Bharatiya Nagarik Suraksha Sanhita, 2023
Section 36
Procedure of arrest and duties of officer making arrest
Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest.
Why this exists
These safeguards were introduced to prevent secret or unacknowledged arrests and to reduce custodial abuse and disappearances. They build on the Supreme Court's 1997 D.K. Basu guidelines and the subsequent 2008 amendment to the old Code of Criminal Procedure (Section 41B), which required arrest memos, witness attestation, and information to relatives — provisions BNSS Section 36 now restates and continues.
How courts read it
In D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down binding guidelines requiring identifiable arresting officers, a memo of arrest attested by a witness, and information to a relative or friend, treating these as essential to protect the arrested person's life and liberty under Article 21. These guidelines were later codified into the CrPC via Section 41B and 41D, and are now carried forward in BNSS Section 36, ensuring courts continue to treat non-compliance as a serious procedural lapse relevant to the legality of the arrest and departmental accountability of officers.
Common misconceptions
- Myth: Police can arrest someone secretly without telling anyone.
Fact: The law requires the arrested person be told they can have a relative or friend informed, unless a family member already witnessed the arrest memo. - Myth: Arrest memos are just internal paperwork with no real protection.
Fact: Courts, following D.K. Basu v. State of West Bengal, treat these memos and witness attestations as essential safeguards against custodial abuse, not mere formalities. - Myth: Officers can stay anonymous during an arrest.
Fact: The provision specifically requires officers to visibly display their name for easy identification.