Section 36: Procedure of arrest and duties of police officer making arrest
Section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, prescribes the steps for arrest by police officers. Section 36 further elucidates the rights of a person arrested and the obligations of the arresting police officer, which ensure that arrests are carried out with adherence to both the rule of law and human rights principles.
Every police officer conducting an arrest should write a clear and visible identification note that contains the officer's name and position. This helps arrested persons understand who detained them and promotes accountability and transparency in the arrest process. The note is a form of check on the abuse of power by policemen.
The arresting officer must prepare a memorandum of arrest, which would be a formal record of the arrest. Such a memorandum is to be made and must contain the following:
-Attestation by Witness: This document should be witnessed at least by one witness. There could be either a relative or a respectable local resident. Such attestation by a witness is an assurance that the arrest is lawfully conducted.
-Countersignature: The arrested individual should also sign the memorandum indicating that they have been communicated with the arrest and processes associated with it. The counter-signature further confirms the legitimacy and reasonableness of the arrest.
The rights of the arrested party must be communicated to him / her once a person is arrested. More directly, the person concerned should be informed that he has a right to be informed that a family member or friend, or anyone on his list, should receive news of the arrest. This, unless the memorandum of arrest is signed by a next-of-kin; in such case, the legal obligation to inform them may be waived. This is done to protect the rights of the arrested person. Among them are the right to communicate with other people.
Some arrests require prior clearance by an officer who is not lower in rank than a Deputy Superintendent of Police as per Section 35(7) BNSS. This is mainly applicable when the offense attracts a sentence of less than three years, and the offenders are either infirm, over 60 years old, or have some other serious vulnerabilities. These measures are meant to safeguard people from arbitrary or unnecessary arrest when the crime committed doesn't justify immediate detention.
Apart from the duty to inform the arrested person of his right to notification, the officer must also make him aware of the grounds for his arrest. The individual must be told the specific charges or allegations against him and must be informed of his right to bail, thus keeping things transparent and protecting the legal rights of the arrested person.
If the person arrests resist or attempt to run away, the arresting officer has the right to use reasonable force to effectuate an arrest. The same must be proportionate to the situation and only to the minimum extent that is needed to immobilize the individual. In cases of chronic offenders or other serious crimes, the use of restraints in the form of handcuffs to prevent escape, or for safe custody of both the officer and the public becomes necessary. A set of policies and guidelines by the law and the police, regarding the proper use of force and restraint against the citizenry would be required not to abuse power or over-use force.
