Law & Policy
Keeping in View the Nature and Gravity: The Restraint Section 43(3) Permits and the Record It Does Not Require
25 October 2026 · 21 min read
An arrest is a deprivation of liberty that the law authorises in advance. Restraint during an arrest is a separate thing, and it adds nothing to the custody: a person who is already in custody is not more in custody for being handcuffed. What handcuffs add is a precaution against escape, and the precaution has a second effect that cannot be separated from it in practice, because the restraint is visible to everyone who sees the person while the reason for it is visible to nobody.
A code of criminal procedure therefore has to decide three questions about restraint, and they are distinct. On what ground may it be used? Who decides? And what record is kept of the decision, so that it can be examined afterwards by somebody who was not there?
The Code of Criminal Procedure, 1973 answered the first question and said nothing about the other two. Its section 49 was a single sentence and contained no list: "The person arrested shall not be subjected to more restraint than is necessary to prevent his escape." The word "handcuff" does not appear anywhere in that Code. The instrument was left unnamed and the standard was stated as a limit — more than is necessary is forbidden — with no decider identified and no record prescribed.
The Bharatiya Nagarik Suraksha Sanhita, 2023 keeps that sentence exactly. It is now section 46, headed "No unnecessary restraint", and the words are unchanged. Three sections earlier, the Sanhita has added something the 1973 Code did not have.
What section 43(3) says
Section 43 of the Sanhita is headed "Arrest how made" and corresponds to section 46 of the 1973 Code, which the Sanhita repealed with effect from 1 July 2024. Sub-sections (1) and (2) are carried over: the person making the arrest shall actually touch or confine the body of the person to be arrested unless there is submission to custody, with the proviso about the arrest of a woman — inserted into the 1973 Code in 2009 — intact; and if the person forcibly resists or attempts to evade arrest, all means necessary may be used. The old sub-section (3), which denies any right to cause the death of a person not accused of a capital or life offence, is now sub-section (4). The old sub-section (4), inserted by the amendment of 2005 and requiring a written report and the prior permission of a Judicial Magistrate of the first class before a woman is arrested between sunset and sunrise, is now sub-section (5), where the word "Judicial" has been dropped.
Everything in section 43 is therefore older material, renumbered, except one sub-section inserted in the middle:
(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.
This is the only place in the Sanhita where handcuffs are mentioned. There is no other provision about instruments of restraint, no power to make rules on the subject, no form touching it in the Second Schedule, and no mention of handcuffs anywhere in the Bharatiya Nyaya Sanhita, 2023 or the Bharatiya Sakshya Adhiniyam, 2023. A single sub-section carries the whole of the new law.
Two occasions, thirteen grounds, one judgement
The sub-section permits handcuffs on two occasions: "while making the arrest of a person" and "while producing such person before the court". The grounds are thirteen. Two are descriptions of the person — he is a habitual or repeat offender, or he escaped from custody. Eleven are descriptions of an offence: organised crime, terrorist act, drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, and offence against the State.
The judgement the sub-section asks for is a single one, and it is stated in the opening words: the officer is to act "keeping in view the nature and gravity of the offence". That is a judgement about the accusation. It is not a judgement about the person's propensity to escape, his conduct at the time, the strength of the escort, the distance to be covered or the security of the place. Those are the matters on which the necessity of restraint actually turns, and the sub-section does not mention any of them.
Section 46, three sections later, asks exactly the opposite question. Restraint is limited to what "is necessary to prevent his escape" — an instrumental test, about this person on this occasion, with no reference to the offence at all. The two provisions stand in the same chapter and are not reconciled. Section 43(3) is permissive; section 46 is prohibitory; and on the ordinary rule that a specific permission does not displace a general prohibition unless it says so, the necessity standard survives and section 43(3) tells the officer which cases he may consider. On that reading, section 43(3) adds nothing to the officer's power that section 46 did not already allow in a case of genuine necessity, and subtracts from it in every case outside the thirteen grounds. It is a short list of occasions on which the question may be asked, not an answer to it.
That is the better reading, and it is not the reading the sub-section invites on a first look, because the grammar of the opening words — a discretion exercised "keeping in view the nature and gravity of the offence" — suggests that the gravity is the reason rather than the threshold.
"Has committed"
The eleven offence-based grounds are introduced by the words "who has committed offence of". Not "who is accused of", not "against whom a reasonable complaint has been made", not "who is reasonably suspected of having committed". The Sanhita has all three of those formulae and uses them carefully. Section 35(1)(b) authorises arrest where "a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence" — the suspicion qualifier is attached precisely because, at the moment of arrest, commission is what has not yet been established. Section 35(1)(e) uses "reasonably be suspected". Section 39 uses "has committed or has been accused of committing".
