Bharatiya Nagarik Suraksha Sanhita, 2023
Section 44
Search of place entered by person sought to be arrested
(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.
(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.
Why this exists
This provision continues a rule that existed in colonial-era and post-independence criminal procedure codes (earlier Section 47 of the CrPC, 1973, itself derived from 19th-century codes). It balances two competing interests: the state's need to arrest offenders effectively, even when they hide inside private homes, and the individual's right to privacy and dignity, especially for women observing purdah. Without such a provision, suspects could simply lock themselves indoors to evade arrest, defeating the purpose of warrants and lawful arrest powers.
How courts read it
Indian courts have historically read the equivalent CrPC provision (Section 47) as requiring genuine, reasonable belief before forcible entry — not mere suspicion — and have emphasized that the announcement of authority and purpose before breaking open doors is a mandatory safeguard, not a formality. Courts have also stressed that the special protection for secluded women must be scrupulously followed, and any violation can affect the legality of the search or arrest, though it does not automatically void a resulting conviction. These principles are expected to continue guiding interpretation of the renumbered Section 44 of the BNSS.
Common misconceptions
- Myth: Police can break down any door whenever they want to search for a suspect.
Fact: They must first ask for entry and explain who they are and why; forced entry is allowed only if peaceful entry is refused or would let the suspect escape. - Myth: The privacy protection for women applies to all female occupants in every situation.
Fact: It specifically applies to a woman who, by custom, does not appear in public (purdah-observing), not to women generally. - Myth: This provision only concerns arrest with a warrant.
Fact: It also covers police officers acting without a warrant if they have lawful authority to arrest, such as during searches where obtaining a warrant first would let the suspect flee.