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Section 43 Of Bnss: Arrest How Made

Writer's picture: lead indialead india
1 day ago5 min read

Arresting an individual is a significant legal process aimed at ensuring that a person is taken into custody for investigation or to face trial. The procedure of arrest is meant to maintain law and order while protecting the individual’s rights. In India, Section 43 of the BNSS (Bharatiya Nyay Sanhita Sudhar, a modernized legal framework) lays down the detailed procedure for making arrests, emphasizing the manner in which an arrest should occur, especially in cases involving women, the use of force, and the potential use of handcuffs. This section also reflects the evolving nature of criminal law, ensuring that arrests are made legally and appropriately.


This article delves into Section 43 of BNSS, explaining its provisions and their impact, particularly the safeguards it introduces for women and the broader implications for law enforcement practices.

What is Section 43 of BNSS?

Section 43 of BNSS specifies the procedures and guidelines that law enforcement officers must follow while making an arrest. It deals with both arrests with a warrant and arrests without a warrant. Importantly, this section lays down the guidelines for how the arrest is to be made, including the conditions under which force can be used and when handcuffs can be employed. The section also provides special considerations for women during arrests, ensuring that their dignity and rights are preserved.


Key Provisions of Section 43 of BNSS

1. Section 43(1): Arrest by Submission or Physical Confinement

  • Arrest by Submission: According to Section 43(1), if a person submits to custody—either through words or actions—there is no need for physical restraint. The law recognizes that verbal or non-verbal compliance can constitute submission to arrest, and thus, the officer need not physically touch or confine the person in such cases.

  • Arrest by Force: If the person does not submit to custody and resists, the police officer can make the arrest by physically touching or restraining the individual.

2. Section 43(2): Arrest in the Case of Evading Arrest or Use of Force

  • Use of Force: Section 43(2) allows a police officer to use necessary force if the individual attempts to evade arrest or resists the arrest. The law gives officers the discretion to employ reasonable force to ensure that the arrest is carried out successfully.

  • Necessary Means: The section further clarifies that police officers can use any means necessary to carry out the arrest, but this must be proportionate to the resistance encountered.

3. Section 43(3): Use of Handcuffs

  • Handcuffing during Arrest: Section 43(3) specifies that a police officer may use handcuffs when making an arrest, based on the nature and seriousness of the crime. Handcuffs are more likely to be used in cases involving habitual offenders, organized crime, terrorism, drug-related offenses, or violent crimes such as murder, rape, and acid attacks.

  • Use of Handcuffs when Producing before Court: The police can also use handcuffs when presenting an individual before the court, particularly if the person has been involved in serious criminal activities like counterfeiting, human trafficking, or sexual offenses against children.

4. Section 43(4): Prohibition of Causing Death During Arrest

  • Prohibition of Deadly Force: Section 43(4) mandates that police officers cannot cause death during an arrest unless the individual has committed an offense punishable by death or life imprisonment. This clause ensures that the police use force judiciously and only when absolutely necessary.

5. Section 43(5): Restrictions on Arresting Women

  • Arresting Women: Section 43(5) has special provisions regarding the arrest of women. It mandates that women cannot be arrested after sunset and before sunrise except in exceptional circumstances.

  • Exceptions: In such exceptional cases, the arrest can only be made if the arresting officer has received prior approval from a First-Class Magistrate, and the arrest must be carried out by a woman police officer.

  • Presumption of Submission: In the case of a woman’s arrest, it is presumed that she has submitted to custody on the oral intimation of arrest, unless proven otherwise. This provision helps safeguard a woman’s rights, ensuring that her dignity is preserved during the arrest process.


Impact of Section 43 of BNSS

Section 43 of BNSS introduces several important reforms aimed at improving the arrest procedures in India while balancing the need for law enforcement and protecting individuals’ rights.

1. Special Consideration for Women

  • Dignity and Rights of Women: One of the most significant aspects of Section 43 is the emphasis on the protection of women’s rights during an arrest. By presuming that a woman has submitted to custody upon oral intimation, it protects her from physical harassment or undue force during the arrest process. The law mandates that only a woman officer can arrest a woman unless exceptional circumstances dictate otherwise, ensuring women are treated with respect and dignity.

2. Use of Force and Arrest

  • Protection of Society: The provision allowing law enforcement to use necessary force ensures that law and order is maintained in society, especially when a suspect resists arrest or attempts to evade it. This helps in the smooth enforcement of justice and prevents individuals from avoiding accountability for criminal actions.

3. Handcuffing Guidelines

  • Controversy over Handcuffing: The provision regarding handcuffing has generated some controversy. The Supreme Court has discouraged the indiscriminate use of handcuffs, especially in non-violent cases. Critics argue that handcuffing can be abused and lead to human rights violations. While Section 43 of BNSS allows handcuffing in certain circumstances, it should be applied cautiously, ensuring that it aligns with the spirit of the law and the rights of the accused.

4. Reducing Arbitrary Arrests and Promoting Transparency

  • Clear Procedures: Section 43 lays out clear, transparent procedures for making arrests, reducing the chances of arbitrary or wrongful arrests. This is essential for promoting accountability in law enforcement and ensuring that individuals are aware of their rights during an arrest.

5. Modernization of the Arrest Process

  • Adapting to Changing Needs: Section 43 modernizes the arrest process, reflecting the need for a legal framework that adapts to contemporary issues, including the treatment of women and the use of technology in criminal investigations. This progressive approach addresses societal changes and enhances the effectiveness of law enforcement.


Conclusion

Section 43 of BNSS provides a detailed and structured approach to arrests, addressing the rights of individuals and the powers of law enforcement. By focusing on the procedures for arresting women, the use of force, and the circumstances for handcuffing, this section helps safeguard individual freedoms while maintaining law and order.


The special provisions for women and the clear guidelines for using force ensure that arrests are made within the bounds of the law, without violating human rights. The modernization of arrest procedures under BNSS is a significant step forward in the Indian criminal justice system, promoting transparency, accountability, and human dignity.


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