Criminal procedure / Arrest of persons

Section 60A CrPC: Arrest Must Follow the Law | Section 62 BNSS

An arrest in India must have a lawful basis and must follow the procedure prescribed by the applicable criminal procedure law or another law that expressly authorises arrest. Section 60A of the Code of Criminal Procedure, 1973 stated this principle; Section 62 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) carries it forward.

Current corresponding provision: Section 62 BNSS, 2023 (effective from 1 July 2024). Section 60A CrPC remains relevant to understanding the former law and proceedings governed by applicable savings provisions.

Section 60A of the Code of Criminal Procedure, 1973

Heading: Arrest to be made strictly according to the Code.

No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.

Section 60A was inserted by Section 10 of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), with effect from 31 December 2009. It expressly required every arrest to comply with a legally recognised power of arrest and the applicable procedure.

Section 62 BNSS, 2023: Current rule

Heading: Arrest to be made strictly according to Sanhita.

No arrest shall be made except in accordance with the provisions of this Sanhita or any other law for the time being in force providing for arrest.

Section 62 preserves the central restriction: neither a police officer nor another person may lawfully arrest someone merely because an allegation has been made. The arrest must be supported by an applicable legal power, and statutory requirements must be observed. See the official NCRB BNSS chapter text and the BPR&D official BNSS publication.

Meaning and legal effect

1. Legal authority is essential

The words "no arrest shall be made" are a prohibition against arrest without statutory authority. Arrest may be made under the BNSS or another law currently in force that provides a valid power of arrest, subject to that law's conditions.

2. Procedure must also be followed

Having a power to arrest does not dispense with safeguards governing the exercise of that power. For example, Section 35 BNSS regulates arrests without warrant and circumstances in which a notice to appear is required; Section 36 BNSS addresses identification of the arresting officer, arrest memoranda and information to a nominated person.

3. Constitutional protection continues

Article 21 of the Constitution protects life and personal liberty except according to procedure established by law. Article 22(1) requires that an arrested person be informed of the grounds of arrest and permits consultation with and defence by a legal practitioner of choice. Article 22(2) generally requires production before the nearest Magistrate within 24 hours, excluding necessary travel time, subject to constitutional exceptions.

Related arrest safeguards under the BNSS

Section 35: When police may arrest without warrant; includes statutory conditions and notice-to-appear provisions.
Section 36: Procedure of arrest and duties of the officer making an arrest.
Section 47: Information about the grounds of arrest and right to bail in applicable cases.
Section 48: Obligation to inform a relative, friend or nominated person about the arrest.
Sections 57 and 58: Production before the Magistrate or officer in charge and limits on detention without a Magistrate's order.
Section 62: General rule that arrest must strictly comply with the BNSS or another applicable arrest law.

What can be done if an arrest appears unlawful?

The affected person or family may seek prompt legal assistance, ask for the grounds of arrest and relevant arrest records, and raise procedural defects before the appropriate Magistrate. Depending on the facts, remedies may include an application for bail or a constitutional challenge to unlawful detention. The availability of a particular remedy depends on the nature of custody, the governing law and the stage of proceedings.

CrPC and BNSS: Which law applies?

The BNSS came into force on 1 July 2024, replacing the CrPC as the principal criminal procedure law, subject to transitional and saving provisions, including Section 531 BNSS. The procedural law applicable to a particular investigation, inquiry, trial or other proceeding must be determined from its facts and the relevant savings provisions.

Official legal references

This article is a general explanation of the statutory position and is not a substitute for legal advice in an individual case.