Arrest and Temporary Police Detention

Arrest means placing a person under legal restraint so that the person is no longer free to leave. Temporary police custody may instead involve briefly detaining or removing someone to carry out a lawful preventive direction. The legal consequences depend on the substance and statutory basis of the restraint, not merely on whether the police call it an arrest or record an FIR.

Different legal bases for preventive police action

Preventive police action can itself involve an arrest; it is not necessarily a lesser form of custody.

• Under Section 170 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), police may arrest without a warrant to prevent a cognizable offence when they know of a design to commit it and believe it cannot otherwise be prevented.
• Custody following this preventive arrest cannot exceed 24 hours unless further detention is required or authorised under another provision of the BNSS or another law.
• Under Section 172, police may detain or remove a person who fails to comply with lawful directions given in the discharge of preventive duties. The officer may take the person before a Magistrate or, in petty cases, release the person once the occasion has passed.

Consequences when custody amounts to arrest

An arrest activates constitutional and statutory safeguards even when its purpose is prevention rather than investigation of an already committed offence.

• Article 22(1) requires that an arrested person be informed, as soon as possible, of the grounds of arrest and permits consultation with, and defence by, a legal practitioner of choice.
• Article 22(2) requires production before the nearest Magistrate within 24 hours, excluding necessary journey time; continued custody beyond that period requires the Magistrate's authority.
• The BNSS additionally requires arrest documentation and communication of the arrest and place of custody to a relative, friend or other nominated person.
• Arrest does not establish guilt, and whether bail is available depends on the applicable law and circumstances.

Limits on temporary custody

Temporary custody is not an unrestricted power to hold someone for convenience. Article 21 requires any deprivation of personal liberty to follow procedure established by law.

• The power used must actually authorise the restraint, and custody cannot continue after its lawful justification has ended.
• Calling custody temporary cannot defeat arrest safeguards where the restraint actually amounts to arrest; the 24-hour rule is not permission for arbitrary detention.
• Ordinary preventive police action must be distinguished from detention under preventive-detention laws, for which Article 22 provides a separate constitutional framework.
• Unlawful custody can be challenged through habeas corpus.