Arrest Memo Under Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023: Legal Safeguards, Mandatory Requirements, and Rights of an Arrested Person
By Advocate Avichal Pandey
Advocate, Allahabad High Court
Introduction
Arrest is one of the most serious powers exercised by the police under criminal law. Since an arrest directly affects the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India, the law mandates strict procedural safeguards to prevent arbitrary arrests and custodial abuse.
One of the most important protections available to every arrested person is the Arrest Memo. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC), continues this safeguard under Section 36, ensuring that every arrest is transparent, documented, and legally accountable.
This article explains the concept of an Arrest Memo, its legal requirements, the rights of an arrested person, and the consequences of non-compliance.
What is an Arrest Memo?
An Arrest Memo is a written document prepared by the police at the time of arrest. It officially records the fact that a person has been arrested and contains all essential details relating to the arrest.
The Arrest Memo acts as documentary proof that the arrest was carried out according to law and protects both the accused and the investigating agency.
It is one of the strongest safeguards against illegal detention, custodial torture, false implication, and misuse of police powers.
Legal Framework
Under the new criminal procedure law:-
●Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023
●Earlier governed by Section 41B of the Code of Criminal Procedure, 1973
Both provisions substantially require the police officer making the arrest to prepare a proper Arrest Memo at the time of arrest.
Why is an Arrest Memo Important?
The Arrest Memo ensures:-
●Transparency in police action
●Protection against illegal detention
●Accountability of investigating officers
●Judicial supervision over arrests
●Protection of constitutional rights
●Accurate record of arrest
Without an Arrest Memo, it becomes difficult to verify when, where, and under what circumstances the arrest took place.
Mandatory Requirements of an Arrest Memo
Section 36 BNSS prescribes several essential requirements.
1. Prepared at the Time of Arrest
●The Arrest Memo must be prepared immediately when the arrest is made.
●It cannot be prepared later to justify an illegal detention.
●The exact place, date, and time of arrest should be mentioned.
2. Attestation by an Independent Witness
●The memo must be attested by at least one witness.
The witness should preferably be:
●A family member, or
●A respectable person from the locality.
This requirement adds credibility to the arrest process.
3. Signature of the Arrested Person
●The arrested individual should countersign the Arrest Memo.
●The signature merely acknowledges the arrest.
●If the person refuses to sign, the refusal should be recorded.
4. Exact Date and Time
The Arrest Memo must clearly record:
●Date of arrest
●Time of arrest
●Place of arrest
This becomes crucial for determining compliance with the constitutional requirement of producing the accused before a Magistrate within 24 hours.
Information Normally Included in an Arrest Memo
A properly prepared Arrest Memo generally contains:-
●Name of the accused
●Father's or mother's name
●Residential address
●FIR Number
●Police Station
●Sections involved
●Date of arrest
●Time of arrest
●Place of arrest
●Name and designation of arresting officer
●Name of witness
●Signature of witness
●Signature of arrested person
●Signature of arresting officer
Rights of an Arrested Person
Preparation of an Arrest Memo is only one of several legal safeguards available to an arrested person.
The accused also enjoys the following rights:-
●Right to Know Grounds of Arrest
●Every arrested individual has the right to be informed of the reasons for arrest.
Right to Inform a Relative or Friend
●The police must inform a family member, friend, or nominated person about the arrest.
Right to Legal Representation
●The accused has the constitutional right to consult and be defended by an advocate of choice.
Right to Medical Examination
●Medical examination protects against allegations of custodial violence and records the physical condition of the accused.
Right to be Produced Before a Magistrate
●The accused must be produced before the nearest Magistrate within 24 hours, excluding travel time.
Landmark Judgment: D.K. Basu v. State of West Bengal (1997)
The Supreme Court of India, in the historic decision of D.K. Basu v. State of West Bengal (1997) 1 SCC 416, laid down detailed guidelines governing arrests and detention.
The Court directed that:-
●Every arrest must be documented.
●An Arrest Memo is mandatory.
●The memo should be signed by a witness.
●It should bear the signature of the arrested person.
●Date and time of arrest must be recorded.
●A friend or relative should be informed promptly.
These guidelines were later incorporated into the Code of Criminal Procedure and are now reflected in the Bharatiya Nagarik Suraksha Sanhita, 2023.
Consequences of Non-Compliance
●Failure to prepare an Arrest Memo can have serious legal consequences.
These include:-
●Violation of constitutional rights
●Departmental action against police officers
●Judicial criticism
●Compensation for illegal detention in appropriate cases
●Adverse impact on prosecution
●Increased scrutiny by constitutional courts
Courts have repeatedly emphasized that procedural safeguards cannot be treated as mere formalities.
Difference Between an Arrest Memo and an FIR
Practical Importance for Citizens
Every citizen should know that if they or their family member is arrested, they are entitled to ask:-
●Has an Arrest Memo been prepared?
●Does it mention the correct date and time?
●Has a family member been informed?
●Has an independent witness signed it?
●Has the arrested person been allowed to sign?
●Is a copy available for legal proceedings?
Knowledge of these safeguards significantly reduces the possibility of illegal detention.
Frequently Asked Questions (FAQs)
1.Is an Arrest Memo mandatory?
Yes. Section 36 of the BNSS makes preparation of an Arrest Memo mandatory at the time of arrest.
2.Who signs the Arrest Memo?
It is signed by:-
●The arresting police officer
●At least one witness
●The arrested person (or refusal is recorded)
3.Can police arrest without preparing an Arrest Memo?
Failure to prepare an Arrest Memo violates statutory requirements and may invite judicial scrutiny and departmental action.
4.Can family members demand a copy?
The details of the arrest should be communicated to the family, and the Arrest Memo forms an important part of the arrest record.
Conclusion
The Arrest Memo is far more than a procedural document—it is a cornerstone of personal liberty under India's criminal justice system. Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 reinforces the principle that while the State has the power to arrest, that power must always be exercised transparently, fairly, and within the bounds of law.
Every police officer is duty-bound to comply with these statutory requirements, and every citizen should be aware of these protections. A properly prepared Arrest Memo not only safeguards the rights of the accused but also strengthens the credibility and fairness of criminal investigations.
About the Author
Advocate Avichal Pandey is a practicing Advocate at the Allahabad High Court,
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