This Article is written by Shruti Singh, 2nd-year Law intern from Hidayatullah National Law University, Raipur pursuing B.A.LLB (Hons.) Course. This article covers the provisions dealing with search, seizure and production of materials.
If human rights are not embodied in the constitution and the law, or even if guarantees are not respected, no citizen would be safe, against tyranny and authoritarianism of the governmental actions. The principles of criminal justice also envisage the safeguards to person and personal liberty. Before the commencement of the Indian Constitution the administration of criminal justice was fully governed by the provisions of the Criminal Procedure Code,1973 and the Evidence Act, 1872. These are mainly concerned with the security of the state and public peace and not with individual liberty.
A police officer or any other authorised person carrying out a procedure such as search or seizure is supposed to know the rules and acts relating to it to work effectively and efficiently. These functions requires specialized knowledge of skill and procedure. Sometimes the officer might make mistakes while applying the rules and acts relating to search, seizure and production of materials which becomes fatal for the department’s case when it comes to judicial scrutiny.
Object of the topic
The objective of this topic is to cover all sections concerning search, seizure and production of materials. It highlights the various provisions which deals with evidence and its application under CrPC. It also discusses about the circumstances under which search warrant can be issued, its analysis, seizure and power to impound. It largely extends to comprehending the sections under the Criminal Code which provide for the procedures that are important to be complied with to make it legal. These are just the general provisions related to search and seizure, which needs to be necessarily followed in addition to specific orders or Acts provided.
Procurement of evidence from and for foreign investigating agencies
The term “Evidence” has been defined in Section 3 of the Indian Evidence Act, 1872 which includes in itself all the instruments by which relevant facts can be brought before the Court. Section 2 (h) CrPC has defined investigation as “Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf” This involves all the proceedings for the collection of evidence by the police officers.
Section 166 A of CrPC provides that if in the course of investigation, the application made by the investigating officers of any superior rank on any evidence may be available in a place outside India, so in that case, any Criminal Court may issue a letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or authenticated copies thereof or the thing so collected to the Court issuing such letter. It also says that the letter of request shall be transmitted as the Central Government may specify. The evidence includes every document or thing collected under sub-section (1).
Order or summons to produce a document or other things
Section 91 of CrPC provides for when can the summons/orders be issued to produce documents or other things. A court issues a summons and an officer in charge of a police station issues a written order. It is issued whenever any court or an officer in charge of a police station considers that the production of any document or other thing is essential or desirable for the purposes of investigation inquiry, trial or other proceedings under this code, such court or officer may issue a summons or order to the person in whose possession or power such document or thing is believed to be in possession. It requires him to attend and produce it at such time and place as stated in the summons or orders. Sub-section (2) of Section 91 provides that the person who is required to produce a document or thing under this section shall be deemed to have complied with all the requirements if he causes such things to be produced instead of physically attending it personally to produce the same. Sub-section (3) states that this section will not affect Section 123 (Evidence as to the affairs of state) and Section 124 (official communications) of the Indian Evidence Act, 1872 or the Bankers’ Books Evidence Act, 1891. It specifically does not apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. A person who appears in court, in regards to a summons under this section, does not become a witness and cannot be examined thereafter. This can be referred from the case Parmeshwari Devi vs. State and Anr(1976).
As per the law dictionary and as observed in different judicial decisions, the term ‘search’, in the simplest language, denotes an action of a government machinery to go, look through or examine carefully a place, area, person, object etc. in order to find anything concealed or for the purpose of discovering evidence of a crime. The search of a person or vehicle or premises etc., can only be carried out under proper and valid authority of law. It is also well established that search should have a nexus with the crime, it cannot be a random search.
A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police officer or any other person authorizing them to conduct a search of a person, location or vehicle for evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes Ltd. v. D. Suri and in many other cases has cautioned the police officer to use search warrant with a little precaution and care and do not abuse their power.
Section 165 of CrPC provides for the circumstances and the way in which search is carried out by a Police Officer. A police officer while making an investigation should have reasonable grounds for believing that something very necessary for the purpose of investigation into an offense which he is authorized to investigate may be found in any place within the local limits of the police station in which he is in charge. He is also required to make a record in writing specifying his grounds of belief and why the search was conducted within the limits of such station.
When the search warrant is issued?
