Arrested or Detained by Police: Your Rights and What Your Family Should Do

An arrest is among the most stressful events in a person's life, and it is made worse by not knowing what the police may and may not do. Indian law gives every arrested person certain rights, drawn from the Constitution, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Supreme Court directions. Knowing them does not mean resisting the police, which can only make matters worse. It means being able to ask calmly for what the law provides.

What Are the Core Rights on Arrest?

The main rights are:

• To be told the grounds of arrest as soon as possible, under Article 22(1) of the Constitution and the BNSS
• To have a relative, friend or other nominated person informed of the arrest and where you are held
• To be produced before a magistrate within 24 hours of arrest, excluding the time needed for travel
• To consult and be defended by an advocate of your choice
• To be medically examined, and to have any injuries recorded
• Not to be tortured or ill-treated, in any circumstances

Why Is the 24-Hour Rule Important?

Article 22(2) and the BNSS provide that a person arrested must be taken before the nearest magistrate within 24 hours, and cannot be kept in custody beyond that without the magistrate's order. This ensures that a judge, and not only the police, decides whether you continue to be held. If you are not produced in time, the detention is illegal, and the family can approach the High Court by a petition for habeas corpus, as our guide on habeas corpus explains.

What Did the Supreme Court Direct in D.K. Basu?

In D.K. Basu v. State of West Bengal (1997), the Supreme Court issued guidelines to prevent abuse in custody. They include that the arresting officers must wear accurate name tags, prepare an arrest memo attested by a witness and countersigned by the arrested person, tell a relative or friend about the arrest, record the arrest in a diary, allow the arrested person to meet their lawyer during interrogation though not throughout, and arrange a medical examination. The arrest memo is an important document, and you should ask for a copy.

Do You Have to Answer Police Questions?

You must give your name and address and cooperate with the lawful investigation. But Article 20(3) of the Constitution protects you from being compelled to be a witness against yourself, so you need not answer questions that tend to incriminate you. A confession made to a police officer is not admissible as evidence against the accused in court. Do not sign any statement or paper you have not read and understood, and do not sign blank papers. Ask to have an advocate present.

Do Women Have Special Protections?

Yes. A woman should not ordinarily be arrested after sunset and before sunrise, unless a woman police officer obtains the written permission of a magistrate in exceptional circumstances. A woman should be searched only by another woman, with strict regard to her dignity, and a woman police officer should be present when a woman is arrested.

What Allows the Police to Arrest Without a Warrant?

Only in the situations listed in the BNSS. For offences punishable with up to seven years, the Supreme Court in Arnesh Kumar v. State of Bihar (2014) and Satender Kumar Antil v. CBI (2022) has directed that arrest should not be routine, and the police should consider a notice to appear instead, which our guide to police notices under Section 35 of the BNSS describes. Arrest requires reasons, and a magistrate should check that detention is justified.

What Should the Family Do?

If someone has been taken into custody, the family can act in an organised way:

• Find out which police station holds the person, and ask for the grounds of arrest and the sections
• Tell an advocate immediately and give the details, including the FIR if there is one
• Ask for a copy of the arrest memo and note the names and numbers of the officers
• Bring identity documents, any medicines the person needs, and necessary clothing
• Prepare for a bail application, with address proof, surety details and income documents
• If the 24-hour limit passes without production before a magistrate, tell the advocate at once

Do not pay money to any person promising to settle the matter at the police station, and do not try to obstruct or argue with officers, because that may lead to further charges.

What Happens at the Magistrate's Court?

When the person is produced, the magistrate checks the arrest and hears the police if they seek custody for investigation, which is called police remand, up to a limit. The accused can apply for bail, and the magistrate can send the accused to judicial custody. Our guide to bail in India explains how release works from there.

What If You Are Ill-Treated in Custody?

Tell the magistrate when you are produced, ask for a medical examination, and have your advocate record it in writing. Complaints can be made to the magistrate, the State Human Rights Commission and the High Court.

Knowing your rights is the first step, and having an advocate in place quickly is the second. Our Criminal Law practice advises families facing an arrest, and you can request a consultation. This article is general information and not legal advice for any particular situation.