Published on: 15 September, 2025 15:52 IST
Arrest means taking away a person’s freedom by legal authority or what appears to be legal authority. It is a serious action because it deprives an individual of their personal liberty, which is a fundamental right protected by the Constitution of India under Article 21. The law lays down clear rules about arrest to protect people’s rights and ensure that the police or other authorities do not misuse their powers. Under the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 and the Criminal Procedure Code (CrPC), arrests must follow specific procedures and only happen for valid reasons.
An illegal arrest happens when these rules are not followed, and someone is taken into custody without proper legal justification. For example, if the police arrest a person without any reasonable suspicion or complaint about them committing a crime, or if they do not record the reasons for arrest in writing, such arrest is illegal. Also, the police must inform the person of the reason for their arrest at the time it happens. If they fail to do so, or if they keep the person detained without producing them before a magistrate within 24 hours, the arrest becomes unlawful. An illegal arrest violates a person’s dignity and personal liberty, and those responsible for such arrest may face legal consequences, including suits for damages.
The law provides detailed conditions under which arrests may be made. Police can arrest without a warrant only if a person is involved in a cognizable offence or if there is reasonable complaint, credible information, or suspicion that a person has committed such an offence. When making an arrest, the police officer must clearly show his identity, prepare a written memo about the arrest witnessed and signed by the accused, and inform the arrested person of their rights, including the right to inform a relative. Special rules protect women, such as the requirement that only female police officers should conduct their searches and restrictions on arrest times for women.
Supreme Court guidelines, particularly in the landmark case of Arnesh Kumar v. State of Bihar (2014), emphasize that police must not arrest people unnecessarily. They must follow the law strictly and explain clearly why the arrest is needed. Magistrates too must carefully check these reasons before allowing detention. If these guidelines are ignored, police and magistrates can face penalties.
What is Illegal Arrest?
Illegal arrest happens when police arrest a person without a lawful reason or without following the correct legal procedure. For example:
- If the police do not have a reasonable complaint, credible information, or suspicion that the person committed a cognizable offence.
- If the police officer fails to record the reasons for arrest in writing.
- If the person is not informed of the reasons for their arrest at the time it is made.
- If the arrested person is not presented before a magistrate within 24 hours of arrest.
- If the arrest is made without following the necessary procedural safeguards under BNSS and CrPC.
Such arrest harms a person’s dignity and personal liberty and is considered false imprisonment. The person making such an illegal arrest may face legal consequences and can be sued for damages.
Legal Provisions for Arrest
- Police officers can arrest without a warrant only under specific conditions, such as witnessing a cognizable offence or having reasonable suspicion or credible information about a serious offence (Section 35 BNSS).
- When arresting, the police must identify themselves clearly, prepare a written arrest memo signed by a witness and the arrested person, and inform the arrested person about their rights, including the right to have a relative informed (Section 36 BNSS).
- Arresting women has special protections, including restrictions on arrest timing and requirements for female officers to be involved (Section 43 BNSS).
- The arrested person must be taken before a magistrate within 24 hours of the arrest (Section 58 BNSS).
Guidelines from Landmark Cases to Prevent Illegal Arrest
The Supreme Court in the case of Arnesh Kumar v. State of Bihar (2014) issued important guidelines to prevent unnecessary and illegal arrests, especially for offences punishable up to 7 years:
- Police should not arrest automatically but must satisfy themselves of the necessity of arrest as per Section 35 BNSS.
- Police must issue a notice before arrest in cases where arrest is not mandatory.
- Police must explain and record the reasons for arrest and submit these to the magistrate.
- Magistrates must carefully check the reasons before authorizing detention.
- Failure to follow these guidelines can lead to departmental action against police or magistrates and contempt of court charges.
What Should One Do When Arrested Illegally?
If a person believes their arrest is illegal:
- Demand the police to inform you of the grounds of arrest as required by law.
- Ask to be produced before a magistrate within 24 hours of arrest; any delay beyond this violates your rights.
- Seek legal representation immediately. The law guarantees the right to consult a lawyer, and if the person cannot afford one, free legal aid must be provided.
- Inform a relative or friend about the arrest. The police are required to allow this.
- If the arrest is unlawful, one can file a complaint against the police for illegal arrest and detention, and may also initiate a suit for damages for false imprisonment.
- The magistrate has the duty to scrutinize the legality of the arrest during remand hearings and may reject unauthorized detention.
- If police do not follow mandated procedures, the arrested person or their lawyer can raise these issues in court and seek bail or discharge.
If someone believes they have been arrested illegally, they should immediately ask the police to inform them of the arrest grounds and demand to be brought before a magistrate within 24 hours. They have the right to meet a lawyer and to have a relative informed about the arrest. If the arrest is unlawful, they can complain against the police and seek legal action, including a case for wrongful detention. The magistrate must review the arrest and can release the person if the detention is not justified. Knowing these rights helps protect individuals from unlawful police action and ensures the justice system respects personal liberty while maintaining law and order.