Arrest of Women and Senior Citizens: What Changed Under BNSS vs CrPC

Indian law gives women, the elderly and infirm persons specific procedural protections at the point of arrest, search and medical examination. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) carries forward the CrPC's protections for women largely unchanged, but adds a wholly new permission requirement for arresting infirm or 60-plus persons and lowers the witness-summons age exemption from sixty-five to sixty.

The situation

A woman is to be arrested, or an elderly or infirm person is wanted by police for a minor offence, or a senior citizen has received a summons to attend as a witness. Each of these situations engages a different, specific provision — not the general arrest power — and the protections differ from the general rule.

Old law vs new law at a glance

What the law requires now, step by step

Step 1 — The presumption against touching a woman during arrest

Section 43(1) BNSS states the general manner of arrest — actually touching or confining the body of the person — and then provides:

"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."

This is materially the same wording as the proviso to Section 46(1) CrPC.

Step 2 — Night arrest of a woman is the exception, not the rule

Section 43(5) BNSS:

"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."

Section 46(4) CrPC required the same written report and prior permission, but from a "Judicial Magistrate of the first class." The BNSS text, as read in this session, omits the word "Judicial" before "Magistrate of the first class."

Step 3 — The new infirm/senior-citizen arrest gate

For a narrower category of offences — those punishable with less than three years — Section 35(7) BNSS adds a permission requirement that has no CrPC counterpart:

"No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age."

This operates alongside, not instead of, the general notice-before-arrest scheme in Section 35(3)-(6) BNSS.

Step 4 — Search of a woman after arrest

Section 49(2) BNSS: "Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency." This is word for word what Section 51(2) CrPC required.

Step 5 — Medical examination of a female accused

Section 51(2) BNSS: "Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner." This carries forward Section 53(2) CrPC unchanged.

Step 6 — Summoning an elderly witness

Section 179(1) BNSS carries the police officer's general power to require, by order in writing, the attendance of witnesses, subject to a proviso:

"Provided that no male person under the age of fifteen years or above the age of sixty years or a woman or a mentally or physically disabled person or a person with acute illness shall be required to attend at any place other than the place in which such person resides: Provided further that if such person is willing to attend at the police station, such person may be permitted so to do."

Section 160(1) CrPC set the upper male-age exemption at sixty-five years, did not mention acute illness, and had no second proviso allowing voluntary attendance at the police station.

What changed — and what did not

• Identical: the rule against touching a woman during arrest (Section 43(1) proviso BNSS / Section 46(1) proviso CrPC), the female-searcher requirement (Section 49(2) BNSS / Section 51(2) CrPC), and the female-examiner requirement for a female accused (Section 51(2) BNSS / Section 53(2) CrPC) are all carried over without substantive change.
• New provision: Section 35(7) BNSS's DSP-permission gate for arresting an infirm or 60-plus person in a sub-three-year offence has no CrPC equivalent — confirmed after reading the full text of Section 46 CrPC, which contains no age- or infirmity-based arrest restriction of any kind.
• Modified — age threshold: the witness-summons age exemption in Section 179(1) BNSS drops from sixty-five (Section 160(1) CrPC) to sixty, aligning it with the sixty-year threshold used in Section 35(7) BNSS for arrest.
• Expanded: Section 179(1) BNSS adds "a person with acute illness" to the list of witnesses who cannot be compelled to attend elsewhere, and adds a new second proviso letting such a person choose to attend the police station voluntarily — neither exists in Section 160(1) CrPC.
• Textual variance, unresolved: Section 43(5) BNSS requires permission of "the Magistrate of the first class" for a night arrest of a woman, while Section 46(4) CrPC specified a "Judicial Magistrate of the first class." This guide reports the difference in wording as read; it does not draw a legal conclusion about its effect.

Which law applies to your case

Whether an arrest, search or witness summons is governed by the CrPC or the BNSS depends on when the relevant appeal, application, trial, inquiry or investigation was pending relative to 1 July 2024 — the savings rule in Section 531 BNSS. The full rule is explained in Which Law Applies to an Offence Before 1 July 2024; this article does not go beyond what that rule states.

