Section 46 CrPC: Arrest how made

Code of Criminal Procedure, 1973

Section 46 CrPC at a Glance

Section 46 CrPC deals with arrest how made. From 1 July 2024 it is replaced by Section 43 BNSS.

Now BNSS

Section 43 →

What Section 46 CrPC Says

46. Arrest how made

(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 to 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) 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.

(4) 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 Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Source: Section 46, Code of Criminal Procedure, 1973

Section 46 CrPC in Simple Words

Section 46 of the Code of Criminal Procedure, 1973 deals with how an arrest is made. Under Section 46(1) CrPC, the police officer or other person making an arrest shall actually touch or confine the body of the person to be arrested. That is so unless there is a submission to the custody by word or action. The proviso covers the arrest of a woman.

Unless the circumstances indicate to the contrary, the woman is presumed to submit to custody on an oral intimation of arrest. The police officer shall not touch the woman to make the arrest, unless the circumstances otherwise require or unless the police officer is a female. Under Section 46(2) CrPC, suppose the person to be arrested forcibly resists the endeavour to arrest, or attempts to evade the arrest. The police officer or other person making the arrest may then use all means necessary to effect the arrest.

Under Section 46(3) CrPC, Section 46 CrPC gives no right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. Under Section 46(4) CrPC, no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances. If such circumstances exist, the woman police officer shall obtain the prior permission, by making a written report, of the Judicial Magistrate of the first class. That Magistrate is the one within whose local jurisdiction the offence is committed or the arrest is to be made.

When Section 46 CrPC Applies

  • A police officer or other person making an arrest under Section 46(1) of the Code of Criminal Procedure, 1973 shall actually touch or confine the body of the person to be arrested, unless that person submits to custody by word or action.
  • A proviso to Section 46(1) CrPC relaxes this requirement where a woman is to be arrested by providing that her submission to custody on an oral intimation of arrest shall be presumed unless the circumstances indicate to the contrary, and a police officer shall not touch her person unless the officer is a female or the circumstances otherwise require.
  • If the person to be arrested forcibly resists the endeavour to arrest him or attempts to evade the arrest, the police officer or other person making the arrest under Section 46(2) CrPC may use all means necessary to effect the arrest.
  • Even when force is used to effect an arrest, Section 46(3) CrPC gives no right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
  • Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise under Section 46(4) CrPC, and where such exceptional circumstances exist, a woman police officer shall make a written report and obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Time Limits Under Section 46 CrPC

  • During the period after sunset and before sunrise, Section 46(4) of the Code of Criminal Procedure, 1973 prohibits the arrest of a woman save in exceptional circumstances, where a woman police officer shall obtain the prior permission of the Judicial Magistrate of the first class by making a written report before the arrest.Act text: “no woman shall be arrested after sunset and before sunrise”

Example of Section 46 CrPC

Suppose police officer Rajesh goes to arrest Meera under Section 46 of the Code of Criminal Procedure, 1973. Upon an oral intimation of arrest, Meera's submission to custody is presumed under the proviso to Section 46(1) CrPC when circumstances do not indicate to the contrary. Since Rajesh is not a female police officer and circumstances do not otherwise require it, he shall not touch her person. If exceptional circumstances required arresting Meera after sunset and before sunrise under Section 46(4) CrPC, woman police officer Kavita would have to make a written report and obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

When Section 46 CrPC Does Not Apply

  • Actually touching or confining the body of the person to be arrested is not required under Section 46(1) of the Code of Criminal Procedure, 1973 when that person submits to custody by word or action.
  • Section 46(3) CrPC does not give a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

Section 46 CrPC Under BNSS 43: What Changed

Section 46 CrPC is now covered under Section 43 BNSS.

From 1 July 2024, Section 46 of the Code of Criminal Procedure, 1973 became Section 43 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Renumbering the section and moving Section 46(3) CrPC to Section 43(4) BNSS and Section 46(4) CrPC to Section 43(5) BNSS are changes of form. The rules in Section 43(1) BNSS, its proviso, Section 43(2) BNSS, and Section 43(4) BNSS are unchanged. Section 43(3) BNSS is a new sub-section with no CrPC source allowing police to use handcuffs in specified cases. In Section 43(5) BNSS, the word Judicial before Magistrate of the first class is omitted.

View detailed comparison (CrPC 46 vs BNSS 43) →

FAQs on Section 46 CrPC

How is an arrest made under Section 46 CrPC, and is physical touching always necessary?▼

Making an arrest under Section 46(1) of the Code of Criminal Procedure, 1973 requires the police officer or other person making the arrest to actually touch or confine the body of the person to be arrested. Physical touching or confinement is not required if the person submits to custody by word or action. For a woman, the proviso to Section 46(1) CrPC relaxes this rule by presuming her submission to custody on an oral intimation of arrest unless circumstances indicate to the contrary.

What rules apply to arresting a woman after sunset and before sunrise under Section 46 CrPC?▼

Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise under Section 46(4) CrPC. Where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. Also, under the proviso to Section 46(1) CrPC, a police officer shall not touch her person unless the officer is female or circumstances otherwise require.

How much force may be used if a person resists or tries to evade arrest under Section 46 CrPC?▼

If the person to be arrested forcibly resists the endeavour to arrest him or attempts to evade the arrest, the police officer or other person making the arrest may use all means necessary to effect the arrest under Section 46(2) CrPC. However, Section 46(3) CrPC places an explicit limit on that power by providing that nothing in Section 46 CrPC 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.

Which provision of the BNSS replaced Section 46 CrPC from 1 July 2024?▼

The Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. In the Sanhita, Section 46 CrPC is placed in Section 43 BNSS. Specifically, Section 46(1) CrPC and its proviso correspond to Section 43(1) BNSS, Section 46(2) CrPC became Section 43(2) BNSS, Section 46(3) CrPC became Section 43(4) BNSS, and Section 46(4) CrPC became Section 43(5) BNSS.

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Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 27 Oct 2026 ·