Section 43(3) uses the bare words. Read literally, the permission arises only where the person has committed one of the eleven offences, which at the stage of arrest nobody has determined and which, in a system that presumes innocence, is determined only by a conviction. Read as it will be read, the words mean the offence for which the arrest is being made — that is, the officer's own view of the accusation. The literal reading makes the sub-section almost inoperable at the arrest stage; the practical reading makes the trigger the officer's own suspicion, which is what every arrest already rests on. The drafting does not choose, and the consequence is that the threshold is set by whichever reading is adopted by the officer applying it.
The same difficulty affects the two status grounds in a sharper form, because the Sanhita knows how to establish a status and does not do it here.
Habitual and repeat, undefined
Neither "habitual offender" nor "repeat offender" is defined in the Sanhita. Section 2(1) defines twenty-six expressions, from "audio-video electronic" to "warrant-case", and neither of these is among them. Section 2(2) carries across words defined in the Information Technology Act, 2000 and in the Bharatiya Nyaya Sanhita, 2023, but neither statute contains a definition of either expression.
The Bharatiya Nyaya Sanhita does use "repeat offenders", once, as the marginal heading of section 71, and it attaches the expression to a prior conviction: a person previously convicted under section 64, 65, 66 or 70 and subsequently convicted under any of them is punishable with imprisonment for the remainder of his natural life, or with death. That is a sentencing provision for specified sexual offences and not a definition, so section 2(2) does not carry it into the Sanhita. But it is the only place in the new criminal law where the expression has any legal content, and there the content is a conviction already recorded.
"Habitual offender" has a procedural home of its own, and it is instructive about what the Sanhita thinks the status requires. Section 129, headed "Security for good behaviour from habitual offenders", empowers an Executive Magistrate who receives information that a person within his jurisdiction is by habit a robber, house-breaker, thief or forger, or by habit a receiver of stolen property, or habitually protects or harbours thieves, or habitually commits kidnapping, abduction, extortion, cheating or mischief, or offences involving a breach of the peace, or offences under a list of seven named economic and regulatory Acts, or is so desperate and dangerous as to render his being at large without security hazardous to the community, to require him to show cause why he should not execute a bond for good behaviour. The status is then established in an inquiry under section 135: sub-section (4) of that section permits the fact that a person is a habitual offender to be proved by evidence of general repute or otherwise, and sub-section (6) requires the inquiry to be completed within six months, failing which the proceedings stand terminated.
Two things follow. The Sanhita treats "habitual offender" as a finding — reached by a Magistrate, on evidence, within a time limit, with a consequence that is itself challengeable. And the conduct that makes a person a habitual offender under section 129 is habitual property crime, habitual breach of the peace and habitual regulatory offending. That has almost nothing in common with the eleven grave offences listed in section 43(3), so the expression, in the only sense the Sanhita itself gives it, describes a different kind of offender from the one the rest of the sub-section is concerned with.
Section 43(3) uses the same words for a decision taken by a police officer at the place of arrest, on no material the sub-section identifies, with no finding recorded. The two usages are not reconciled anywhere, and nothing in section 43(3) requires that the status have been established under section 129, or that a previous conviction exist, or that anything at all beyond the officer's own view support it.
Two grounds that are not offences under this law
Nine of the eleven offence-based grounds can be located in the Bharatiya Nyaya Sanhita. Organised crime is section 111 and terrorist act is section 113, both defined there. Murder, rape, voluntarily causing grievous hurt by use of acid (section 124), trafficking of person (section 143) and the counterfeiting offences in Chapter X, which is headed "Of offences relating to coin, currency-notes, bank-notes, and Government stamps", are all offences under it, and "Of offences against the State" is the heading of its Chapter VII. "Sexual offence against children" is not the name of a particular offence but describes a class the new law and the Protection of Children from Sexual Offences Act, 2012 between them clearly cover.
Two of the grounds are not offences under the new criminal law at all. The Bharatiya Nyaya Sanhita contains no narcotic or psychotropic offence — the words do not occur in it — and no offence of illegal possession of arms and ammunition. "Drug related crime" is an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, and illegal possession of arms and ammunition under the Arms Act, 1959. Neither Act is named in section 43(3). The classification the officer has to make at the moment of arrest therefore runs across statutes the sub-section does not identify, using descriptions that are not the statutory names of the offences in question.
