Section 43 BNSS - Arrest how made

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Section 43 BNSS: The Complete Guide to Arrest Powers in India's New Criminal Law Introduction: Why Section 43 BNSS Matters to Every Indian Citizen Pic

Section 43 BNSS: The Complete Guide to Arrest Powers in India's New Criminal Law

Introduction: Why Section 43 BNSS Matters to Every Indian Citizen

Picture this scenario. You are walking home late at night when you witness a robbery in progress. The thief is running toward you with stolen goods in hand. What can you legally do? Can you stop them? Can you detain them? Or consider another situation — a police officer knocks on your door at 10 PM to arrest your sister. Is this even legal? These everyday questions find their answers in Section 43 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, one of the most consequential provisions in India's new criminal justice framework.
The BNSS replaced the colonial-era Code of Criminal Procedure (CrPC) of 1973, and Section 43 BNSS corresponds to the old Section 46 of CrPC but with significant modifications that every citizen, law student, and legal professional must understand. This provision governs how arrests are actually made in India — the physical act of taking someone into custody, the use of force, the controversial new handcuffing powers, special protections for women, and the rights of private citizens to make arrests.
In this comprehensive guide, we will walk through Section 43 BNSS exact provision, dissect its five sub-sections with real-world examples, explore the latest case laws from 2025 and 2026, and understand how Indian courts are interpreting this critical provision. Whether you are a law student preparing for exams, a practicing advocate, or simply a concerned citizen, this article will give you everything you need to know about arrest powers under India's new criminal law.

The Exact Text of Section 43 BNSS: Breaking Down the Provision

Let us begin with the exact text of Section 43 BNSS as enacted in the Bharatiya Nagarik Suraksha Sanhita, 2023. Understanding the precise language is essential because every word has been chosen carefully and carries legal weight.
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.
(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 has 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 Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Understanding Sub-Section 43(1): The Physical Act of Arrest

The opening sub-section of Section 43 BNSS establishes the fundamental principle of how an arrest is physically executed. This is not merely procedural — it goes to the very heart of what constitutes a valid arrest under Indian law.
What does "actually touch or confine the body" really mean?
The phrase requires physical contact or restraint of the person being arrested. This means that merely announcing "you are under arrest" without any physical touching or confinement does not complete the arrest, unless the person submits voluntarily through words or actions. For example, if a police officer says "I am arresting you" and the person says "I surrender" and holds out their hands, the arrest is complete under Section 43(1). But if the person runs away or simply stands still without acknowledging the arrest, the officer must physically touch or confine them.
This principle was beautifully explained by the Kerala High Court in Biswajit Mandal vs. Inspector, Narcotic Control Bureau, 2025 SCC OnLine Ker 6017, where the court observed that as per Section 43 of BNSS, an arrest is made by actually touching or confining the body of the person to be arrested, unless there is submission to the custody by word or action. The court further held that the failure, refusal or omission to record an arrest or continuation of interrogation for prolonged periods without recording arrest, shall not preclude those periods of curtailed liberty as constituting arrest. This is a crucial clarification — even if the police do not formally record the arrest, if they are effectively detaining and questioning someone, that period still counts as arrest for constitutional purposes.
Why this matters in practice:
This sub-section protects citizens from technical evasion of arrest safeguards. Police cannot interrogate someone for hours, claim "this is just questioning," and then later record the arrest formally. The moment liberty is curtailed through physical restraint or confinement, arrest has occurred, and all constitutional protections under Article 22(1) and Article 22(2) of the Constitution kick in — the right to be informed of grounds of arrest, the right to consult a legal practitioner, and the right to be produced before the nearest magistrate within 24 hours.

