Rights of an Arrested Person in India: Arrest Memo and Legal Aid

Rights of an arrested person in India: Arrest memo, medical examination and legal aid

Overview

Article 21 of the Constitution of India, 1950 protects life and personal liberty. Article 22 guarantees protection against arrest. Article 20(3) bars self-incrimination. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) renumbers some provisions from the earlier Code of Criminal Procedure, 1973 but retains the core protections. The Supreme Court in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 issued guidelines that every police station must follow. These guidelines cover the arrest memo, medical examination, and access to legal aid.

The governing law

Constitutional protections under Article 21, Article 22, Article 20(3), and Article 39A form the foundation. Article 22(2) requires production before a magistrate within twenty-four hours. Article 22(1) gives the right to consult a legal practitioner of choice. Article 39A directs the State to provide free legal aid.

The BNSS 2023 provisions are Section 35, Section 47, Section 53, and Section 58. Section 35 allows a police officer to arrest without warrant. Section 47 prevents a police officer from requiring attendance of a person already arrested. Section 53 allows a magistrate to direct a medical examination. Section 58 requires the police officer in charge of a police station to furnish information about the arrest and place of custody.

Section 59 of BNSS 2023 permits examination of an arrested person by a police officer. Section 167 sets out the procedure when investigation cannot be completed in twenty-four hours. Section 207 requires the magistrate to send copies of the police report and other documents to the accused. Section 356 provides for legal aid.

The D.K. Basu safeguards from (1997) 1 SCC 416 remain operative. They require police to prepare an arrest memo, inform a friend or relative, allow medical examination, and produce the arrested person before a magistrate without delay.

Who can invoke this and when

The arrested person can invoke these rights immediately upon arrest, during interrogation, and throughout custody. A friend, relative, or any other person may demand information about the arrest under Section 58 BNSS 2023. A magistrate can intervene if production is delayed. The police must communicate the rights, but a failure to do so does not extinguish the rights themselves.

The right to legal aid is available to any person arrested for a bailable offence if they cannot afford a lawyer. It extends to all undertrial prisoners under Article 39A. The Supreme Court in Hussainara Khatoon v. State of Bihar, (1979) 1 SCC 248 held that free legal aid is a constitutional right for undertrial prisoners.

Step by step procedure

The arrested person should follow this sequence.

At the time of arrest, the police officer must communicate the grounds of arrest. The arrested person has the right to know why they are being taken into custody. This information must be in writing.

The police officer must then prepare an arrest memo. Under D.K. Basu, the memo must be signed by the police officer making the arrest, the arrested person, and an independent witness. If the arrested person cannot write, the memo must be read out and a thumb impression obtained. The police officer must record if the arrested person refuses to sign.

The arrested person must be produced before a magistrate within twenty-four hours of arrest, excluding journey time. The magistrate must record whether the grounds were communicated and whether an arrest memo was prepared.

If the arrested person requests a medical examination, the police or magistrate must arrange it. The examination should be conducted at a government hospital by a medical officer. If there are visible injuries, the magistrate must order the examination before a judicial magistrate.

The police station must maintain a custody register under Section 58(2) BNSS 2023. The entry must show the name of the person arrested, the date and time of arrest, and the place where they are kept in custody.

For legal aid, the arrested person or their representative must apply to the District Legal Services Authority or the State Legal Services Authority. The application is made on a prescribed form. The authority assigns a lawyer from the panel.

If the police seek remand, the magistrate decides under Section 167 BNSS 2023. For offences punishable with death, life imprisonment, or imprisonment for ten years or more, the magistrate can authorize detention up to ninety days. For other offences, the limit is sixty days.

Documents and evidence required

The arrest memo is the first document. It should state the name and designation of the arresting officer, the time and place of arrest, and the grounds of arrest. If the police refuse to prepare it, the refusal itself is evidence of irregularity.

The medical examination report must be obtained from the government hospital. It should be countersigned by the arrested person or a relative if present. If neither is present, two witnesses must sign.

A copy of the FIR is available under BNSS 2023, Section 207. The magistrate must forward this copy without delay.

The custody register entry under Section 58(2) is a public document. It must be verified for accuracy.

The remand order from the magistrate is essential. It specifies the duration of police custody.

The legal aid order from the Legal Services Authority specifies the lawyer assigned and confirms that there is no fee.

Timelines, limitation and fees

The twenty-four hour production rule is mandatory. The Supreme Court in State of Rajasthan v. Kashi Ram, (2006) 8 SCC 110 held that journey time is excluded.

The right to inform a friend or relative is to be exercised as soon as possible. The D.K. Basu guidelines suggest within eight to twelve hours. Some High Courts have held that this period can be extended in exceptional circumstances, but the burden is on the police to justify the delay.

Medical examination should be sought immediately if there are visible injuries. A request must be made before the magistrate or a medical officer.

Remand limits vary by offence. The magistrate can authorize police custody in stages, but the total period cannot exceed sixty or ninety days depending on the offence.

A copy of the police report and case documents must be supplied to the accused. BNSS 2023, Section 207 directs the magistrate to send these copies.

Legal aid is free. No court fee is payable for an application to the Legal Services Authority. The bail bond, if required, may be fixed at Rs. 10,000 or Rs. 50,000 depending on the case, but the legal aid lawyer charges no fee.