This is a drafting cost rather than a vice. A list of this kind in a procedural provision is unavoidably approximate, and an officer who arrests under the NDPS Act will have no difficulty recognising the category. The point is narrower: a list that does not cite the Acts it draws on cannot be applied by looking anything up, and a provision that cannot be applied by looking anything up is applied by impression.
What the Sanhita requires elsewhere, and not here
The most telling thing about section 43(3) is what surrounds it. Chapter V of the Sanhita, headed "Arrest of persons", is unusually insistent on records and permissions.
Section 35(1)(b)(ii) requires the officer to "record while making such arrest, his reasons in writing" where he arrests for an offence punishable with up to seven years. The proviso to it requires reasons in writing for not making an arrest where arrest is not required. Section 35(5) requires reasons to be recorded before arresting a person who has complied with a notice to appear. Section 35(7) forbids arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police where the offence is punishable with less than three years and the person is infirm or above sixty. Section 36 requires every officer making an arrest to bear accurate, visible and clear identification of his name, to prepare a memorandum of arrest attested by at least one witness who is a family member of the person arrested or a respectable member of the locality and countersigned by the person arrested, and to inform the person of his right to have a relative or friend told of the arrest. Section 37 requires a designated officer, not below the rank of Assistant Sub-Inspector, in every police station and in every district, and a control room in every district and at State level, to maintain the names and addresses of persons arrested and the nature of the offences charged, and to display them prominently. Section 43(5), in the very section under discussion, requires a written report and the prior permission of a Magistrate of the first class before a woman is arrested at night.
Against that, section 43(3) requires nothing. No reason is to be recorded. No permission is to be obtained, from a senior officer or from a Magistrate. Restraint is not among the matters section 36 requires the memorandum of arrest to carry, so the use of handcuffs leaves no trace in the one document the arrest itself generates. The information maintained and displayed under section 37 is names, addresses and the nature of the offence, and not the manner in which the person was brought in.
This matters because of what a record does. A requirement to record reasons does not prevent a decision; it makes the decision examinable by somebody who was not present. Where no record exists, the question whether handcuffs were necessary becomes a contest of assertions between the person restrained and the officer who restrained him, months later, before a court that has nothing in front of it either way. A permission requirement goes further and moves the decision; a reasons requirement leaves the decision where it is and only preserves it. Parliament used both devices repeatedly in this chapter, in the same section, and used neither in sub-section (3).
The second occasion
The two occasions in section 43(3) are not alike, and the difference is the substantial question the sub-section raises.
Handcuffing at the moment of arrest is a decision that has to be taken by the officer, because there is nobody else there. Whatever standard governs it, the decider cannot be anyone but the arresting officer, and a provision that said otherwise would be unworkable.
Handcuffing "while producing such person before the court" is different in kind, because the whole point of the occasion is that a judicial officer is present. This is the stage at which the Supreme Court's directions on handcuffing are at their most specific. In Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, decided on 29 April 1980, the Court held the indiscriminate handcuffing of undertrials on their way to and from court to be contrary to Articles 14, 19 and 21, and required that the judicial officer before whom a handcuffed person is produced enquire into the handcuffing and call on the officer concerned to explain the action forthwith. In Citizens for Democracy v. State of Assam, (1995) 3 SCC 743, decided on 1 May 1995, the Court laid down binding directions in terms, and the directions distinguish the occasions:
Handcuffs or other fetters shall not be forced on a prisoner, convicted or undertrial, while lodged in a jail, or while being transported from one jail to another or from jail to court and back; and the police and jail authorities "on their own, shall have no authority to direct the hand-cuffing". Where there is a well-grounded basis for a strong inference that a prisoner is likely to break custody, the prisoner is to be produced before the Magistrate and permission to handcuff applied for; and the permission may be granted only in rare cases of concrete proof of proneness to violence or tendency to escape, with "the finding that no other practical way of forbidding escape is available". Where remand is granted, the person is not to be handcuffed unless special orders are obtained at the time of the remand. Where the arrest is made on a warrant, the person is not to be handcuffed unless the police have also obtained orders for handcuffing from the Magistrate. And where a person is arrested without warrant, the officer may handcuff him, if satisfied on the Court's own guidelines that it is necessary, "till the time he is taken to the police station and thereafter his production before the Magistrate", with further use of fetters only under the orders of the Magistrate.
Read against those directions, the first limb of section 43(3) covers ground the Court had already left with the arresting officer in the case of a warrantless arrest. The second limb does not. For an arrest on a warrant the Court required the Magistrate's order; for production after remand it required special orders at the time of remand; and for the journey from jail to court and back it required permission. Section 43(3) permits handcuffs at production without distinguishing warrant from warrantless arrest, and without any permission at all.
