CrPC 46 vs BNSS 43: How an Arrest Is Made, Handcuffing Rule (2026)

In India, Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 46 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. How an arrest is physically made is unchanged, but a new sub-section (3) lets the police handcuff listed categories of accused while arresting them or producing them before a court.

At a glance

	Old law	New law
Section	Section 46, CrPC 1973	Section 43, BNSS 2023 (in force from 1 July 2024, S.O. 848(E) of 23 February 2024)
What it does	Manner of arrest: touch or confinement, force against resistance, limit on causing death, woman-arrest safeguards	Same, plus a handcuffing power for listed categories (s.43(3))
Punishment	None — procedural section	None — procedural section
Cognizable / bailable / triable by	Not applicable; applies to every arrest, with or without warrant, by police or by "other person"	Not applicable; same reach
Night arrest of a woman	Prior permission of "the Judicial Magistrate of the first class" (s.46(4))	Prior permission of "the Magistrate of the first class" (s.43(5))
Change type	—	Expanded

What changed

Identical — sub-section (1) and its proviso. The 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". The proviso on arresting a woman, inserted into s.46(1) CrPC by Act 5 of 2009 (w.e.f. 31 December 2009), is carried into s.43(1) word for word.
Identical — sub-section (2). A person who "forcibly resists the endeavour to arrest him, or attempts to evade the arrest" may be arrested using "all means necessary to effect the arrest".
New — sub-section (3), handcuffing. "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" if the person falls in a listed category (set out below). Section 46 CrPC had no counterpart.
Minor edit (renumbering) — sub-section (4). Section 46(3) CrPC, "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", becomes s.43(4) with the same words.
Minor edit — sub-section (5). Section 46(4) CrPC, inserted by Act 25 of 2005 (w.e.f. 23 June 2006), becomes s.43(5). The only word change: "the Judicial Magistrate of the first class" becomes "the Magistrate of the first class".
Neighbouring sections. Section 44 BNSS (search of a place entered by a person sought to be arrested) re-enacts s.47 CrPC with minor drafting edits (for example, "under warrant of arrest" becomes "under a warrant of arrest"), and s.46 BNSS repeats s.49 CrPC word for word: "The person arrested shall not be subjected to more restraint than is necessary to prevent his escape."

Statutory text (relevant extract)

Section 46(1) CrPC (extract): "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".

Section 43(3) BNSS (extract): "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."

Section 43(5) BNSS (extract): "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 it works — the steps

Who the section binds (s.43(1)). It applies to "the police officer or other person" making an arrest. On a reading, that covers an arrest by a private person under s.40 BNSS and an arrest under a warrant, not only arrests without warrant under s.35.
Completing the arrest (s.43(1)). An arrest is made either by actually touching or confining the body, or by the person's "submission to the custody by word or action". A person who is told he is under arrest and walks to the police vehicle has submitted; no touching is required.
Arresting a woman (proviso to s.43(1)). Unless the circumstances indicate otherwise, her submission on an "oral intimation of arrest shall be presumed". Unless the circumstances otherwise require, or the officer is a female, the officer "shall not touch the person of the woman".
Resistance or evasion (s.43(2)). If the person "forcibly resists" or "attempts to evade the arrest", the officer or other person "may use all means necessary to effect the arrest".
Handcuffing (s.43(3)). Two occasions are covered: "while making the arrest" and "while producing such person before the court". The officer must keep "in view the nature and gravity of the offence", and the person must fall within one of these categories:
- a habitual or repeat offender;
- a person who escaped from custody;
- 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 an offence against the State.
The outer limit on force (s.43(4)). The section gives no right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.
Night arrest of a woman (s.43(5)). Between sunset and sunrise a woman may be arrested only in exceptional circumstances, and then only after the woman police officer makes a written report and obtains the Magistrate's prior permission.

Two drafting points in s.43(3) matter. First, it uses "may", so it confers a discretion rather than directing handcuffs in every listed case. Second, the list uses descriptive labels ("organised crime", "terrorist act") without citing section numbers, and s.2 BNSS contains no definition of "habitual or repeat offender". On a reading of the text, the officer must decide whether the person falls in a category and whether the nature and gravity of the offence justify handcuffs in the particular case.