In the following circumstances and conditions a search warrant is issued by a court:
- Where a court has reason to believe that a person to whom summons or orders under Section 91 and a requisition under Section 92(1) is addressed will not produce the things or documents as required.[Section 93(1)(a)]
- Where the thing or document in question is not known to the court to be in the possession of any person. [Section 93(1)(b)]
- Where the court considers that the purposes of any inquiry,trial or other proceedings will be served by general search or inspection.
In the following circumstances and conditions search warrant is issued by the Magistrate:
- If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class gets any information and after inquiry of the same, thinks it necessary or has reason to believe that a place is being used for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article or any such objectionable article which is deposited in any place, he may authorize any police officer by way of a search warrant to enter, search or take in possession any property to which this section applies.(Section 94)
- When any newspaper, book or document, wherever printed, contains any matter, the publication of which is punishable under section 124-A, 153-A, 153-B, 292, 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited to the government. After such action, any Magistrate may, by a warrant, authorize any police officer not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises where there is a sufficient reason for suspicion. (Section 95)
- If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has sufficient reason to believe that he can issue a search warrant to a person against a person who is kept under confinement for an offense, then he can direct the person to whom he issued a search warrant to search for the person so confined. Such a search will be made in accordance therewith, and if found, the person shall be immediately taken before a Magistrate who will make such order as appears to be proper. (Section 97).
- Power to compel restoration of abducted females – A Magistrate may upon a complaint made on oath of the abduction or unlawful detention of a woman, or of a female child under 18 years of age, for any unlawful purpose, make an order for the instant restoration of such woman to her liberty. It is also issued to such female child to her husband, parent, guardian, or other person having lawful charge of such child and can compel compliance with such order necessary by using sufficient force (Section 98).
Search of a place suspected
Section 94 of CrPC provides for the search of a place that is suspected to contain stolen property, forged documents etc. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of first-class may issue warrant to a police officer above the rank of a constable authorizing him to enter, search, take possession of any property, convey any article or to take into custody upon information and inquiry as the Magistrate thinks necessary or has reason to believe that any place is used for deposit or sale of stolen property, or for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article to which this section applies. The objectionable articles as mentioned in this subsection (2) are counterfeit coin, pieces of metal made in contravention of Metal Tokens Act,1889, counterfeit currency or stamps, forged documents, false seals, obscene seals or objects referred to in Section 292 of IPC, 1860 and instruments or materials used for the production of any of the article mentioned above.
Search for persons wrongfully confined
There is a provision under Section 97 of the Code of Criminal Procedure, 1973 which provides for direction in case of search of persons wrongfully confined. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of first-class has enough reason to believe that a person who is confined under such circumstances that the confinement amounts to an offense, he may issue a search warrant, and the person to whom such a search warrant is issued may be directed to search the person so confined. And such search shall be made in accordance therewith, and the person on being found shall be instantly taken before a Magistrate and he shall make such order as in the circumstances of the case seems proper.
Power to compel restoration of abducted females
Section 98 states that where a woman or a female child under 18 years of age has been abducted or unlawfully detained for an unlawful purpose, the Magistrate may restore the woman to her liberty or the female child to her proper custody. A sufficient amount of force is allowed for compliance with this section.
Power to declare a publication forfeited
The power to declare certain publications forfeited and to issue search warrants for the same is mentioned under Section 95. It provides that where any newspaper, book or any document wherever printed contains any matter, the publication of which is punishable under section 124-A, 153-A, 153-B, 292, 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited to the government. After such action, any Magistrate may, by a warrant, authorize any police officer not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises where there is a sufficient reason for suspicion. The meaning of the newspaper, book, and document is contained in its explanation clause.
Constitutional validity of search warrants
The entire procedure specified in the Code of criminal procedure, 1973 is based on the principle of justice and fairness. One of the basic principles of legal jurisprudence is that a person accused of any offence should be given an equal chance to be heard and to defend himself. It is compatible with this theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to the issue of process, provisions in section 161(3), provision in section 162 of the code that any statement recorded during the course of investigation, shall not be signed by the person making the statement, has been specified.
Similarly, upholding a similar proposition, the protection against self-incrimination has been provided as a special fundamental right, under Part III [Under Article 20(3)] of the Constitution of India. It provides that no person who is accused of an offence can be compelled to be a witness against himself.
In several cases, the constitutional validity of search warrant has been questioned. For instance, in the case of V. S. Kuttan Pillai v. Ramakrishnan, wherein it was opined by the court that a search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India.
