Bharatiya Nagarik Suraksha Sanhita, 2023
Section 43
Arrest how made
(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.
Why this exists
This provision descends from Section 46 of the old Code of Criminal Procedure, 1973, which itself codified long-standing common-law rules on how arrests are physically carried out. Its purpose is to balance two competing needs: giving police the practical authority to actually take a resisting suspect into custody, while limiting arbitrary force, humiliation, or custodial violence. The rules on women's arrest and the restriction on night-time arrests were added over time in response to concerns about dignity and safety of women in police custody, and the handcuffing provision reflects judicial concern about routine, unnecessary handcuffing of undertrial and accused persons.
How courts read it
Courts have long held that arrest must be for a genuine, justified purpose and not mechanical or oppressive — in Joginder Kumar v. State of U.P. (1994), the Supreme Court stressed that arrest affects a person's dignity and liberty and should not be automatic merely because power exists. On handcuffing, Prem Shankar Shukla v. Delhi Administration (1980) and later Citizens for Democracy v. State of Assam (1995) held that routine handcuffing without specific justification violates the right to dignity under Article 21, requiring reasons to be recorded — a principle now reflected in the codified list of serious offences in sub-section (3). The Supreme Court's guidelines in D.K. Basu v. State of West Bengal (1997) on arrest procedure and custodial safeguards also inform how these provisions are read and enforced by courts today.
Common misconceptions
- Myth: Police can handcuff anyone they arrest.
Fact: Handcuffs may only be used for specific serious offences or repeat/escape-risk offenders, based on the nature and gravity of the crime, not routinely for every arrest. - Myth: Women can never be arrested at night.
Fact: Women can be arrested after sunset and before sunrise only in exceptional circumstances, and only after a female officer gets prior written permission from a magistrate. - Myth: Police can use any level of force to arrest someone who resists.
Fact: Police may use only means necessary to effect the arrest, and can never cause death unless the person is accused of an offence punishable by death or life imprisonment.