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When Can Police Arrest You? Know Your Rights

A Comprehensive Legal Guide Under BNSS, BNS, IT Act 2000, and Other Laws

By: Advocate (Dr.) Prashant Mali
Published: November 2025
Legal Framework: Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, Bharatiya Nyaya Sanhita (BNS) 2023, Information Technology Act 2000
⚠️ CRITICAL: READ THIS FIRST
An arrest is one of the most serious actions that can be taken against a person, depriving them of liberty and freedom. Understanding when police can legally arrest you and what rights you possess during arrest is fundamental knowledge that every citizen must have. This guide will empower you with comprehensive legal knowledge to protect yourself.

Understanding Arrest: The Legal Foundation

An arrest is the act of depriving a person of their liberty through legal authority, usually for the purpose of criminal investigation or prosecution. It is not merely physical restraint but a legal process with specific requirements and limitations defined under law.

Legal Definition: Under Section 2(a) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, "arrest" means taking a person into custody under the authority of law. This action must be carried out in accordance with specific legal provisions and constitutional safeguards.

The power of arrest is not absolute. It is circumscribed by constitutional protections under Articles 21 and 22 of the Constitution of India, which guarantee the right to life, personal liberty, and protection against arbitrary arrest. The Supreme Court has repeatedly emphasized that arrest should be the exception, not the rule, and should be used only when absolutely necessary.

When Can Police Arrest You? Legal Grounds for Arrest

1. Cognizable Offenses (Arrest Without Warrant)

Police have the power to arrest without a warrant for cognizable offenses. These are serious offenses where immediate action is required and police investigation can begin without magistrate permission.

Section 35 BNSS, 2023

Arrest Without Warrant in Cognizable Cases

A police officer may, without an order from a Magistrate and without a warrant, arrest any person:

  • Who has been concerned in any cognizable offense
  • Against whom a reasonable complaint has been made or credible information received
  • Against whom reasonable suspicion exists of having been concerned in any cognizable offense

Under the Bharatiya Nyaya Sanhita (BNS), 2023, cognizable offenses include:

2. Cyber Crimes Under IT Act, 2000

The Information Technology Act, 2000, as amended in 2008 and 2021, defines several cyber offenses where police can arrest without warrant:

IT Act Cognizable Offenses

Serious Cyber Crimes Allowing Arrest:

  • Section 66 - Computer related offenses (hacking with intent to cause damage)
  • Section 66B - Dishonestly receiving stolen computer resource or communication device
  • Section 66C - Identity theft (punishment up to 3 years and fine up to Rs. 1 lakh)
  • Section 66D - Cheating by personation using computer resource (punishment up to 3 years and fine up to Rs. 1 lakh)
  • Section 66E - Violation of privacy by capturing, publishing private area images without consent
  • Section 66F - Cyber terrorism (punishment up to life imprisonment)
  • Section 67 - Publishing obscene material in electronic form
  • Section 67A - Publishing sexually explicit material in electronic form
  • Section 67B - Publishing child sexual abuse material (punishment up to 5-7 years and fine up to Rs. 10 lakhs)
  • Section 67C - Intermediary failure to preserve records (in certain serious cases)
⚠️ Important Note on Section 66A: The infamous Section 66A of the IT Act (sending offensive messages through communication service) was struck down by the Supreme Court in 2015 in the landmark case of Shreya Singhal v. Union of India as being unconstitutional and violative of freedom of speech. However, many police officers are still unaware of this judgment and continue to arrest people under this non-existent provision. If arrested under Section 66A, immediately inform your lawyer as this is an illegal arrest.

3. Non-Cognizable Offenses (Arrest Only With Warrant)

For non-cognizable offenses, police cannot arrest without obtaining a warrant from a Magistrate. These are generally less serious offenses.

Section 36 BNSS, 2023

Arrest for Non-Cognizable Offenses

Police officers shall not arrest without warrant any person accused of a non-cognizable offense except:

  • Under a warrant issued by a Magistrate
  • If the person refuses to give their name and residence
  • If the person gives a name or residence which the officer has reason to believe is false

Examples of non-cognizable offenses include simple hurt, assault not causing grievous injury, defamation (in certain contexts), and public nuisance.

