Search and Seizure

Introduction:

The administration of criminal justice was regulated solely by the rules of the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 until the advent of the Indian Constitution. These concerns primarily with state protection and public peace.^[1]

The laws and procedures related to this should be understood to function effectively and effectively to a police officer or other designated individuals performing a process such as a search and seizure. Specialised skills and strategies are needed in those functions. The officer might often make errors by applying the laws and actions governing the searching, seizure and collection of materials which are lethal for the case of the department in the field of judicial investigation.

The regulations relating to demands for development of items, rules relating to search warrants, and other general search rules, are included in Chapter VII, comprising sections 91-100 of the Code of Criminal Procedure 1973.^[2] The clauses of this chapter include warrants and summons, how they are executed and enforced, and applications for arrests and summons.

Search procedure corresponds to the government process, which involves a meticulous inspection of a location, a zone, an individual, an item, and so on to locate something secret or to uncover evidence of a crime. A seizure is a vigorous movement in which an object or entity is unexpectedly taken over, captured, driven away or swept off.

Summons are a request to appear before a person from the court at a given time and location.  In both criminal and civil cases, a summon may be issued. Whereas, a warrant is an order issued by a magistrate or a judge enabling a police officer concerning the administration of justice to execute an arrest, search, seize possession or take action.

In the case of R.S. Jhaver vs Commissioner of Commercial Taxes, the Madras High Court held that “All that is then important is for a balanced, equitable and equal justice to be accomplished, under all situations between the sanctity of land or human rights and the community’s interest under law enforcement either by insisting on adequate protections against injustice or infringing the promised fundamental rig in respect of tax collection or elimination of crimes.”^[3]

Sections relating to search proceedings in CrPC

Section 91: Summons for documentation or other things and Section 92: Documents and telegram protocol

It is specified in these provisions that in cases where a judge or any officer in charge of a police force finds it appropriate to request a report or object to be investigated, it is necessary for the person whose power or jurisdiction is supposed to be the document or matter, that is to say, to render a summons for him or her to appear. Under the Code, with or without being present, a person must create a specific document.^[4]

This appeal does not apply to the possession of any letter or postcard, telegram, parcel or other documents or items by a postal authority. Also, Sections 123 and 124 of the Indian Evidence Act, 1872, are not subject to the same.^[5]

Under any circumstance, a judge other than a district magistrate or chief judicial magistrate shall not be entitled to submit any record in the hands of a postal package or otherwise within the jurisdiction of the postal authority.^[6]

Section 93: Situation where search warrants can be released.

1. Where the court may assume for such reasons that any person to whom an order or summon has been made, the document or object needed is not produced correctly,
2. In cases where a person has the said record or item, but the Court is not aware of it.
3. When a general inspection is a must for the execution of prosecutions, trials or other proceedings.
4. Where it is only appropriate to search and inspect a specific location or part, then the same is clearly stated in the warrant.
5. Any judge other than the District Magistrate or Chief Judiciary is not allowed in the custody of the Postal or Telegraph Authority to locate any information, package or whatever.^[7]

Section 94: Searching locations accused of having stolen goods, forged items or artefacts.

The Magistrate shall agree that, before receiving a search warrant in accordance with Section 94, there is an allegation or proof sufficient to derive a perception that a certain location is being used to store stolen goods or to forge documents or to produce counterfeit coins and false seals, etc. He must record the reasons for this prosecution as well. The order must show the implementation of the judge’s concept before leading the search for a venue.^[8]

Section 95: The State government’s power by correspondence to notify the publishing is forfeited if it includes any matter which is punishable according to the provisions of the Indian Penal Code such as Section 124 A, Section 153 A or 153 B, Section 293, Section 292, etc. ^[9]    

Section 96: The High Court shall submit a motion to set aside forfeiture declaration. The relevance of this section has been clarified in case of Yeshwant Bapuji Mokashi vs State Of Maharashtra And Ors.^[10]

Section 97: Any other situation in which a district magistrate, sub-divisional magistrate or first-class magistrate determines that someone is liable to be likely to result in a crime, a search warrant can, in that case, be issued to start the search for that particular person and, if that person is found, the magistrate who will pursue his apprenticeship shall be brought before him.^[11]

In Ramesh vs Laxmi Bai, however, it was held that a son under his father’s care would not be arrested unlawfully, and thus no search warrant would be released.^[12]

Section 98: In the event of a woman’s kidnapping or unlawful imprisonment or incarceration, a woman or a wife under the age of 18 may grant a search warrant to recover her freedom for any criminal intent and justice.^[13]

Section 100: The officer shall grant free entry and access to a suitable facility for such searches to any person residing in or having any such position where such searches or inspections are required.

Under section 47(2) of the Code, the official can proceed in the event of a previous violation by the holder. Such an individual may also be examined in cases where the perpetrator is suspected of dissimulating some item of high importance for the inquiry. If the individual is a woman, it must be handled strictly by another women.^[14]

The police officer must contact two or three unbiased and authorised local members before carrying out the search or inquiry, where the inspection must take place and where they are not present. If, in such a situation, they refuse to follow or witness the search, the order shall be given.

The search is carried out in the presence of a witness and a list of all the items contained in the course is drawn up and signed by the witness. However, unless called to do so, such a person has no responsibility to attend the tribunal.^[15]

Section 101: When execution of a search warrant, within the local competence of the tribunal who issues the warrant, takes place at once before the court issuing the warrant where the object that the search is discovered. However, if a court is closer to the magistrate having jurisdiction in such an event, the matter shall be passed to the competent judge.