Understanding Sub-Section 43(2): Using Force When Resistance Occurs

Section 43(2) BNSS empowers the arresting officer to use all means necessary to effect the arrest if the person forcibly resists or attempts to evade arrest. This is a powerful provision, but it operates within important constitutional boundaries.
What are "all means necessary"?
This phrase permits reasonable force proportionate to the resistance. If someone pushes the officer and tries to run, the officer can grab them, tackle them, or use physical restraint. However, this does not mean unlimited force. The force must be:
  • Proportionate to the resistance offered
  • Necessary for the specific purpose of effecting arrest
  • Not excessive or cruel
The Supreme Court has consistently held that police cannot resort to methods which result in deprivation of dignity of the accused. The act of deprivation of liberty cannot be cruel, inhuman or degrading and must conform to fundamental rights. This principle from the NACIN July 2024 Newsletter reminds officers that while securing presence of the accused is necessary for fair trial, dignity must be preserved.
Critical limitation — read with Section 46 BNSS:
Section 43(2) must be read together with Section 46 BNSS (which corresponds to old Section 49 CrPC), which states that no unnecessary restraint shall be used. The arrestee cannot be subjected to more restraint than is necessary to prevent their escape. This creates a balancing act — enough force to secure arrest, but not so much as to become unnecessary punishment.

Understanding Sub-Section 43(3): The Controversial Handcuffing Provision

Now we arrive at the most debated and controversial addition in Section 43 BNSS — Sub-section (3), which introduces statutory handcuffing powers for the first time in Indian criminal procedure law. This is where the BNSS significantly departs from the old CrPC and has generated intense legal and human rights debate.
What does Section 43(3) BNSS actually say?
The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest or while producing the person before court, if that person is:
  • A habitual or repeat offender
  • Someone who has escaped from custody
  • Someone who has committed:
    • 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
    • Offence against the State
Why is this controversial?
For nearly four decades, Supreme Court jurisprudence had established that handcuffing is prima facie inhuman and violative of Article 21. In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, Justice V.R. Krishna Iyer famously declared: "Handcuffing is prima facie inhuman and, therefore, unreasonable; it should be the last resort, not the first reflex."
Under the old CrPC, handcuffing was permitted only in exceptional circumstances with prior approval from a Magistrate. The arresting authority had to record reasons for why handcuffing was necessary. This judicial framework ensured that handcuffing remained rare, justified, and supervised.
Section 43(3) BNSS changes this fundamentally:
  • It grants direct statutory power to police officers without magistrate approval
  • It does not require recorded reasons before handcuffing
  • It creates categories of offenders who can be handcuffed based on the nature of offence alone
  • It shifts discretion from judicial oversight to police discretion
The Supreme Court's response: Constitution trumps the Sanhita
The judiciary has not remained silent. In what is referred to as the Vihaan Kumar judgment (2025/2026), the Supreme Court struck a heavy blow against Section 43(3). The Court held that statutory provisions cannot override constitutional protections against degrading treatment under Articles 21 and 22(1). Handcuffing remains the absolute exception, requiring explicit justification and judicial oversight.
The SCC Times editorial "Bodies of Control: Handcuffing and the Return of the Carceral State under BNSS" (November 2025) explains this constitutional fault line brilliantly. The Supreme Court held that handcuffing of an accused without recorded justification and judicial oversight violates Articles 21 and 22(1). The Court reaffirmed that handcuffing is permissible only under demonstrable necessity and cannot be normalised by statutory discretion. Importantly, it clarified that Section 43(3) BNSS cannot dilute constitutional protections — any use of handcuffs must satisfy tests of fairness, necessity, and reasonableness.
Practical takeaway for lawyers and citizens:
As legal analysis from AnRak Legal (June 2026) emphasizes: "Do not let trial courts wave away handcuffing complaints by pointing to the new BNSS text. The Constitution still trumps the Sanhita." If your client is paraded in handcuffs without a prior magistrate's order specifically recording the necessity, you can move for contempt and departmental action against the escorting officers.

Understanding Sub-Section 43(4): The Ultimate Limitation — No Death Except for Gravest Crimes

Section 43(4) BNSS contains a crucial humanitarian safeguard. It states that 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 imprisonment for life.
What does this mean in simple terms?
  • If someone is accused of murder (punishable with death or life imprisonment), and they violently resist arrest to the point where the officer has no choice but to use lethal force, the law recognizes this tragic possibility
  • But if someone is accused of theft, fraud, or any offence not carrying death or life imprisonment, the police absolutely cannot cause their death during arrest
  • This applies even if the person is violently resisting — the officer must use non-lethal means
This provision reflects the proportionality principle embedded in constitutional jurisprudence. The punishment must match the crime, and the force used in arrest must be proportionate to the offence. Taking a life for a minor offence is state-sponsored excess that Article 21 prohibits.

