Once a complaint has been vetted, verified and registered into the crimes module, an Investigating officer is appointed and the officer so appointed is in charge of the entire investigative process henceforth.
One of the most important part of this investigation process is the collection of evidence to present the case against the accused. This collection of evidences includes evidence procured through interrogating the witnesses or by collecting documents that might incriminate the accused.
As per Section 91 of the code of Criminal Procedure, if an Investigating Officer considers the procurement of any particular document or thing as absolutely necessary for the purpose of an investigation, he may issue a written order to the person who might have possession of such document at the time of its release under the provisions of this section. If the document cannot be procured through such means for any legitimate reason, the documents can be procured through the process of CBI Search-Seizure.
The CBI Search-Seizure
CBI Search-Seizure can be defined as a hunt by law enforcement officials for property, documents or communications, believed to be evidence of crimes- and the act of taking possession of such property.
In India, the process of CBI search- seizure can be carried out in two main ways:
- Search without a Warrant: If the Documents, communications or property which is considered necessary for the investigation, are likely to be found in a place which is not a public property and the Investigating Officer has a sound reason to believe that such documents or things can not otherwise be obtained, the Investigating Officer, in such case(s) can conduct the search of a private property or dwelling, under Section 165 of the Code of Criminal Procedure.
However, before CBI Search-Seizure can be conducted, it is imperative to record in writing the grounds on which his belief is based on as well as information- in as much detail as possible- about the document or thing of which the search is to be made.
Also, such order shall specify the places to be searched as well. Such a search has to be made, as far as possible, by the Investigating Officer himself.
If he is unable to do so, he can appoint a sub-ordinate to carry out the process but only after recording in writing his reasons to do so.
Copies of the records so made are to be sent to the nearest magistrate or special judge who has the jurisdiction to take cognizance of the offence.
- Search with a Warrant: A warrant refers to a legal document issued by a court or an organ of the Government, which has been given the necessary jurisdiction, that authorizes the police or any other body to make a arrest search premises or carry out any other action relating to the administration of justice.
Though as per Section 165 of the CrPC, an officer is allowed to conduct searches under his or her own authority, it is always better to do so after obtaining warrants of the search under Section 93 of the Cr.P.C.
Though, it is always better to obtain warrants when time and situations permit, it is not mandatory to obtain a warrant as per the Cr.P.C. to conduct search and seizure exercises.
Procedures To Be Followed For The CBI Search-Seizure
There are a few things that need to be kept in mind by the Investigating Officers while they go about the process of CBI Search-Seizure:
The first and the foremost among them is that House and Private Property of individuals should be searched only if and when it becomes essential for the furtherance of the investigation.
There must be a solid foundation of reasoning and logic that the act of CBI Search-Seizure is to be based upon.
For the search of a personal property, the investigating Officer must record the reasons for doing so in his case diary and must obtain the permission of the Competent Authority. Furthermore, as a general rule, in such cases, the places being searched should be kept to a bare minimum.
Similarly, such rules also state that any CBI Search-Seizure to be conducted must be so done in daylight. Searches after dark should be avoided as much as possible.
The procedure to conduct searches of personal property and dwellings has been elucidated upon in section 100 of the Cr.P.C.
As per the provisions of the section, it is mandatory for the officers and witnesses to submit their person for being searched by the occupant of the house. Once the search of the premise(s) has begin, no person should be allowed to enter or approach the house unless the person so approaching is a member of the household.
It is advisable that the Investigating Officer be accompanied by female officers, the services of which can be taken from the local police. The officers conducting the CBI Search-Seizure should take over all communications as soon as they enter the house and their behaviors towards the residents of the house should be very cordial.
A search list must be prepared on the spot, indicating the proceedings of the search and the list of the documents and articles seized during the search.
A copy of the said search list must be given to the occupant of the house under acknowledgement and the documents/articles so seized from the premises may be recorded in his presence and that of the witnesses.
In case it is not possible to complete the search on the same day, the portion of the premises which remained to be searched must be sealed and secured under a proper guard before leaving the premises for the night. All important exhibits should be got video filmed and transferred to one-time write only CD/DVD.
Even though it is not necessary for the CBI to obtain the consent of the of the Head of the Department before undertaking such search of the premises, it is advisable to take him into confidence.
In case of search to be conducted in the premises of armed forces or an armed forces Officer, which is located in a sensitive area and falls within the category of “Prohibited Areas”, the DSPE Officers should take the Commanding Officer of the Unit/Senior authorities concerned into confidence before hand. Their assistance should be sought for entry in such premises and also for conducting the search.
Guidelines To Be Followed During CBI Search-Seizure
These are the guidelines that are to be followed by the Investigating Officers once the CBI Search-Seizure procedure has already started:
- The searches should be in conformity with the law as laid down in Sections 94, 165, 166, 100, 101, 102 and 103 of the Cr.P.C..
