Search and Seizure With/Without Warrant

Introduction:

The regulations relating to demands for the 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.[1]

Section 165 of the CrPC lays out the conditions and the manner by which search is done by a Police officer. A Police while making an investigation ought to have reasonable grounds for believing that something very necessary with the end goal of investigation concerning an offence which he is approved to investigate might be found in any place within the local limits of the police station in which he is in charge. He is likewise required to make a record in writing mentioning his grounds of belief for the search and why was it conducted.

Meaning

Search procedure corresponds to the government process, which involves an inspection of a location, an individual, an item, and so as to find such an article or person to uncover evidence of a crime. The act of seizing is well-known as a seizure. It is a movement accompanied by force where an object or individual is abruptly dominated, snatched, removed, or overpowered.

A search warrant, in general terms, is a written order which is given by a Court or a Magistrate/Judge to a police officer or some other individual authorizing them to perform a search of an individual, area or vehicle for proof of a crime and seize illegal evidence of a crime. The court, in Kalinga Tubes Ltd. vs. D. Suri[2] and in numerous different cases has cautioned the police officer to use a search warrant with a little precaution and to not to mishandle their power. In another case, it was observed that the court may direct an investigation by the police before issuing any search warrant.[3]

When can the Search Warrant be Issued?

The main processes for the production of things and documents are as per the following:

1. When the Court issues summons;
2. When the Police officer-in-charge of a Police station issues a written order;
3. Search and seizure with or without a warrant.

In the following circumstances and conditions, a search warrant is issued by a Court:

Section 93– Circumstances 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. The Calcutta High Court observed that the general search is an itinerant inquiry conducted by a Police officer to find out if a particular person is part of a criminal act or not.[4]
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.[5]

Section 94– 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.[6] The Magistrate must have sufficient reasons to believe that a place is used for keeping or sale of stolen property etc. before the warrant is issued.[7]

Also, in Zahirul Hassan v. the State of U.P.[8], the Court stated that the nature of the warrants under this section will be that of a habeas corpus which would be directed by a Magistrate for the rescue of a wrongfully confined person by the intervention of the Police.[9]

In Pravin Singh v. Biharilal Singh[10], this provision was used by a father to rescue his daughter from her wrongful confinement by her in-laws. The Court averred that, before a warrant is issued under this section, the Magistrate only needs to satisfy himself that a person has been wrongfully confined[11] and he is not required to hold a detailed inquiry.

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.[12] 

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.[13]

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.[14]

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 woman.

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.

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.

Search of a Place Suspected

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.[15]

Search of a Place Without a Warrant

The procedure to be undertaken by a Police officer to search a place without a warrant is given under Section 165. It states that whenever a Police who is in charge of a Police station or the investigation has the reasons to believe that there are some things which are necessary for the investigation for the particular case that he is authorized to investigate within the local limits of his Police station without any unnecessary delay can do so even without a warrant. Also, he is required to specify his reasons for conducting the search, cause of the search etc. The procedure set out as to the search and seizure is laid down in Section 100 of CrPC. The Police officers must follow the procedures set down under Section 100 and Section 165 of the CrPC on the whole case of search and seizure. Section 102 provides the Police officer to seize certain property. The Police officers may have to search for more than one place. One at the place where the stolen property is kept and the other at the place where the people associated with it are hiding.

In Melecio Fernandes, the court stated that “a citizen ought to have in his home a full and free life undisturbed by any administrative or executive action. Notwithstanding, in the bigger interests of the administration of justice, it becomes important that public officials engaged in investigations and inquiries related to offences or suspected offences ought to be managed to provide fair and reasonable opportunities for searches.[16]

 Conclusion

The Code of Criminal Procedure sets out the common rules that ought to be continued in case of search, seizure and production of materials. Besides these arrangements, there are explicit laws and Acts in the case of search in special circumstances like CBI (Central Bureau of Investigation) that finishes its inquiry according to the provisions put down for its officials in the CBI manual. The Magistrate and the Police officers ought to be cautious while doing look and capture of property or people. The inquiry should be according to the laws if it isn’t, the search may be unlawful which can bring about the release of a searched person through individual or seized property.

In any case, there may emerge various issues concerning these procedures in like manner as the fact of the truth is undeniably more real as set down in books. The system of India is extremely corrupted which furthermore brings out a defective investigation on the part of the police. The defective police investigation system additionally incorporates medico-legal officers with little significance, as per security and legal experts. Medico-legal officers are vital for the judicial system as reports or findings are the basis for investigations concerning criminal cases, however, they work in absolute dependence on the police as opposed to conducting their official duty with independence and free of external pressures.

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References:

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

[2] AIR 1953 Ori 153.

[3] Melecio Fernandes vs Mohan, AIR 1966 Goa 23.

[4] Paresh Chandra Sen Gupta v. Jogendra Nath, AIR 1927 Cal 93.

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

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

[7] Dinesh Auto Finance v. State of Andhra Pradesh, 1988 Cri. L.J 1876 (AP).

[8]Zahirul Hassan v. the State of U.P., 1988 Cri. L.J 230 (All).

[9] Ibid.

[10] Pravin Singh v. Biharilal Singh, 1989 Cri. L.J 1386 (Bom).

[11] Ibid.

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

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

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

[15] ibid

[16] Melecio Fernandes v. Mohan, AIR 1966 Goa 23.