Search of Arrested Person

Author: Vaishnavi Vats, Banasthali Vidyapeeth, Jamanlal Bajaj School of Legal Studies

INTRODUCTION

Code of Criminal Procedure, 1973 lays down the whole procedure relating to the arrest of a person who has committed an offense, which is one of the integral objects of the Indian Criminal Law System, i.e., to provide social protection against the criminals. The Code’s CHAPTER V deals with the provisions related to the arrest of persons, it includes SECTION 41 to 60.

However, an arrest can not only be done by a police officer, the issue of arrest process can be done by three people who are-

1. Police Officer with or without a warrant
2. Magistrate
3. Private Person.

MEANING OF ARREST

To understand the concept of search of arrested person there is a need to understand the meaning of arrest, what can be referred to as an arrest? The Criminal Justice System of India contains many terms that are by nature ambiguous, which are explained in practice and law step by step. Although the term arrest is very common nowadays, there remains a thin line difference between what can be called arrest and detention and custody.

Police have the power to seize a person on many grounds, people usually misunderstand these three modes and use them interchangeably, but they have a different meanings.

Detention refers to “the act of police officer or any authority of holding any person under suspicion, but without charging them with a crime.” Detention is against the will of the detainee and for a time being their liberties are also revoked, police office if has a suspicion that a person is related to any wrongdoing, then he has the right to detain such person, but such detention must not be on unreasonable suspicion.

Custody refers to a mere restriction or surveillance of a person’s movement. Custody can be of two types one police and another judicial custody, the former is when an arrest is made by a police officer on receipt of the complaint/report/information, of a suspect in reported crime, such person is brought to the police station to prevent him from committing any other offensive acts, however, in latter one the accused is placed in the custody of Magistrate concerned with the case.

The term Arrest has not been defined anywhere in the whole code of criminal procedure, 1973. But the apex court of the country has defined the term in the case of R.R.Chari v. State of U.P[1]., it stated that “the act of being taken into custody to be formally charged with a crime is called as arrest, in a constitutional sense, the court while observing further stated that it means a person’s seizure.”

According to Farlex’s Legal Dictionary, arrest means, “a seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge.”

Nature wise detention is less serious than arrest and custody, to detain person police require only reasonable suspicion, however, to arrest a person police need hard evidence, holding a person in custody is for further investigation and inquiry.

The procedure to search an arrested person is mentioned under section 51 of the Code of Criminal Procedure, 1973.

Section 51 -SEARCH OF ARRESTED PERSON

It states as follows:

1. “Whenever 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 whenever a person is arrested without a 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.

• Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.”

The section states search of the arrested person in two situations i.e., where the arrest is made without a warrant and where it is made with a warrant by a police officer or private person, which are as follows:

1. Whenever a Police Officer has arrested a person under a warrant which either does not provides for bail or does provide for bail but the arrested person is not capable to furnish the bail, and
2. Whenever a Police Officer has arrested a person without a warrant or a person is arrested by a private person that to under a warrant and neither he/she (arrested person) can legally be admitted to bail, nor he/she is capable to furnish the bail,

The officer who made such an arrest or if it is made by a private person then the police officer to whom such arrested person is handed over will proceed to search him. Through his search whatever articles, he has found are to be placed in safe custody. These articles do not include necessary wearing i.e., the clothes he/she is wearing.

A receipt must be given by the police officer to such arrested person showing all the articles that are seized from him.

Further, the section states that in case the person to be searched is a female then such search must be made by another female maintaining decency.

IMPORTANT CASE LAWS IN THIS SECTION

It is important that when a person is arrested, he must be given the grounds based on which he is arrested, but if he is not provided with any grounds for his arrest and search is made by the police officer then such search will become illegal, was held by the court in the case of Rabindranath Prusty v. the State of Orissa[2].

In the case of Raghbir Singh v. the State of Punjab[3], the high court held that it is the duty of the officer who is responsible for searching for the arrested person to obtain independent and respected witnesses.

Any irregularity in making such a search that in itself will not make the search evidence inadmissible.[4] The irregularity maybe like the one that came before the court in the case of Mahadeo v. State[5], in this case, the court held that “section 51 of the code of criminal procedure, 1973 doesn’t require for the signature of the person being searched shall be taken on the receipt of the articles received, non-signature of the receipt by the accused, will not render the search so conducted illegally.”

In the case of Superintendent of Customs and Central Excise Nagercoil v. R Sunder[6], the court held that “if section 52 of CrPC is read with section 102 of the same, the position will be that, if property so seized is either suspected or alleged to create suspicion of its involvement in any crime or such property is suspected or alleged as stolen property, then that seizure shall be reported before a Magistrate as provided by the section 102(3) CrPC.”

CONCLUSION

The search of an arrested person is an important step in the procedure post-arrest, hence it requires all its requirements to be fulfilled, which are the person arrested must be informed about the grounds of his arrest before the search takes place, or else the search would render illegal, secondly, the articles that are collected from his person, must not include his/her apparel, i.e., clothes he/she is wearing, if the person to be searched is a female then only another female officer can conduct such search on her with regard to decency, thirdly it is the duty of the search officer to obtain independent witnesses before whom such search will take place. Only when these are fulfilled a search could be called a valid search and acceptable.

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[1] AIR 1953 SC 10

[2] 1984 Cr. LJ 1329

[3] AIR 1976 SC  91

[4] Kamalabai Jethamal v. State of Maharashtra 19662 Cri LJ 273

[5] 1990 Cri LJ 858

[6] 1993 Cr LJ 956