Your Legal Rights During a Protest in India: Arrest, Bail, and FIR

When police register an FIR after a protest, protesters often assume they will be arrested immediately. That is not always true. Under BNSS Section 35, for offences punishable with imprisonment for a term of less than seven years, police must issue a notice before arrest unless arrest is necessary for investigation. This notice allows the accused to appear before the police voluntarily.

A 2025 Allahabad High Court ruling in Kamlesh Meena & 2 Ors. v. State of U.P. & 2 Ors. (Application U/S 528 BNSS No. 25348 of 2025, decided 25 July 2025) held that a person who is only a prospective accused has no locus to challenge a direction to lodge an FIR. This means protesters cannot block registration of an FIR merely by anticipating it. However, once the FIR is registered, the accused can seek quashing under Section 528 BNSS if the complaint is frivolous or lacks a cognizable offence.

Practical steps after FIR registration:

• Do not ignore the police notice. Appear or engage a lawyer.
• Collect a certified copy of the FIR from the police station.
• Check if the offence is bailable or non-bailable on the criminal defense page.
• If the FIR is false, file a quashing petition at the Allahabad High Court Lucknow Bench under Section 528 BNSS.

Arrest during a protest raises serious constitutional questions. Article 21 protects personal liberty, and the Supreme Court's guidelines in D.K. Basu v. State of West Bengal (1997) still apply. Under BNSS Section 35, police must issue a notice before arrest for offences punishable with less than seven years imprisonment. Separately, under BNSS Section 42, the police must inform a friend or relative of the arrested person about the arrest. The grounds of arrest must be in writing; if not, the arrest may be illegal.

What police must do when arresting a protester:

1. Inform the arrested person of the grounds of arrest immediately.
2. Produce the arrested person before a magistrate within 24 hours (Article 22, BNSS Section 173).
3. Allow a lawyer to meet the accused.
4. Maintain an arrest memo with details of custody.

If police violate these rules, the arrest can be challenged. Read more about Women's Rights During Police Custody in UP and No Written Grounds of Arrest? Your Arrest May Be Illegal in UP.

Bail depends on the offence. Under BNSS, bailable offences grant bail as a right under Section 480 BNSS (old Section 436 CrPC). Non-bailable offences require the court to consider factors like flight risk and evidence tampering. For protesters, most charges under the Indian Penal Code (e.g., Section 143, 147, 323, 341, 188) are bailable, but charges like Section 307 (attempt to murder) or Section 354 (assault on woman) are non-bailable.

Bail stages for protest-related cases:

• Magistrate bail: For bailable offences under Section 480 BNSS, the magistrate must grant bail. For non-bailable, apply under Section 483 BNSS (old Section 437 CrPC).
• Sessions Court bail: If magistrate rejects bail, approach Sessions Court under Section 483 BNSS read with Section 484 BNSS.
• High Court bail: The Allahabad High Court Lucknow Bench can grant bail under Section 484 BNSS (old Section 439 CrPC) even after lower court rejection.
• Bail for undertrial delay: Under Section 481 BNSS, if the trial is not concluded within 60 days for certain offences, the accused may be released on bail. This provision applies to specific categories of offences and is not a general 'half-maximum period' rule.

For a practical guide, see How to Secure Bail After FIR Registration in Lucknow.

If an FIR has been registered but arrest has not yet occurred, protesters can file for anticipatory bail. Under BNSS, the remedy is Section 482 BNSS (old Section 438 CrPC). This can be filed before the Sessions Court or the High Court. In Udit Arya v. State of U.P. (Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 4560 of 2023, decided 3 May 2023), the Allahabad High Court recognized that anticipatory bail exists to prevent false or motivated prosecution. Note that this case was decided under the old CrPC, but the principle remains applicable under BNSS Section 482. Protest arrests are often driven by FIRs filed after public disturbances; this ruling supports seeking pre-arrest protection when the FIR appears retaliatory.

When to file anticipatory bail:

1. Immediately after FIR registration if police are likely to arrest.
2. If the offence is non-bailable and the protester fears arrest in connection with protest events.
3. If the FIR is exaggerated or politically motivated.

The Lucknow Bench of the Allahabad High Court grants interim protection usually on the first or second hearing. For steps before filing, read Pre-Arrest Bail Steps When FIR Not Quashed in Lucknow.

If a protester is arrested without proper procedure or kept beyond 24 hours without remand, the remedy is a habeas corpus petition under Article 226 before the Allahabad High Court Lucknow Bench. The court has consistently treated illegal arrest as contrary to constitutional safeguards. The Supreme Court in Satyendra Kumar Antil v. CBI (2022) and Umang Rastogi v. State of U.P. (2022) laid down guidelines on arrest procedure and bail. These principles apply equally to protest cases.

Grounds for habeas corpus in protest cases:

• Arrest without proper grounds.
• Detention beyond 24 hours without judicial remand.
• Failure to inform family or lawyer.
• Arrest under a provision that does not warrant arrest (e.g., bailable offence without warrant).

Habeas corpus petitions are listed urgently, often within hours. For more on arrest procedure, read Police Custody Under BNSS 187 in Uttar Pradesh.

In our practice before the Lucknow Bench, applications for anticipatory bail or regular bail in protest-related cases are typically listed within 1-7 days of filing, depending on the urgency. For habeas corpus, we often get same-day or next-day listing. The fees for filing a criminal misc. petition at the Lucknow Bench range from ₹25,000 to ₹1,00,000+ for contested matters, while anticipatory bail at Sessions Court is lower (₹15,000–₹50,000). Judges at the Lucknow Bench routinely ask for the arrest memo, grounds of arrest in writing, and a copy of the FIR. They also examine whether the protest was peaceful and whether the accused has criminal antecedents. Documents judges ask for include: arrest memo, FIR copy, medical report (if injury claimed), and notice under Section 35 BNSS if applicable. We advise clients to keep all police communications on record.

Advocate Onkar Pandey is a practicing lawyer at the Allahabad High Court Lucknow Bench with over 25 years of experience in criminal law, bail matters, FIR quashing, and family law. Enrolled with the Bar Council of Uttar Pradesh (No. UP/4825/1999), he provides expert legal guidance to clients across Uttar Pradesh from his chamber at A-406, High Court, Lucknow. For a consultation on protest arrest and bail rights, contact Advocate Onkar Pandey at +91 98392 71553.