Section 49 BNSS 2023: Search of Arrested Person
Section 49 of the Bharatiya Nagarik Suraksha Sanhita, 2023 specifies when an arrested person may be searched, how articles found on the person may be placed in safe custody, the requirement to give a receipt for articles seized by the police officer, and the safeguard governing the search of a female.
What is Section 49 BNSS?
Section 49 regulates the search of an arrested person in the situations identified in subsection (1). It allows the specified officer to search the arrested person and place articles found upon him in safe custody, except necessary wearing-apparel. If an article is seized from the arrested person, the police officer must provide a receipt showing the articles taken in possession.
Key legal terms under Section 49
Warrant: A judicial authority for arrest issued in accordance with law. Section 49 distinguishes between warrants that do not provide for taking bail and warrants that provide for bail where the arrested person cannot furnish bail.
Bail: Release from custody subject to the conditions and procedure prescribed by law.
Search of arrested person: A search of the person after arrest in the situations specified in Section 49(1), for the purpose of identifying and taking custody of articles found upon the person.
Necessary wearing-apparel: Clothing that is necessary for the arrested person to wear. Section 49 excludes such apparel from the articles that may be placed in safe custody under subsection (1).
Safe custody: Keeping articles found on the arrested person securely in official custody after a lawful search.
Receipt: A written record showing the articles taken into possession by the police officer when an article is seized from the arrested person.
Strict regard to decency: The statutory standard governing the manner in which a female is searched under subsection (2).
Text of Section 49 - Search of arrested person
49. (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.
When may an arrested person be searched?
Subsection (1) identifies the circumstances in which the search power applies. It covers specified arrests under warrant as well as specified arrests without warrant or by a private person, where the arrested person cannot legally be admitted to bail or is unable to furnish bail.
Who may conduct the search?
The officer making the arrest may conduct the search in the circumstances covered by Section 49. Where the arrest is made by a private person, the search power under this provision is exercised by the police officer to whom the private person makes over the arrested person.
What articles may be taken into safe custody?
The provision permits articles found upon the arrested person to be placed in safe custody, but expressly excludes necessary wearing-apparel. This means the search-and-custody power is not an unrestricted authority to deprive the arrested person of necessary clothing.
Receipt for articles seized
If any article is seized from the arrested person, Section 49(1) requires that a receipt showing the articles taken into possession by the police officer be given to the arrested person. The receipt provides a contemporaneous record of property taken during the search.
Search of a female under Section 49(2)
Whenever it is necessary to cause a female to be searched, the search must be made by another female and with strict regard to decency. Both requirements are expressly stated in subsection (2).
Relationship with Section 50 BNSS
Section 50 BNSS separately deals with the power to take offensive weapons from a person immediately after arrest and requires those weapons to be delivered to the Court or officer before whom the arrested person must be produced. Section 49 concerns the search of the arrested person and safe custody of articles in the circumstances specified in that provision.
Relationship with other arrest safeguards
Section 49 should also be read with Section 46 BNSS on unnecessary restraint, Section 47 BNSS on communication of grounds of arrest and bail information, and Section 48 BNSS on informing a relative, friend or nominated person about the arrest.
Section 49 BNSS at a glance
- The search power applies in the arrest and bail situations specified in subsection (1).
- The officer making the arrest may search the person in those circumstances.
- If a private person made the arrest, the police officer receiving the arrested person may conduct the search.
- Articles found may be placed in safe custody, except necessary wearing-apparel.
- A receipt must be given for articles seized from the arrested person.
- A female must be searched by another female with strict regard to decency.
Official legal resources
This page provides general legal information. The legality and scope of a search in an individual case depend on the nature of the arrest, bail status, compliance with the BNSS and other applicable law, and binding judicial directions.