Indian criminal procedure | Updated 16 October 2026

Section 46 CrPC: Arrest How Made and Section 43 BNSS

Section 46 of the Code of Criminal Procedure, 1973 explains how an arrest is effected, the permissible use of force, and special protections for women. From 1 July 2024, the corresponding provision is Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), subject to statutory saving and transitional rules.

Current position: Section 43 BNSS is the corresponding provision for arrest procedure under the new criminal procedure law. Section 46 CrPC remains relevant for matters governed by the earlier law, including where applicable under the saving provision in Section 531 BNSS.

Meaning of arrest under Section 46 CrPC

An arrest is the taking of a person into lawful custody. Under Section 46(1), an officer or other authorised person ordinarily effects an arrest by actually touching or confining the person, unless the person submits to custody through words or conduct. Physical touching is therefore not always necessary.

Section 46 CrPC: Explanation of each subsection

Section 46(1): Physical restraint or submission

The arresting person must touch or confine the body of the person being arrested unless that person voluntarily submits to custody by word or action. The proviso provides that, when arresting a woman, submission on oral intimation of arrest is ordinarily presumed unless circumstances indicate otherwise. Unless circumstances otherwise require or the officer is female, a male police officer must not touch the woman to effect the arrest.

Section 46(2): Resistance or attempted escape

Where a person forcibly resists arrest or attempts to evade it, the arresting person may use means necessary to effect the arrest. This is not unrestricted authority to employ disproportionate or punitive force; the arrest must remain lawful and subject to constitutional safeguards.

Section 46(3): Limits on lethal force

This subsection does not authorise causing the death of a person who is not accused of an offence punishable with death or imprisonment for life. Even where an accusation involves such an offence, the provision does not confer a general licence to use lethal force.

Section 46(4): Arrest of women at night

Save in exceptional circumstances, a woman must not be arrested after sunset and before sunrise. Where exceptional circumstances exist, a woman police officer must make a written report and obtain prior permission from the Judicial Magistrate of the First Class having jurisdiction over the place where the offence was committed or the arrest is to be made.

Section 43 BNSS: Current procedure for making an arrest

Section 43 BNSS substantially carries forward the safeguards in Section 46 CrPC and expressly addresses handcuffing in subsection (3). The provision should be read as a whole:

Provision	What it regulates
Section 43(1)	Arrest by touching, confinement or submission to custody, including special rules for women.
Section 43(2)	Necessary measures where an arrested person resists or attempts to escape.
Section 43(3)	Police use of handcuffs, having regard to the nature and gravity of the offence, in the specified categories.
Section 43(4)	Restriction concerning causing death during arrest.
Section 43(5)	Special restriction and Magistrate permission for arresting women after sunset and before sunrise.

When may police use handcuffs under Section 43(3) BNSS?

Section 43(3) permits police to use handcuffs, considering the nature and gravity of the offence, when arresting or producing before court a habitual or repeat offender, a person who escaped custody, or a person who has committed specified offences. These include organised crime, terrorist acts, drug-related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins or currency notes, human trafficking, sexual offences against children, and offences against the State.

The statutory discretion must be exercised consistently with constitutional protections and applicable judicial directions. Handcuffing should not be treated as automatic merely because an arrest occurs.

Rights and safeguards during arrest

Arrest powers operate alongside constitutional guarantees under Articles 21 and 22 of the Constitution of India. Relevant BNSS safeguards include the requirement to communicate the grounds of arrest and the right to bail where applicable (Section 47), informing a relative or friend (Section 48), and restrictions on unnecessary restraint (Section 46 BNSS). Section 36 addresses arrest procedure and duties of police officers.

Practical questions

Can police arrest someone without touching them?

Yes. Submission to custody by words or conduct can satisfy the arrest procedure under Section 46(1) CrPC or Section 43(1) BNSS.

Can a woman be arrested at night?

Only in exceptional circumstances, subject to the written-report and prior Judicial Magistrate permission requirements prescribed by the applicable provision.

Does Section 43 BNSS allow handcuffs in every arrest?

No. Subsection (3) identifies specific categories and requires consideration of the nature and gravity of the offence. Other legal safeguards continue to apply.

Official legal sources

This article provides general legal information. The precise procedure depends on the facts, applicable law and judicial orders.