Understanding Sub-Section 43(5): Special Protection for Women — Night Arrest Safeguards

Section 43(5) BNSS corresponds to Section 46(4) of the old CrPC and provides special safeguards for arresting women. This provision reflects India's commitment to gender-sensitive policing and the dignity and safety of women in the criminal justice system.
What are the exact safeguards?
  • No arrest after sunset and before sunrise — this is the general rule
  • Exceptional circumstances can justify night arrest, but only if:
    • A woman police officer makes a written report
    • She obtains prior permission from the Judicial Magistrate of the first class
    • The permission must be from the magistrate within whose local jurisdiction the offence was committed or the arrest is to be made
The Madras High Court's landmark ruling: Directory, not mandatory
In February 2025, the Madras High Court (Madurai Bench) delivered a significant judgment that has shaped how Section 43(5) BNSS is understood. In a case involving the arrest of S. Vijayalakshmi at approximately 8:00 PM without prior judicial approval, a Division Bench of Justices G.R. Swaminathan and M. Jothiraman held that Section 46(4) of CrPC / Section 43(5) of BNSS is directory, not mandatory.
The Court reasoned:
  • "Section 46(4) of Cr.P.C has not spelt out the consequence of non-compliance with the requirement set out therein. If the provision was intended to be mandatory, the legislature would definitely have provided for the consequences of non-compliance."
  • The construction of a statutory provision as directory or mandatory must depend on the legislative intent and context, not merely the word "shall"
  • Police officers perform public duty, and mechanical adherence to procedures can sometimes injure public interest
  • The Court posed a practical question: "Suppose a heinous offence takes place at midnight. The jurisdictional Magistrate may not be available or accessible. The accused will not be waiting for the police officer to obtain permission from the Magistrate."
However, the Court importantly clarified:
  • The provision cannot be rendered otiose by the police
  • It serves as a note of caution to officers
  • While failure to comply may not make the arrest automatically illegal, the officer must offer explanation for inability to comply
  • The Court directed police authorities to issue guidelines defining what constitutes "exceptional situations"
This judgment, reported in The Hindu (February 9, 2025) and multiple legal news platforms, represents a practical balance between women's safety and effective law enforcement. It acknowledges that while the safeguard is important, making it absolutely mandatory could allow criminals to exploit procedural delays.

Latest Case Laws on Section 43 BNSS: 2025-2026 Judicial Developments

The true meaning of any law emerges through judicial interpretation. Let us explore the latest case laws that are shaping how Section 43 BNSS is applied across India.

The Supreme Court's 2026 Ruling on Private Citizen Arrests

In January 2026, the Supreme Court delivered a landmark ruling on Section 43 BNSS that redefined citizen's arrest in modern India. This ruling addressed a case where a private citizen detained a suspect based on a phone call — essentially acting on "hearsay" rather than direct witnessing.
Key holdings of the 2026 Supreme Court ruling:
  • "In his presence" means direct witnessing: The Court explicitly rejected the idea of "reasonable suspicion" for citizens. While police can arrest on suspicion under Section 35 BNSS, citizens cannot. The arrestor must be a direct witness to the criminal act. Hearing a scream from another room does not satisfy this requirement.
  • Offence must be both cognizable AND non-bailable: The Court set a high threshold for private intervention. If a citizen arrests someone for a bailable offence, they risk legal blowback including criminal prosecution.
  • "Without unnecessary delay" means immediate transit: Once arrest is made, the citizen must immediately proceed to the nearest police station. Any detour could lead to charges of wrongful confinement. The Court now looks at GPS logs and timestamped mobile videos to verify compliance.
  • Force must be proportionate: Striking a restrained individual is strictly prohibited. Using weapons when the suspect is not a threat to life is an offence under the Bharatiya Nyaya Sanhita (BNS).
  • Citizens are strictly prohibited from using handcuffs: Unlike police under Section 43(3), private citizens cannot use handcuffs unless an escape is imminent and violent.
  • Civil and criminal liability: Citizens act at their own peril. Mistaken identity can lead to false imprisonment damages. Arresting for a bailable offence can lead to criminal prosecution.
This ruling represents a shift toward "Community Policing" — encouraging citizens to help the state while imposing stricter rules on how that help is provided.

