Handcuffing under the (3) | Section 43 BNSS

Handcuffing under the BNSS, 2023: Section 43(3), the Thirteen Categories, When Handcuffs May Be Used, and the Constitutional Standard

Section 43(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the first provision in the history of Indian criminal procedure to confer a statutory power to handcuff. The Code of Criminal Procedure, 1973 said nothing about handcuffs. For more than forty years the subject was governed entirely by judicial decision, and the law those decisions built was that handcuffing is presumptively unlawful, permissible only on a recorded finding of necessity, and subject to the scrutiny of the court.

The question the new provision raises is therefore a sharp one. Has Parliament displaced that body of law and made handcuffing lawful in the listed categories as a matter of course? Or has it identified the categories in which handcuffing may be considered, leaving the constitutional requirement of necessity in place? The answer this topic gives is the second, and the reasons are drawn from the language of the section itself, from section 46 which stands beside it, and from Article 21.

1. The Position Before the Sanhita

Figure 1: From judicial prohibition to statutory permission

The starting point is that handcuffing is a form of restraint, and that restraint of a person in custody is an interference with the right to life and personal liberty which requires justification. The proposition was first applied to prison conditions in Sunil Batra v. Delhi Administration, where the Supreme Court held that bar fetters and solitary confinement are subject to the discipline of Article 21 and cannot be imposed at the discretion of the prison administration. Two decisions then applied it to handcuffs.

📖 Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526

Facts: An undertrial prisoner in Tihar Jail sent a telegram to the Supreme Court complaining that he was being handcuffed on every journey between the jail and the court, under a police rule which classified prisoners by the class of accommodation to which they were entitled and prescribed handcuffs for those in the lower class. The rule was defended as an administrative measure to prevent escape.

Held: The Court struck down the practice. It held that handcuffing is prima facie inhuman and therefore unreasonable, over-harsh and at first flush arbitrary, and that absent fair procedure and objective monitoring it offends Articles 14, 19 and 21. Insurance against escape does not compulsorily require handcuffing; there are other measures. Handcuffs are to be the last refuge, not the routine regimen. A rule that classifies prisoners for this purpose by the class of accommodation, and so in substance by wealth and status, is discriminatory and void. Where a prisoner is handcuffed the escorting officer must record the reasons contemporaneously, and must submit them to the presiding judge for scrutiny; the court may then examine whether the restraint was justified.

Ratio: Handcuffing is presumptively unlawful. It requires a recorded justification founded on a real and present necessity that cannot be met by any less restrictive means, and the justification is subject to judicial scrutiny.

The decision left one gap. It required reasons to be recorded and submitted to the court, but it left the initial decision with the escorting officer. That gap was closed fifteen years later.

📖 Citizens for Democracy v. State of Assam, (1995) 3 SCC 743

Facts: Seven persons detained under the Terrorist and Disruptive Activities (Prevention) Act, 1987 and under trial were kept handcuffed and tied with ropes to their hospital beds, under police guard. A report of the treatment was sent to the Supreme Court and treated as a petition.

Held: The Court held the treatment illegal and laid down a rule stricter than the one in Prem Shankar Shukla. It held that handcuffs and fetters shall not be forced on a prisoner, convicted or under trial, while lodged in jail or in transit, unless the court has permitted it. Where the escorting authority is of the view, on well-founded reasons, that a person is dangerous and likely to escape or to disturb the peace in transit, it must apply to the Magistrate and obtain orders; the Magistrate is to give reasons for permitting or refusing. Where a person is brought to court without prior permission having been sought, the escorting officer must explain to the court why the restraint was used, and the court may award compensation and take action against the officer. The Court directed that violation would be punishable as contempt.

Ratio: The decision to handcuff is a judicial decision and not a police decision. Prior permission of the court is required, and where it could not be obtained the officer must justify the restraint to the court at the first opportunity.

The intervening decision in Sunil Gupta v. State of Madhya Pradesh applied the same standard to persons who had offered peaceful satyagraha and were handcuffed while being taken to court. The Court condemned the practice, held the escorting officers accountable, and observed that handcuffing a person who has offered no resistance and against whom there is no material suggesting a risk of escape is an act of humiliation with no justification in law.

