This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS. This is an exhaustive article which deals with various aspects associated with the procedures followed during search and seizure.
Table of Contents
Introduction
Chapter VII, containing Sections 91-100 of the Code of Criminal Procedure, 1973 deals with the provisions relating to the summons to produce documents or other things, search-warrant provisions, and other laws related to search and seizure. The provisions of this chapter concerns with summons and warrants, their issue, the manner in which they are served, and executed.
A summon is a command from a Court to an individual, to appear at a given time and place before him. In both criminal and civil cases, a summon can be issued. A warrant is a legal document that is issued by a judge or magistrate authorizing a police officer to make an arrest, search, seize property or take action relating to the administration of the justice system.
The word ‘search’ refers to the operation of government machinery that involves checking through or carefully inspecting a location, area, person, object, etc. to detect something hidden or to reveal the pieces of evidence of a crime. The police can lookout for an individual or a car or premises, but only after taking necessary and legitimate lawful approval. “Seizure” is a vigorous action that unexpectedly takes over, captures, removes, or overwhelms an entity or an individual.
Procedure relating to search and seizure
Section 91 states that the Court may issue a summon or the officer in charge may give a written order stating that the person has to produce the document or anything which is believed to have importance in order to carry out investigation, inquiry or proceedings. The person who is in possession of that particular document or thing has to comply with the request and produce it at the time and place prescribed by the summon or order.
Section 92 states that If the law enforcement agencies including the District Magistrate and the High Court are of the opinion that a document, parcel or anything which is in the custody of postal or telegraph authority is essential for the investigation, trial or the proceedings, then the Postal or telegraph authority has to adhere to the directions given by the court and deliver the document as per the instructions. The Court may allow the postal or telegraph authority to conduct searches for any document, parcel or item because of which the order of the Court is pending.
Section 93 prescribes when a search warrant can be issued. First of all, if the Court believes that the person to whom the summon or order has been addressed, will not bring the document or the thing which is essential to the proceedings, a warrant can be issued against that person. It can also be issued if the Court does not know the person who may be having the document. The Court may specify the particular place or part till which the inspection will extend and the person in charge of the inspection will follow the order of the Court as given and not extend the limit of inspection. Only the District Magistrate or Chief Judicial Magistrate can grant the search of a document which is in the custody of postal or telegraph authority.
Section 94 deals with the search carried out at places that are suspected to contain properties that might be stolen or might also hold the forged documents. After the inquiry or the information, if a District Magistrate, Sub-divisional Magistrate or a Magistrate of first-class is of an opinion that a place would have been used for deposit or sale of stolen property or if it would have been used for the production of objectionable articles as mentioned and prescribed in this section, he may authorize the Police Officer (above the rank of a constable) by warrant to enter such place with assistance if required.
The Police have to search the place in the manner specified in the given warrant, taking the possession of property that could be objectionable or stolen. He has to convey a bout the same to the Magistrate or has to guard the same until the offender is taken to the Magistrate. He may dispose of the objectionable article in some safe place and If he finds any person who may be involved in the deposit, sale, or production of the objectionable article or stolen property, he may take the person in custody and later carry him before the Magistrate.
Coming to the articles/things which are considered as objectionable as per Section 94 –
- counterfeit coins, currency note or stamps,
- forged documents
- false seals
- Pieces of metals prohibited under the Metal Tokens Act,1889 (1 of 1889), or brought in India as prohibited pursuant to Section 11 of Customs Act, 1962 (52 of 1962).
- Objects considered as obscene under Section 292 of IPC (45 of 1860)
- Instruments that may be used for the production of the above objectionable articles.
Section 95 gives the power to the Court to declare some publications forfeited. The Court can issue search warrants for those publications and If the State Government finds that any article, newspaper, document or book may contain some matter which is punishable under the following sections that are 124A, 153A, 153B, 292, 293 or 295A of IPC, it can declare every copy of such material to be forfeited to the Government. The Magistrate can authorize any Police Officer to seize those documents. As per the warrant, the Police may enter and search the suspected document on any premises. The point to note here is, the Police Officer appointed for the search, can not be below the rank of Sub-Inspector. The term “Newspaper” and “Book” have the same meaning as said in the Press and Registration of Books Act, 1867, and the word “Document” includes any drawing, painting, photograph, or other visible presentations.
Example: In the case of Anand Chintamani Dighe v. State of Maharashtra, the State Government seized a notice for the forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto ahe (I am Nathuram Godse speaking) including Gujarati translation for reasons that the publication of the said book will disturb public tranquillity, encourage disharmony or feelings of enmity, hatred or ill-will among different groups or communities.
Section 97 is regarding the search of a person whose confinement amounts to an offence. If any District, Sub-Divisional, or a first-class Magistrate has a reason to believe the same, he may issue a search warrant. The person to whom the search warrant is addressed has to search the confined person and if he finds the confined person, he has to take him immediately before the Magistrate for further proceedings. Section 98 covers the aspects involved for the restoration of an abducted woman including a female child under the age of 18. Section 99 covers the directions for search warrants. The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 are applied to all the search warrants issued.
