The Code of Criminal Procedure (CrPC ) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. At present, the Act contains 484 Sections, 2 Schedules, and 56 Forms. The Sections are divided into 37 Chapters. In this article chapter 7 and other provisions of the code relating to the concept of “police search under investigation” are mainly focused on.
Documents and other material objects relevant to any investigation, inquiry, or trial should be available to the agencies conducting such proceedings. If any person in possession or control of any such relevant documents or things does not cooperate with these agencies and fails to produce the things required, the law will have to devise coercive methods for obtaining these material objects for proper investigation, inquiry, or trial.
The Code, therefore, provides initially for a summons to produce any documents or things; but if this method fails or is apprehended to fail, the court can issue orders to the police for the search and seizure of such documents or things. The Code also empowers the court to issue a warrant for a general search of any place for any inquiry or trial or to issue warrants for the search of places suspected to contain stolen property, counterfeit coins or currency notes Gr stamps, obscene objects, and such other objectionable materials. A coercive search of any place is an encroachment upon the rights of the occupant of the place. But even in a free society like ours, such encroachments will have to be tolerated in the larger interests of the society. The provisions in the Code strive to strike a balance between the interests of the individual and of the society by providing certain safeguards in favor of the individual.
It has been observed, “An Indian citizen’s house, it must always be remembered, is his castle, because next to his freedom comes the freedom of his home, just as a citizen cannot be deprived of his liberty except under the authority of law, similarly, no officer of the State has a prerogative right to forcibly enter a citizen’s house except under the authority of law.” While thus the Code incorporates various provisions enabling the investigating authorities to procure evidence in respect of crimes committed in India subject to the restrictions aforesaid.
The author in this article will endeavor to explain this concept of the Code i.e., police search during the investigation.
POLICE SEARCH DURING INVESTIGATION
Sections 91 -100 contained in Chapter VII of the Code of Criminal Procedure, 1973 deals with the provisions recounting to the summons to produce documents or other things, search-warrant provisions, and other laws associated with search and seizure. The provisions of this chapter concern with summons and warrants, their issue, how they are served and executed. To have a better clarification of the concept of Police search during the investigation, the meaning and provisions related to the search and summons are described as follows.
Firstly, A summon is a direction from a Court to an individual, to appear at a given time and place before it. A summon can be issued in both criminal and civil cases. A warrant is a legal document that is declared by a judge or magistrate authorizing a police officer to make an arrest, search, seize property or take action correlating to the administration of the justice system.
The word ‘search’ relates to the operation of government machinery that includes checking through or carefully scrutinizing a location, area, person, object, etc. to recognize something hidden or to reveal the pieces of evidence of a crime. The police can scout for an individual or a car or premises, but only after obtaining necessary and legitimate lawful approval. “Seizure” is a vigorous action that suddenly takes over, captures, extracts, or overwhelms an entity or an individual. Besides, below some of the related sections of Crpc to the search are elaborated.
- SECTION 91
Section 91 provides that the Court may issue a summon or the officer in charge may give a written order asserting that the person has to produce the document or anything which is considered to have importance to carry out investigation, inquiry, or proceedings. The person who owns that particular document or thing has to comply with the application and produce it at the time and the place, that is prescribed in the summon or order.
- SECTION 92
Section 92 asserts that if the law enforcement agencies including the District Magistrate and the High Court believe 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 approve the postal or telegraph authority to conduct searches for any document, parcel, or item due to which the order of the Court is pending.
- SECTION 93
Section 93 sights at when a search warrant can be issued. First of all, if the Court assumes that the person to whom the summon or order has been addressed, will not produce the document or the thing which is essential to the proceedings, a warrant can be issued upon that person. It can also be issued if the Court does not apprehend the person who may be possessing the document. The Court may stipulate the particular place or part till which the inspection will stretch 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 confer the search of a document that is in the custody of postal or telegraph authority.
- SECTION 94
Section 94 deals with the search conducted at places that are speculated 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 possession of property that could be objectionable or stolen. He has to convey about 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.
Some of the articles/things are considered as objectionable as per Section 94 –
1. counterfeit coins, currency note or stamps,
2. forged documents
3. false seals
4. Pieces of metals prohibited under the Metal Tokens Act,1889 (1 of 1889), or brought in India as prohibited according to Section 11 of Customs Act, 1962 (52 of 1962).
5. Objects considered as obscene under Section 292 of IPC (45 of 1860)
6. Instruments that may be used for the production of the above objectionable articles.
- SECTION 95
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 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, cannot 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.
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 offense, 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 offenses. Under form number 33, Summons to witness is executed. These are the forms relating to search warrants and summons.
Search and seizure are significant stages in the process of effective investigation. There are two ways by which the police can affect search and seizure. One under a warrant 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. General provisions as to search and seizure are set out in Section 100 of CrPC. The procedure laid down 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 circumstances of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC.
The readers should also know that there are certainly special and local acts such as the Narcotic Drugs and Psychotropic Substances Act, 1985 which provide for separate search and seizure procedures to be followed by the investigating police. 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.
