What to Do if You or a Family Member Is Arrested in India

If arrest has not yet happened

If there is reason to believe an arrest may follow — an FIR has been filed that names the person, a Section 35 BNSS notice has been received, or credible information suggests that the police intend to arrest — anticipatory bail under Section 482 BNSS is available. This is applied for before arrest, before the Court of Session or the High Court. Once arrest has occurred, this option is no longer available; the remedy then is regular bail.

See: Anticipatory bail under Section 482 BNSS

At the moment of arrest — what the law requires

The right to know the grounds

Under Section 47 BNSS (formerly Section 50 CrPC) and Article 22(1) of the Constitution, the arresting officer must inform the person being arrested of the full particulars of the offence as soon as practicable. This is not discretionary. If no reason is stated, ask clearly, and where possible do so in the presence of witnesses.

The right to inform someone

The police are required to notify a person nominated by the one who has been arrested — typically a family member, friend or advocate — of the arrest and the location at which the person is being held. This is a police obligation and is not contingent on the arrested person asking for it.

The constitutional minimum

Article 22 of the Constitution sets out rights that apply in every ordinary criminal case from the moment of arrest:

1. The right to be informed of the grounds for arrest, and the right to consult and be defended by a lawyer of the arrested person’s own choosing.
2. The right to be produced before the nearest Magistrate within 24 hours of arrest, excluding travel time. No person may be held in police custody for longer than that without a Magistrate’s order.

The 24-hour rule

Section 56 BNSS (formerly Section 57 CrPC) prohibits detention in police custody beyond 24 hours of arrest without an order from a Magistrate. This is not a formality: the arrested person must physically be produced, and the Magistrate must authorise any further custody.

At the remand hearing the Magistrate may:

• Authorise police remand — the person remains in police custody for further investigation, in tranches ordinarily not exceeding 15 days
• Remand to judicial custody — the person is held in jail pending further proceedings
• Consider a bail application if one is moved

The remand hearing is the earliest judicial check on the arrest, and it is the first opportunity to apply for bail. The advocate should be present.

What to do immediately — the steps in order

1. Find out which police station. Ask the arresting officers directly, or contact the police station for the area where the arrest took place. The police must say where the person is being held.

2. Call a lawyer. The earlier legal advice is obtained the better. An advocate can go to the police station, confirm the person is held lawfully, inspect the FIR, and appear at the remand hearing.

3. Go to the police station. Family members may visit the person in custody. This also independently confirms the fact of detention.

4. Gather documents. Collect everything available: the arrest memo, any Section 35 BNSS notice that was served, a copy of the FIR, and identity documents for the arrested person and any proposed surety.

5. Note the exact time of arrest. The 24-hour clock runs from the moment of arrest, not from when the family was notified. Track it.

6. Do not sign anything without reading it. No document should be signed — by the arrested person or by family members — without understanding what it contains.

Bail after arrest

The type of offence determines whether bail is a right or a discretion.

Whether an offence is bailable is stated in the First Schedule to the BNSS, not determined by how serious it sounds or how it is described in the FIR.

For bailable offences, the police officer or the Magistrate must release the person on a bond, with or without surety. There is no discretion to refuse.

For non-bailable offences, bail is discretionary. The court will weigh:

• The nature and gravity of the accusation
• The criminal antecedents, if any, of the accused
• The risk of the accused fleeing or absconding
• The risk of evidence-tampering or witness-influencing
• The stage of the investigation and the need for custodial interrogation
• The health, age and other personal circumstances of the accused

Default bail — an entitlement that is easily lost

Under Section 187(3) BNSS (formerly Section 167(2) CrPC), if the police do not file a charge sheet within the prescribed period, the accused acquires an indefeasible right to bail:

• Ninety days from first remand where the offence is punishable with death, imprisonment for life, or imprisonment for ten years or more
• Sixty days for all other offences

This right arises by operation of law once the period expires. It must be applied for before the charge sheet is filed. Once the charge sheet is on record, the right is extinguished and cannot be claimed. This is consistently held by the Supreme Court, and it is the most common way a genuine entitlement is lost — by a few days of delay.

Note the date of first remand from the beginning. Watch the calendar.

Related

• Criminal defence practice
• Anticipatory bail under BNSS 482
• Bail at Bareilly District Court