest (Section 399 BNSS)
Right to Notice of Appearance (for lesser offences, Section 35(3)-(7))
Right to Documented Arrest Procedure (Section 36)

Critical Issues and Concerns

Handcuffing Discretion

The most significant concern with Chapter 5 relates to Section 43(3) on handcuffing. Legal experts argue that:

It grants excessive discretion without judicial oversight
It contradicts established Supreme Court jurisprudence
It lacks clear definitions (e.g., “habitual offender,” “repeat offender”)
It may normalize degrading treatment
It does not require recording of specific reasons for handcuffing

Implementation Challenges

Several provisions require systemic changes for effective implementation:

Designated Police Officer system needs infrastructure and training
Audio-video recording requirements need technological upgrades
Medical examination provisions need adequate staffing of forensic facilities
Notice of appearance mechanism requires procedural changes in police investigation

Vulnerable Groups

While Section 35(8) provides enhanced protection for vulnerable groups, questions remain about:

Definition and identification of “infirm” or “disabled” persons
Practical implementation of prior permission requirements
Emergency situations where delays may affect investigation

Recommendations for Reform

Based on the analysis of Chapter 5, several recommendations emerge:

Amend Section 43(3) to require judicial approval or at minimum, mandatory recording of specific reasons for handcuffing with supervisory review
Define Key Terms such as “habitual offender,” “repeat offender,” and “infirm” to prevent arbitrary application
Strengthen Oversight by requiring magistrates to specifically examine compliance with arrest procedures during first production
Enhance Training for police officers on constitutional rights, dignity principles, and procedural requirements
Technology Integration through development of digital platforms for arrest documentation and information dissemination
Periodic Review of arrest practices through judicial and administrative mechanisms
Strengthen Medical Infrastructure to ensure prompt and quality medical examinations as mandated

Conclusion

Chapter 5 of the Bharatiya Nagarik Suraksha Sanhita, 2023 represents a significant step in the evolution of Indian criminal procedure law. While retaining the essential framework of the CrPC, it introduces important reforms aimed at preventing arbitrary arrests, enhancing transparency, and strengthening the rights of arrested persons[30].

The chapter’s expansion from 20 to 28 sections reflects a more detailed and comprehensive approach to arrest procedures. Key innovations include the Designated Police Officer system, explicit recognition of the right to meet an advocate, mandatory arrest memos, and enhanced protections for vulnerable groups. The integration of the notice of appearance mechanism into the main arrest provision emphasizes the principle that arrest should not be routine but should be based on necessity.

However, the chapter is not without controversies, particularly regarding the handcuffing provision in Section 43(3), which has attracted criticism for potentially conflicting with Supreme Court jurisprudence and lacking adequate safeguards against misuse. The success of Chapter 5 will ultimately depend on effective implementation, adequate training of law enforcement, judicial vigilance, and continued adherence to constitutional principles of personal liberty and human dignity.

As India moves forward with criminal justice reform, Chapter 5 of the BNSS must be viewed not merely as a procedural code but as a constitutional instrument designed to balance the state’s legitimate interest in maintaining law and order with the fundamental rights of citizens. The challenge for law enforcement, the judiciary, and civil society is to ensure that these provisions are implemented in letter and spirit, creating a criminal justice system that is both effective and rights-respecting.

The provisions of Chapter 5 embody the constitutional vision that arrest is not merely a law enforcement tool but a serious curtailment of personal liberty that must be exercised with utmost restraint, accountability, and respect for human dignity. Only through vigilant implementation and periodic review can these provisions achieve their intended purpose of creating a fair, just, and humane system of arrest and detention in India.

References

[1] Constitution of India, Articles 21 and 22.

[2] PRS Legislative Research. (2023). The Bharatiya Nagarik Suraksha Sanhita, 2023. https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023

[3] Ministry of Home Affairs. (2024). Comparative Analysis of CrPC and BNSS. Government of India.

[4] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[5] Constitution of India, Article 22(1) and (2).

[6] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 35.

[7] MyJudix Legal Platform. (2024). Rights on arrest under BNSS. https://www.myjudix.com/post/rights-on-arrest-under-bnss-bharatiya-nagarik-suraksha-sanhita

[8] PRS Legislative Research. (2023). Standing Committee Report on Criminal Law Bills.

[9] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 35(8).

[10] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 37.

[11] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 38.

[12] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 40.

[13] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 42.

[14] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 43(2).

[15] SCC Online. (2025). Bodies of Control: Handcuffing and the Return of the Carceral State under BNSS. https://www.scconline.com/blog/post/2025/11/26/handcuffing-bnss/

[16] Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.

[17] ALEC Law College. (2025). Handcuffing: Necessity or Violation of Rights? https://www.alec.co.in/show-blog-page/handcuffing-necessity-or-violation-of-rights

[18] National Human Rights Commission Guidelines on Arrest (2019).

[19] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 46.

[20] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 48.

[21] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 51.

[22] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 52.

[23] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 54.

[24] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 56.

[25] The Bharatiya Nagarik Suraksha Sanhita, 2023, Section 58; Constitution of India, Article 22(2).

[26] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

[27] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.