Handcuffing under the (3) | Section 43 BNSS

Handcuffing under the BNSS, 2023: Section 43(3), the Categories in Which Handcuffs May Be Used, the Two Occasions, and the Constitutional Background That Survives

Before the Sanhita there was no statutory provision on handcuffing at all. The law was entirely judge-made, and it was strict: handcuffing was held to be prima facie inhuman, permissible only where there was no other reasonable way of preventing escape, and requiring reasons to be recorded and the court to be informed. It was also, in practice, widely disregarded — which is what tends to happen to a rule that exists nowhere in the statute book an officer is trained on.

Section 43(3) now supplies a statutory basis. In doing so it also supplies the limits: the categories in which handcuffs may be used are exhaustive, the occasions on which they may be used are two, and the power is qualified by a requirement that the officer keep in view the nature and gravity of the offence.

1. The Provision

Figure 1: Section 43(3)

Section 43(3), BNSS 2023 — new

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.

It is a power, not a practice. The word is may, and it is qualified by keeping in view the nature and gravity of the offence. The officer must form a view in the particular case; the section does not authorise handcuffing every person who happens to fall within one of the listed categories.
The categories are exhaustive. Handcuffs may be used only where the person is a habitual or repeat offender, has escaped from custody, or has committed one of the offences the sub-section lists. Outside those categories there is no power under this provision at all.
Two occasions only. While making the arrest, and while producing the person before the court. The sub-section does not authorise a person to be kept handcuffed throughout his custody, nor to be produced in the courtroom in handcuffs where the court directs otherwise.
And the constitutional background survives. The section is a statutory power, not a licence. Handcuffing remains an interference with personal liberty and human dignity under Article 21, and the settled requirements — that it be justified by clear material, that reasons be recorded, and that the court be informed — continue to apply.

2. The Principles That Govern

Figure 2: The settled position and the consequences of a breach

📖 Sunil Gupta v. State of Madhya Pradesh, (1990) 3 SCC 119

Facts: Persons who had offered themselves for arrest in the course of a peaceful public protest, and who had at no stage attempted to escape or to resist, were handcuffed and taken through the streets to the court. The escorting officers offered no justification beyond the fact that they were in custody.

Held: The Supreme Court held that handcuffing is prima facie inhuman and, in the absence of justifying circumstances, unreasonable and arbitrary. It held that the escorting authority must, in each case, be able to justify the action by clear material showing that there was no other reasonable way of preventing the person from escaping; and that the mere fact that a person is in custody, or is accused of a serious offence, is no justification at all. The Court held that where the persons concerned were educated, had voluntarily surrendered, and had shown no disposition to escape, the handcuffing was wholly unjustified and amounted to an infringement of their dignity. It further held that the escorting officers should have recorded the reasons and obtained the permission of the court, and that a failure to do so is a matter for which the officers are answerable, the Court directing that action be considered against them.

Ratio: Handcuffing is prima facie inhuman and, without justifying circumstances, unreasonable and arbitrary. The escorting authority must justify it by clear material showing no other reasonable way of preventing escape; custody or the gravity of the accusation is no justification.

📖 Aeltemesh Rein v. Union of India, (1988) 4 SCC 54

Facts: The Supreme Court was moved on the footing that the directions it had earlier given on the use of handcuffs and fetters were being widely disregarded in practice, there being no rules governing the subject and no guidance available to the escorting officers.

Held: The Supreme Court held that the directions it had given on handcuffing were binding, and that their observance could not be left to the discretion of individual officers. It held that where a practice touching personal liberty and human dignity is left unregulated, disregard of judicial directions becomes inevitable, and that the proper course is for the executive to frame rules giving effect to them. The Court accordingly directed the Government to frame rules or guidelines on the use of handcuffs and fetters, so that the escorting authority has something to apply and the courts have something against which to test what was done. It emphasised that the object is not to prevent the use of handcuffs in every case, but to ensure that their use is governed by stated criteria, applied by an officer who must record why he applied them, rather than by habit or convenience.

Ratio: Directions on handcuffing are binding and their observance cannot be left to individual discretion. Where a practice touching liberty and dignity is unregulated, disregard is inevitable, and rules should be framed giving effect to the directions.

