Section 43 BNSS 2023: Arrest How Made
Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 explains the manner in which an arrest is to be made. It covers physical submission to custody, special safeguards for women, resistance to arrest, specified situations involving handcuffs, limits on the use of force, and restrictions on arresting women after sunset and before sunrise.
What is Section 43 BNSS?
Section 43 lays down the basic statutory method of effecting an arrest. Ordinarily, the person making the arrest must touch or confine the body of the person to be arrested, unless that person submits to custody by word or action. The section then prescribes additional rules concerning women, resistance, handcuffs, use of force, and arrest during night hours.
Key legal terms under Section 43
Arrest: The taking of a person into lawful custody in accordance with the BNSS and other applicable law.
Submission to custody: Voluntary acceptance of arrest by words or conduct, making physical touching or confinement unnecessary for the purpose of effecting the arrest.
All means necessary: Subsection (2) permits necessary means to effect arrest when the person forcibly resists or attempts to evade arrest. This power remains subject to subsection (4) and other constitutional and statutory limits.
Handcuff: A restraining device. Section 43(3) authorizes its use in the circumstances and categories expressly specified in that subsection, while requiring the police officer to keep in view the nature and gravity of the offence.
Exceptional circumstances: Under subsection (5), arrest of a woman after sunset and before sunrise is barred except in exceptional circumstances, and the statutory procedure for prior permission must be followed.
Text of Section 43 - Arrest how made
43. (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.
How is an arrest ordinarily made?
Under subsection (1), the arresting police officer or other authorized person ordinarily effects the arrest by actually touching or confining the body of the person to be arrested. Physical contact is not required where the person submits to custody by word or action.
Special rule for arrest of a woman
The proviso to subsection (1) creates a specific safeguard for women. Unless circumstances indicate otherwise, a woman's submission to custody is presumed upon oral intimation of arrest. Unless circumstances otherwise require, or unless the police officer is female, the police officer shall not touch the woman for making the arrest.
What if the person resists or tries to escape?
Under subsection (2), if the person forcibly resists the attempt to arrest or tries to evade arrest, the police officer or other person making the arrest may use all means necessary to effect the arrest. The provision does not create an unlimited power: subsection (4) expressly restricts the right to cause death, and all arrest powers remain subject to applicable legal safeguards.
When may handcuffs be used under Section 43(3)?
Section 43(3) permits a police officer, while keeping in view the nature and gravity of the offence, to use handcuffs while making an arrest or producing the person before the court in the categories specifically listed in the provision.
Those categories include a person who is:
- a habitual or repeat offender;
- a person who escaped from custody; or
- a person who has committed an offence of organised crime, terrorist act, drug related crime, 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.
Because subsection (3) expressly refers to the nature and gravity of the offence and identifies particular categories, the power should be applied within the terms of the statutory provision and other binding constitutional and judicial safeguards governing restraint of arrested persons.
Limit on causing death while effecting arrest
Subsection (4) makes clear that Section 43 does not give a right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life. This is an express statutory limitation on the force that may be used to effect an arrest.
Can a woman be arrested after sunset and before sunrise?
As a general rule, subsection (5) prohibits arrest of a woman after sunset and before sunrise. An arrest during those hours may be made only in exceptional circumstances.
Where exceptional circumstances exist, a woman police officer must make a written report and obtain prior permission from the Magistrate of the first class within whose local jurisdiction the offence was committed or the arrest is to be made.
Related BNSS arrest safeguards
Section 43 should be read with Section 41 BNSS on arrest by a Magistrate, Section 42 BNSS on protection of members of the Armed Forces from arrest, Section 44 BNSS on search of a place entered by a person sought to be arrested, Section 46 BNSS on unnecessary restraint, and Section 47 BNSS on information regarding grounds of arrest and the right to bail.
Section 43 BNSS at a glance
- An arrest is ordinarily made by touching or confining the body unless the person submits to custody.
- Special safeguards apply when a woman is arrested.
- Necessary means may be used if the person forcibly resists or attempts to evade arrest.
- Handcuffs may be used in the specific circumstances and offence categories stated in subsection (3), keeping in view the nature and gravity of the offence.
- The section does not authorize causing death where the person is not accused of an offence punishable with death or imprisonment for life.
- A woman ordinarily cannot be arrested after sunset and before sunrise.
- Night arrest of a woman requires exceptional circumstances, a written report by a woman police officer, and prior permission of the competent Magistrate of the first class.
Official legal resources
This page provides general legal information. The legality and manner of an arrest in a particular case depend on the facts, the offence alleged, the authority of the arresting person, compliance with the BNSS, constitutional safeguards, and binding judicial directions.