How an Arrest Is Made Under the BNSS (Section 43): CrPC 46 Mapping (2026)

Explainer · Criminal Procedure · BNSS

Updated for 2026 · Claw Editorial

Everyone has heard the word arrest, but the law is precise about what an arrest actually is. It is not the spoken word alone. It is the physical act of taking a person into custody. How that act may be done, how much force is allowed, and whether handcuffs may be used are all set out in one section. Since 1 July 2024, that section is Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 46 of the Code of Criminal Procedure, 1973. This explainer sets out how an arrest is made, how it maps to the old law, and the new handcuffing power. Last verified October 2026.

01What an arrest actually is

An arrest is the moment the state takes away a person’s liberty. Because that is such a serious step, the law does not leave the manner of it to chance. It says, in plain terms, what the officer must do to make an arrest, and what he may not do.

The core idea is simple. Unless the person agrees to go into custody by word or action, the officer must actually touch or confine the body of the person to be arrested. Words alone, without submission, are not enough. This is what separates a lawful arrest from a mere order.

This is a procedure, not an offence. It does not punish anyone. It sets out how an arrest is to be carried out.

02What Section 43 says

Section 43 of the BNSS sets out how an arrest is made. In making an arrest, the police officer or other person making it actually touches or confines the body of the person to be arrested, unless there is a submission to custody by word or action.

• If the person forcibly resists the attempt to arrest him, or tries to evade the arrest, the officer may use all means necessary to make the arrest.
• The section does not give a right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.
• Special protections apply to the arrest of women, including a general rule against arresting a woman after sunset and before sunrise except in defined circumstances.

An arrest is a physical act. Unless the person submits, the officer must touch or confine the body. The spoken word alone is not an arrest.

03The new handcuff power: Section 43(3)

The main new element in Section 43 is an express power to use handcuffs, in Section 43(3). The old Section 46 CrPC did not spell this out.

Under Section 43(3), a police officer may, keeping in view the nature and gravity of the offence, use handcuffs while arresting a person, or while producing the person before a court. The power is limited to certain categories, which include a habitual or repeat offender, a person who has escaped from custody, and persons accused of organised crime, a terrorist act, a drug-related crime, illegal possession of arms and ammunition, murder, rape, acid attack, and similar serious offences.

This has been debated. Some commentators warn that it leaves a good deal to the officer’s judgment, and that it must be read with the long line of Supreme Court decisions that treat routine handcuffing as a violation of dignity. The statutory power does not displace that constitutional caution.

04Old law to new law: CrPC 46 to BNSS 43

Section 43 of the BNSS corresponds to Section 46 of the Code of Criminal Procedure, 1973. The basic method of arrest, the touch or confinement, the use of all necessary means against resistance, and the limit on causing death, is carried over almost unchanged.

The clear difference is the addition of the handcuff power in Section 43(3). Comparison tables generally treat this as the main substantive change to this section, with the rest described as carried over or lightly refined. Because this is a procedural provision, it does not carry an offence or a punishment.

05Safeguards for women

The arrest of a woman carries extra protections, which are read with Section 43 and the connected provisions.

• Where a woman is to be arrested, her submission to custody on an oral intimation of arrest is presumed, and a male officer should not touch her unless the circumstances require otherwise or a female officer is not available.
• As a general rule, a woman should not be arrested after sunset and before sunrise. Where it is unavoidable, a woman police officer must make the arrest, and prior permission of a Magistrate should be obtained, except in exceptional circumstances.

These protections read together with the general rights on arrest. See the rights of an arrested person under the BNSS.

06Practical points

• An arrest needs submission or touch. If the person does not submit, the officer must actually touch or confine the body. This can matter when the fact of arrest is disputed.
• Force must be necessary. All means necessary is allowed only against a person who resists or tries to evade. It is not a general licence for force.
• Handcuffs are the exception. Section 43(3) allows handcuffs only for the listed categories, and only keeping in view the nature and gravity of the offence. Routine handcuffing remains open to challenge.
• Protect the arrest of women. Observe the rules on who may touch a woman and the restriction on night arrests.

For the wider vocabulary of a criminal case, see the glossary of Indian litigation terms. For what follows an arrest, see medical examination of an accused under BNSS Section 51.

07Where Claw fits

Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.

Whether an arrest holds up often depends on how courts have read the manner of arrest, the use of force and now the handcuff power, and the body of rulings under the old Section 46 and the new Section 43 keeps growing. Claw helps on both sides of that. Its case search covers more than 30 crore judgements, from the Supreme Court since 1950 and the High Courts since 1990, so you can see how courts have read how an arrest is made and pull court-ready citations in under five seconds. Its tracking follows your matter, order by order and hearing by hearing, across 9,102 courts, benches and forums. You can search cases by party name or by advocate name, across the full case search coverage of Indian courts.

A free Claw account opens the search and the tracking by party or advocate name. Claw does not make arrests and does not replace legal advice, and it does not use customer case documents to train AI models.

08Sources and further reading

• India Code (official statute text): indiacode.nic.in
• Bare text of the BNSS: devgan.in
• Ministry of Home Affairs (new criminal laws): mha.gov.in
• Claw: clawlaw.in

This explainer is general information, not legal advice. The new codes are still being read and applied by the courts, so check the current text and take advice from counsel before you act.

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