The Court also recognised in Matajog Dobey vs H.C. Bhari, that this could impact the weight of evidence in favour of the search in situations where health requirements have not been complied with, which can lead to a disbelief in the evidence generated even where proper justification has been given to the Public Prosecutor for such a lack of compliance.^[16]

Procedure to be followed while carrying out a search

Without a valid search warrant issued by the appropriate authority, no places can be searched. It is mandatory to have a female officer in the search process. The search and recovery are usually done after sunrise and before sunset. However, the reasons must be registered if they are carried out after sunset and before sunrise, and copies of the reasons stated must be sent within 72 hours to the superior officer.

By presenting their ID cards to the owner and obtaining their signatures on the search warrant before starting the search, police officers must confirm their identification. It is therefore important to secure the signatures of at least two witnesses on the search warrant in the presence of such two reliable and identified local witnesses.^[17]

They should create a document known as the Panchnama. A ledger of all the goods, documents confiscated and seized/detained shall be drawn up and annexed to this Panchnama. This document and the inventory of seized items shall invariably be signed by the purchaser of the property before which the search is carried out, as well as by those officers who perform the investigation.^[18]

The original copy of the samples should be forwarded to the chemical supervisor within 72 hours by means of a test report for further inspection after the authority has tested the seized products or objects. The search warrant and the search discovery report shall be returned to the issuing authority in their original form where the investigation has been concluded. The names of the officers who took part in the investigation are relevant to list in the search warrant.^[19]

It should be noted that a copy of the Punchnama that was thus produced should be issued to the person-in-charge / owner of the property being scanned. If the search is unlawful, detention can be levied for up to six months or a fine of up to 1,000, or both. In the case of malpractice, anyone presents false evidence, leading to searches, a conviction is then punishable by up to 2 years’ incarceration, or with a fine of up to 1000/- or both.^[20]

Power of Police

Under section 102 of the Law^[21], if a police officer believes that property is being robbed or if the presumption is formed that a misdemeanour is being committed, he can confiscate that property throughout that situation.

In cases where the property confiscated is such that it is impractical to convey it to a court, the police officer can conduct bonds with the owner of the property to deliver the property before the court if possible. The police officer shall report these seizures with a competent authority to him.

Constitutional Validity

All proceedings set down in the Criminal Procedure Code, 1973 are based on the principle of equity and justice. One of the core rules of law is that a person charged with any offence should have equal opportunity to be heard and defend himself.

The constitutional validity of search warrants was upheld in the case of V. S. Kuttan Pillai vs Ramakrishnan. It was claimed that a location search for the accused did not in any manner impel him to provide testimony and thus did not breach Article 20(3) of the Constitution of India.^[22]

Conclusion

The Code of Criminal Procedure lays out the fundamental rules that must be followed in situations of search and seizure. In the case of searches in extraordinary situations, the Central Bureau of Investigation shall carry out investigations, with the exception of particular cases, in compliance with the basic provisions of the CBI manual for officers. The cop and the judge must be diligent in performing searches and seizures. If not, then the search may be illegal and might result in the arrest of a searched person or property seized. The quest was expected to follow the rules. But for these methods, too, several problems can arise when the reality is much more complex than the books suggest.

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References:

^[1] Mariya Paliwala, Search, Seizure and Production of Materials Under Criminal Law, iPleaders (December 27, 2019,), https://blog.ipleaders.in/search-seizure-production-of-materials-under-criminal-law/.

^[2] The Code of Criminal Procedure Act, 1973, No. 2, Acts of Parliament, 1974.

^[3] R.S. Jhaver vs Commissioner of Commercial Taxes, 1965 16 STC 708 Mad.

^[4] The Code of Criminal Procedure Act, 1973, No. 2, Acts of Parliament, 1974 § 91.

^[5] Mariya Paliwala, Search, Seizure and Production of Materials Under Criminal Law, iPleaders (December 27, 2019,), https://blog.ipleaders.in/search-seizure-production-of-materials-under-criminal-law/.

^[6] ibid.

^[7] The Code of Criminal Procedure Act, 1973, No. 2, Acts of Parliament, 1974 § 93

^[8] Mahak Gandhi, Search and Seizure, Law Times Journal (July 23, 2019,), http://lawtimesjournal.in/search-and-seizure/.

^[9] The Code of Criminal Procedure Act, 1973, No. 2, Acts of Parliament, 1974 § 95

^[10] AIR 1968 Bom 273.

^[11] Mahak Gandhi, Search and Seizure, Law Times Journal (July 23, 2019,), http://lawtimesjournal.in/search-and-seizure/.

^[12] Ramesh vs Laxmi Bai, (1998) 9 SCC 266.

^[13] The Code of Criminal Procedure Act, 1973, No. 2, Acts of Parliament, 1974 § 98.

^[14] The Code of Criminal Procedure Act, 1973, No. 2, Acts of Parliament, 1974 § 47(2).

^[15] Mariya Paliwala, Search, Seizure and Production of Materials Under Criminal Law, iPleaders (December 27, 2019,), https://blog.ipleaders.in/search-seizure-production-of-materials-under-criminal-law/.

^[16] 1955 SCR (2) 925.

^[17] Guest Post, Can police search your house or office without a warrant in India?, iPleaders (May 18, 2015), https://blog.ipleaders.in/can-police-search-house-office-without-warrant-india/.

^[18] Mahak Gandhi, Search and Seizure, Law Times Journal (July 23, 2019,), http://lawtimesjournal.in/search-and-seizure/.

^[19] ibid.

^[20] ibid.

^[21] Guest Post, Can police search your house or office without a warrant in India?, iPleaders (May 18, 2015), https://blog.ipleaders.in/can-police-search-house-office-without-warrant-india/.

^[22] V. S. Kuttan Pillai vs Ramakrishnan, 1980 SCR (1) 673.