AUTHOR: Aprajita Arya, University Law college
Bharatiya Nagarik Suraksha Sanhita ( BNSS) , 2023” replaced the Code of Criminal Procedure , 1973. Illegal Detention remains a constitutional concern under article 21 of Indian Constitution. The supreme court and High court have delivered key judgement curbing arbitrary arrests , preventive Detention misuse and custodial overreach.
Introduction
Illegal Detention is a violation of fundamental rights and Constitutional Law, in article 21 of Indian Constitution. The or international human rights statutes, including the Universal Declaration of Human Rights.
Meaning of Illegal Detention :
Illegal Detention is the unlawful deprivation of a person’s liberty, where they are held or restricted against their will without legal justification, warrant or due process. Illegal Detention is the one of the most dangerous weapon in democracy when those who are take the law into their own hands. Because of this illegal Detention custodial torture or custodial death is enriched .In India several citizens generally the poor or those who from weaker sections of the society are the victims of this custodial torture.
The most disturbing aspect of custodial violence is that citizens faith is anchored in the rule of law in a democracy or from the criminal justice system . Illegal Detention is the unjustifiable imprisonment or deprivation of liberty by the way of “arrest “. Let’s, now understand the term arrest and its process.
Arrest
Arrest means the lawful taking of a person in custody, so that he is restrained from his liberty and he is prevented from moving usually for the purpose of
Proper Investigation
- Preventing further offences
- Ensuring his presence in court.
- Preventing evidence tampering
Normally we see when a person does or has done an illegal act against the law ,gets arrested. The term arrest in Indian law ,Bharatiya Nagarik Surksha Sanhita, 2023 in its chapter V ( section 35 to 62 ) deals with arrest of a person. BNSS not defined the arrest specifically. Every deprivation of liberty or physical restrained is not arrest . In simply we say that arrest means that deprivation of liberty by legal authority or in a professionally competent adept manner amounts to arrest. Thus we can say that arrest means the apprehension of a person to snatching the liberty by legal authority.
Section 35 of BNSS say that any police officer may arrest any person without an order from a magistrate and without a warrant.
Any person means: who commits cognizable offense in the presence of police officer. Police officers arrest such person who committed crime on the basis of reasonable complaint if not then further offense committed by such person. And such person tried to tampering or disappear the evidence and the strong criminal case is not registered against him.
Who can arrest
An police officer, Magistrate, or any private person can arrest a person according to a legal framework given in BNSS. Section 40 states that any private person may arrest or cause to be arrested any person who in his presence commits non bailable and cognizable offence or also arrest a proclaimed offender but within six hours from such arrest he hand over arrested person to the nearest police station.
Arrest by Magistrate given in section 41 of BNSS , If any offence is committed in the presence of a Magistrate ( executive and judicial) then he may by himself or order any person to arrest offender without warrant but that offence committed within his local jurisdiction.
Section 42 of BNSS protect the members of Armed Forces of Union from arrest but applies only when members of armed forces are acting in the discharge of their official duties or when it is purported to be done in their official capacity except after obtaining the consent from Central Government.
Police officer arrest An person without warrant if that offence is cognizable in nature sec.35(1) And if arrest An person with warrant if that offence is non-cognizable in nature sec.35(2). Cognizable offence are of more serious nature as compared to non cognizable offences I.e. Murder, Dacoity, Rape, etc.
How is an Arrest Made ?
Sec.43 describes the mode in which arrests are to be made. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word . According to section 36 of bnss every police officer making arrest shall bear an accurate , visible, and clear identification of his name which will facilitate easy identification. He will also prepare a memorandum of arrest and the memorandum shall be attested by atleast one witness , who is a member of family of the arrested person or a respectable member of the locality where the arrest is made. If the offender person forcibly resist the endeavour to arrest him or attempts to evade the arrest then police officer may use all means necessary to effect arrest means that police officer may keeping in view the nature and gravity of the offence, use handcuff .
How to arrest An women?
If a woman is arrested by the police officer then this police officer shall not touch the woman for effecting her arrest . In case of women , submission to custody on an oral intimation of arrest shall be presumed unless the circumstances indicate to the contrary . The general rule is that females are not arrested without the presence of a lady constable. Further no women shall be arrested after sunset and before sunrise, but some exceptions also exist , where crime is very serious and arrest is important then an arrest can be made with a written order from the Magistrate of the first class within his local jurisdiction.
If the arrested person is female, the examination of the body shall be made only by or under the supervision of female medical officer or registered medical practitioner .
In case of state of Maharashtra v. Christian Community Welfare Council of India [ (2003) 8 SCC 546 ].