Practical checklist

For the person affected or their family:

• If a woman is being arrested, note whether a male officer touched her although she had submitted to custody and no circumstances required it (Section 43(1) proviso BNSS).
• If the arrest happens between sunset and sunrise and the arrestee is a woman, ask whether the woman police officer made a written report and obtained the prior permission of the Magistrate of the first class (Section 43(5) BNSS).
• If the person to be arrested is above sixty or infirm and the offence carries under three years, ask whether DSP-rank permission under Section 35(7) BNSS was obtained.
• If a witness summons directs an elderly, disabled or acutely ill person to attend somewhere other than their residence, check the age (sixty, not sixty-five) and illness criteria under Section 179(1) BNSS.

For the advocate:

• Cross-check any night arrest of a woman against Section 43(5) BNSS's written-report and prior-permission requirement, and note in the file exactly which Magistrate granted permission.
• For a client above sixty or infirm, verify the DSP-rank permission record under Section 35(7) BNSS exists before advising on a custody challenge; absence of the record is a procedural point to raise.
• For search or medical-examination irregularities involving a female client, confirm whether a female was in fact the searching or examining person as required by Section 49(2) and Section 51(2) BNSS.
• In witness-summons disputes, apply the lowered sixty-year threshold and the added acute-illness category under Section 179(1) BNSS rather than the CrPC's sixty-five-year rule.

Frequently asked questions

Can a male police officer touch a woman to arrest her under BNSS?

As a rule, no. Section 43(1) proviso BNSS presumes a woman's submission to custody on an oral intimation of arrest, and says the police officer shall not touch her person to make the arrest unless circumstances otherwise require or the officer is a female — carrying forward the same rule that existed under the Section 46(1) proviso, CrPC.

Can police arrest a woman at night?

Only in exceptional circumstances. Section 43(5) BNSS says no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, and where such circumstances exist the woman police officer must, by making a written report, obtain the prior permission of the Magistrate of the first class — carrying forward Section 46(4) CrPC, which named a "Judicial Magistrate of the first class".

Is there a special protection for arresting elderly people under BNSS?

Yes, and it did not exist under the CrPC. Section 35(7) BNSS bars arrest of a person who is infirm or above sixty years of age, for an offence punishable with less than three years, without prior permission of an officer not below the rank of Deputy Superintendent of Police.

Has the age for exempting elderly witnesses from attending elsewhere changed?

Yes. Section 179(1) BNSS lowers the age threshold in the witness-summons proviso from sixty-five years (Section 160(1) CrPC) to sixty years, and adds a person with acute illness to the list of persons who cannot be required to attend anywhere other than where they reside.

Who can search a woman after arrest?

Only another woman, and with strict regard to decency. Section 49(2) BNSS carries forward the identical rule that was in Section 51(2) CrPC.

Related on Veritect

• Police Sent You a Notice to Appear? Section 41A CrPC vs Section 35 BNSS
• Which Law Applies to an Offence Before 1 July 2024
• Rights After Arrest: A Checklist Under BNSS vs CrPC
• Handcuffing and Use of Force During Arrest — Section 43 BNSS
• Section 41 CrPC vs Section 35 BNSS — Arrest Without Warrant
• Section 354 IPC vs BNS — Assault on a Woman
• Section 46 CrPC vs Section 43 BNSS — Arrest How Made
• Section 53 CrPC vs Section 51 BNSS — Medical Examination of the Accused (CrPC 53, 53A, 54)
• Section 160 CrPC vs Section 179 BNSS — Police Power to Require Attendance of Witnesses

Statutory sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 35(7), Section 43(1) and (5), Section 49(2), Section 51(2), Section 179(1)-(2) (read from BNSS_2023.md)
• Code of Criminal Procedure, 1973 — Section 46(1) and (4), Section 51(2), Section 53(2), Section 160(1)-(2) (read from CrPC_1973.md)

This guide explains the statutory text of the BNS, BNSS and BSA as enacted. It is not legal advice; for a specific case, consult an advocate.