Section 43 BNSS: Arrest how made (Formerly Section 46 CrPC)

Section 43 of Bharatiya Nagarik Suraksha Sanhita, 2023: Arrest how made

Official Bare Act Text

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

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action:

Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offence against children, or offence against the State.

(4) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

(5) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Arrest Sec 35

Legal Commentary & Landmark Judgments: Section 43

Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 prescribes the manner of making an arrest, regulating physical restraint and introducing specific statutory rules on the use of handcuffs.

Sub-Section (1) Provision: Sub-section (1) provides that in making an arrest, the police officer shall actually touch or confine the body of the person to be arrested, unless there be a submission to custody by word or action.
Sub-Section (2) Provision: Sub-section (2) permits the use of all necessary means to effect arrest if the suspect forcibly resists or attempts to evade.
Sub-Section (3) Provision: Sub-section (3) introduces a significant statutory provision: the police officer may use handcuffs keeping in view the nature and gravity of the offence, specifically for repeat offenders, escapees, or persons accused of serious offences like organized crime, terrorism, rape, acid attack, or murder.

Sub-section (4) reiterates the protective mandate regarding women: no woman shall be arrested after sunset and before sunrise, except in exceptional circumstances with prior written permission of a Judicial Magistrate.

Key Landmark Precedents:

Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526: The Supreme Court held that routine handcuffing is inhuman, degrading, and violates Article 21; handcuffs can only be applied where there is documented, demonstrable propensity to violence or escape.
Citizens for Democracy v. State of Assam (1995) 3 SCC 743: Held that handcuffs and fetters cannot be used without prior judicial approval; executive or police discretion to handcuff undertrials is unconstitutional.
Kavita v. State of Maharashtra (1981) 4 SCC 145: Affirmed strict statutory protections surrounding the arrest and custody of female accused persons.

Legal Commentary:

Section 43 balances the physical necessity of apprehension with human dignity. The new statutory mention of handcuffs in Section 43(3) must be harmonized with Supreme Court jurisprudence under Article 21, ensuring that handcuffing is never routine and requires recorded justification.