Supreme court held that all efforts should be made to have a lady constable present when arresting a woman, particularly at night. However, if a lady constable is absolutely unavailable or impossible to secure without hindering the investigation, the arresting officer may proceed , provided they record reasons for this exception.
Right of an arrested person:
In law, there is a principle of “ presumption of innocence till he has been proven guilty “ it requires a person arrested to be treated with humanity, dignity, and respect until his guilt is proven. Even Article 21 of the Constitution provides that “ no person shall be deprived of his life or personal liberty except according to Procedure established by law “. The procedure contemplated by this article must be right, just and fair, and not arbitrary. The arrest should not only be legal but justified also. Let’s see the rights of an arrested person according to BNSS.
• In every case of arrest with or without warrant, the person arresting shall communicate to the arrested person, without delay, the grounds for his arrest .According to section 47 of bnss. If any person arrested without warrant or in bailable offence then police officer shall inform the arrested person that he is entitled to be released on bail.
• The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Given in section 46 of bnss.
• Every police officer or other person making any arrest shall give information to any of his relatives, friends or other person whose name is provided by the accused person regarding such arrest. ( section 48 ).
In case Joginder kumar v. State of U.P and Dk Basu V. State of west Bengal these judgement held that police officer not only to inform the friend or relatives of the arrested person but also to make an entry in a register maintained by the police. The Magistrate is also under an obligation to satisfy himself about the compliance of the law by the police in this regard.
• In case of every arrest whether the arrest has been made with or without a warrant, to produced the arrested person before a magistrate having jurisdiction in this case without unnecessary delay ( section 57) .
• No police officer shall detain in custody a arrested person without warrant for a longer period that is not more than 24 hours, exclusive of the time necessary for the journey from the place of arrest to the court of Magistrate. If it is not complied with, the Detention shall be unlawful.,it is his duty either to release him on bail or to remand him.( section 58 ) .
• In non-cognizable cases arrest is made with a warrant, arrested person has right to see the warrant. Warrant of arrest should be in writing, signed, by the presiding officer, should have a seal of court , name and address of the of the accused , and offence under which arrest is made .
• Any person is arrested and interrogated by the police officer he shall be entitled to meet an advocate of his choice during interrogation. Under section 38 bnss.
• An arrested person has right to remains silent under article 20(3) of Indian Constitution. So that police can’t extract self – incriminating statement from a person without a will or without his consent.
• Every person who is arrested has a right to be examined, soon after the arrest , by a medical officer in the service of Central or the State government. In the absence of such a medical officer, the arrested person shall be examined by a registered medical practitioner Under Section 53 of BNSS.
• The right to compensation for victims of unlawful arrest and detention has been recognised by the Supreme Court in Nilabati Behera v. State of Orissa. 
Misuse of arrest powers:
The power of arrest is wrongly and illegally exercised in many cases across the country. Often, this power is used to extort money, valuable property, or at the behest of an enemy of the arrested person. Even in civil disputes, this power is being misused based on false allegations made by the opponent. Police power is sometimes used to settle personal scores, target political opponents, or as a form of pre-trial punishment and public harassment to induce fear. The Supreme Court of India, in the case of Joginder Kumar v. State of U.P., held that no arrest should be made routinely.
The wide discretion given by BNSS to arrest a person- even in bailable offences (both cognizable and non-cognizable)- and the further powers to make preventive arrest ( e.g. under ssection170 of the BNSS and several city police enactment) , clothes the police with extraordinary power which can be easily abused . Neither there is any in house mechanism in the police department to check such misuse or abuse nor does the complaint of such abuse and misuse to higher police officers bear fruit except in some exceptional cases.
Consequences of non-compliance with the provisions relating to arrest;
- A trial will not be void simply because the provisions relating to arrest have not been fully complied with.
- Though the illegality or irregularities in making an arrest would not vitiate the trial of the arrested person, it would be quite material if such a person is prosecuted on a charge of resistance to or escape from lawful custody.
- If the arrest is illegal , it is a tort of false imprisonment and the arrested person is entitled to claim damages from the person who made such an arrest .
What if a person is unlawfully detained ?
If a person is unlawfully detained by the police, the writ of Habeas Corpus ( we command that ) filling under article 226 in High court or under article 32 in supreme court this provisions given in Constitution . And if court examined the case and find it is illegal Detention then release him . In case A.D.M .Jabalpur V. Shivkant shukla [ AIR 1976 SC 1207 ]
Case laws
We have landmark judgements that have been given by Supreme Court of India which sets some rules in favor 00f arrested person and also prevents the misuse of this power.
