Section 36 BNSS: Procedure of arrest and duties of officer making arrest (Formerly Section 41B CrPC)

Section 36 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure of arrest and duties of officer making arrest

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

Every police officer while making an arrest shall—

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be—

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend or any other person named by him to be informed of his arrest.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Charge Sec 2(1)(b) Cognizable Offence Sec 2(1)(c) Arrest Sec 35

Legal Commentary & Landmark Judgments: Section 36

Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 prescribes mandatory procedural duties of police officers making an arrest, codifying the historic D.K. Basu arrest memo guidelines.

Core Legal Standard: Section 36 mandates that every police officer making an arrest must bear accurate, visible, and clear identification of their name and designation to facilitate easy identification.
Evidentiary Proof & Admissibility: The officer must prepare a contemporaneous memorandum of arrest (arrest memo), which must be attested by at least one witness who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made.

Furthermore, the arrest memo must be countersigned by the arrested person, and the arresting officer must inform the arrested person of their right to have a relative or friend informed of their custody.

Key Landmark Precedents:

D.K. Basu v. State of West Bengal (1997) 1 SCC 416: The Supreme Court formulated eleven mandatory procedural requirements to prevent custodial torture and unacknowledged detention, which Parliament codified into statutory criminal law.
Munshi Singh Gautam v. State of M.P. (2005) 9 SCC 631: Held that failure to prepare an arrest memo or comply with statutory identification procedures creates a serious doubt regarding the lawfulness of custody and invites judicial strictures.

Legal Commentary:

Section 36 creates contemporaneous documentary proof of the exact moment and location of arrest. Failure to prepare an arrest memo attested by independent witnesses is a fertile ground for bail applications and writ petitions alleging illegal detention under Article 226.