Explains lawful methods and limits governing the physical act of arrest.
Introduction
Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) prescribes the manner in which an arrest is to be effected by a police officer or other authorized person. It regulates the use of physical restraint, submission to custody, and permissible force during arrest. The provision ensures that arrest procedures remain lawful, proportionate, and consistent with constitutional protections of personal liberty.
It reflects safeguards under Article 21 and Article 22 of the Constitution of India, which require that deprivation of liberty follow fair and reasonable procedure established by law.
Objective of the Provision
The objectives of Section 43 BNSS are
- to regulate the lawful method of effecting arrest
- to prevent excessive or arbitrary use of force during arrest
- to define circumstances permitting physical restraint
- to ensure proportionality and accountability in custodial procedures
The provision ensures that arrest is carried out with procedural legality and respect for individual dignity.
Meaning / Concept
Arrest by Physical Restraint or Submission
Arrest may be effected either by
- actual physical touching or confinement of the body, or
- voluntary submission to custody by the person being arrested
Thus, physical force is not always necessary where the accused cooperates.
Use of Reasonable Force
Where resistance occurs, the arresting officer may use reasonable force necessary to effect arrest, subject to statutory limitations.
The provision emphasizes proportionality between resistance offered and force applied.
Detailed Explanation of the Section
Section 43 BNSS provides that arrest is made by
- touching or confining the body of the person to be arrested, unless
- the person submits to custody by word or conduct
Where the person resists arrest or attempts to evade custody
- the police officer may use all reasonable means necessary to effect the arrest
However, the section places an important limitation
- no person shall be caused death while being arrested, unless the person is accused of an offence punishable with death or imprisonment for life
The provision also incorporates a safeguard relating to women
- a woman shall not be arrested after sunset and before sunrise, except in exceptional circumstances
- in such cases, prior permission of a Judicial Magistrate is required
Further, the arrest of a woman must ordinarily be made by a female police officer
Key features include
- recognition of submission-based arrest
- restriction on excessive force
- prohibition on causing death except in serious offences
- special safeguards for arrest of women
- requirement of Magistrate’s permission for night arrest of women
These safeguards ensure humane arrest procedures.
Procedure or Legal Framework
The procedural structure under Section 43 BNSS includes
- identification of person to be arrested
- communication of intention to arrest where required
- submission to custody or physical restraint
- use of reasonable force only if resistance occurs
- compliance with restrictions regarding women’s arrest
- adherence to proportionality principles during arrest execution
Failure to follow these requirements may render the arrest unlawful.
Judicial Interpretation
The principles embodied in Section 43 BNSS are supported by constitutional jurisprudence governing arrest procedures.
In D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Supreme Court laid down mandatory safeguards against custodial violence and emphasized procedural fairness during arrest.
In Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260, the Court held that arrest must not be routine and must follow necessity and proportionality.
In Sheela Barse v. State of Maharashtra (1983) 2 SCC 96, the Supreme Court emphasized special safeguards for arrest and detention of women to prevent custodial abuse.
In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the Court reiterated that arrest procedures must comply with statutory safeguards and constitutional guarantees.
These decisions guide interpretation of lawful arrest procedures under BNSS.
Importance of the Provision
Section 43 BNSS is important because
- it defines the lawful method of effecting arrest
- it restricts excessive use of force by arresting authorities
- it protects dignity and safety of arrested persons
- it provides additional safeguards for women during arrest
- it ensures compliance with constitutional standards of liberty
The provision plays a central role in regulating custodial procedures in criminal law.
Connection with Other Sections
Section 43 BNSS operates within the broader arrest framework of the Sanhita
- Section 35 BNSS – When police may arrest without warrant
- Section 36 BNSS – Procedure of arrest and duties of officer making arrest
- Section 38 BNSS – Right of arrested person to meet an advocate during interrogation
- Section 44 BNSS – Search of place entered by person sought to be arrested
Corresponding Provision under Old Law
Section 43 BNSS corresponds to Section 46 of the Code of Criminal Procedure, 1973.
Illustrative Example
A police officer attempts to arrest an accused person involved in a theft case. The accused resists arrest and attempts to flee. The officer uses reasonable physical force to restrain the accused without causing serious injury. The arrest is valid under Section 43 BNSS.
Conclusion
Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 establishes the legal method by which arrests must be carried out, emphasizing submission to custody, proportional use of force, and special safeguards for women. By regulating the physical execution of arrest, the provision ensures that enforcement actions remain consistent with constitutional protections of personal liberty.