4. Special Circumstances for Arrest

Additional Arrest Powers Under BNSS:

  • Proclaimed Offenders: Police can arrest a proclaimed offender without warrant (Section 93 BNSS)
  • Escaped Convicts: Persons who have escaped from custody can be arrested without warrant
  • Breach of Peace: To prevent commission of cognizable offenses or to prevent breach of peace
  • Court Warrant: When a Magistrate or Court issues a warrant for arrest
  • Failure to Attend Court: When summoned witnesses or accused fail to appear before court
  • Violating Bail Conditions: When a person violates conditions of bail

Critical Restrictions on Arrest: When Police CANNOT Arrest You

Constitutional and Statutory Protections

1. Offenses Punishable with Less Than 7 Years Imprisonment

Under Section 35(3) of BNSS, 2023, police officers shall not arrest a person for offenses punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, UNLESS:

  • The police officer is satisfied that arrest is necessary to prevent such person from committing any further offense
  • For proper investigation of the offense
  • To prevent the person from causing disappearance or tampering with evidence
  • To prevent making of any inducement, threat or promise to witness
  • To prevent the person from absconding
  • The person's name and address are not known or there is reasonable doubt about their identity
LANDMARK JUDGMENT: In Arnesh Kumar v. State of Bihar (2014), the Supreme Court held that arrest is not mandatory even for cognizable offenses, especially when punishment is less than 7 years. Police must justify the necessity of arrest and cannot make routine arrests.

2. Women Cannot Be Arrested After Sunset and Before Sunrise

Section 46(4) BNSS, 2023

No woman shall be arrested after sunset and before sunrise, except in exceptional circumstances by a woman police officer and with prior written permission from a First Class Magistrate. Even in such cases, the woman police officer must record detailed reasons for night arrest.

3. Arrest Restrictions for Specific Categories

Category Protection/Restriction Legal Provision
Women Cannot be arrested at night except with prior Magistrate permission and by woman officer Section 46(4) BNSS
Persons Under 18 Years Subject to Juvenile Justice Act provisions; special procedures apply JJ Act, 2015
Sick or Infirm Persons Medical examination required; arrest may be deferred Section 55 BNSS
Members of Parliament/State Legislature Speaker/Chairman must be informed within 24 hours of arrest during session Article 22(2), Constitution

4. Economic Offenses and White-Collar Crimes

For many economic offenses, stringent conditions apply before arrest. The Supreme Court has mandated that in cases of cheque bouncing, dishonor of cheques, and similar economic offenses, arrest should be a last resort and only after thorough investigation establishing prima facie case.

5. Offenses Under Companies Act and GST Act

Several provisions in the Companies Act, 2013, and GST laws are non-cognizable or require prior permission/sanction before arrest, particularly for technical or procedural violations.

Procedure of Arrest: What Police Must Follow

Clear Communication

Section 46(1) BNSS: The police officer making the arrest must inform you that you are being arrested and clearly communicate the grounds for arrest. This must be done in a language you understand. Silence or vague statements are insufficient.

Show Warrant (if applicable)

If the arrest is being made under a warrant, the police must show you the warrant. You have the right to read the warrant and understand the charges against you.

Inform Right to Legal Counsel

Section 46(4) BNSS and Article 22(1): Police must inform you of your right to consult a lawyer of your choice immediately upon arrest. This is a fundamental constitutional right.

Medical Examination

Section 54 BNSS: When arrested, you have the right to be examined by a registered medical practitioner at your request. If arrested by a woman officer or if you are a woman, examination must be by a female medical officer. Any injuries must be documented.

Inform Family/Friend

Section 46A BNSS: Police must inform a friend, relative, or person nominated by you about your arrest and the place of detention within 8-12 hours of arrest. This is mandatory.

Produce Before Magistrate Within 24 Hours

Article 22(2) Constitution and Section 57 BNSS: You must be produced before a Magistrate within 24 hours of arrest (excluding journey time). Detention beyond this period without Magistrate's order is illegal.

Arrest Memo

Section 46(2) BNSS: Police must prepare an arrest memo at the time of arrest, countersigned by a witness (who may be a family member), and provide you with a copy. This memo contains details of arrest including date, time, and grounds.

Entry in Station Diary

Details of arrest must be entered in the station diary/general diary of the police station. This creates an official record.

Violation of Arrest Procedure: Any violation of these mandatory procedures can render the arrest illegal. You can challenge such arrest through habeas corpus petition before the High Court or Supreme Court, and police officers responsible can face departmental action and criminal prosecution.

Your Fundamental Rights During Arrest

Constitutional Rights Under Article 22

  • Right to be Informed: You have the right to be informed of the grounds of arrest as soon as possible in a language you understand
  • Right to Legal Counsel: You have the right to consult and be defended by a legal practitioner of your choice
  • Right Against Self-Incrimination: You cannot be compelled to be a witness against yourself (Article 20(3))
  • Right to Remain Silent: You have the right to remain silent and not answer questions without your lawyer present
  • Right to Be Produced Before Magistrate: You must be produced before a Magistrate within 24 hours
  • Right to Apply for Bail: You have the right to apply for bail before the appropriate court
  • Right to Medical: You have the right to doctor

This also provides a comprehensive overview of how to file a complaint under BNSS, with the Hon’ble Court of Magistrate.

Author: Adv (Dr.) Prashant Mali ♛ [MSc(Comp Sci), LLM, Ph.D.] is a practicing lawyer with expertise in Cyber Crime and Electronic Evidence matters.
Email: prashant.mali@cyberlawconsulting.com