Applies to anyone being questioned, searched, or arrested by police without a warrant for any cognizable offence -- explains when arrest is actually permitted, the notice-of-appearance alternative, and the real safeguards the law gives during arrest.
1. Understand the two different tests BNSS Section 35 applies
For an offence punishable with more than 7 years' imprisonment, BNSS s.35(1)(a) permits arrest without a warrant more directly. For an offence punishable up to 7 years -- which covers most common cases -- s.35(1)(b) requires the police officer to additionally be satisfied that arrest is genuinely necessary, following the 'necessity of arrest' test the Supreme Court set out in Arnesh Kumar v. State of Bihar (2014) and has repeatedly reaffirmed since.
2. Know when a notice of appearance replaces arrest
Where arrest is not required under s.35(1)(b)'s necessity test, BNSS s.35(3) obliges the officer to issue a notice directing appearance instead of arresting. Under s.35(5), a person who complies with that notice cannot then be arrested for the same offence unless the officer records specific, written reasons for why arrest has now become necessary.
3. The necessity-of-arrest test looks at four specific things
An officer relying on s.35(1)(b) must record reasons showing arrest is needed to prevent the person committing a further offence, to properly investigate the case, to prevent tampering with evidence or influencing witnesses, or to ensure the person's presence in court when required -- not simply because an offence is alleged.
4. A relative or friend must be informed immediately
BNSS s.48 obliges the arresting officer to inform, without delay, a relative, friend, or other person named by the arrested person about the arrest and the exact place of detention, and to record this in a register at the police station. A Magistrate is required to check that this was done when the person is produced.
5. You have the right to consult a lawyer of your own choice
Article 22(1) of the Constitution guarantees the right to consult, and be defended by, a legal practitioner of your own choice. This is not, however, an absolute right to have a lawyer physically present throughout police questioning in every case -- in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, the Supreme Court described it as prudent for police to allow a lawyer's presence if the person under examination wants it, without creating an obligation on police to arrange one.
6. Follow the D.K. Basu safeguards during and after arrest
Following D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, an arrest memo recording the time and date of arrest -- attested by at least one witness and countersigned by the arrested person -- and an inspection memo recording any injuries at the time of arrest are required documents, along with a medical check every 48 hours in custody. Copies are meant to reach both the arrested person and the local Magistrate.
7. If police search your home, shop, or premises, insist on the proper procedure
BNSS s.103 (successor to CrPC s.100) requires two or more independent, respectable local witnesses to attend any search and sign the panchnama recording what was found. BNSS also requires such searches to be recorded by audio-video means, ordinarily on a mobile phone, with the recording forwarded to a Magistrate.
8. Read before you sign anything
A panchnama, arrest memo, or inspection memo may be presented for your signature as part of the standard procedure -- you may read any such document before signing it and are entitled to a copy.
9. You cannot ordinarily be compelled to attend for a genuinely civil matter
A police officer's power to require attendance during an investigation applies only where a cognizable or non-cognizable offence is genuinely being investigated -- it does not arise where no real offence is disclosed at all (for example, a purely civil dispute over money or property with no criminal ingredient).
10. If you anticipate arrest, anticipatory bail may be available
For a non-bailable offence, a person who has reason to believe they may be arrested -- for example, after a legal notice or hearing of an impending case -- may apply to the Sessions Court or High Court for anticipatory bail under BNSS s.482 (successor to CrPC s.438), which sets conditions under which arrest can be avoided if granted.
Helpline: 100 / 112 (police emergency); 15100 (NALSA free legal aid helpline)
Handled by: Investigating police officer -> Magistrate (on production) -> Sessions Court/High Court (anticipatory bail)
Who can use this: Anyone being questioned, searched, or arrested by police without a warrant for a cognizable offence, or anyone who anticipates such an arrest.
This does not cover: Does not cover the specific offence you are accused of (see the dedicated route for that offence, e.g. trademark_dispute, copyright_dispute, cheque_bounce, etc., where one exists) -- this route covers only the general arrest-without-warrant procedure and safeguards that apply regardless of the underlying offence. Does not cover an arrest under a warrant already issued by a court, which follows a different procedure.
Cost: No fee for any of these procedural safeguards; legal representation cost varies by advocate, and NALSA's free legal aid scheme is available regardless of means
You'll need:- What offence is alleged and its punishment under the relevant Act
- Name, rank, and identification of the police officer(s) involved
- Whether a notice of appearance or an arrest memo has been issued
- Whether a relative or friend has already been informed
Documents that help:- Copy of the notice of appearance, arrest memo, or inspection memo, if issued
- Any FIR copy or written notice already received
- ID proof
- Copy of the panchnama/search memo, if a search took place
What happens after: If arrested, the person is produced before a Magistrate as soon as practicable, who verifies compliance with the informing-a-relative and other safeguards described above, and the matter proceeds as an ordinary criminal case; if a notice of appearance was issued instead, the person attends as directed and the investigation continues without arrest unless the officer later records specific reasons for it.
