An arrest can be a confusing and intimidating experience. But what happens after someone is taken into custody, and what rights does an arrested person have under Indian law?
Unlike the US, India does not follow a fixed warning that police must recite before making an arrest. Instead, Indian law lays down specific rules on when a person can be arrested without a warrant.
Knowing these rights can help you understand what police can and cannot do during an arrest — and what legal steps you can take if you or someone close to you is taken into custody.
A complaint does not automatically lead to an arrest.
Receiving a police complaint does not mean that the person named in it can be arrested immediately.
Section 35 of Bharatiya Nagarik Suraksha Sanhita (BNSS) sets out the circumstances in which police can arrest without a warrant.
This depends on whether the offence is cognizable or non‑cognizable.
In a cognizable offence, the law permits the police to arrest without a warrant, subject to the applicable legal conditions. In a non-cognizable offence, a warrant is generally required for arrest.
The classification depends on the particular offence and the law applicable to it.
For many offences punishable with imprisonment of up to seven years, the default is a notice to appear unless the officer records specific reasons that arrest is necessary (for example, risk of escape, tampering with evidence, or committing further offences), unless the legal conditions for arrest are satisfied.
A person who receives such a notice is required to comply with it. Ignoring the notice can have legal consequences. However, non-compliance does not by itself make an arrest automatic; the police must still satisfy the legal requirements for arrest.
So, what are your immediate rights if you are being arrested?
You have the right to know why you are being arrested.
Under Section 47 of BNSS, a person arrested without a warrant must be informed of the particulars of the offence or the grounds for the arrest.
If the arrest is for a bailable offence, the person must also be informed of their right to bail.
In other words, you have the right to know why you are being taken into custody.
A copy of the FIR can also be sought by the accused or their lawyer, subject to the applicable procedure. This allows the accused to understand the allegations recorded against them and take appropriate legal steps.
Someone you trust must be informed about your arrest.
Under Section 48 of the BNSS, the police must inform a relative, friend or another person nominated by the arrested person about the arrest and where the person is being held.
The arrested person must also be informed of this right when brought to the police station.
This ensures that someone knows about the person's arrest and whereabouts.
You have the right to meet a lawyer of your choice.
Article 22(1) of the Constitution protects an arrested person’s right to consult and be defended by a legal practitioner of their choice.
Section 38 of the BNSS gives an arrested person the right to meet an advocate of their choice during interrogation. However, this does not mean that the lawyer has to be present throughout the entire interrogation.
Police cannot keep you in custody indefinitely.
Under Article 22(2) of the Constitution, a person who is arrested and detained must generally be produced before the nearest Magistrate within 24 hours, excluding the time required for the journey.
The BNSS also requires a person arrested without a warrant to be taken before a Magistrate without unnecessary delay. If further detention is required, it must be authorised by a Magistrate.
The BNSS also requires a medical examination of the arrestee at the time of arrest and periodically during custody, as per law and guidelines.
The Supreme Court has laid down landmark safeguards concerning the arrest and detention of individuals in D.K. Basu v. State of West Bengal (1997). The judgment established safeguards aimed at protecting arrested persons and preventing custodial abuse.
Legal protection may also be available before an arrest.
If a person has reason to believe that they may be arrested for a non‑bailable offence, they can apply to the High Court or the Court of Session for anticipatory bail under Section 482 of the BNSS. If granted, anticipatory bail can protect the person from being taken into custody, subject to the conditions imposed by the court.
If a person is arrested and believes he is innocent, many people think he has only two options: face a long trial, or get the FIR quashed by the High Court.
In reality, an arrested person has several legal remedies, depending on the facts of the case.
First, he can contest the case at trial. This means fighting the allegations in the trial court. But yes, this process can take years.
Second, if he is in jail, he can apply for regular bail. Bail does not decide innocence or guilt; it only allows him to remain out of custody while the case continues.
Third, at an early stage, he can file a discharge petition. If the material collected by the police does not make out a proper case, the court may discharge him and end the proceedings before a full trial.
Fourth, in rare and exceptional cases, he can approach the High Court to quash the FIR. Quashing is not a normal remedy for every innocent person. It is allowed only when, on the face of it, the FIR does not disclose any offence, is legally barred, or is clearly an abuse of the legal process; for example, a false or vindictive complaint with no basis.
There is also anticipatory bail, but that is a pre‑arrest remedy. If a person fears arrest for a non‑bailable offence, he can approach the Sessions Court or High Court for anticipatory bail. Once arrested, the remedy is regular bail, not anticipatory bail.
Yes. But that power is not unlimited. An arrest without a warrant is permitted only in specific circumstances and must follow legal safeguards.
If you are arrested, you have the right to know why, seek legal assistance, have someone informed about your arrest, and be protected against unlawful detention.
Knowing your rights does not mean resisting the law. It means understanding what the law requires, from citizens as well as those enforcing it.