1 . Arnesh kumar V. State of Bihar ( 2014 ) :
Issues ; can a police officer arrest a person merely on the basis of an allegation in a non-bailable and cognizable offence like section 498A IPC ?
GUIDELINES ISSUED BY THE SUPREME COURT :
( a )No automatic arrests in case under section 498 A IPC , police must assess the necessity of arrest as per sec.41 crpc.
( b) police officer must be given a checklist .
( c ) police must fill out the checklist and submit reasons and material justifying arrest when producing the accused before the Magistrate.
(d)THE Magistrate must examine the report and record satisfaction before authorising any detention.
(e) If no arrest is made , the police must inform the Magistrate within two weeks, extendable by the superintendent of police with written reasons.
(f) Notice to appearance U/S 41 crpc must be served on the accused within two weeks of the case being registered , also extendable by the superintendent police with written reasons.
(g) Non compliance with these directions will invite departmental and contempt of court proceeding against the concerned police officer.
(h) Judicial Magistrate who authorize Detention without recording reasons will be subject to disciplinary action by the High court.
2. Joginder kumar V. State of U.P ( 1994):
In this case Joginder kumar an advocate called for inquiries, arrived with his brother after that authority stated that Joginder would be released in the evening later informed that he had been sent to Mussoorie , Joginder brother and relatives visited to police station of mussoorie to check on him . Joginder had been taken to an undisclosed location
Legal action: A writ petition for Habeas Corpus was filed
Judgement:
- Arrest principle: Arrest shouldn’t occur just beacause it’s lawful.
- Power V. Justification- police must justify an arrest, not just have the power to make one.
- Impact of arrest: harm person reputation
- No routine arrest: Arrest not based solely on allegations
- Inform relatives
- Police duty : protect constitutional rights and avoid unwanted arrest.
- Need for investigation: Reasonable investigation
- Liberty matters: Article 21 violates then a strong base is necessary.
3.D.K Basu V. State of west Bengal ( 1997):
D.K Basu – Executive chairman of legal aid , service of West Bengal
Addressed to CJI ( P.N Bhagwati )
Issue: News items on deaths in police custody
Request: Letter to be treated as writ petition under PIL.
Court action: Letter treated as writ petition due to the seriousness of custodial violence.
Guidelines by the Supreme Court:
(a) Identification tags : Police officer must wear visible , clear, Identification with name and designation.
(b) Memo of arrest with date, time, place , date , name and witness.
(c) Medical examination by government doctor at the time of arrest and every 48 hours during Detention .
(d) Right to meet lawyer during interrogation.
(e) Entry in police dairy , all details of arrest .
(f) Inspection Memo: All injury on body of accused person must be recorded.
(g) police control room : every arrest must be reported to district and state police control room within 12 hours.
(h) Information display in station .
(i) Production before Magistrate within 12 hours.
(j) Informing relatives and friends : must be within 12 hours about arrest and place of custody.
(k) Document submission to the Magistrate.
Non compliance leads to departmental action and potential attempt of court proceeding.
These guidelines derive from article 21 and 22 (1) .
4. Vihaan kumar V. State of Haryana [2025]
Facts : Vihaan kumar arrested but grounds of arrest is not disclosed in front of Vihaan kumar and produced before Magistrate after 29 hours of arrest . Handcuffed and chained to hospital bed .
Issues:
1. Article 22(1) violation – was accused informed of grounds of arrest?
2. Article 22(2) + sec 57 BNSS violation ; was he produced within 24 hours?
3. Article 21 – Does chaining to hospital bed violates right to dignity?
Judgement: Supreme Court held that the arrested individual must be directly informed of the grounds of arrest in a language they understand.
And produced after 29 hours = illegal Detention , 24 hours rule is mandatory.
Chaining to hospital bed “violates his right to dignity “ and directed the state to issue guidelines to prevent such treatment. So , arrest declared unconstitutional and an immediate release order is passed.
Conclusion:
The jurisprudence from D.K . Basu to Vihaan Kumar shows one thread : Article 21 and 22 are not mere paper rights . With BNSS 2023 codifying arrest safeguards, the Supreme Court has made it clear that any detention outside the four corners of law is void ab initio. We tried to understand the detention, arrest , right of Arrested person and remedies of for the person who is unlawfully detained. By going through Law commission report, we can read with data on how a power of arrest is being misused because of unawareness of people about their right .
This report shows high percentage of arrests and detention are made in bailable offences and non – cognizable offences . Illegal Detention has a diminishing and demoralizing effect on a person. There needs to be a balance between security of the state on one hand and freedom on other . Thee needs to be some checks on power and awareness created among the people about their rights.
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