Search, Seizure and Medical Examination After an Arrest

The receipt is the addition worth marking. Under the old section 51 there was no such requirement in terms, and a person released weeks later had no document showing what had been taken from him.

Sub-section (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.

Section 50: offensive weapons

The officer or other person making any arrest may, immediately after the arrest, take from the person arrested any offensive weapons he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom he is required by the Sanhita to produce the person arrested.

Note the two verbs. Taking the weapon is a may. Delivering it up is a shall. The officer has a discretion whether to disarm and no discretion at all about handing over what he takes.

Section 51: examination at the request of a police officer

Sub-section (1). Where a person is arrested on a charge of an offence of such a nature, and alleged to have been committed in such circumstances, that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it is lawful for a registered medical practitioner, acting at the request of any police officer, and for any person acting in good faith in his aid and under his direction, to make such an examination as is reasonably necessary to ascertain the facts which may afford that evidence, and to use such force as is reasonably necessary for that purpose.

Sub-section (2). Where a female is to be examined, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Sub-section (3). The practitioner shall without any delay forward the examination report to the investigating officer.

The Explanation, which governs sections 51, 52 and 53. "Examination" includes the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests as the practitioner thinks necessary in a particular case. And "registered medical practitioner" is defined as set out above.

Section 52: a person accused of rape

Where a person is arrested on a charge of rape or an attempt to commit rape, and there are reasonable grounds for believing that an examination of his person will afford evidence of the offence, the examination may be made by a registered medical practitioner employed in a hospital run by the Government or by a local authority, and, in the absence of such a practitioner within a radius of sixteen kilometres from the place where the offence was committed, by any other registered medical practitioner, in each case acting at the request of a police officer, with reasonable force if necessary.

Sub-section (2) requires the practitioner without any delay to examine him and prepare a report giving: the name and address of the accused and of the person by whom he was brought; his age; marks of injury, if any; the description of material taken from his person for DNA profiling; and other material particulars in reasonable detail.

Sub-section (3): the report shall state precisely the reasons for each conclusion. Sub-section (4): the exact time of commencement and completion of the examination shall be noted. Sub-section (5): the report goes without any delay to the investigating officer, who forwards it to the Magistrate under section 193 as part of the documents in section 193(6)(a).

Section 53: the compulsory examination of every arrested person

This is the section that changed, and the change is easy to state.

Sub-section (1). When any person is arrested, he shall be examined by a medical officer in the service of the Central Government or a State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made.

Under the old Code the corresponding provision gave the arrested person a right to request an examination. The Sanhita makes the examination compulsory in every case, whether or not he asks.

The first proviso allows the practitioner, if he is of opinion that one more examination is necessary, to make it.

The second proviso: where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and if none is available, by a female registered medical practitioner.

Sub-section (2). The practitioner shall prepare the record of such examination, mentioning any injuries or marks of violence on the person arrested, and the approximate time when such injuries or marks may have been inflicted.

Sub-section (3). A copy of the report shall be furnished to the arrested person or the person nominated by him.

Take those three together and their purpose is unmistakable: a document, made by a doctor, at a known time, saying what marks were on the body and roughly when they were made, a copy of which is in the hands of the arrested person or his nominee. That is how a custodial injury is proved.

Section 54: identification of the person arrested

Where a person is arrested on a charge of an offence and his identification by any other person is considered necessary for the purpose of investigation, the Court having jurisdiction may, on the request of the officer in charge of a police station, direct the person arrested to subject himself to identification by any person in such manner as the Court thinks fit.

Two points. The direction comes from a Court, not from the police. And the request comes from the officer in charge of a police station.

The proviso, which is new. If the person identifying the arrested person is mentally or physically disabled, the process shall take place under the supervision of a Magistrate, who shall take appropriate steps to ensure that the person identifies the arrested person using methods that person is comfortable with, and the identification process shall be recorded by any audio-video electronic means.

Section 55: arrest through a subordinate

This section was set out in [How an Arrest Is Actually Made], and it belongs to both chapters. Where an officer in charge of a police station, or an officer making an investigation under Chapter XIII, requires a subordinate to arrest without warrant otherwise than in his presence, he must give him a written order specifying the person to be arrested and the offence or other cause; and the subordinate must, before making the arrest, notify the person of the substance of the order and show it if required. Sub-section (2) preserves the subordinate's independent power under section 35.

A worked example

Rahul is arrested at Kandivali on a charge of assault causing grievous hurt.

