Handcuffs Under BNSS, Constitutional Limits Under Article 21: Reading Section 43(3) With Vihaan Kumar

Section 43(3) BNSS: What the law now provides

The Bharatiya Nagarik Suraksha Sanhita, 2023 has introduced an express statutory provision on handcuffing. Section 43(3) states that a police officer may, having regard to the nature and gravity of the offence, use handcuffs while making arrest or while producing the arrested person before the court in specified categories of cases.

These categories include habitual or repeat offenders, persons who have escaped from custody, and those accused of serious offences such as organised crime, terrorist acts, drug-related offences, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, and offences against the State. Therefore, unlike the old CrPC, BNSS now expressly recognizes a statutory power to handcuff in identified situations.

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Supreme court: Accused should not be handcuffed and be tied to hospital bed if he is admitted in Hospital

Before we part with this judgment, we must refer to the shocking treatment given to the Appellant by the police. He was taken to a hospital while he was handcuffed and he was chained to the hospital bed. This itself is a violation of the fundamental right of the Appellant Under Article 21 of the Constitution of India. The right to live with dignity is a part of the rights guaranteed Under Article 21. We, therefore, propose to direct the State Government to issue necessary directions to ensure that such illegalities are never committed. {Para 29}

e) The State of Haryana shall issue guidelines/departmental instructions to the police (i) to ensure that the act of handcuffing an Accused while he is on a hospital bed and tying him to the hospital bed is not committed again. (ii) to ensure that the constitutional safeguards Under Article 22 are strictly followed. If necessary, the State Government shall amend the existing Rules/guidelines; and

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 621 of 2025.

Decided On: 07.02.2025

Vihaan Kumar Vs. State of Haryana and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and N. Kotiswar Singh, JJ.

Authored By : Abhay Shreeniwas Oka, N. Kotiswar Singh

Abhay Shreeniwas Oka, J.

Citation: Citation: 2025 INSC 162, MANU/SC/0161/2025.

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Whether recovery of the weapon of offence becomes doubtful if accused were handcuffed at that time?

This witness has admitted in the cross-examination that all

the three accused were hand cuffed right from the time they were taken out of the police station and brought back to the police station.

Learned counsel Shri Ghanekar placed reliance on the case of Sureshs/o Mahadeo Deshmukh vs State of Maharashtra reported in 2018 ALL MR (Cri) 3837 for the proposition that if the accused are hand cuffed at the time of recovery of the weapon, the said recovery cannot be relied upon as it is under duress and pressure. This witness has given a vague

admission that right from the time of leaving the police station till returning to the police station, the accused were hand cuffed. He has not stated that at the time of recovery, they were hand cuffed. Therefore, a vague admission that right from leaving the police station till coming back to the police station, the accused were hand cuffed, does not go to show that the accused were hand cuffed at the time of effecting recovery. Therefore, the case relied upon by the learned counsel for the appellants is not applicable to the instant case.

{Para 53}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

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How to appreciate evidence if there is variation in the narration of incident by two witnesses or between two statements of the same witness?

 In the cross-examination, this witness has stated that he

stated before the police that Ananda was in a sitting position and

accused Nos. 2 and 3 had caught him but it is not there in the

statement. Learned counsel Shri Ghanekar argued that it shows that

this evidence is in the nature of improvement and, therefore, cannot be considered. The analysis of the statement under Section 161 of Cr.P.C. of this witness reveals that this witness has stated that in the auto rickshaw accused Nos. 2 and 3 and two more persons were sitting and the deceased Ananda was sleeping in the auto rickshaw in injured condition. This clearly shows that this witness has stated about the presence of accused Nos. 2 and 3 and two more persons and about presence of the deceased in the injured condition in the auto rickshaw.

It is true that whatever PW 3 has stated in the evidence does not appear in verbatim in the statement before the police. Mere variation between the statement under Section 161 of Cr.P.C. and deposition before the Court in narration of the incident would not amount to contradiction.

It has been held in the case of Rammi alias Rameshwar vs. State of

Madhya Pradesh reported in 1999 Cri.L.J. 4561 thus :-

24. When eye-witness is examined at length it is

quite possible for him to make some discrepancies.

No true witness can possibly escape from making

some discrepant details. Perhaps an untrue

witness who is well tutored can successfully make

his testimony totally non-discrepant. But Courts

should bear in mind that it is only when

discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that

the Court is justified in jettisoning his evidence.

But too serious a view to be adopted on mere

variations falling in the narration of an incident

(either as between the evidence of two witnesses

or as between two statements of the same witness)

is an unrealistic approach for judicial scrutiny.  {Para 41}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

CORAM : S. V. Gangapurwala &

M.G. Sewlikar, JJ.

PRONOUNCED ON : 11th September, 2020.