The Tripura High Court on Arrest Timing and Article 22(2)

In Anawora Begam vs. The State of Tripura (March 16, 2026), the Tripura High Court addressed a critical issue: when does the 24-hour period for producing an arrested person before a magistrate begin?
The Court noted that the Supreme Court had previously held that where the accused was not produced before the nearest Magistrate within 24 hours from the actual time of detention (not the formally recorded time), the arrest was illegal as a violation of Article 22(2). The time must be computed from when the person was actually taken into custody, not from when the arrest memo was formally prepared.
This aligns with the Kerala High Court's observation in Biswajit Mandal (2025) that prolonged interrogation without recording arrest still constitutes arrest for constitutional purposes.

The Bombay High Court on Magistrate's Duty to Verify Arrest Legality

In Jogindar Kumar v. State of U.P. (2025), the Bombay High Court addressed a habeas corpus petition where the petitioner alleged illegal arrest without compliance of procedural formalities under BNSS. The Court extensively discussed the magistrate's duty when an arrested person is produced for remand.
Relying on Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 and Vihaan Kumar v. State of Haryana, the Court emphasized:
  • The magistrate authorizing detention must first be satisfied that the arrest is legal and in accordance with law
  • All constitutional rights of the person arrested must be satisfied
  • If the arrest does not comply with Section 35 BNSS (corresponding to old Section 41), the magistrate is duty bound not to authorize further detention and must release the accused
  • The act of remanding is a fundamentally judicial function requiring application of mind, not mechanical endorsement of police requests
This case reinforces that Section 43 BNSS does not operate in isolation — it must be read with Section 35 BNSS (arrest without warrant), Section 47 BNSS (search of place entered by person sought to be arrested), and the constitutional safeguards of Articles 21 and 22.

The Madhya Pradesh High Court on Default Bail and Arrest Timing

In Armaan Hussain v. Union of India (Criminal Revision No. 283 of 2026, decided April 15, 2026), the Madhya Pradesh High Court at Jabalpur dealt with a criminal revision challenging dismissal of a default bail application. While the specific Section 43 issue was not the primary focus, the case illustrates how arrest timing, charge sheet filing deadlines, and procedural compliance under BNSS are being litigated across High Courts.

Comparative Analysis: Section 43 BNSS vs. Section 46 CrPC

Understanding what has changed helps appreciate the significance of Section 43 BNSS. Here is a bullet-point comparison:
  • Section 46(1) CrPC and Section 43(1) BNSS are substantially identical — both require actual touching or confinement unless submission by word or action
  • Section 46(2) CrPC and Section 43(2) BNSS are substantially identical — both permit "all means necessary" when forcible resistance occurs
  • Section 43(3) BNSS is entirely new — there was no explicit handcuffing provision in CrPC; handcuffing was governed entirely by judicial pronouncements requiring magistrate approval
  • Section 46(3) CrPC and Section 43(4) BNSS are substantially identical — both prohibit causing death except for offences punishable with death or life imprisonment
  • Section 46(4) CrPC and Section 43(5) BNSS are substantially identical — both protect women from night arrest except with magistrate permission in exceptional circumstances
The most significant change is Section 43(3) — the statutory handcuffing provision. This represents a legislative attempt to overrule the protective jurisprudence developed in Prem Shankar Shukla and Sunil Batra v. Delhi Administration, where the Supreme Court had held that handcuffing without prior magistrate approval and recorded reasons violates Article 21.

