Chapter V
Section 46 CrPC: Arrest how made
New Law Update (2024)
Section 35 BNSS
TRIAL COURT
Punishment
Procedural / Administrative
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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.
(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.
Important Sub-Sections Explained
Section 46(1)
This foundational sub-section outlines how an arrest is primarily made, requiring the police officer to physically touch or confine the person, unless the individual voluntarily submits to custody through their words or actions. It defines the basic physical act of arrest.
Section 46(4)
This crucial sub-section provides a special safeguard for women, prohibiting their arrest between sunset and sunrise except in truly exceptional circumstances. In such rare cases, a woman police officer must obtain prior written permission from a Judicial Magistrate of the first class.
Landmark Judgements
D.K. Basu v. State of West Bengal (1997):
This landmark judgment laid down comprehensive guidelines for arrest and detention, emphasizing the rights of arrestees and aiming to prevent custodial violence. It underscored the importance of humane treatment and accountability of law enforcement during the process of arrest.
Arnesh Kumar v. State of Bihar (2014):
The Supreme Court issued directives to prevent unnecessary arrests and mechanical remand, particularly in cases where the offence is punishable with imprisonment up to seven years. It mandated that police officers must record reasons for arrest and magistrates must satisfy themselves about the necessity of detention.
Draft Format / Application
IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, [District Name], [State Name]
Misc. Application No. _________ of 20___
IN THE MATTER OF:
The State/Applicant Police Officer,
[Rank and Name of Police Officer],
[Police Station],
[District], [State]
…APPLICANT
VERSUS
[Name of Woman to be Arrested],
D/o/W/o [Father’s/Husband’s Name],
R/o [Full Address]
…PROPOSED ACCUSED/RESPONDENT
APPLICATION FOR PRIOR PERMISSION FOR ARREST OF A WOMAN AFTER SUNSET AND BEFORE SUNRISE UNDER SECTION 46(4) OF THE CODE OF CRIMINAL PROCEDURE, 1973
MOST RESPECTFULLY SHOWETH:
1. That the Applicant is a Woman Police Officer holding the rank of [Rank] and is currently posted at [Police Station], [District], [State].
2. That in connection with [FIR No./Case No. with Section(s) of Law] registered at [Police Station], an investigation is currently underway/an arrest is required.
3. That during the course of the investigation, it has become imperative to arrest Smt. [Name of Woman], D/o/W/o [Father’s/Husband’s Name], R/o [Address] (hereinafter referred to as the ‘proposed accused’), who is allegedly involved in the said offence.
4. That the proposed accused is a woman and the circumstances necessitate her arrest after sunset and before sunrise, i.e., between [Time of Sunset] and [Time of Sunrise] on [Date].
5. That such exceptional circumstances exist due to [State precise and compelling exceptional circumstances, e.g., “the proposed accused is a flight risk and there is intelligence that she may abscond if not apprehended immediately,” or “crucial evidence directly implicating the proposed accused is likely to be destroyed if there is a delay in her arrest,” or “she is found involved in a serious ongoing criminal activity which requires immediate intervention”].
6. That the Applicant, being a woman police officer, is seeking prior permission from this Hon’ble Court to effect the arrest of the proposed accused during the aforementioned prohibited hours, strictly in compliance with the provisions of Section 46(4) of the Code of Criminal Procedure, 1973.
7. That a detailed written report outlining the exceptional circumstances and the necessity of such an arrest has been prepared and is annexed herewith for Your Lordship’s kind perusal.
8. That the Applicant undertakes to ensure that all due procedures and safeguards, including the presence of a woman police officer and adherence to arrest guidelines, will be meticulously followed during the arrest.
PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to grant prior permission to the Applicant, a woman police officer, to arrest Smt. [Name of Woman] after sunset and before sunrise on [Date], as per the provisions of Section 46(4) of the Code of Criminal Procedure, 1973.
And for this act of kindness, the Applicant, as in duty bound, shall ever pray.
Place: [City]
Date: [Date]
(Signature)
[Name of Woman Police Officer]
[Rank]
[Police Station]