JUDGMENT : ( PER M. G. SEWLIKAR, J.)

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Whether recovery Evidence can be disbelieved on ground that accused was handcuffed at that time?

 Mr. Apte, thereafter would contend that when the alleged discovery of the spot of rape, the spot of burial of the dead body and the spot of concealment of slack of deceased was discovered at the instance of the accused, he was handcuffed and therefore the said discovery cannot be relied upon in the eyes of law. We are unable to accept the said submission for the reasons that, there can be no doubt when the accused was handcuffed he may not be free from fear of the police or duress or pressure. But, that itself cannot be a reason to discard the recovery of weapon if it was otherwise found to be supported by evidence of the panch witnesses and the Investigating Officer. That handcuffing of a person by itself cannot be a reason to generalize the hypothesis that such a discovery cannot be reliable. That each case will have to be examined in its own peculiar circumstances. We are fortified in taking this view by the judgment delivered by the Division Bench of this Court in the case of Putalabai Bhimashankar Pattan Vs. State of Maharashtra reported in 2010 ALL MR (Cri) 2084. 

IN THE HIGH COURT OF BOMBAY

Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015

Decided On: 14.03.2016

 The State of Maharashtra
Vs.
 Vitthal Tukaram Atugade

Hon'ble Judges/Coram:V.K. Tahilramani and A.S. Gadkari, JJ.

Citation: 2017 ALLMR(CRI)1274

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Guidelines of Bombay high court in respect of handcuffing of arrested person

The   law   declared   by   this   Court   in Shukla
case [(1980)  3 SCC  526 : 1980 SCC  (Cri)  815 :
(1980) 3 SCR 855] and Batra case [(1978) 4 SCC
494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392] is a
mandate   under   Articles   141   and   144   of   the
Constitution of India and all concerned are bound

to obey the same. We are constrained to say that the
guidelines laid down by this Court and the directions
issued repeatedly regarding handcuffing of undertrials
and convicts are not being followed by the police, jail
authorities and even by the subordinate judiciary. We
make it clear that the law laid down by this Court in
the abovesaid two judgments and the directions issued
by us are binding on all concerned and any violation
or  circumvention  shall  attract the  provisions of the
Contempt   of   Courts   Act   apart   from   other   penal
consequences under law. ”
             In the same decision very clear directions have been issued
by the Apex Court in paragraphs 16 onwards which read thus:
“16. We declare, direct and lay down as a rule that
handcuffs or other fetters shall not be forced
on a prisoner — convicted or undertrial —
while lodged in a jail anywhere in the country
or while transporting or in transit from one
jail to another or from jail to court and back.
The police and the jail authorities, on their
own,   shall   have   no   authority   to   direct   the
handcuffing   of   any   inmate   of   a   jail   in   the
country or during transport from one jail to
another or from jail to court and back.
17. Where the police or the jail authorities have
well­grounded   basis   for   drawing   a   strong
inference that a particular prisoner is likely to
jump jail or break out of the custody then the
said   prisoner   be   produced   before   the
Magistrate   concerned   and   a   prayer   for
permission to handcuff the prisoner be made
before the said Magistrate. Save in rare cases
of   concrete   proof   regarding   proneness   of   the
prisoner to violence, his tendency to escape, he
being so dangerous/desperate  and the  finding
that no other practical way of forbidding escape
is   available,   the   Magistrate   may   grant
permission to handcuff the prisoner.

18. In all the cases where a person arrested by
police, is produced before the Magistrate and
remand — judicial or non­judicial — is given
by the Magistrate the person concerned shall
not   be  handcuffed   unless   special   orders  in
that respect are obtained from the Magistrate
at   the   time   of   the   grant   of   the   remand.
19. When the police arrests a person in execution of
a warrant of arrest obtained from a Magistrate,
the person so arrested shall not be handcuffed
unless the police has also obtained orders from
the Magistrate for the handcuffing of the person
to be so arrested.
20. Where a person is arrested by the police without
warrant the police officer concerned may if he is
satisfied, on the basis of the guidelines given by
us in para above, that it is necessary to handcuff
such a person, he may do so till the time he is
taken   to   the   police   station   and   thereafter   his
production before the Magistrate. Further use of
fetters thereafter can only be under the orders of
the Magistrate as already indicated by us.
21. We   direct   all   ranks   of   police   and   the   prison
authorities   to   meticulously   obey   the   abovementioned
directions.”
                                         (emphasis added)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO.1545 OF 2016
Mr. Satish Banwarilal Sharma.
Vs
Union Territory of Diu, Daman and 
Dadra & Nagar Haveli and Others.

­­
CORAM  :  A.S. OKA & A.A. SAYED, JJ 
Dated: 22ND DECEMBER 2016

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