Section 42 BNSS: Protection of members of Armed Forces from arrest (Formerly Section 45 CrPC)

Section 42 of Bharatiya Nagarik Suraksha Sanhita, 2023: Protection of members of Armed Forces from arrest

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Notwithstanding anything contained in section 35 and sections 39 to 41 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.

(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

Legal Commentary & Landmark Judgments: Section 42

Section 42 protects members of the Armed Forces of the Union from arrest for anything done or purported to be done by them in the discharge of their official duties, except after obtaining the consent of the Central Government.

Armed Forces Personnel: Covers members of the Military, Naval, and Air Forces, as well as paramilitary forces deployed by the Centre.
Discharge of Official Duty: Act done or purported to be done in execution of lawful military orders or duty.
Mandatory Central Consent: Prior consent of the Central Government is an absolute condition precedent to arrest; State Governments may extend protection to state forces.

Key Landmark Precedents:

Naga People's Movement for Human Rights v. Union of India (1998) 2 SCC 109: The Constitution Bench upheld statutory protections for armed forces operating in disturbed areas, affirming that central sanction protects operational forces from vexatious local arrests.
General Officer Commanding v. CBI (2012) 6 SCC 228: The Supreme Court held that prior sanction under Section 197 CrPC / Section 45 CrPC (Section 42 BNSS) is mandatory before arrest or prosecution for acts connected with official duty.

Courtroom Practice & Strategic Litigation Guidance:

If armed forces or central paramilitary personnel are arrested by local police without central government consent, file a habeas corpus petition under Section 528 BNSS and Article 226 citing Section 42 as an absolute statutory bar.