1. The Quick Rule #
An arrest is not legal without a paper trail. The “Arrest Memo” is a mandatory document that the police must prepare at the exact time and place of arrest. It serves as official proof that you are in police custody. If the police take someone away without a memo, it is considered an illegal abduction, not a legal arrest.
2. The 5 Mandatory Requirements #
Under Section 36 of the BNSS (formerly Section 41B of the CrPC), every Arrest Memo must meet these criteria to be valid:
- Clear Identification: The officer making the arrest must wear an accurate, visible, and clear Name Tag with their designation.
- The Signature of a Witness: The memo must be attested (signed) by at least one witness. This person should be:
- A member of your family, OR
- A “respectable member” of the locality where the arrest is made.
- Your Signature: You must countersign the memo yourself after reading it.
- Time & Date: It must clearly state the exact time and date you were taken into custody.
- Right to Inform: If the memo is not signed by a family member, the police must inform you of your right to have a relative or friend notified of your arrest.
3. Situation Checklist: During the Arrest #
If you or a loved one is being arrested, ensure these “D.K. Basu” steps are followed:
- [ ] Demand the Memo: Do not leave the spot until the memo is prepared.
- [ ] The Inspection Memo: If you have any injuries (minor or major), demand an “Inspection Memo.” The police must record these injuries and have you sign the record. This prevents them from physically harming you in custody later.
- [ ] Check the Entry: Every arrest must be entered in the Daily Diary at the police station, including the name of the person informed about your arrest.
- [ ] The 24-Hour Rule: Check your watch. From the time on the Arrest Memo, the police have exactly 24 hours to produce you before a Magistrate.
4. Special Protective Rules (2026 Updates) #
- Female Arrests: A woman can only be arrested by a female officer. Under Section 43 of the BNSS, a woman cannot be arrested after sunset or before sunrise except in “exceptional circumstances” with the prior permission of a Judicial Magistrate.
- Senior Citizens (60+): Under the new BNSS rules, if the offense is punishable by less than 3 years and the person is infirm or over 60, no arrest can be made without the prior permission of an officer not below the rank of Deputy Superintendent of Police (DSP).
- Handcuffs: Handcuffs are not a default. They can only be used for habitual offenders or specific serious crimes (like rape or organized crime). Routine use of handcuffs is illegal.
5. What if there is no Memo? #
If the police have taken someone and refuse to show an Arrest Memo:
- Contact the Control Room: Call 112. Every District and State HQ must have a Police Control Room (PCR) where the names of all arrested persons must be displayed.
- Habeas Corpus: A lawyer can file a “Habeas Corpus” petition in the High Court, which literally means “Produce the Body.” The court will force the police to explain where the person is.
6. The Official Proof (For Authority) #
Section 36 of the BNSS, 2023: “Every police officer while making an arrest shall… prepare a memorandum of arrest which shall be attested by at least one witness… and countersigned by the person arrested.”
D.K. Basu v. State of West Bengal: “Failure to comply with these requirements shall render the concerned official liable for departmental action and also for contempt of court.”
