Non-compliance with arrest memo attestation under Section 36 BNSS renders arrest illegal, necessitating release on bail.

The accused-petitioner was arrested in connection with Nilambazar P.S. Case No. 86/2025 under Sections 126(2)/127(2)/74/75/76/64 of the Bharatiya Nyaya Sanhita (BNS), 2023, following an FIR alleging the rape of a 47-year-old ASHA worker

Upon his arrest, police prepared an Arrest Memo under Section 36 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which was countersigned only by the accused and the arresting officer, lacking attestation by a family member or local respectable person

While a notice under Section 48 of the BNSS was issued to one Mehmuda Khatoon, the petitioner challenged the legality of his detention on the grounds of non-compliance with statutory arrest procedures

The petitioner had been in custody for 336 days without the commencement of prosecution evidence

1. Whether the issuance of a notice under Section 48 of the BNSS at the time of arrest suffices the mandate of Section 36 of the BNSS in the absence of attestation by a witness in the Arrest Memo

2. Whether non-compliance with the procedural mandates of arrest under the BNSS renders the arrest illegal, entitling the accused to bail

Section 36 of the BNSS, which mandatorily requires an Arrest Memo to be attested by at least one witness (family member or respectable local) and countersigned by the arrestee

Section 48 of the BNSS regarding the obligation to inform a relative/friend of the arrest

Section 62 of the BNSS, which stipulates that no arrest shall be made except in strict accordance with the Sanhita

The landmark precedent of D.K. Basu v. State of West Bengal, which established that procedural safeguards for arrest flow from Articles 21 and 22(1) of the Constitution

The court reasoned that Sections 36 and 48 of the BNSS are independent statutory obligations that must be complied with concurrently

Section 36 is unambiguous and contains no exceptions; the lack of a witness's signature on the Arrest Memo cannot be cured by merely sending a notice under Section 48

The Court emphasized that Section 62 mandates "strict compliance," and any departure from these procedural safeguards results in an illegal arrest

In this case, since the police failed to obtain the required attestation on the Arrest Memo, the arrest was found to be in violation of the petitioner’s fundamental rights under Articles 21 and 22(1) of the Constitution

The court allowed the application and directed the release of the accused-applicant on a bail bond of Rs. 50,000/- with two sureties, subject to specific conditions including appearance before the Trial Court and non-interference with witnesses