- Members of the search party should be well versed in the tasks allotted to them and should know about the way in which the search is to be conducted according to the rules and regulations mentioned above.
- Once the CBI Search-Seizure starts, the persons whose house is being searched should not be allowed to leave and no outsider should be allowed to come in.
However, in cases of genuine need like school going children and medical emergencies, such prohibitions are to be relaxed.
The search party should have control over all access points to the house as well as control over all communication lines.
- The addresses and places to be searched should be verified before taking a decision and confirmed before searches are actually launched.
- When the searches are in progress, the progress should be monitored by the senior officers from the branch itself.
A stand-by reserve team should also be kept ready, at the office, to go immediately, in case the search team needs any assistance.
- In cases of disproportionate assets, searches are to be held at not only the house of the accused officer but also at the house of close friends and relatives who might have been trusted with incriminating documents.
The requirement of such searches however, have to be assessed before the registration of the case.
- In the case of disproportionate assets, a separate inventory comprising of items which were not seized and their valuations should also be created. Milometer reading of cars and scooters should also be shown in the inventory list.
In the inventory that is prepared, the incriminating documents should be listed with relevant details. The remaining documents could be inventoried in bulk.
However, page numbering and identity should be given and the witnesses etc. should individually initial the content.
- CBI Search-Seizure should not, unless they are unavoidable, be carried out on auspicious days like festivals, celebration, mourning and so on.
- CBI Search-Seizure should always be conducted in a manner which is quick and discreet to ensure that unnecessary humiliation and inconvenience can be avoided from being caused to the families whose property is being so searched.
Furthermore, no unauthorized Press publicity should be given to the searches. Strict instructions should be given to members of the raiding party to not divulge any information about the searches and the findings to any unauthorized persons,
- In the case where the Investigating Officer of one branch has to go to a place that falls within the jurisdiction of another branch to conduct searches, the Superintendent of the latter branch must send, along with the search party, an officer who works at his branch to oversee the search proceedings.
- Disproportionately large cash or jewelry, unaccounted foreign exchange, costly electronic gadgets, arms and ammunition without licence etc. should be seized. Even if such an item is not covered by the search warrant, Section 102 Cr.P.C. could be invoked to justify the seizure.
- Show of force should be avoided in most cases. If force is required for some particular cases, the force should be kept somewhere close-by as mentioned above.
However, in important cases where violent conduct on part of the accused or individual being searched is expected, adequate assistance of local Police should be taken.
SP of the Branch may make an assessment and take necessary steps.
- While selecting the witnesses to the search, it should be ensured that the witnesses so selected should not be informants/colleagues/subordinates of the public servant/accused whose house is being searched.
- It is also the duty of the search party to ensure that the legal rights of the person so searched are respected because any violation of their rights will affect the search adversely. The rights given to the occupants of the premises are mentioned below:
- To see the warrant of authorization duly signed and sealed by the issuing authority,
- To verify the identity of each member of the search party,
- To have at least two respectable and independent residents of the locality as witnesses,
- To have personal search of all members of the search party before commencement and conclusion of the CBI Search-Seizure,
- To ensure that a personal search of females are carried out by another female only, with strict regard to decency,
- To have a copy of the panchnama together with all annexes, for which acknowledgment should be given,
- To call a medical practitioner, if required,
- To have the children permitted to go to school, after discreet examination of their bags,
- To have the facility of having meals etc. at the normal time.
Once the CBI Search-Seizure has been completed, a report should be made and such report should be sent to the Officer who authorized the conduct of said search.
This should be sent within a week of the completion of the CBI Search-Seizure and should also contain an analysis of the same.
Apart from the evidence collected, the report should also mention the time at which the search begin and ended, the constitution of each search party and any other fact, which may be relevant.
As soon as any property is seized, the Investigating Officer should hand over the property along with a copy of the seizure memo to the Officer-in-charge of the Malkhana who will make an entry in the Malkhana Sub-Module or Seized Property Register.
Entries in the Malkhana SubModule or Seized Property Register should be made chronologically and blank spaces should not be left for entering subsequent seizures in the case.
Seizure of cash, jewelries and other valuables will also be entered into the said register. The Officer-in-charge of the Malkhana shall place the Seized Property Register before the Superintendent of Police of the Branch once in two months for his check and inspection.
The Superintendent of Police should check the sealed covers or boxes- containing seized money or valuables- once in a month at least.
In those cases where any records or articles are seized during the course of investigation without formal search, a proper recovery memo in prescribed form- attested by two witnesses of repute- and the person from whom the records or articles are taken possession of- should invariably be prepared on the spot and each of the documents or articles should be initialed and numbered by the persons producing it and the witnesses to preclude any changes or substitution.
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