These are the remedies Indian law provides for this kind of situation -- not a recommendation, and not every remedy will apply to your own facts.
Notice of appearance instead of arrest
Investigating police officer, reviewable before the Magistrate
BNSS s.35(3) allows a notice directing appearance in lieu of arrest for an offence not requiring arrest under s.35(1), and s.35(5) provides that continued compliance with such a notice bars arrest for that offence unless the officer records specific reasons.
Anticipatory bail
Sessions Court or High Court
BNSS s.482 allows a person apprehending arrest for a non-bailable offence to apply for a direction that they be released on bail in the event of arrest, subject to conditions the court may impose.
Regular bail after arrest
Magistrate or Sessions Court, depending on the stage
A person already arrested may apply for bail before the appropriate court, which decides the application on the facts of the case and the nature of the offence.
Complaint over an unlawful arrest or search procedure
Superintendent of Police (departmental complaint) or High Court (writ petition under Article 226)
Where the procedural safeguards in BNSS ss.48 and 103, or the D.K. Basu guidelines, are not followed, a departmental complaint may be made to a senior police officer, or a writ petition may be filed before the High Court.
Can the police arrest me for any offence without a warrant?
Only for a cognizable offence. For an offence punishable with more than 7 years, BNSS s.35(1)(a) permits arrest more directly; for an offence punishable up to 7 years, s.35(1)(b) additionally requires the officer to be satisfied that arrest is genuinely necessary.
What is a 'notice of appearance' and when do I get one instead of being arrested?
Where arrest is not required under the s.35(1)(b) necessity test, BNSS s.35(3) requires the officer to issue a notice directing you to appear instead of arresting you -- and complying with it protects you from arrest on that offence unless the officer later records specific reasons for arrest under s.35(5).
Does the law require a lawyer to be physically present during my arrest or questioning?
No. There is no absolute right under Indian law to have a lawyer present throughout arrest or questioning. Article 22(1) guarantees the right to consult a legal practitioner of your choice, and the Supreme Court in Nandini Satpathy v. P.L. Dani described it as prudent for police to permit a lawyer's presence if requested, without making it mandatory.
Must the police tell my family if I am arrested?
Yes. BNSS s.48 requires the arresting officer to inform, without delay, a relative, friend, or other person you name about the arrest and the place of detention, and to record this at the police station.
What documents should be prepared when someone is arrested?
Following D.K. Basu v. State of West Bengal, an arrest memo (recording the time and date of arrest, witnessed and countersigned) and an inspection memo (recording any injuries) are the standard required documents, along with a medical check every 48 hours in custody.
What should I check if police want to search my home or shop?
BNSS s.103 requires two or more independent local witnesses to be present and to sign the panchnama recording what was found, and requires the search to be recorded on video -- check that both are happening.
Am I required to go to the police station if I'm just called for a civil matter?
No. A police officer's power to require attendance for questioning applies only where a genuine cognizable or non-cognizable offence is being investigated -- it does not arise for a purely civil dispute with no real criminal element.
Can I get anticipatory bail if I think I might be arrested?
Yes, for a non-bailable offence. A person who anticipates arrest may apply to the Sessions Court or High Court under BNSS s.482, which can set conditions to avoid arrest if the application is granted.
Am I required to sign the arrest memo or panchnama?
These documents may be presented for signature as part of the recognised procedure -- you may read any document before signing and are entitled to a copy of it.
What if I cannot afford a lawyer?
The National Legal Services Authority operates a free legal aid scheme reachable through the toll-free helpline 15100, and the Article 22(1) right to consult a legal practitioner of choice applies regardless of your means.
Does this apply to every kind of offence, or only certain ones?
It applies generally to any cognizable offence -- BNSS s.35's arrest-without-warrant procedure is not specific to any one law. For the specific offence you are facing, also check Aadhrix's dedicated route for that offence where one exists.
Where does the 'necessity of arrest' idea come from?
The Supreme Court first held, in Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260, that arrest is not automatic simply because it is legally permissible, and that police must be able to show a genuine need for it -- a principle Arnesh Kumar v. State of Bihar later developed into the specific necessity-of-arrest test described above.
Governing law: Bharatiya Nagarik Suraksha Sanhita, 2023; Constitution of India
Source: BNSS 2023 ss.35, 48, 103, 482; Article 22(1); D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424; Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. The precise wording of the BNSS First Schedule's own cognizable/bailable classification table (which fixes the 7-year cutoff referenced above) was cross-checked across multiple secondary sources discussing its continuity from the CrPC-era schedule, not read directly off the bare Schedule text. Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
Aadhrix does not decide which route applies to you. This describes the official process as published — consider an advocate for advice specific to your situation.