1.1 The position as it stood on 30 June 2024

Handcuffing is prima facie inhuman and unreasonable and engages Articles 14, 19 and 21.
It may be resorted to only where there is a clear and present danger of escape which cannot be met by less restrictive means.
The reasons must be recorded contemporaneously and are subject to scrutiny.
The prior permission of the court must ordinarily be obtained; where it could not be, the officer must justify the restraint to the court.
A classification of prisoners for this purpose by status or class is discriminatory and void.
Violation attracts departmental action, contempt and compensation.

2. Section 43(3): the Statutory Power

Section 43(3), BNSS 2023

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.

Figure 2: The two-stage test

2.1 Reading the sub-section

Four features of the drafting decide how the provision operates.

The word is “may”. The section confers a discretion, not a direction. It does not say that a person in a listed category shall be handcuffed, and an officer who handcuffs every such person has not exercised a discretion at all.
The discretion is conditioned. It is to be exercised “keeping in view the nature and gravity of the offence”. A statutory condition on the exercise of a discretion is not surplusage; it requires the officer to address his mind to something, and a decision taken without addressing it is open to challenge on ordinary principles.
The categories are closed. Thirteen descriptions are given and the sub-section contains no residuary clause. A person who does not answer any of them cannot be handcuffed under this section at all.
Two occasions are identified. “While making the arrest” and “while producing such person before the court”. The second is the situation with which Prem Shankar Shukla and Citizens for Democracy were principally concerned.

2.2 The thirteen categories

Category	Note
A habitual or repeat offender	Neither expression is defined in the Sanhita. A habitual offender is ordinarily one shown by previous convictions to have made crime a practice; a repeat offender is one previously convicted of an offence. The category depends on previous convictions, and a mere allegation of previous involvement is not enough
A person who escaped from custody	The only category resting on conduct rather than on the offence charged, and the only one that speaks directly to the risk which restraint is designed to meet
Organised crime	Defined by the Bharatiya Nyaya Sanhita, which created the offence for the first time in the general penal law
Terrorist act	Defined by the Bharatiya Nyaya Sanhita, and separately by the Unlawful Activities (Prevention) Act, 1967
Drug related crime	Not defined in the Sanhita; in practice an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985
Illegal possession of arms and ammunition	In practice an offence under the Arms Act, 1959
Murder	Section 103 of the Bharatiya Nyaya Sanhita
Rape	Section 64 and the related provisions
Acid attack	Sections 124 and the related provisions
Counterfeiting of coins and currency notes	Chapter on offences relating to coin, currency notes and Government stamps
Human trafficking	Sections 143 and the related provisions
Sexual offence against children	The Protection of Children from Sexual Offences Act, 2012, and the corresponding provisions of the Bharatiya Nyaya Sanhita
Offence against the State	The chapter on offences against the State in the Bharatiya Nyaya Sanhita

⚠ Two observations on the list

Eleven of the thirteen categories are defined by the offence alleged, and only two, the habitual or repeat offender and the person who escaped from custody, by anything personal to the individual. But the risk that handcuffs are designed to meet, namely escape or violence in transit, is a fact about the person, not about the offence he is charged with. A category defined by the offence charged is therefore at best a proxy, and a rough one.

The offences listed are alleged, not proved. A person handcuffed on the ground that he has committed murder is a person accused of murder, who is presumed innocent. That is precisely why the second stage of the test matters: membership of a category cannot, consistently with the presumption of innocence, be sufficient by itself.

3. The Two-Stage Test

The structure the section produces, read with the rest of the chapter, is a test in two stages. Both must be satisfied.

3.1 Stage one: is the person within a listed category?

This is a threshold. If the person does not answer one of the thirteen descriptions, section 43(3) confers no power and handcuffs may not be used under it. The question is one of fact, and in the case of the habitual or repeat offender it is a question that depends on record: previous convictions, not reputation or suspicion.

3.2 Stage two: is the restraint necessary on these facts?

Three provisions converge at this stage.

Section 43(3) itself requires the discretion to be exercised “keeping in view the nature and gravity of the offence”. The condition would be meaningless if membership of a category were conclusive, because the category is itself defined by the offence.
Section 46 provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. It is a general provision applying to every arrested person, it was not repealed or qualified when section 43(3) was enacted, and it supplies a test of necessity that section 43(3) does not displace.
Article 21 requires that any procedure depriving a person of personal liberty be right, just and fair. A restraint that is not necessary is not a fair procedure, and the constitutional standard does not yield to a statutory permission that does not in terms exclude it.