That is the gap section 43(3) fills. What the Court asked for in 1988 — stated criteria, applied by an officer who must form a view — is what the sub-section now supplies. But it supplies them as a framework for the exercise of the power, not as a substitute for its justification in the individual case.

⚠ Reading section 43(3) with the settled law

The section does not displace the principles. It supplies a statutory power where none existed; it does not say that handcuffing is now the ordinary course in the listed cases.

The listed categories are a threshold, not a justification. A person must fall within one of them before the power arises — and the officer must then still form a view on the nature and gravity of the offence in the particular case.

The requirement of reasons survives. An officer who cannot say why handcuffs were necessary in this case has not exercised the power the section confers; he has merely done what was convenient.

And the court retains control over the manner in which a person is produced before it, which no statutory power of the police can override.

3. What Follows from a Breach

Four consequences follow from handcuffing a person without justification, and they are worth keeping distinct because they affect different people and are pursued in different ways.

The officer responsible is liable to departmental action, the breach being of a duty governing his office.
The conduct may amount to contempt where it defies a direction of the court about the manner of production.
The person handcuffed has a remedy in compensation, the infringement being of a right under Article 21.
But the trial itself is not vitiated by the manner of production. The wrong is to the person, not to the proceeding — though the conduct may bear on the court’s view of the investigating agency, and on the weight it attaches to what that agency says.

4. Key Takeaways

The position stated shortly

1. Before the Sanhita there was no statutory provision on handcuffing at all; the law was entirely judge-made.

2. Section 43(3) is new. It permits a police officer, keeping in view the nature and gravity of the offence, to use handcuffs in the cases it specifies.

3. It is a power, not a practice. The word is may, and the officer must form a view in the particular case.

4. The categories are exhaustive: a habitual or repeat offender, a person who escaped from custody, or one who has committed one of the listed offences — among them organised crime, terrorist act, drug-related crime, murder, rape and acid attack.

5. Two occasions only: while making the arrest, and while producing the person before the court.

6. It does not authorise a person to be kept handcuffed throughout his custody, nor produced in the courtroom in handcuffs where the court directs otherwise.

7. Handcuffing remains prima facie inhuman and, without justifying circumstances, unreasonable and arbitrary; the mere fact of custody or of a serious accusation is no justification: Sunil Gupta.

8. The escorting authority must justify it by clear material showing no other reasonable way of preventing escape, must record reasons, and must inform the court.

9. Where such a practice is left unregulated, disregard of judicial directions is inevitable — which is the gap section 43(3) fills: Aeltemesh Rein.

10. A breach attracts departmental action, possible contempt, and a remedy in compensation — but it does not vitiate the trial, the wrong being to the person rather than to the proceeding.

5. Frequently Asked Questions

Was there any provision on handcuffing before the BNSS?

None. The law was entirely judge-made, and it was strict in principle but widely disregarded in practice — which tends to happen to a rule that exists nowhere in the statute an officer is trained on.

When may handcuffs now be used?

Only where the person is a habitual or repeat offender, has escaped from custody, or has committed one of the offences section 43(3) lists — and then only while making the arrest or while producing him before the court, keeping in view the nature and gravity of the offence.

Does falling within a listed category justify handcuffing?

No. The categories are a threshold, not a justification. A person must fall within one of them before the power arises at all, and the officer must then still form a view on the nature and gravity of the offence in the particular case.

Can a person be kept handcuffed throughout his custody?

No. The sub-section names two occasions only — while making the arrest, and while producing the person before the court. It does not authorise continuous handcuffing, and the court retains control over the manner in which a person is produced before it.

Must reasons be recorded?

Yes. The requirement survives section 43(3). An officer who cannot say why handcuffs were necessary in the particular case has not exercised the power the section confers: Sunil Gupta v. State of M.P.

What follows if a person is handcuffed without justification?

The officer is liable to departmental action; the conduct may amount to contempt where it defies a court direction; and the person has a remedy in compensation under Article 21. But the trial itself is not vitiated — the wrong is to the person, not to the proceeding.

Related Topics

Arrest and the Rights of an Arrested Person: Chapter V, BNSS
Police Custody and Remand under the BNSS, 2023: Section 187
Police Custody and Judicial Custody Distinguished
Major Changes Introduced by the BNSS, 2023
Illegal Arrest and Compensation under the BNSS, 2023
Mandatory Videography of Search and Seizure