Rights of the Accused During Arrest and Police Custody in India — 2026 Guide (Lucknow/UP)

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

The Constitution of India and statutory law guarantee fundamental rights to every person arrested or detained. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC) with effect from 1 July 2024, has updated the arrest framework while retaining the constitutional protections under Articles 20, 21, and 22 and the D.K. Basu guidelines.

Constitutional Rights on Arrest

Article 20(3) — Protection Against Self-Incrimination

“No person accused of any offence shall be compelled to be a witness against himself.” This means the accused cannot be forced to provide testimony or evidence that may be incriminating. This protection applies to both oral and documentary evidence.

Article 21 — Right to Life and Personal Liberty

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” This article prohibits arbitrary or unlawful detention and has been interpreted by the Supreme Court to encompass the right to a fair trial, legal representation, dignity, and freedom from torture.

Article 22 — Protection Against Arbitrary Arrest and Detention

Article 22(1): No arrested person shall be detained without being informed, as soon as may be, of the grounds for arrest. The arrested person also has the right to consult and be defended by a legal practitioner of his or her choice.
Article 22(2): Every arrested person must be produced before the nearest Magistrate within 24 hours of arrest (excluding the time necessary for travel). No detention beyond 24 hours is permissible without the Magistrate’s authority.

D.K. Basu Guidelines — 11 Mandatory Requirements

In D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Supreme Court laid down 11 mandatory requirements to be followed in all cases of arrest or detention:

Identification — Police personnel carrying out the arrest must bear accurate, visible, and clear identification and name tags with their designations. Particulars of all personnel handling interrogation must be recorded in a register.
Arrest Memo — A memo of arrest must be prepared at the time of arrest, attested by at least one witness (a family member of the arrested person or a respectable person of the locality), with the time and date of arrest recorded.
Right to Inform — The arrested person is entitled to have one friend, relative, or other person informed of the arrest and the place of detention as soon as practicable.
Telegraphic Notification — If the nominated friend or relative lives outside the district or town, the time, place of arrest, and venue of custody must be notified by the police within 8–12 hours.
Awareness of Rights — The arrested person must be made aware of the right to have someone informed of the arrest, immediately upon being placed under arrest.
Detention Diary Entry — An entry must be made in the diary at the place of detention regarding the arrestee’s name, the name of the person notified, and the particulars of the police officials involved.
Injury Inspection Memo — The arrestee may request a physical examination at the time of arrest. Major and minor injuries must be recorded in an Inspection Memo, signed by both the arrestee and the arresting officer.
Medical Examination Every 48 Hours — The arrested person must be subjected to medical examination every 48 hours during detention, by a doctor on the panel of approved doctors appointed by the Director of Health Services.
Documents to Magistrate — Copies of all documents, including the arrest memo, must be sent to the Illaqa (jurisdictional) Magistrate for record.
Right to Meet Lawyer — The arrestee must be permitted to meet a lawyer during interrogation, though not necessarily throughout the entire interrogation.
Police Control Room Notification — A police control room must exist at all district and state headquarters. Information regarding the arrest and the place of custody must be communicated to the control room within 12 hours and displayed on a conspicuous notice board.

Key BNSS 2023 Provisions on Arrest

The BNSS has consolidated and updated the arrest provisions. Key sections include:

Section 35 — Arrest Without Warrant

Section 35 BNSS (replacing Sections 41 and 41A CrPC) provides that for offences punishable with less than 7 years’ imprisonment, the police officer must first issue a written notice directing the person to appear. Arrest is permitted only if the person fails to comply with the notice or if the officer records specific reasons justifying the arrest (Section 35(5)).

This codifies the principle from Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 that arrest is not automatic — it must be justified by recorded reasons.

Section 43 — How Arrest Is Made

Section 43(1) — The police officer or other person making the arrest must actually touch or confine the body of the person to be arrested, unless the person submits to custody by word or action.
Proviso for women — No woman shall be arrested by touching her person, unless the arrest is being made by a female police officer. Male officers must give verbal or written notice, and the woman must submit to custody.
Section 43(5) — No woman shall be arrested after sunset and before sunrise, except in exceptional circumstances with a written report by a woman police officer and prior permission of the jurisdictional Magistrate.

Section 43(3) — Handcuffing Provision

The BNSS introduces a new provision permitting handcuffing for:

Repeat or habitual offenders
Escaped prisoners
Persons accused of serious offences — organised crime, terrorism, murder, rape, acid attacks, drug offences, POCSO offences, offences against the State, counterfeiting, and human trafficking

This provision has been challenged before the Supreme Court for its potential conflict with the anti-handcuffing precedent in Prem Shankar Shukla v. Delhi Administration (discussed below).

Section 47 — Grounds of Arrest

Section 47 BNSS (replacing Section 50 CrPC) requires the police officer to “forthwith communicate full particulars of the offence or other grounds for such arrest” to the person arrested. The Supreme Court has held that communicating the grounds of arrest is mandatory; non-compliance renders the arrest and subsequent remand illegal.

Section 48 — Right to Inform Nominated Person

Section 48 BNSS (replacing Section 50A CrPC) requires the arresting officer to inform a person nominated by the arrestee of the arrest and the place of detention. Information about the arrest must also be displayed at the police station in a visible place. The BNSS now allows nomination of “any” person, not just a friend or family member.

Section 58 — Production Before Magistrate Within 24 Hours

No person arrested without warrant shall be detained for more than 24 hours (excluding travel time) without the authority of a Magistrate. This mirrors the constitutional guarantee under Article 22(2).

