Section 45 CrPC: Protection of Armed Forces Personnel from Arrest Under Section 42 BNSS
The law provides a special procedural safeguard against arrest of members of the Armed Forces of the Union for acts done, or purported to be done, in the discharge of official duties. The current provision is Section 42 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to former Section 45 of the Code of Criminal Procedure, 1973 (CrPC).
What does Section 42 BNSS provide?
Section 42(1): Prior consent for arrest
Despite the arrest powers in Section 35 and Sections 39 to 41 BNSS, a member of the Armed Forces of the Union cannot be arrested for anything done or purported to be done in the discharge of official duties unless the Central Government has consented to the arrest.
The expression "notwithstanding" gives this specific protection priority over the listed general arrest provisions. The safeguard depends on the connection between the alleged act and official duties; it is not an exemption from criminal law for every act committed by a service member.
Section 42(2): Extension to public-order forces
A State Government may issue a notification extending the protection to specified classes or categories of members of forces charged with maintaining public order, wherever they are serving. For personnel covered by such a notification, the required consent is that of the State Government rather than the Central Government.
Whether a particular force or category is covered must be checked against the applicable State Government notification. The extension is not automatic for every police or public-order employee.
Earlier provision: Section 45 CrPC, 1973
Section 45(1) CrPC prohibited arrest of a member of the Armed Forces of the Union for an act done or purported to be done in the discharge of official duties without Central Government consent, notwithstanding Sections 41 to 44 CrPC. Section 45(2) empowered a State Government, by notification, to extend the safeguard to specified categories of forces responsible for maintaining public order, substituting State Government consent.
Section 42 BNSS preserves these core safeguards while updating the references to the arrest provisions in the new procedural code. For pending matters governed by the CrPC, the repeal-and-savings framework in Section 531 BNSS should be examined.
Scope and limits of protection
- Protected persons: Members of the Armed Forces of the Union, and specified public-order force personnel where a valid State notification applies.
- Protected conduct: Acts done or purported to be done while discharging official duties, subject to the necessary connection with those duties.
- Required approval: Central Government consent for Union Armed Forces personnel; State Government consent for personnel covered by a Section 42(2) notification.
- Nature of protection: A restriction on arrest, not blanket immunity from investigation, prosecution or legal accountability.
- Other safeguards: Constitutional rights and other statutory arrest requirements remain relevant where arrest is otherwise lawful.
How is the provision applied?
Before relying on Section 42 BNSS, the authorities must consider the person's service status, the alleged conduct, whether it has the requisite relationship to official duty, any applicable notification and whether the competent government has given consent. A disputed claim that an act was connected to official duty may require judicial examination of the facts.
Consent for arrest under Section 42 should not be confused with a separate requirement of sanction for prosecution under other provisions, including Section 218 BNSS where applicable. The two safeguards concern different procedural stages and must be assessed independently.
Related legal provisions
- Section 35 BNSS: When police may arrest without warrant.
- Section 39 BNSS: Arrest on refusal to give name and residence.
- Section 40 BNSS: Arrest by private person and procedure on such arrest.
- Section 41 BNSS: Arrest by Magistrate.
- Section 42 BNSS: Protection of members of Armed Forces from arrest.
- Section 531 BNSS: Repeal and savings.
Frequently asked questions
What is the BNSS equivalent of Section 45 CrPC?
Section 42 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Can an Armed Forces member be arrested without Central Government consent?
For conduct falling within Section 42(1), prior Central Government consent is required. The provision does not automatically protect unrelated private conduct.
Does Section 42 BNSS cover all police personnel?
No. Extension to specified public-order force personnel depends on a State Government notification under Section 42(2).
Does protection from arrest mean immunity from prosecution?
No. Section 42 specifically restricts arrest in qualifying circumstances. Other questions of investigation, prosecution and sanction are governed by applicable law.
Official legal references
Read the Bharatiya Nagarik Suraksha Sanhita, 2023 (official BPR&D PDF) and the Bureau of Police Research and Development new criminal laws resource page. Consult the relevant State Gazette for notifications issued under Section 42(2).
This article is general legal information. The applicability of statutory safeguards depends on the facts, notifications and governing law.