What this means in practice

For the person being arrested. Going along when told of the arrest is itself a submission under s.43(1); resisting or running opens the door to "all means necessary" under s.43(2). Handcuffing is only authorised by s.43(3) for the listed categories; outside them, the section gives no power to handcuff, and s.46 still caps restraint at what is necessary to prevent escape.
For women. The proviso to s.43(1) and s.43(5) are safeguards the arrested woman or her advocate can point to on production: whether she was touched by a male officer without circumstances requiring it, and whether a night arrest had a written report and prior Magistrate permission.
For the investigating officer. Section 43(3) says nothing about recording reasons, but the Supreme Court's Article 21 rulings summarised below required reasons and judicial oversight. On a reading of those rulings, recording in the case record why the category applies and why the nature and gravity of the offence call for handcuffs is the safer course. No judgment read for this page decides how s.43(3) and those rulings fit together.
For the advocate at first production. Ask whether handcuffs were used and on what basis. Citizens for Democracy (below) directed that, once a person is produced and remanded, handcuffs are not to be used without special orders of the Magistrate. Whether that direction survives s.43(3), which expressly covers production "before the court", is an open question on the text; raise it rather than assume the answer.
For a private person making an arrest. Section 43(1), (2) and (4) apply to "other person" as well. The handcuffing power in s.43(3) is given only to "the police officer".

Judgments that still matter

Sections 43(1), (2), (4) and (5) repeat the operative words of s.46 CrPC, so, on a reading of the text, judgments on those words remain relevant. Section 43(3) is new; the judgments below on handcuffing were decided under Article 21 of the Constitution, not under any statutory handcuffing power.

Prem Shankar Shukla v. Delhi Administration, [1980] 3 S.C.R. 855 (1980 INSC 96), decided 29 April 1980. An undertrial prisoner challenged being handcuffed on the way between Tihar Jail and the Delhi courts. Krishna Iyer J., for himself and Chinnappa Reddy J., held that "handcuffs must be the last refuge, not the routine regimen" (p.874 A–C), that "the nature of the accusation is not the criterion", and that where handcuffs have to be used, "the escorting authority must record contemporaneously the reasons for doing so" and show them to the presiding Judge for approval (pp.875 G–H to 876 A). The majority held the Punjab Police Manual rule for routine handcuffing of undertrials accused of non-bailable offences punishable with more than three years violative of Articles 14, 19 and 21. In a separate opinion, Pathak J. read s.46 with s.49 CrPC, saying the two sections "define the parameters of the power" of arrest, and that restraint may be imposed only to a degree "no greater than is necessary for preventing his escape". Why it matters now: s.43(3) BNSS ties handcuffing to categories of offence and offender, whereas the majority held that the accusation alone was not the criterion. On a reading, the two will need to be reconciled in a future case.

Directorate of Enforcement v. Deepak Mahajan, [1994] 1 S.C.R. 445 (1994 INSC 36), decided 31 January 1994. Ratnavel Pandian J., for a bench with K. Jayachandra Reddy J., adopted the meaning of "arrest" he had given as a Madras High Court judge in Roshan Beevi: in its legal sense it "consists in the taking into custody of another person under authority empowered by law" to answer a criminal charge or prevent an offence, and requires "an intent to arrest under the authority, accompanied by seizure or detention of the person in the manner known to law" (para 47). Why it matters now: on a reading, the "manner known to law" in para 47 includes the manner in s.46 CrPC, now s.43 BNSS; the judgment does not say so.

Citizens for Democracy v. State of Assam, [1995] 3 S.C.R. 943, decided 1 May 1995. Seven detenus in a Guwahati hospital ward had been handcuffed and tied by rope to their beds. Kuldip Singh and N. Venkatachala JJ. declared that handcuffs or other fetters "shall not be forced on a prisoner - convicted or under-trial" in jail or in transit, and that police and jail authorities on their own have no authority to direct handcuffing. Where there is a well-grounded basis to infer a likelihood of escape, the prisoner must be produced before the Magistrate and permission sought. A person remanded by a Magistrate is not to be handcuffed without special orders obtained at the time of remand, and a person arrested under a warrant is not to be handcuffed unless the police also obtained the Magistrate's order. Where a person is arrested without warrant, the officer may handcuff, if satisfied on the guidelines, "till the time he is taken to the police station and thereafter his production before the Magistrate". The Court directed all ranks of police and prison authorities to obey these directions, on pain of contempt. Why it matters now: these are the most detailed handcuffing directions read for this page, and s.43(3) now speaks to the same two moments — arrest and production before the court.