Search of a place without warrant
Section 165 prescribes procedure undertaken by a police officer to search a place without a warrant. It states that whenever an officer in charge of a police station or any police officer making an investigation has reasonable grounds to believe that in the process of investigation, there are some things necessary for an offence, which he is authorised to investigate within the local limits of his police station without unnecessary delay, can search even without a search warrant. He is also required to specify the reason for such a search, cause of search, etc. Section 165(3) provides that where a police officer is unable to conduct the search in person, and there is no other person competent to carry out the search at the time, then he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search. The senior authorizing for the same has to give the subordinate officer an order in writing, specifying the place of search, the reason for which the search is made and subsequent to this the subordinate may thereupon search for such thing in such place. The copies made by the police officer undertaking search shall be sent to the nearest Magistrate empowered to take cognizance of the offense. On the application of the owner or occupier of the place searched shall be furnished, free of cost with a copy of the same by the Magistrate.
Search by a police officer during the investigation
The procedure adopted by a police officer during the search in an investigation is provided in Section 165. Section 165(1) provides that whenever an officer in charge of a police station or a police officer making an investigation in a particular matter has reasonable grounds for believing that anything necessary for the investigation into any offense on which he is authorized to investigate may be found in any place within his local limits and that thing according to him be otherwise obtained without unnecessary delay. Such officer may record the grounds of his belief in writing and prescribing in such writing the thing for which the search is made, or cause a search to be made with the local limits of his station. Section 165(2) authorize the police officer to conduct the search in person. Section 165(3) states that if he is unable to conduct the search in person, he may after recording in writing the reason for so doing authorize a person subordinate to him to conduct search. Section 165(4) says that all the general conditions regarding the search warrant will be applied to this section as contained in Section 100. Section 165(5) provides that copies of the record made in sub-section (1) and (2) should be sent to the Magistrate who is empowered to take cognizance of the offence. The owner or occupier of the premises can also, on the application, be provided with a copy of the same that is present with the Magistrate, without any cost.
Search In the presence of magistrates
Section 103 of CrPC states that the Magistrate may direct search in his presence. It provides that any magistrate may order a search to be made in his presence of any place in which he is legally competent to issue a search warrant.
Search in the limits of another police station
Section 166 provides the conditions under which the search is conducted in the limits of another police station. Sub-section(1) states that an officer in charge of a police station or a police officer not below the rank of sub-inspector making an investigation may if he requires an officer of another police station whether in the same or different district to cause a search to be made in any place within the limits of the former officer’s jurisdiction. Sub-section(2) the officer shall now carry out the search according to the provisions of Section 165 and forward the thing found on such search to the police officer at whose request the search is made. Sub-section (3) permits an investigating officer who belongs to one police station to search any place that belongs to the limits of another’s police station in certain emergency situations. The one that has been expressly mentioned is when there is a possibility of delay in requisitioning the services of police personnel of another police station and if such delay can destroy the very purpose of the search. Sub-section (4) says that the officer in charge of conducting the search has to send a notice of search to the officer within whose local jurisdiction such place is situated and shall also send a copy of the notice to the nearest Magistrate. Sub-section (5) says that on the application of the owner of the premises of the place searched, he shall be provided a free copy of the said notice that was sent to the Magistrate.
Search for false weights and measures
Section 153 provides for the inspection of weights and measures. This section authorizes a police officer in charge of a police station to enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept there without a warrant. The police officer must have a valid reason to believe that there are presence of false weights, measures or instruments in that place. It also provides that if he finds such weights, measures or instruments to be false, he has the option of seizing them or give information of such seizure to the Magistrate within the jurisdiction.
Analysis of the general provision of search
Section 99, Section 100 and Section 101 contains the general provisions which are necessary while carrying out the process of search. Section 100 primarily provides for the provision relating to searches. This section provides the right of free ingress in the case of closed premises on demand and on the production of the search warrant by the police officer. It also ensures that searches are conducted fairly and squarely.
Sub-section (1) provides that whenever any place which is liable to search of inspection is closed, any person who is residing in, or being in charge of on-demand of the officer or other person executing the warrant may allow him to free ingress(enter upon) into and afford all reasonable facilities for a search therein.
Sub-section (2) provides that if ingress to such place can’t be obtained, then the officer may proceed in the manner provided in Section 47(2) which provides for breaking a door or window.
Sub-section (3) provides that where a person is suspected of concealing about his person any article for which the search should be made can be searched. Where the search is made of a female then it will be carried out by another female with strict regard to decency.