Practical Guidance for Legal Practitioners and Citizens

Based on the latest judicial developments, here are practical strategies:
For challenging illegal arrests:
  • Examine whether the arrest was actually made by touching or confining under Section 43(1)
  • Check if prolonged interrogation without formal arrest occurred — this still constitutes arrest
  • Verify if women's night arrest safeguards were complied with, or if exceptional circumstances were properly documented
  • For handcuffing cases, do not accept mere reference to Section 43(3) — demand magistrate order with recorded reasons based on Vihaan Kumar
  • Use GPS data, mobile timestamps, and bodycam footage to prove procedural violations
For defending citizen arrests:
  • Establish the arrestor was physically present and directly witnessed the offence
  • Prove the offence was both cognizable and non-bailable
  • Document immediate transit to police station without unnecessary delay
  • Record physical condition of suspect at handover to prevent torture allegations
  • Ensure proportionate force was used
For corporate security firms:
  • Update Standard Operating Procedures (SOPs) to reflect 2026 Supreme Court guidelines
  • Mandate body-cam recording for all security personnel
  • Ensure immediate handover memos are signed by duty officers
  • Train staff on the 7-factor test for identifying unlawful assembly members

Constitutional Foundations: Why Section 43 BNSS Must Respect Fundamental Rights

Section 43 BNSS does not operate in a vacuum. It is subject to the supremacy of the Constitution, particularly:
  • Article 21: Right to life and personal liberty — includes right to live with human dignity, which prohibits routine handcuffing and cruel treatment
  • Article 22(1): Right to be informed of grounds of arrest and right to consult legal practitioner
  • Article 22(2): Right to be produced before nearest magistrate within 24 hours of arrest (excluding journey time)
  • Article 14: Right to equality — handcuffing based on broad categories without individual assessment may violate this
The Supreme Court in D.K. Basu v. State of West Bengal (1997) laid down 11 mandatory guidelines for arrest and detention, including:
  • Police identification and memo of arrest
  • Informing friend or relative
  • Medical examination
  • Right to legal representation
These guidelines, along with Joginder Kumar v. State of UP (1994) (arrest must be justified and not arbitrary) and Arnesh Kumar v. State of Bihar (2014) (mandatory notice before arrest for offences punishable up to 7 years), form the constitutional bedrock that Section 43 BNSS must respect.

Conclusion: Navigating the New Arrest Landscape

Section 43 BNSS represents both continuity and change in India's arrest procedure. While sub-sections (1), (2), (4), and (5) largely preserve the framework from the old CrPC, sub-section (3) introduces a transformative — and contested — expansion of police power through statutory handcuffing authority.
The judiciary has responded with vigorous constitutional oversight. The Vihaan Kumar judgment and subsequent rulings make clear that the Constitution trumps the Sanhita. Handcuffing remains the exception, not the rule. Magistrate oversight, recorded reasons, and demonstrable necessity are non-negotiable requirements that Section 43(3) cannot dilute.
For citizens, understanding Section 43 BNSS is empowering. It clarifies when you can act to stop a crime, how you must act when making a citizen's arrest, and what protections exist for vulnerable persons like women. For legal professionals, mastering this provision — along with its interplay with Section 35 BNSS, Section 47 BNSS, and constitutional safeguards — is essential for effective practice in India's evolving criminal justice system.
As India's new criminal laws continue to be interpreted and refined through judicial decisions, one principle remains constant: arrest is a serious deprivation of liberty that demands legal justification, procedural fairness, and human dignity. Section 43 BNSS, properly understood and properly applied, can serve these values. But vigilance — by courts, by lawyers, by citizens — is necessary to ensure that statutory power does not become statutory overreach.

Source Links and References

This article is for educational and informational purposes only and does not constitute legal advice. For specific legal matters, please consult a qualified advocate.

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AUTHOR: RABI KR. PANDIT

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Hello, I am Rabi Kr. Pandit, the founder of this platform and a resident of Kolkata, India. I hold a degree in History, Political Science, and English, and I am currently pursuing my legal studies at Jogesh Chandra Chaudhary Law College under the University of Calcutta. I manage multiple educational blogs with the aim of delivering knowledge in a clear, structured, and accessible manner. My focus is on simplifying complex topics and presenting reliable information that benefits students and readers from diverse academic backgrounds.

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