Vihaan Kumar v. State of Haryana, [2025] 2 S.C.R. 424 (2025 INSC 162), decided 7 February 2025. The arrest in this case was made on 10 June 2024, before the BNSS commenced; the principal holding concerns grounds of arrest under Article 22(1) and s.50 CrPC (s.47 BNSS). Abhay S. Oka J. also recorded that the appellant was taken to hospital handcuffed and chained to the hospital bed, and said "This itself is a violation of the fundamental right of the appellant under Article 21" (para 29). The Court directed the State of Haryana to issue guidelines to ensure that handcuffing an accused on a hospital bed and tying him to it "is not committed again" (para 33(e)). N. Kotiswar Singh J. concurred with a separate opinion. Why it matters now: it is a 2025 statement that the manner of restraint after arrest remains subject to Article 21.

Which law applies to your case

Section 531(2)(a) BNSS provides that any investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, an arrest in an investigation pending on that date is tested against s.46 CrPC, which has no handcuffing sub-section, while an arrest in an investigation begun on or after that date is tested against s.43 BNSS, including sub-section (3). Because the other sub-sections are the same, the practical difference is s.43(3) and the change of wording in s.43(5). See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 46 CrPC? Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 46 of the Code of Criminal Procedure, 1973 from 1 July 2024. Sub-sections (1), (2), (4) and (5) of Section 43 carry over Section 46(1) to (4); the one new provision is sub-section (3), which deals with handcuffing.

How is an arrest legally made under Section 43 BNSS? Under Section 43(1) BNSS the officer or other person making the arrest must actually touch or confine the body of the person to be arrested, unless that person submits to custody by word or action. A person who says 'I will come with you' and goes along has submitted by word and action, so no touching is needed.

Can the police use force to make an arrest? Section 43(2) BNSS allows the officer or other person to use all means necessary to effect the arrest if the person forcibly resists or attempts to evade it. Section 43(4) sets the limit: nothing in the 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. Section 46 BNSS separately bars more restraint than is necessary to prevent escape.

When can the police handcuff a person under the BNSS? Section 43(3) BNSS says the police officer may, keeping in view the nature and gravity of the offence, use handcuffs while arresting or producing before the court a person who is a habitual or repeat offender, who escaped from custody, or who has committed one of the listed offences, such as organised crime, terrorist act, murder, rape, acid attack, human trafficking, a sexual offence against children or an offence against the State. The power is permissive ('may'), not a direction to handcuff.

Did Section 46 CrPC allow handcuffing? Section 46 CrPC had no sub-section on handcuffing. The rules on handcuffing were laid down by the Supreme Court under Article 21, for example in Prem Shankar Shukla v. Delhi Administration, [1980] 3 S.C.R. 855, which required reasons to be recorded and approved by the court, and Citizens for Democracy v. State of Assam, [1995] 3 S.C.R. 943, which required Magistrate orders for handcuffing after production.

Can a woman be arrested at night under the BNSS? Section 43(5) BNSS says that, save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise. Where exceptional circumstances exist, the woman police officer must make a written report and 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 said 'Judicial Magistrate of the first class'.

Can a male police officer touch a woman while arresting her? Under the proviso to Section 43(1) BNSS, where a woman is to be arrested, her submission to custody on an oral intimation of arrest is presumed unless the circumstances indicate the contrary. Unless the circumstances otherwise require, or unless the officer is a female, the police officer shall not touch the person of the woman to arrest her. The proviso is the same as the one inserted into Section 46(1) CrPC in 2009.

Sources

Acts and sections read: BNSS 2023 ss.2, 40, 43, 44, 46, 531 (Gazette CG-DL-E-25122023-250884); CrPC 1973 ss.46, 47, 49, with the footnotes recording Act 25 of 2005 and Act 5 of 2009 (original India Code text).
Judgments read (Veritect judgment corpus, full text): Prem Shankar Shukla v. Delhi Administration (1980_3_855_883_EN.md); Directorate of Enforcement v. Deepak Mahajan (1994_1_445_498_EN.md); Citizens for Democracy v. State of Assam (1995_3_943_955_EN.md); Vihaan Kumar v. State of Haryana (2025_2_424_451_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 46 CrPC vs Section 43 BNSS — Arrest How Made