Step	Requirement	Time Limit	Who Must Act
Communication of grounds	Written grounds	24 hours from arrest	Police officer
Production before magistrate	Physical production	24 hours, excluding journey	Police officer
Intimation to friend or relative	Notice	8 to 12 hours	Police officer
Arrest memo	Preparation and signature	At the time of arrest	Police officer and witnesses
Medical examination	Examination by medical officer	Upon request or if injuries visible	Medical officer or government hospital
Supply of FIR and case documents	Copy to accused	15 days from production	Police / Court

What the courts have held

In State of Rajasthan v. Kashi Ram, (2006) 8 SCC 110, the Supreme Court held that the twenty-four hour period under Article 22(2) is mandatory and that journey time is excluded.

In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, the Court held that failure to prepare an arrest memo and inform a relative renders the detention illegal and attracts departmental and criminal liability.

In Hussainara Khatoon v. State of Bihar, (1979) 1 SCC 248, the Court held that free legal aid is a constitutional right and that undertrial prisoners must be provided lawyers at state expense.

In Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260, the Court held that the police must inform the arrested person of the grounds of arrest and produce them before a magistrate within twenty-four hours.

In Khatri v. State of Bihar, (1981) 1 SCC 627, the Court held that the State must provide legal aid to an accused who cannot afford a lawyer, even if the accused does not request it.

In Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, the Court held that for offences punishable with up to seven years' imprisonment, police must satisfy themselves that the arrest is necessary and record reasons.

Common mistakes and how to avoid them

The most common mistake is allowing the police to exceed the twenty-four hour period without complaint. Family members should verify the date and time of arrest against the custody register entry.

Another mistake is assuming that the police will automatically prepare a memo. The arrested person should insist on a signed memo and obtain the names of witnesses.

Refusing medical examination is risky if there are marks on the body. The arrested person should request the examination in writing and retain a copy of the request.

Non-supply of the FIR copy often leads to unawareness of the charges. Under BNSS 2023, Section 207, the accused is entitled to this copy.

Families often delay legal aid applications. The application should be filed immediately upon arrest.

If injuries are present, they must be documented before the magistrate at the time of production. The magistrate should be asked to record the injuries.

Some High Courts have taken different views on whether the arrest memo is a public document. Even where it is not, the custody register entry is accessible under Section 58(2).

Practical checklist

Before production:

• Verify the arrest memo for signatures.
• Note the name and designation of the arresting officer.
• Note the time and date of arrest.
• Record the name and address of any witness who saw the arrest.
• Request medical examination if there are marks.

After production:

• Obtain the remand order.
• Obtain the custody register entry.
• File an application for bail under BNSS 2023, Section 436 if the offence is bailable.
• File a legal aid application before the District Legal Services Authority.
• Request a copy of the FIR under Section 207.
• If the police do not inform a relative, send a registered letter to the nearest police station and the magistrate.

If bail is refused:

• Prepare a bail application with grounds.
• Include arguments on remand limits under Section 167.
• Cite Kashi Ram for the twenty-four hour violation if applicable.
• Request release on personal bond if the offence is bailable.

Frequently asked questions

Must the police tell me why I am arrested?

Yes. The police must communicate the full particulars of the offence for which the arrest is made. This is mandated by Article 22(2) read with BNSS 2023, Section 58. The grounds must be in writing and shown to the arrested person at the time of arrest.

Can the police refuse to sign an arrest memo?

No. If the arrested person refuses to sign, the police officer must record that fact on the memo. The police cannot refuse to prepare the memo altogether. The D.K. Basu guidelines make the memo a mandatory document.

What happens if the police do not produce me before a magistrate within 24 hours?

The detention becomes illegal. The arrested person or any person on their behalf can file a writ petition under Article 226 in the High Court or approach the magistrate directly. The Supreme Court in Kashi Ram held that delay beyond 24 hours violates Article 22(2).

Is medical examination compulsory?

It is not compulsory in the sense that the arrested person can waive it, but the police or magistrate can direct it. Under BNSS 2023, Section 53, an arrested person may request a medical examination. If there are visible injuries, the magistrate must order it.

Do I have to pay for a lawyer if I cannot afford one?

No. Under BNSS 2023, Section 356 and the Legal Services Authorities Act 1987, free legal aid is available. The State Legal Services Authority provides a lawyer at no cost to the accused.

Can my friend or relative visit me in police custody?

The law does not guarantee unrestricted visitation in police custody. However, the arrested person can communicate with their lawyer during interrogation. Under D.K. Basu, the arrested person has the right to meet a legal adviser during interrogation, though not throughout the entire period.

Key takeaways

• The right to know the grounds of arrest and to be produced before a magistrate within 24 hours is absolute and non-derogable.
• The arrest memo, though not a statutory form in BNSS 2023, remains a judicially mandated safeguard under D.K. Basu.
• Medical examination is available upon request and must be conducted by a medical officer at a government hospital.
• Free legal aid under Section 356 BNSS and the Legal Services Authorities Act 1987 is a constitutional entitlement for those who cannot afford counsel.
• The custody register under Section 58(2) is a public document and must be verified for accuracy.
• Remand beyond 60 or 90 days requires specific orders from a magistrate under Section 167 BNSS.
• Delay in production or failure to supply documents provides grounds for bail and for writ jurisdiction under Article 226.

Disclaimer

This article is published for general information on Indian law and does not constitute legal advice. Statutory provisions, rules and judicial positions change, and the position can differ from state to state. Consult a qualified advocate about your specific facts before acting.