Code 43: How Arrest Is Made
Code:
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission
the custody by word or action:
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State.
(4) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
(5) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Explanation:
This section of the BNSS Code outlines the procedures for making an arrest and the permissible use of force.
- Section 43(1): This section defines the physical act of arrest. The arresting officer must physically touch or confine the person to be arrested unless there is a verbal or non-verbal submission to custody. It also has a special provision for women. If a woman is to be arrested, her oral submission to custody will be presumed, and unless there are extenuating circumstances or a female officer is present, the arresting officer should not touch her.
- Section 43(2): If the person resists arrest or attempts to evade it, the arresting officer may use all necessary force to effect the arrest.
- Section 43(3): This section defines when the use of handcuffs is permissible. A police officer can use handcuffs when arresting a person or producing them in court, if they are a habitual or repeat offender, have escaped custody, or have committed offenses such as organized crime, terrorism, drug-related crime, illegal possession of weapons, murder, rape, acid attack, counterfeiting, human trafficking, child sexual abuse, or crimes against the state.
- Section 43(4): This section restricts the use of lethal force. It states that the arresting officer cannot kill a person unless that person is accused of an offence punishable by death or life imprisonment.
- Section 43(5): This section provides special protections for women. Generally, women cannot be arrested between sunset and sunrise unless there are exceptional circumstances. In such cases, a woman police officer must obtain written permission from a First-Class Magistrate before making the arrest.
Illustration:
Suppose a man is accused of theft and tries to flee from a police officer who is attempting to arrest him. The officer can use reasonable force to prevent the man’s escape. This force can include tackling him, grabbing him, or using handcuffs. However, the officer cannot use lethal force unless the man is accused of a crime punishable by death or life imprisonment.
Common Questions and Answers: on How Arrest Is Made
Q: What does it mean to “submit to custody”?
A: Submitting to custody means acknowledging that you are being arrested and willingly going with the arresting officer without resisting. This can be done verbally or through actions like putting your hands up or standing still.
Q: What constitutes “all necessary force”?
A: The force used must be proportionate to the level of resistance offered. The officer cannot use excessive force and must avoid causing unnecessary harm or death.
Q: What happens if a woman is arrested in the middle of the night without permission from a Magistrate?
A: Such an arrest would be considered illegal. The arrested woman can challenge the arrest in court.