Sub-section (4) mandates that the police officer is required to call two or more independent and respectable inhabitants of the locality in which the place to be searched is situated. If he cannot find any such person or no such inhabitant of the locality is available then a person from the other locality available or is willing can also be called upon to be a witness to such search.
Sub-section (5) requires a police officer to keep a record in writing the things seized on the search and of the places in which they are respectively found, in the presence of the witnesses. The witnesses who are present at the time of search under this section are not required to attend the court as a witness of the search unless specially summoned by it.
Sub-section (6) states that the occupier whose place is searched or any other person on his behalf has every right to attend the search and also be delivered a copy of the list prepared during the search which is duly signed by the witnesses.
Sub-section (7) provides that the person who is searched under sub-section (3) shall be entitled to get the copy that contains the list of all things taken in possession of at the time of the search.
Sub-section (8) states that a person who without reasonable cause refuses or neglects to attend and witness a search when called upon to do so by an order in writing delivered or tendered to him shall be deemed to have committed an offence under Section 187 of the Indian Penal Code.
Section 101 prescribes for disposal of things found in search beyond the jurisdiction of the court. When in the execution of a search warrant at any place beyond the jurisdiction of the court which issued the warrant, the things found in such search shall immediately be taken before the court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction than to such court, in which case the list and things and shall be taken to the Magistrate unless there is a good cause to the contrary, such Magistrate shall make an order authorizing them to be taken to such court.
Consequences of non-compliance with the provisions relating to searches
There are different sections in the Code which prescribes for the effects when the provisions relating to searches are not complied with.
Section 460 of CrPC prescribes that if a search warrant is issued under Section 94 by a Magistrate who is not empowered by law to issue such warrant will not vitiate(destroy or impair) the proceedings. A search warrant for the search of a place that is suspected to contain stolen property, forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just because the Magistrate was not empowered to issue such a warrant.
Section 461 also provides for irregularities which can vitiate the proceedings. It says that under Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.
A Magistrate, not empowered by law, issues a search warrant in case of wrongful confinement under Section 97, then the warrant will become illegal and any entry into such place subsequent to such illegal warrant shall be considered to be without legal authority.
Magistrates not empowered to issue a search warrant
Section 460 states the circumstances in which a search warrant is not vitiated even when it is issued by a Magistrate who has no authority to do so. A search warrant for the search of a place that is suspected to contain stolen property, forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just because the Magistrate was not empowered to issue such a warrant.
Section 461 of CrPC clearly provides for conditions in which a search warrant will be illegal when a Magistrate who is not empowered issues a warrant. It says that under Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.
It has been comprehended from various sections like Section 153, 165 and 166, that a place can be searched by a police officer of a certain rank or any other person authorized by law without a warrant. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful. Even a search by a police officer outside the limits of his police station and in the situations where he is not authorized to do so would be without legal authority and illegal. [Section 166(3)]. Section 165 of the CrPC provides for an exception to this, which states that where there is reasonable ground for if the search is not conducted immediately, then the valuable evidence and facts will be destroyed then in such cases, he may straight away search, after sending advance intimation to the court. It has been comprehended from various sections like Section 153, 165 and 166, that a place can be searched by a police officer of a certain rank or any other person authorized by law without a warrant. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful. Even a search by a police officer outside the limits of his police station and in the situations where he is not authorized to do so would be without legal authority and illegal [Section 166(3)]. Section 165 of the CrPC provides for an exception to this, which states that where there is reasonable ground for if the search is not conducted immediately, then the valuable evidence and facts will be destroyed then in such cases, he may straight away conduct the search, after sending advance intimation to the court.
Effect of contravention of the search procedure
Section 100 of CrPC provides general procedures that need to be necessarily followed at the time of the search. Besides this, Section 165 and Section 166 also provides for additional procedures to be followed, when the search is made by a police officer without a warrant. Contravention of these articles would make the search illegal or irregular. Whether the contravention would vitiate the proceedings or not is provided in Section 460 and Section 461, discussed above.
Search with the consent of the occupant
If the entry into the place of search is with the consent of the occupant of such place, then the search and recovery will not be affected on the ground that the search procedure mentioned under Section 100 and Section 165 was not followed. In addition to this, where it is proved that the articles were produced by the accused himself, Section 165 of CrPC does not apply.
The act of seizing is well known as a seizure. It is an action coupled with force in which an object or person is suddenly taken over, grabbed, removed, or overwhelmed.
