Section 36 BNSS 2023: Procedure of Arrest and Duties of Officer Making Arrest
Section 36 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down mandatory procedural duties for a police officer while making an arrest. These duties are designed to make the arrest process identifiable, documented, witnessed, and transparent, and to ensure that the arrested person can have a relative, friend, or another nominated person informed of the arrest.
What does Section 36 BNSS require?
Section 36 applies to every police officer while making an arrest. It requires visible identification of the officer, preparation of a memorandum of arrest, attestation of that memorandum by a qualifying witness, countersignature by the arrested person, and information to the arrested person about the right to have another person informed of the arrest where the arrest memorandum has not been attested by a family member.
Key legal terms in Section 36
Memorandum of arrest: A formal written record prepared at the time of arrest documenting the fact of arrest and satisfying the requirements prescribed by Section 36.
Attested: Verified or authenticated by the signature of a qualifying witness. Under Section 36(b)(i), the witness must be a member of the family of the arrested person or a respectable member of the locality where the arrest is made.
Countersigned: Signed by the arrested person in addition to the attesting witness, as required by Section 36(b)(ii).
Person named by the arrested person: A relative, friend, or any other person selected by the arrested person to receive information about the arrest, subject to the wording of Section 36(c).
Text of Section 36 - Procedure of arrest and duties of officer making arrest
36. 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.
1. Police officer must display clear identification
Section 36(a) requires the arresting police officer to bear an accurate, visible, and clear identification of his name so that the officer can be easily identified. The requirement promotes accountability and enables the arrested person, witnesses, family members, and courts to identify the officer responsible for making the arrest.
2. Memorandum of arrest must be prepared
Section 36(b) requires the police officer to prepare a memorandum of arrest. This written record is an important procedural safeguard because it creates contemporaneous documentation of the arrest and links the arrest to an identifiable police officer, witness, and arrested person.
Witness attestation
The memorandum must be attested by at least one witness. The statute specifies that the witness must either be a member of the family of the arrested person or a respectable member of the locality where the arrest is made.
Countersignature of arrested person
The arrested person must countersign the memorandum of arrest. This requirement forms part of the statutory documentation procedure prescribed by Section 36.
3. Right to have a relative, friend, or another person informed
Section 36(c) requires the police officer to inform the arrested person of the right to have a relative, friend, or any other person named by the arrested person informed of the arrest, unless the memorandum of arrest has already been attested by a member of the arrested person's family.
Related safeguards under the BNSS
Section 36 forms part of Chapter V of the BNSS dealing with arrest of persons. It should be read together with other arrest-related provisions, including Section 35 on arrest without warrant, Section 37 on the designated police officer, Section 38 on the right of an arrested person to meet an advocate during interrogation, Section 47 on communication of grounds of arrest and right to bail, Section 48 on informing a relative or friend about the arrest, and Section 62 requiring arrest to be made strictly according to the Sanhita or other applicable law.
Section 36 BNSS at a glance
- The arresting police officer must display clear and accurate name identification.
- A memorandum of arrest must be prepared.
- The memorandum must be attested by at least one qualifying witness.
- The arrested person must countersign the memorandum.
- If the memorandum is not attested by a family member, the arrested person must be informed of the right to have a relative, friend, or another nominated person informed of the arrest.
Official legal resources
This page provides general legal information. The legality of an arrest in an individual case may depend on the facts, the offence alleged, compliance with Sections 35 to 62 BNSS, applicable constitutional safeguards, judicial directions, and other relevant law.