Right Against Handcuffing

Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526

The Supreme Court held that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian. Handcuffing is permissible only when the State demonstrates that no other practical way of preventing escape is available and the prisoner is so dangerous that the circumstances warrant it. Prior written authorisation from the Magistrate, with reasons recorded, is required. Routine handcuffing violates Articles 14, 19, and 21.

Citizens for Democracy v. State of Assam (1995) 3 SCC 743

The Supreme Court reinforced the Prem Shankar Shukla position and directed that handcuffs should be used only as a last resort, with prior Magistrate approval.

Note: Section 43(3) BNSS now permits handcuffing for certain serious offences (listed above), which represents a departure from this line of precedent. The constitutionality of this provision is under judicial scrutiny.

Rights During Police Custody

Protection Against Torture

Article 21 of the Constitution protects against torture and cruel, inhuman, or degrading treatment. The D.K. Basu judgment expressly prohibits torture, third-degree methods, or elimination with a view to extracting information or confessions.

Section 52 BNSS (replacing Section 55A CrPC) places a duty on the custodial officer to take reasonable care of the safety and health of the arrested person.

Medical Examination

D.K. Basu Guideline No. 8 — Medical examination every 48 hours during detention
Section 51 BNSS (replacing Section 54 CrPC) — Examination by a registered medical practitioner
D.K. Basu Guideline No. 7 — Right to request physical examination at the time of arrest, with injuries recorded in an Inspection Memo

Maximum Detention Period

Under Section 187 BNSS, the Magistrate may authorise detention:

Up to 90 days for offences punishable with death, life imprisonment, or imprisonment of 10 years or more
Up to 60 days for other offences

If investigation is not completed within these periods, the accused is entitled to be released on default bail.

Key Case Law

D.K. Basu v. State of West Bengal (1997) 1 SCC 416

D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, wrote a letter to the Chief Justice of India about custodial deaths, which was treated as a PIL. The Supreme Court laid down the 11 mandatory guidelines (detailed above) and held that compensation may be awarded for violation of fundamental rights even in the absence of proof of identifiable wrongdoers.

Joginder Kumar v. State of U.P. (1994) 4 SCC 260

The Supreme Court held that:

No arrest can be made routinely on a mere allegation of commission of an offence
The existence of the power to arrest is one thing; its justification is another
Arrest causes incalculable harm to reputation and self-esteem
The police officer must record reasons for arrest in the case diary
A relative or friend must be informed of the arrest

Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

The Supreme Court held that there must be no automatic arrest for offences punishable with less than 7 years’ imprisonment. Key directions:

A notice under Section 41A CrPC (now Section 35(3) BNSS) must be served within 2 weeks of case registration
If the accused complies with the notice, no arrest unless recorded reasons justify its necessity
The Magistrate must not authorise detention mechanically — compliance with statutory requirements must be verified
Non-compliance may lead to departmental action against the police officer and contempt proceedings against the Magistrate

In 2023, the Supreme Court directed all High Courts and Directors General of Police to ensure strict compliance with these guidelines.

Free Legal Aid

Legal Services Authorities Act, 1987

Every accused who is unable to engage a lawyer due to poverty or indigence is entitled to free legal aid at the cost of the State. The Supreme Court, in Khatri v. State of Bihar (1981), held that this right is implicit in Article 21, and the Magistrate has a duty to inform the accused of this right.

Eligible Categories (Section 12)

Free legal aid is available to:

Members of Scheduled Castes or Scheduled Tribes
Women and children
Persons with mental illness or other disabilities
Victims of trafficking
Persons in custody — including those in protective homes, juvenile homes, or psychiatric hospitals
Persons with annual income below the prescribed limit
Industrial workmen

NALSA Helpline

The National Legal Services Authority operates a toll-free helpline at 15100 and an online portal for applications. Applications for legal aid are decided within a maximum of 7 days.

Special Protections for Women

No woman shall be arrested by touching her person unless arrested by a female police officer (Section 43(1) BNSS proviso)
No arrest of a woman after sunset and before sunrise except with written report by a woman police officer and prior Magistrate permission (Section 43(5) BNSS)
Medical examination of a woman must be conducted by or under the supervision of a female medical practitioner
Search of a woman must be conducted by another woman only, with strict regard to decency (Section 49 BNSS)
Information about a woman’s arrest must be given to her relatives or friends immediately

Important Points to Remember

The grounds of arrest must be communicated immediately — not at any time within 24 hours
Production before a Magistrate within 24 hours is a constitutional right that cannot be waived
The accused has the right to consult a lawyer during interrogation (D.K. Basu Guideline No. 10)
Free legal aid is available to any person in custody, regardless of income, under the Legal Services Authorities Act
Filing a false complaint against police officers for fabricated misconduct is also punishable under law
All D.K. Basu guidelines are binding on all police officers across India — non-compliance may attract contempt and disciplinary proceedings
For information on how an FIR is filed — which typically precedes an arrest — see How to File an FIR in India — Step-by-Step Guide (2026)
Women facing domestic violence who may be concerned about protection during police proceedings should also read Domestic Violence Act 2005 — Protections, Procedure & Remedies in India

Useful Resources

Helpline Numbers

Helpline	Number
NALSA Legal Aid Helpline	15100 (toll-free)
National Human Rights Commission	14433 / 1800-345-4334
Police Emergency	112
Women Helpline	181
UP Women Power Line	1090

Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.