He is searched. He is not able to furnish bail, so section 49(1) applies. His wallet, phone and a knife are found. The knife is an offensive weapon and section 50 lets the officer take it and requires him to deliver it to the Court or officer before whom Rahul is to be produced. The wallet and phone go into safe custody, and Rahul must be given a receipt listing them.

He is examined. Section 53(1) requires it, whether or not he asks, and soon after the arrest. The doctor records a bruise on his left cheek and states the approximate time it may have been inflicted, under section 53(2). A copy of that report goes to Rahul or to a person he nominates, under section 53(3). If the bruise appears later and this report says his face was unmarked, the report is the evidence.

The investigating officer wants his fingernail clippings, because the victim's skin may be under them. That is an examination within the Explanation to section 51, and it may be done by a registered medical practitioner at the officer's request, with reasonably necessary force, under section 51(1). The report goes to the investigating officer without delay under section 51(3).

A witness is to identify him. The Court, on the request of the officer in charge of the police station, may direct Rahul to submit to identification, under section 54.

The witness is a woman with a speech disability. The proviso applies. The identification must take place under the supervision of a Magistrate, who must ensure she identifies him by methods she is comfortable with, and the process must be recorded by audio-video electronic means.

Change the accused to a woman. The search under section 49 must be by another female with strict regard to decency. The examination under section 51 must be by or under the supervision of a female registered medical practitioner. The examination under section 53 must be by or under the supervision of a female medical officer, or failing one a female registered medical practitioner.

Distinctions

What this does NOT mean

Section 53 is not a right the arrested person has to ask for. It is a duty owed in every case, which is the change from the old Code.

"Such force as is reasonably necessary" in section 51 is not unlimited force. It is force reasonably necessary to make the examination, and no more.

Section 54 does not let the police order an identification parade. The direction is the Court's, on the request of the officer in charge of a police station.

And the sixteen kilometre radius in section 52 is not a general rule. It applies only to the search for a Government or local authority hospital practitioner in a rape case.

Quick revision

• Section 49: search where bail cannot be furnished; articles other than necessary wearing apparel into safe custody; a receipt for what is seized; a female is searched by another female with strict regard to decency.
• Section 50: offensive weapons may be taken and shall be delivered to the Court or officer.
• Section 51: examination at a police officer's request where there are reasonable grounds to believe it will afford evidence; a female only by or under the supervision of a female registered medical practitioner; report to the investigating officer without delay. The Explanation includes DNA profiling and defines registered medical practitioner.
• Section 52: rape or attempted rape; Government or local authority hospital practitioner, or, failing one within sixteen kilometres, any registered medical practitioner; five listed report items; exact times noted; report to the investigating officer and on to the Magistrate under section 193.
• Section 53: every arrested person examined soon after arrest by a Government medical officer or, failing one, a registered medical practitioner; record of injuries or marks of violence and the approximate time; a female by or under the supervision of a female; a copy of the report to the arrested person or his nominee.
• Section 54: the Court, on the request of the officer in charge, may direct identification; where the identifying person is mentally or physically disabled, it is supervised by a Magistrate, uses methods that person is comfortable with, and is recorded by audio-video electronic means.
• Section 55: a written order specifying the person and the offence where a subordinate arrests otherwise than in the presence of the officer requiring it.

Test yourself

1. Must an arrested person ask to be medically examined? No. Section 53(1) makes the examination compulsory soon after every arrest, which is the change from the old Code.

2. What must the record of that examination mention? Any injuries or marks of violence on the person arrested and the approximate time when they may have been inflicted, section 53(2).

3. Who may examine a woman arrested on suspicion of an offence? Under section 51(2), only a female registered medical practitioner or someone under her supervision. Under section 53's second proviso, a female medical officer or, failing one, a female registered medical practitioner.

4. Does the Sanhita permit DNA profiling of an arrested person? Yes. The Explanation to section 51 includes DNA profiling within "examination", and that Explanation governs sections 51, 52 and 53.

5. Who directs a test identification, and on whose request? The Court having jurisdiction, on the request of the officer in charge of a police station, under section 54.

6. A witness with a physical disability is to identify the accused. What does the proviso to section 54 require? That the identification take place under the supervision of a Magistrate, who ensures the witness identifies the person by methods the witness is comfortable with, and that the process be recorded by audio-video electronic means.

7. What must be given to a person from whom articles are seized on a search under section 49? A receipt showing the articles taken into possession by the police officer.