The conclusion is that section 43(3) identifies the categories in which handcuffing may be considered and leaves in place the requirement that it be necessary on the facts of the individual case. What the section has changed is the presumption: within the thirteen categories, handcuffing is no longer presumptively unlawful, and the officer no longer needs the prior permission of a court as a matter of statute. What it has not changed is the duty to consider necessity, to record the reasons, and to submit them to judicial scrutiny.

4. What Changed and What Survived

Question	Before 1 July 2024	Under section 43(3)
Is there a statutory power to handcuff?	No. The CrPC was silent, and the law was entirely judicial	Yes, in thirteen listed categories
Is handcuffing presumptively unlawful?	Yes, in every case: Prem Shankar Shukla	Not within the listed categories; outside them, the position is unchanged
Is prior permission of the court required?	Ordinarily yes: Citizens for Democracy	Not as a matter of statute for an arrest or production under section 43(3)
Must the officer consider necessity?	Yes	Yes. The section conditions the discretion on the nature and gravity of the offence, and section 46 independently requires necessity
Must reasons be recorded?	Yes, contemporaneously, and submitted to the presiding judge	The section is silent, but the duty follows from the conditioned discretion, from section 46 and from Article 21
Is the decision subject to judicial scrutiny?	Yes	Yes. A discretion conferred by statute is exercisable only lawfully, and the court retains its supervisory jurisdiction
May a person outside the categories be handcuffed?	Only on the Prem Shankar Shukla standard	Not under section 43(3), which is exhaustive of the power it confers
May a private person arresting under section 40 handcuff?	No	No. Section 43(3) confers the power on a police officer
Does status or class justify handcuffing?	No; such a classification is discriminatory and void	Unchanged. Nothing in section 43(3) turns on the status of the person

5. The Argument on Both Sides

5.1 The case for the provision

It ends an anomaly. The escorting of prisoners is a daily operational reality, and for forty years it was governed by judicial direction alone, with no statutory basis on either side. A statutory rule tells the officer where he stands.
It confines rather than confers. By listing thirteen categories and no more, the section makes handcuffing unlawful in every other case as a matter of statute, which is a narrower field than a general discretion.
The requirement of prior court permission was unworkable at the point of arrest. Citizens for Democracy was concerned with prisoners in custody and in transit, where an application to a Magistrate is feasible. An arrest in the field cannot be preceded by an application to a court.

5.2 The case against it

The categories are defined by the offence alleged. Restraint is justified by the risk a person presents, not by the gravity of the charge, and eleven of the thirteen categories say nothing about risk.
The presumption of innocence is engaged. A person handcuffed for having “committed” murder is an accused, not a convict, and the section reads as though the offence were established.
The section prescribes no procedure. It does not require reasons to be recorded, does not require them to be produced to the court, and does not provide any mechanism for review. Whatever protection remains rests on provisions outside it.
The purpose of the restraint is displaced. Section 46 asks whether restraint is necessary to prevent escape. Section 43(3) asks what the person is charged with. The two questions are different, and answering the second does not answer the first.

⚠ The safer position to take

A statutory provision conferring a discretion does not authorise its arbitrary exercise, and a provision that does not in terms exclude a constitutional standard is read subject to it.

The safer and better view is therefore that section 43(3) makes handcuffing available in the listed categories, and that section 46 and Article 21 continue to require that it be necessary on the facts, with the reasons recorded and open to scrutiny. The courts have continued to treat handcuffing as requiring justification on the individual case rather than on the label of the offence, and a police practice built on the contrary assumption is likely to be found wanting.

For a practitioner the position translates into two questions to put at the first opportunity: which of the thirteen categories is relied on, and what material showed that restraint was necessary in this case.

