Sections 45 and 46 CrPC: Protection of Armed Forces Members from Arrest and How Arrest Is Made
Sections 45 and 46 of the Code of Criminal Procedure, 1973 formed part of Chapter V dealing with arrest of persons. This article explains the provisions as they stood immediately before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), including the special protection relating to members of the Armed Forces and the statutory method and safeguards governing an arrest.
Section 45 CrPC - Protection of members of the Armed Forces from arrest
Section 45 created a specific protection against arrest for a member of the Armed Forces of the Union where the act complained of was done, or purported to be done, in the discharge of official duties. The provision operated notwithstanding Sections 41 to 44 CrPC.
Section 45(1): A member of the Armed Forces of the Union could not be arrested for anything done or purported to be done in discharge of official duties unless the consent of the Central Government had first been obtained.
Section 45(2): A State Government could, by notification, extend the protection in sub-section (1) to a specified class or category of members of a force charged with maintenance of public order. On such extension, the reference to the Central Government operated as a reference to the State Government.
Meaning and scope of Section 45
The protection was linked to the connection between the alleged act and the discharge, or purported discharge, of official duties. Section 45 did not state a general immunity from criminal law. Its immediate statutory effect was to require the prescribed governmental consent before an arrest falling within the provision.
Section 46 CrPC - Arrest how made
Section 46 prescribed the manner in which an arrest was to be physically effected and regulated the degree of force that could be used. It also contained specific safeguards concerning arrest of women.
Section 46(1): The officer or other person making the arrest was required actually to touch or confine the body of the person to be arrested unless that person submitted to custody by word or action.
Safeguard for women: Where a woman was to be arrested, her submission to custody on oral intimation of arrest was ordinarily presumed unless circumstances indicated otherwise. Unless circumstances otherwise required, or the police officer was female, a police officer was not to touch the woman's person for making the arrest.
Section 46(2): If the person forcibly resisted the attempt to arrest or tried to evade arrest, the police officer or other person could use all means necessary to effect the arrest.
Section 46(3): Section 46 did not confer a right to cause the death of a person who was not accused of an offence punishable with death or imprisonment for life.
Section 46(4): Except in exceptional circumstances, a woman was not to be arrested after sunset and before sunrise. Where exceptional circumstances existed, a woman police officer was required to make a written report and obtain prior permission from the Judicial Magistrate of the first class within whose local jurisdiction the offence was committed or the arrest was to be made.
Key legal effect of Sections 45 and 46
Section 45 dealt with a threshold protection against arrest in the specified official-duty context, while Section 46 governed the physical method of arrest and limits on force. These provisions were part of a wider statutory framework governing arrest, including the requirements relating to grounds of arrest, unnecessary restraint, production before a Magistrate and other procedural safeguards.
Amendment notes relevant to Section 46
The proviso concerning the manner of arrest of a woman was inserted by Act 5 of 2009 with effect from 31 December 2009. Section 46(4), restricting arrest of women after sunset and before sunrise except in exceptional circumstances and subject to prior Magistrate permission, was inserted by Act 25 of 2005 with effect from 23 June 2006.
Official legal reference
For the authoritative statutory text and historical verification, see the Code of Criminal Procedure, 1973 on India Code.