This article is written by Vasu Khera.
Let’s start with a basic. What is a search warrant? A search warrant is a court order that a magistrate, Judge or Court issues that authorizes law enforcement officers to conduct a search of a person, location or vehicle for evidence of a crime and to confiscate illegal items or evidence of crime, if they find any. In order to get a search warrant, the police must convince a judge that there is evidence of a crime at that place and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it should clearly state where exactly the search should take place, including a specific date and time. In India, Article 19 (Right to Freedom) and Article 20(3) (Protection against Self Incrimination) of the Indian Constitution give protection to the accused person against testifying against themselves which implies protection of citizens from unreasonable searches.
The power to issue search warrant should be exercised with all the care and circumstances. According to the provisions of the Criminal Procedure Code, search warrant can be issued under specific circumstances. Three of the circumstances are covered by section 93 which provides:
- (a) Where a court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been addressed will not produce the document as required by such summon.(b) where such document or thing is not known to the court to be in the possession of any person, or(c) where the court considers that a general search will serve the purpose of any inquiry, trial or other proceeding under this code ,it may issue a search warrant.2. Where the court specifies in the warrant the particular place or part to which only the search shall extend.3. Nothing contained in this section shall authorize any magistrate other than a district magistrate to grant a warrant to search for a document, parcel or another thing in the custody of the postal services.
4. A warrant for search of a place suspected to contain stolen property, forged document can be issued under section 94.
5. If any person is confined under such circumstances that the confinement amounts to an offence, a search warrant shall be issued for the person so confined. This has been provided by section 97.
The law usually makes an exception for hot pursuit as Section 165 of the code has been enacted as an exception to this general law of searches because it is recognized that in certain exceptional emergencies it is necessary to empower police officer to carry out searches without first applying to the courts for authority.
So, the answer of the question as to whether police can search your house without warrant is “Yes”. The police can enter your private residence or office without a warrant, but only under very limited circumstances.
The circumstances in which a police officer does not need a search warrant to conduct a search are stated in section 165, and these grounds are as follows:
1) Whenever an officer in charge of a police station or a police officer making an investigation has a reasonable grounds to believe that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place and that thing cannot in his opinion be obtained without undue delay without a search, such officer may search for such thing in any place within the limits of such station.
2) Police officer proceeding under sub section (1), shall if practicable, conduct the search in person.
3) If police officer is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to make the search and order him to search for such thing in such place.
4) If a police officer remained outside the house while the search was being made inside by some subordinate officer, the search was not held to be illegal.
5) Copies of any record made under sub section (1) shall be sent to the nearest magistrate empowered to take cognizance of the offence.
The question arose before the Hon’ble supreme court of India as to whether issuance of search warrant infringes fundamental rights and the Hon’ble apex court held AIR 1954 SC 300 that a search and seizure is only a temporary interference with the right to hold premises searched and the articles seized. Hence, no question of violation of Article 19 is involved. Also search and seizure of documents from accused does not amount to infringement of fundamental rights under Article 20(3) of the constitution.
As a search warrant is drastic invasion upon the privacy of a person, the code has imposed certain limitations upon this powers:
1) The document or the thing being searched for must be distinctly specified.
2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search warrant with a respect to a document of postal authority.
3) The magistrate must exercise his judicial discretion while issuing search warrant.
4) Search and seizure should be made in compliance with the provision to section 100 of Cr.P.C.
Unless the fact-pattern fits one of the exceptions discussed above, a warrant is required to police to conduct a search. But police may not use this as an arbitrary power like as if the police search your home and a court says that the search was unlawful, any evidence they seized during search can’t be used against you in court and some rights are given to an occupant like person can ask for identification and explanation as to why they are at your location and can also restrict the search to the area specified in the warrant or if they search in an area where they are not supposed to or not listed in the warrant then person can challenge the search.
However, in reality, police in India is known to use the power given in Section 165 in a very wide manner to fish for evidence in houses of any suspect or non-suspect, and sometimes even as a tool for harassment and oppression. Due to the general language of Section 165, police can first search your house on a whim and subsequently validate such search retrospectively if the Station In-Charge backs up the search.
It is not a good idea to restrict the police from searching if they demand to search your house or office even if they do not have an warrant to do so, since they can use force with impunity and later on justify the search under Section 165. They can also arrest you for obstruction of a police officer, which is an offence.
At best, you may demand that a police office be present during the search. You can also demand that respectable civilian people in the area be present during the search. Also, the police should prepare a seizure list and make you sign the same.
The real danger is that one may plant evidence against you during a search and police may use this against you in a case. This is why, if possible searches should be video recorded.
If search is not video recorded and it appears that evidence has been planted against you – the best recourse you have is in the court of law, and it is unlikely that you will be able to reason with the police.
It is possible to demand that your lawyer, if immediately available, be present during a search. In fact, it is a great idea to have a good lawyer present during a raid or search of your premises.