(a) Rules regulating search and arrest:
The rules with regard to arrest of a person are laid down in Sections 46 to 50 of the Code of Criminal Procedure, which are as under:
ADVERTISEMENTS:
(i) An arrest can made by a police officer or any other person by actually touching or confining the body of the person to be arrested, unless he submits to the custody by word or action : Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
Force is permissible if the person to be arrested forcibly resists any Endeavour to arrest him or attempts to evade the arrest; but the force to be applied in arresting a person should not extend to the causing of his death unless he be accused of an offence punishable with death or with imprisonment for life.
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Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. (Section 46).
The word ‘arrest’ when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases.
ADVERTISEMENTS:
When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer criminal offence.
The essential elements to constitute an arrest are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested.
[Roshan Beevi v. Joint Secretary to Government of Tamil Nadu, A.I.R. 1984. N.O.C. 103 Mad: 1984 Cr.L.J. 134, F.B.]
(ii) If 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 allow the police officer having authority to arrest or any person acting under a warrant of arrest free ingress thereto, and affords all reasonable facilities for search therein. [Section 47 (1)]
ADVERTISEMENTS:
(iii) If ingress to such place be not obtained, it shall be lawful for a police officer to enter such place and search therein and, in order to affect an entrance into such place, to break open any outer or inner door or window of any house or place.
But 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, the police officer or any person acting under a warrant of arrest shall, before entering such zanana portion and breaking open the apartment, give notice and reasonable facility to withdraw. [Section 47 (2)]
(iv) If any police officer or other person authorized to make an arrest has been detained in any house or place, he may break open any outer and inner door or window of such house or place in order to liberate himself. [Section 47 (3)].
(v) The person arrested shall not be subject to more restraint than is necessary to prevent his escape. (Section 49).
The rules with regard to search of arrested persons are laid down in Sections 51 and 52 of the Code which provide that a police officer may search the arrested person, unless he be admitted to bail, and place in safe custody all articles, other than the necessary wearing apparel, found upon him.
In the case of search of a female the search shall be made by another female with strict regard to decency. (Section 51). If any offensive weapon is found in the course of the search of the person of the accused, it shall be delivered to the court or the officer before which or whom the arrested person is to be produced.
(b) Search of arrested person:
A private person cannot search the person of the arrested person. Section 51 of the Code clearly lays down that the officer making the arrest or when arrest is made by a private person, the officer to whom he makes over the person arrested, may only search the person of the arrested person and seize and place in the safe custody all articles, other than necessary wearing apparel found upon him.