Section 51 CrPC and Section 49 BNSS: Search of Arrested Person
The law permits a police officer to search an arrested person in specified circumstances, secure articles found during the search and issue a receipt for seized property. It also requires that a woman be searched by another woman with strict regard to decency.
Meaning and purpose of the provision
A search of an arrested person is an examination of the person's clothing and possessions following an arrest, when the statutory conditions for the search are met. The purpose is to identify and safely hold articles found on the person. This power is not unlimited: the law specifies when it may be used, excludes necessary wearing apparel from articles taken into safe custody, and requires a receipt for seized articles.
Section 51 CrPC, 1973: Search of arrested person
Sub-section (1): Where a person is arrested under a warrant that does not allow bail, or under a warrant allowing bail but cannot furnish it, or is arrested without a warrant or by a private person under a warrant and cannot legally be admitted to bail or cannot furnish bail, the arresting officer (or the police officer receiving the person from the private person) may search the arrested person. Articles found, except necessary wearing apparel, may be placed in safe custody. A receipt specifying articles seized must be given to the arrested person.
Sub-section (2): When it is necessary to search a female, the search must be conducted by another female with strict regard to decency.
Section 49 BNSS, 2023: Present corresponding provision
Section 49 BNSS retains the essential safeguards of the former Section 51 CrPC. Its two sub-sections address the circumstances in which a search may take place and the manner in which a woman must be searched.
| Legal provision | What it provides |
|---|---|
| Section 49(1), BNSS | Permits search in the specified arrest and bail circumstances; authorises safe custody of articles other than necessary wearing apparel; requires a receipt for articles seized. |
| Section 49(2), BNSS | Requires a search of a female to be carried out by another female, with strict regard to decency. |
| Section 531, BNSS | Repeals the CrPC, while saving specified pending appeals, applications, trials, inquiries and investigations under the earlier Code. |
When can the arrested person be searched?
- When arrested by a police officer under a warrant that does not provide for bail.
- When arrested under a warrant providing for bail but the person cannot furnish bail.
- When arrested without a warrant and the statutory conditions concerning admission to bail or inability to furnish bail are met.
- When arrested by a private person under a warrant, in the circumstances specified by the provision, and handed over to the police officer who conducts the search.
The provision should be read according to its full wording and the facts of the arrest; it does not establish a blanket power to search every person in every situation.
Safeguards during search and seizure
Receipt for seized articles
If an article is taken from the arrested person, the police officer must provide a receipt showing the articles taken into possession. The receipt is an important record for identifying and accounting for property retained by police.
Necessary wearing apparel
Section 51 CrPC and Section 49 BNSS expressly exclude necessary wearing apparel from the articles that may be placed in safe custody under these provisions.
Search of women
Under Section 51(2) CrPC and Section 49(2) BNSS, any necessary search of a female must be performed by another female with strict regard to decency. This is a specific statutory safeguard, not merely an administrative preference.
Search versus seizure of offensive weapons
The power to search and retain ordinary articles under this provision is distinct from the power concerning offensive weapons. The corresponding separate provision under the BNSS is Section 50 (formerly Section 52 CrPC).
Does Section 51 CrPC still apply after 1 July 2024?
For proceedings governed by the new criminal procedure law, Section 49 BNSS is the relevant provision. However, Section 531(2)(a) BNSS preserves the application of the CrPC to appeals, applications, trials, inquiries or investigations pending immediately before commencement, as specified in that savings clause. The applicable procedural law in a particular matter depends on the nature and timing of the proceedings and the interpretation of the savings provision.
Frequently asked questions
Is a receipt mandatory when police seize articles from an arrested person?
Yes. The relevant search provision requires that a receipt showing the articles taken into police possession be given to the arrested person.
Can a male police officer search an arrested woman?
Section 49(2) BNSS requires that a necessary search of a female be made by another female with strict regard to decency.
What replaced Section 51 CrPC?
Section 49 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is the corresponding provision on the search of arrested persons.
Does this provision allow police to keep all clothing?
No. The statutory power to place articles in safe custody expressly excludes necessary wearing apparel.
Official legal sources
- Bureau of Police Research and Development: Bharatiya Nagarik Suraksha Sanhita, 2023 (official PDF) — see Sections 49, 50 and 531.
- Bureau of Police Research and Development: New criminal laws and publications.
- Ministry of Home Affairs: New criminal laws.
- India Code: Central legislation repository.
Disclaimer: This article provides general legal information. For a specific arrest, seizure or pending proceeding, consult a qualified legal professional and the applicable statutory text and judicial decisions.