Forms relating to search warrants and summons
Form number 10 is for the warrant to search after the officer receives a piece of information about the particular offence, once it is filed. Form number 11 is for the search of any particular place which is the suspected place of deposit. Under Form number 30, Special Summons is issued for the person who is accused of committing petty offences. Under form number 33, Summons to witness are executed. These are the forms relating to search warrants and summons.
Persons in charge of a closed place to allow search
If any place has to be searched or inspected is closed, the person residing or in charge of that place has to grant entry to the Officer as mentioned in Section 100 and has to provide him with all the facilities that are appropriate or essential for searching. If the entry or ingress can not be obtained, then the Police Officer can proceed in a manner as specified in Section 47(2).
If any person is suspected of hiding something that the officer is searching for, then the person can be searched in order to find that concealed article. If a woman is hiding or concealing, then the woman can be searched by another woman; But the search conducted has to be with strict regard to decency. As per this section, it is important to call two or more respectable and independent inhabitants of that particular society or locality.
Example: In the case of Roop Chand vs the State of Haryana, the Court reiterated that it is a well-settled law concept that the Investigating Agency should assist independent witnesses when contraband articles are seized while they are available, and their inability to do so in such a situation casts a cloud of doubt on the prosecution case. But if none of them is ready to be a witness to the search conducted or are not available, the Police may issue an order to them in writing to do the same. If any person refuses to be a witness without giving a reasonable cause, such person shall be deemed to have committed an offence under Section 187 of IPC.
The search has to be conducted in the presence of the called inhabitants. A list of all the seized materials with the places has to be signed by witnesses. No witnesses are required to attend the proceedings unless specifically mentioned in the summon. The occupant can be present in every instance of the search.
The Police Officer has to give a copy of seized items to the Occupant; Section 101 deals with the disposal of things that are found in search beyond jurisdiction. If a search warrant is issued by a court beyond its jurisdiction, the things together with the list of the seized items have to be taken immediately to the court. Under Section 103, a magistrate can direct a search to be made in his presence.
Powers of the Police Officer
While it is the Police’s responsibility to maintain law and order in the society; we’ve all heard of incidents where Police crossed their boundaries and violated our rights. So here is a short description of Police powers in India relevant to searches and seizures.
The subsequent legislation confers the power to the Police and the law enforcement agencies. The power of Police Officers to seize certain property is given under Section 102 in The Code Of Criminal Procedure, 1973. Any Police Officer can seize any property that may be known or suspected to have been stolen or found in circumstances that raise suspicion of any crime being committed. This Police Officer has to report the seizure to the senior officer if he is subordinate to that senior officer who is in charge of the police station. Every police officer shall immediately report the seizure to the Magistrate with jurisdiction. Where the confiscated property is such that it can not be conveniently transported to the Court, he may give custody to any person on his execution of a bond undertaking to deliver the property before the Court as and when appropriate and to give effect to the Court’s further orders as to the disposition of the property.
Police may perform a search without a warrant in your house or office if they suspect you have hidden items that are deemed illegal like narcotics, etc. As for a shared house, if you are not present, the police will search for shared areas without a warrant but not for your private things. Police may also search a towed or confiscated car without permission.
Landmark Judgments
In the case of V. S. Kuttan Pillai v. Ramakrishnan, the procedural validity of search warrants was upheld, in which it was held that a search for the premises occupied by the accused did not in any way force him to provide evidence against himself and was thus not in violation of Article 20(3) of the Indian Constitution.
In the case of Ramesh vs Laxmi Bai, It was held that a son in his father’s custody should not be held or considered as unlawful detention, and, accordingly, no search warrant could be issued for the same.
In the case of Matajog Dobey vs. H.C. Bhari, the court stated that in cases where statutory provisions have not been complied with, the credibility of evidence in support of the search may be diminished and the evidence provided may be disbelieved unless the defendant gives sufficient reasons for any non-compliance with the provisions.
In the case of the State of Maharashtra vs. Tapas D. Neogy, it was upheld that ‘bank account’ is to be ascertained as property under section 102 of the code and the police officer is empowered to seize the operation of such bank account in the event that these properties are specifically related to the commission of the offence for which the investigation is conducted.
In the case of the State of MP vs. Paltan Mallah, it was held that the evidence obtained under illegal search is not completely ruled out unless it has caused the accused serious prejudice. The Courts have always been given the discretion to decide whether or not to accept such evidence.
In the case of Modan Singh vs. State of Rajasthan, it was held that if the evidence of the prosecuting officer retrieving the missing items is compelling, it is not appropriate to deny the proof of recovery on the basis that seizure witnesses do not accept the version of the prosecution.
Conclusion
The authority to search and seizure is an essential power for the betterment of society; Search and Seizure is an extremely subjective mechanism by nature, and specific procedural limitations have been placed on the exercise of power. The officers empowered to perform a search and seizure have specific powers and reporting to a senior official responsibly is required at each level so that no officer acts in an arbitrary manner.
The authority to search and seize must be specifically prescribed in the law and the officer in question must act in compliance with the specified rules and procedure laid down. Police officers are provided with the authority to conduct inquiries, arrest people, conduct searches, conduct seizures of persons and their property and even use appropriate force in the line of duty; Yet this power must be exerted within the limits of the law, and when officers exceed those limits they jeopardize the admissibility of any information gathered for prosecution.
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