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

In brief

The question

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

The court held

The court answered that compliance with Section 48 does not exempt the police from the mandatory attestation requirements of Section 36

It also directed

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

01Facts

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

pp. 1-2

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

pp. 3-4

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

p. 3

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

p. 2

02Issues

i.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

p. 4 · ¶ 11

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

p. 4 · ¶ 8 · p. 12 · ¶ 28

03Law Applied

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

p. 8 · ¶ 17

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

p. 9 · ¶ 20

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

p. 11 · ¶ 23

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

pp. 4-7

Provisions in the judgment · 12 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 36 Section 47 Section 48 Section 62 Section 483

Bharatiya Nyaya Sanhita, 2023 Section 64 Section 74 Section 75 Section 76 Section 126 Section 127

Code of Criminal Procedure, 1973 Section 41

04Reasoning

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

p. 10 · ¶ 22

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

p. 11 · ¶ 25

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

p. 12 · ¶ 28

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

p. 14 · ¶ 34