Arrest, Bail & Production Before Magistrate: A Complete Comparative Analysis Under CrPC & BNSS (2023)

By Adv. Prakash Chand Sharma
Chartered Engineer | High Court Advocate | CAO
Founder – Zumosun Universe, Techlam Legal Solutions, JPSD Taxsun LLP
Powered by: TheLegalCourt.com | TheLegalBank.com

Introduction

“Arrest”, “Bail”, and “Production before Magistrate” are the most operationally sensitive procedures in Indian criminal law. These concepts govern:

• Police powers

• Accused rights

• Judicial scrutiny

• Investigation workflow

• Corporate compliance

• HR & workplace misconduct situations

With the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, CrPC provisions are renumbered, streamlined, and made more citizen-centric — but core principles remain consistent.

This article delivers a complete comparative guide for advocates, corporates, HR leaders, security heads, and investigators.

🌟 PART A — ARREST (CrPC vs BNSS)

CrPC Section 41 → BNSS Clause 35

Definition of Arrest

Arrest means:
Taking a person into custody under legal authority, preventing further freedom of movement.

Key Elements

✔ Authority of law
✔ Physical restraint or custody
✔ Communication of grounds of arrest
✔ Rights of arrested person

Grounds of Arrest (No Warrant)

BNSS Clause 35 (CrPC 41) — Major Changes

1. Arrest only when necessary, not routine

2. Police must record written reasons

3. In offences ≤ 3 years → Mandatory notice, not arrest

4. Focus on de-escalation & investigation efficiency

🌟 PART B — ARREST PROCEDURE (CrPC vs BNSS)

CrPC Section 46 → BNSS Clause 37

Police may use reasonable force, but:
✔ No causing death except in rare situations
✔ Women cannot be arrested after sunset except under strict written justification

CrPC 41A Notice → BNSS Clause 35(3)

Police must issue Notice for Appearance instead of arrest when conditions are met.

👉 BNSS strengthens “Right to Liberty”.

🌟 PART C — RIGHTS OF ARRESTED PERSON (CrPC vs BNSS)

CrPC 50, 50A, 54 → BNSS Clauses 36, 37, 41

Arrested person has the right to:

✔ Know grounds of arrest
✔ Inform relative/friend
✔ Free legal aid
✔ Medical examination
✔ Meet advocate during interrogation (not throughout)
✔ Right to silence (constitutional)

🌟 PART D — PRODUCTION BEFORE MAGISTRATE

CrPC Section 56 & 57 → BNSS Clause 58

Mandatory production within 24 hours of arrest.

✔ Prevents illegal detention
✔ Judicial oversight begins
✔ Maintains procedural fairness

🌟 PART E — REMAND (Police & Judicial Custody)

CrPC Section 167 → BNSS Clause 187

Maximum detention during investigation:

10 years | 90 days | Judicial Magistrate

BNSS retains same structure with better digital documentation rules.

Production through Video Conferencing

BNSS allows extensive video conferencing, ensuring efficiency.

🌟 PART F — BAIL UNDER CRPC & BNSS

Bail divides into:

✔ Bailable Offences
✔ Non-bailable Offences
✔ Default Bail
✔ Anticipatory Bail

1. BAILABLE OFFENCES

CrPC Section 436 → BNSS Clause 480

✔ Bail is a matter of right
✔ Police must release person on furnishing surety or bond

2. NON-BAILABLE OFFENCES

CrPC Section 437 → BNSS Clause 481

Court may grant bail considering:

• Nature of accusation

• Past criminal history

• Probability of guilt

• Likelihood of tampering

BNSS adds:
👉 Mandatory recording of reasons for granting/denying bail.

3. ANTICIPATORY BAIL

CrPC 438 → BNSS Clause 482

✔ Protects individual from arrest
✔ Court may impose conditions
✔ BNSS retains full scope of anticipatory bail

4. DEFAULT BAIL

CrPC 167(2) → BNSS 187(4)

When chargesheet is not filed within:

• 60 days (≤10 years offence)

• 90 days (>10 years offence)

The accused gets statutory bail.

🌟 PART G — CRPC TO BNSS REPLACEMENT TABLE

👉 Only numbers changed — meaning remains same, with tech-enabled process.

🌟 PART H — PRACTICAL ILLUSTRATIONS

✔ Example 1 — Arrest

A steals a mobile phone. Police arrest him under BNSS Clause 35 after recording reasons.

✔ Example 2 — Notice Instead of Arrest

A in a minor scuffle case gets notice under Clause 35(3) instead of arrest.

✔ Example 3 — Anticipatory Bail

A businessman accused of cheating applies under Clause 482 → Interim protection granted.

✔ Example 4 — Default Bail

Police fail to file chargesheet within 60 days → Accused gets statutory bail.

🌟 PART I — CORPORATE & INSTITUTIONAL RELEVANCE

These BNSS changes directly impact:

✔ Workplace misconduct
✔ Employee assault cases
✔ Fraud & cheating FIRs
✔ Security team actions
✔ HR internal inquiries
✔ Corporate bail management
✔ Compliance with arrest guidelines
✔ Protection against arbitrary detention

Enhanced documentation helps:

✔ Internal investigations
✔ Legal defence strategy
✔ Risk management
✔ Employee rights protection

🟦 Conclusion

Arrest, bail, and remand remain foundational pillars of criminal procedure.
BNSS preserves the essence of CrPC while modernizing the system with:

✔ Written-reasons
✔ Digital documentation
✔ Video conferencing
✔ Safeguards against arbitrary arrest

Professionals in law, corporate governance, HR, and security must master these updates for accurate decision-making and seamless legal compliance.

Author

Adv. Prakash Chand Sharma
Chartered Engineer | High Court Advocate | CAO
Founder – Zumosun Universe, Techlam Legal Solutions, JPSD Taxsun LLP
Powered by: TheLegalCourt.com | TheLegalBank.com