Search and seizure is also an essential stage in the process of effective investigation. There are two methods in which police can affect search and seizure. One under a warrant which is issued under any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any of the provisions of Sections 103, 165 and 166 of CrPC.the basic provisions as to search and seizure are laid down in Section 100 of CrPC. The procedure set out in the section is generally followed in offenses committed under the Indian Penal Code as well as in special and local laws with a little variance. Thus, in all situations of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102 provides the power of police officers to seize certain property.
The police may have to effect search and seizure in one or more places. One at the scene of the crime and the other at places where the persons involved in crime are hiding and places where the incriminating articles to crime are kept or concealed.
As soon as a crime is committed at a place, the police officer arrives at the scene of the crime and as a golden rule he should not alter with the position of the crime scene, pick up or even touch anything without being properly described in an official note and photographed.
It is his duty to ensure that there is no interference with the crime scene. He shall also not allow an unauthorized person to meddle in the inspection of the scene. He has to make sure that there is not much crowd at the place of the scene as there may be a possibility of distortion of evidence or clues. He should inquire about the person who came first to the place. He should not leave the process of investigation solely on his subordinates, especially those who are untrained. These are some of the precautions that a police officer has to take care of while carrying out the process of search and investigation. Like the above procedures, many are established in the Code of Criminal Procedure which is discussed later in this article.
For the purpose of any investigation, inquiry or trial, the production of things and documents is necessary, in respect of which search and seizure of property are affected. It is a general rule that the freedom and liberty of private citizens should not be sacrificed unless it becomes necessary in the larger interests of the section of the society for the purpose of investigation, inquiry and trial.
Usually, an “Investigation” is conducted by a police officer or by any other authorized person (other than a magistrate). It includes all the proceedings under the criminal procedure code for the collection of evidence. “Inquiry” means an act asking for information conducted by a Magistrate or a court and it does not include trial. “Trial” is not defined anywhere in the Code. Basically, it means that the judicial process where the question of guilt or innocence of the person accused of any offense is determined.
During investigation, inquiry or trial, adequate care has to be taken to provide protection against possible abuse of powers by the people on the society in general. The main processes for the production of things and documents are as follows:
- summons that is issued by a court;
- A written order issued by a police officer in charge of a police station; and
- Search and seizure with or without a warrant.
The procedure to be followed at the time of seizure is the same that is to be followed in case of a search under Section 100 of CrPC. Section 102 authorises a police officer to seize certain property. Sub-section (1) empowers a police officer to seize any property which is alleged or suspected to have been stolen or which is found in such circumstances that it may create suspicion of commission of an offence. Sub-section (2) states that a subordinate, who works under a police officer in charge of a police station, shall report the seizure to that officer. Sub-section (3) provides that every police officer exercising his duty under sub-section (1) is required to report the seizure to the nearest Magistrate falling within his jurisdiction and in case the property seized is such that it cannot be taken to the court, he may give custody of that property to any person after executing a bond undertaking to produce the property before the court as and when is required so as to give effect to the further orders of the court regarding its disposal.
Power to impound
The meaning of the word impound is to seize and take legal custody of (something, especially a vehicle, goods, or documents) because of an infringement of law.
Section 104 empowers the courts to impound any document or thing produced before it under the code, if it may think it to be fit.
Disposal of things found in search beyond the jurisdiction
Section 101 of CrPC provides for the disposal of things found in search beyond jurisdiction. It states that when some things are found by the court which is outside the local jurisdiction, but which is authorized to search shall be immediately taken before the court issuing the warrant unless such place is nearer to the Magistrate having jurisdiction therein than to such court, in which case the list and things shall be immediately taken before such Magistrate and unless there is a good cause to the contrary, such magistrate shall make an order authorizing them to be taken to court.
The Code of Criminal Procedure lays down the general rules that need to be followed in case of search, seizure and production of materials. Apart from these provisions, there are specific Acts and laws in case of search in special circumstances like CBI(Central Bureau Of Investigation) carries out its search according to the provisions laid down for its officers in the CBI manual. The police officer and the Magistrate need to be careful while carrying out search and seizure of persons or property. The search should be according to the laws if it is not then the search may be unlawful which can result in the release of a searched person or seized property. But there may arise many problems in regard to these procedures also as the reality is far more real as laid down in books. The system of India is quite corrupted which also results in a faulty investigation on the part of the police. The faulty police investigation system also includes medico-legal officers with little significance, according to legal and security experts. Medico-legal officers are essential to the judicial system as their findings or reports are the basis for investigations into criminal cases, but they work in total reliance on the police instead of conducting their official duty with independence and free of external pressures.
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