6. Handcuffing and the Rest of the Chapter

Provision	Relationship to section 43(3)
Section 43(2)	Permits all means necessary where the person forcibly resists or attempts to evade arrest. Force used to overcome resistance is a different question from restraint applied to a person who is not resisting
Section 43(4)	Denies any right to cause the death of a person not accused of a capital or life offence. The graduated limits on force in the section are the context in which sub-section (3) is read
Section 46	The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. The general rule of necessity, unaffected by section 43(3)
Section 56	The person having custody must take reasonable care of the health and safety of the accused. Handcuffs applied for long periods, or in a manner causing injury, engage this duty
Section 40	A private person arresting has no power to handcuff, because section 43(3) confers the power on a police officer only
Section 53	The medical examination of every arrested person records injuries and marks of violence. Injuries caused by restraint will appear on that record
Chapter XXXVII	The consequence of an unlawful restraint is not the invalidity of the trial; section 511 makes failure of justice the test. The remedies lie in compensation, departmental action and contempt

7. Key Takeaways

The position stated shortly

1. The Code of Criminal Procedure, 1973 contained no provision on handcuffs. Section 43(3) of the Sanhita is the first statutory power to handcuff in Indian criminal procedure.

2. Before the Sanhita, handcuffing was prima facie inhuman and unreasonable, permissible only on a recorded finding of clear and present danger of escape that could not be met otherwise: Prem Shankar Shukla.

3. The requirement was strengthened to one of prior permission of the court, with the escorting officer bound to justify any restraint used without it: Citizens for Democracy.

4. Section 43(3) permits a police officer, keeping in view the nature and gravity of the offence, to use handcuffs while making an arrest or while producing the person before the court, in thirteen listed categories.

5. The categories are: habitual or repeat offender; escaped from custody; 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; offence against the State.

6. The list is closed. A person outside it cannot be handcuffed under section 43(3) at all.

7. The test is in two stages: membership of a category, and necessity on the facts. The second stage survives because the section conditions the discretion, because section 46 independently forbids restraint beyond what is necessary to prevent escape, and because Article 21 is not displaced by a permissive provision.

8. What the section changed: handcuffing is no longer presumptively unlawful within the categories, and prior court permission is not required as a matter of statute. What it did not change: the duty to consider necessity, to record reasons, and to submit the decision to scrutiny.

9. Eleven of the thirteen categories are defined by the offence alleged rather than by any risk the person presents, which is the principal criticism of the provision.

10. A private person arresting under section 40 has no power to handcuff; the power is conferred on a police officer.

8. Frequently Asked Questions

Does the BNSS allow handcuffing?

Yes. Section 43(3) permits a police officer, keeping in view the nature and gravity of the offence, to use handcuffs while making an arrest or while producing a person before the court, where that person falls within one of thirteen listed categories. It is the first statutory power to handcuff in Indian criminal procedure.

In which cases can handcuffs be used under section 43(3)?

Where the person is a habitual or repeat offender, or has escaped from custody, or has committed an offence of organised crime, a terrorist act, a drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, a sexual offence against children, or an offence against the State.

Can any arrested person be handcuffed?

No. The list in section 43(3) is closed and contains no residuary clause. A person outside the thirteen categories cannot be handcuffed under that provision, and the general rule in section 46 that restraint must be no more than necessary to prevent escape continues to apply to everyone.

Is handcuffing automatic for the listed offences?

No. The section says the officer “may” use handcuffs, and conditions the discretion on the nature and gravity of the offence. Read with section 46 and Article 21, membership of a category permits the question to be considered; it does not answer it. The restraint must still be necessary on the facts of the individual case.

Has section 43(3) overruled Prem Shankar Shukla?

It has displaced the presumption of unlawfulness within the thirteen categories and the statutory requirement of prior court permission for an arrest or production under the section. It has not displaced the requirement that restraint be necessary, that reasons be considered and recorded, or that the decision be open to judicial scrutiny, because nothing in the section excludes section 46 or Article 21.

Can a private person handcuff someone he has arrested?

No. Section 43(3) confers the power on a police officer. A private person arresting under section 40 may restrain the person only so far as is necessary and must hand him over to a police officer or take him to the nearest police station within six hours.

What is the remedy against unlawful handcuffing?

Compensation in public law under Articles 32 and 226, departmental action against the officer, and proceedings for contempt where the direction of a court has been disobeyed. An unlawful restraint does not by itself vitiate the trial, where the test under section 511 is whether a failure of justice has been occasioned.

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