Bharatiya Nagarik Suraksha Sanhita, 2023
Section 49
Search of arrested person
(1) Whenever,—
(i) a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; and
(ii) a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.
Why this exists
This provision continues a long-standing rule (earlier found in the Code of Criminal Procedure) meant to balance two needs: allowing police to check for weapons, evidence, or contraband on an arrested person, while protecting the person's dignity and property. Requiring a receipt for seized items guards against misuse or false claims of theft by police, and the separate rule for searching women reflects long-recognised concerns about decency and preventing custodial abuse.
How courts read it
Indian courts have consistently held that searches under this kind of provision must be conducted with due regard to human dignity, and that failure to follow safeguards like proper documentation of seized articles can affect the credibility of evidence in a case. Courts have also emphasized that the search of women must strictly be done by female personnel, treating this as part of the constitutional protection against custodial indignity, though no single landmark case is uniquely tied to this exact renumbered provision.
Common misconceptions
- Myth: Police can take away a person's clothing during a search.
Fact: The law specifically excludes 'necessary wearing-apparel' from items that can be taken away. - Myth: Any police officer, regardless of gender, can search a woman who is arrested.
Fact: The law requires that only another woman conduct the search of a female arrestee, with strict regard to decency. - Myth: Police can search anyone they arrest, regardless of bail status.
Fact: This section applies specifically to situations where the person cannot be granted bail or has failed to furnish it.