Two things should be said plainly about that. The first is that the Sanhita does not purport to override the directions. There is no non-obstante clause in section 43(3), nothing in the Sanhita that refers to any judgment on handcuffing, and no provision displacing the Contempt of Courts Act sanction the Court attached to breach of its directions. The second is that the directions in Citizens for Democracy rest on Articles 14, 19 and 21, and a statutory permission cannot authorise what the Constitution forbids. What a permission does is shift the posture of the argument: an officer who handcuffs a person at production can now point to a sub-section, and the person restrained has to establish that the sub-section does not mean what it appears to permit. The text does not resolve the conflict, and it is a conflict the drafting could have avoided with a clause requiring the court's permission for the second occasion.
No consequence either way
Neither section 43(3) nor section 46 carries a consequence. Section 46 states a prohibition and attaches nothing to its breach. Section 43(3) states a permission, and a permission cannot be breached.
The nearest general provision is section 198 of the Bharatiya Nyaya Sanhita, which punishes a public servant who "knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant", intending or knowing it likely that injury will be caused, with simple imprisonment up to one year or fine or both. On its terms it requires a direction of law to disobey, and the intention or knowledge of causing injury. Section 46 supplies a direction. But a prosecution under section 198 for excessive restraint would have to establish both the excess and the knowledge, in a case where no record of the decision exists, which returns the question to the absence noted above.
Everything else is left to general law: the writ jurisdiction, compensation for violation of Article 21 where a court is persuaded on the facts, departmental proceedings, and the contempt sanction in Citizens for Democracy where the directions apply. Each of those is a remedy that has to be invoked case by case, by a person who has already been handcuffed, against a record that does not mention it.
What the sub-section was for
It is worth asking what section 43(3) was meant to achieve, because the answer is not obvious from the text and it affects how the provision should be read.
The most plausible account is that it was meant as a restriction. Before 1 July 2024 the Code said only that restraint must not exceed necessity, and the actual regulation of handcuffing lay in State police manuals and in the Supreme Court's directions. A statutory list of thirteen categories, read with section 46, limits the cases in which the question of handcuffing may be raised at all, and it puts into the Sanhita a subject that had been left to rules the arrested person has no realistic access to. On that account the sub-section is a codification, and its silence about reasons and permissions is a gap rather than a grant.
The competing account is that it is a permission, written to give statutory cover to a practice the courts had restricted, and that the thirteen categories are its scope rather than its limit. The words "the police officer may" support this, and so does the absence of any reference to necessity in the sub-section itself.
The text is consistent with both, which is the difficulty. A sub-section that was meant to restrict would have said that no handcuff shall be used except in the listed cases and except where necessary to prevent escape, and would have required the reason to be recorded in the memorandum of arrest and the court's permission at production. A sub-section that was meant to grant would have said so and faced the constitutional objection directly. What was enacted does neither, and the choice has been left to be made at the moment of each arrest by the officer making it.
What would close it
Three additions would settle the question, and none of them would reduce the power the sub-section confers in a genuine case.
The first is a reasons requirement: that the officer record, in the memorandum of arrest under section 36, the fact that handcuffs were used and the ground on which they were used. This costs a line in a document that is already prescribed, attested and countersigned, and it converts an unexaminable decision into an examinable one.
The second is the court's permission for the second occasion. Handcuffing at production is the only restraint decision in the Sanhita that is taken in the presence of the authority best placed to review it, and it is the one occasion on which requiring permission costs nothing in practical terms. The Supreme Court has required it since 1995 for a warrant arrest and after remand. A sub-section that recognised the requirement would be stating the existing law rather than changing it.
The third is a definition. "Habitual or repeat offender" is doing work in section 43(3) that in section 129 of the Sanhita requires a Magistrate's inquiry and in section 71 of the Bharatiya Nyaya Sanhita requires a previous conviction. Tying the expression in section 43(3) to one of those two — a previous conviction, or a subsisting order under section 129 — would make the ground capable of verification at the time it is relied upon.
None of this concerns the hard cases. A person arrested for an offence of organised crime who has already escaped once from custody presents a real question of safe custody, and the law should allow the officer to answer it on the spot. The question is what happens in the ordinary case, where the accusation falls in one of the eleven categories because most serious accusations do, where the officer's assessment of gravity is unrecorded, and where the person is taken through a courthouse corridor in handcuffs on a decision that no document will ever reflect. The Sanhita records the fact of the arrest with some care. It does not record the manner of it, and the manner is the part the person arrested will remember.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.