SEARCH AND SEIZURE AT THE SCENE OF CRIME
As soon as the investigating police officer arrives at the scene of the crime, he should, as a golden rule, never alter the position of the scene of the crime, pick up, even touch any object before it has been minutely described in an official note, and a photograph was taken of it. He should contact the man who reached the scene first and make inquiries. He should ensure that the scene of the crime is not interfered with. He should not allow any unauthorized person to meddle in the inspection of 17 the scene. He should avoid crowding at the spot and all thoughtless interference, as they always destroy clues. He should never leave the inspection of the scene to his subordinates especially those who are untrained. He should never take anything to be trivial but make his inspection thorough and minute; and search methodically, patiently, and in a definite order. He should summon some local and independent witnesses to assist him to draw panchanama as required under Section 100 of CrPC. The investigating police officer affecting the search should take down accurate and detailed notes, supported by accurate sketches drawn to scale, showing the whole layout and the exact places where the articles, etc., were found.
An article is in a certain room or on a particular table. Its exact position must be noted and, if necessary, an enlarged sketch of that portion of the scene must be drawn by a qualified draftsman. In all important cases, photographs and videography should be taken of the scene and of the objects on which any useful clues are found. Sketches are useful in criminal investigation and prosecution as they reduce the length of case diaries and make a much more exact impression on the mind than written reports. They make a lucid explanation of an intricate case fairly easy.
They introduce methods into investigation and help judges, magistrates, and others to an accurate understanding of the case. They also enrich the powers of observation of investigating police officers. The sketches should be prepared to scale indicating the compass point and mentioning the distance correctly. Invariably he should use a ruler, scale, and compass for measurements at the scene of a crime. He should use the expressions such as ‘on the right’ and ‘on the left;’ North, South, East, and West for directions and distance measurement ‘inch’, ‘feet’, ‘meter’ etc.
SEARCH AND SEIZURE AT DIFFERENT PLACES UNDER SECTIONS 165 AND 166 READ WITH SECTION 100 CRPC
Section 165 CrPC is enacted as an exception to this general law of searches because it is recognized that in certain exceptional emergencies it is necessary to empower responsible police officers to carry out searches without first applying to the courts for authority. The legislature has, however, attempted to restrict and limit the powers of the police under the section and provided the concerned citizens with safeguards to prevent the abuse of the powers. As set out in Section 165 CrPC an officer-in-charge of a police station or an investigating officer, having reasonable grounds for believing that anything necessary for investigation of any offense which he is authorized to investigate may be found in any place within the limits of the police station of which he is in charge or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, may search the place.
Before searching, the investigating police officer must record the grounds of his belief; specify therein the thing for which the search is made. This is known as a “record of reasons.” If the investigating police officer is unable to search for a person, he may require any officer subordinate to him to search, after recording in writing his reasons for so doing. The subordinate police officer so deputed should be given an order in writing specifying the place where and the thing for which the search is to be made. Copies of records made above should be sent to the nearest Magistrate empowered to take cognizance of the offense.
When a search has to be conducted in the jurisdiction of another station, whether in the same or a different district, an officer-in-charge of a police station making an investigation may require under sub-section (1) of Section 166 CrPC, the officer- in charge of the former station to make a search or cause search to be made. But, where there is reason to believe that the delay occasioned by such a procedure might result in evidence being concealed or destroyed, the investigating police officer may, under sub-section (3) of Section 166 of CrPC, search himself or cause the search to be made, in which case, he shall forthwith send a notice of the search together with a copy of the list prepared under Section 100 CrPC to the officer- incharge of the police station, within the limits of which the place searched is situated and to the nearest Magistrate empowered to take cognizance of the offense. 19 Under section 166 A of CrPC the investigating police officer is empowered to write a letter to the competent authority for investigation in a country or place outside India.
PROCEDURES TO BE FOLLOWED DURING SEARCH AND SEIZURE U/S 100 OF CRPC
The investigating police officer while searching has to bear in mind the following procedures and follow them accordingly. Any deviations or violations of the procedures laid down under the Section 100 of CrPC will adversely affect the prosecution case and vitiate the trial as well. The procedures in the simplified form are as follows:
1. The free ingress and reasonable facilities are to be made both for search under a warrant as well as for a search without a warrant.
2. The police officer or other searching is empowered to enter the place and to affect an entrance into such a place can break open any outer or inner door or window of any house or place if, after notification of his authority and purpose, and demand of admittance duly made, he could not otherwise obtain admittance. Section 47(2) provides a safeguard in favor of a pardanashin woman and the same would apply in case of a search also. Further, it has been held that if in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with common sense and does not seem contrary to any principle of law.
3. To obviate the chance of any person stealthily taking away on his person any article or thing for which the search of a place is to be made, sub-section (3) of Section 100 provides 20 for the search of such a person. The provision is necessary to prevent the object of the search getting frustrated. If the person to be searched is a woman, then, to protect her modesty it has been provided that the search shall be made by another woman with strict regard to decency.
4. The search is to be made in the presence of at least two independent and respectable inhabitants of the locality in which the place to be searched is situated. However, if no such inhabitant of the said locality is available or willing to be a witness to the search, the search can be made in the presence of persons of another locality. What is more important to be emphasized is the respectability of the witness rather than his locality or independence. The object of the provision is to guard against possible chicanery and unfair dealings on the part of the persons authorized to search and ensure that anything incriminating which may be said to have been found in the premises searched was found there and was not introduced by the members of the search-party. The presence of witnesses at a search is always desirable and their absence will weaken and may sometimes destroy the admissibility of the evidence as to the finding of the articles. Sub-section (4) of Section 100 also lays down that the officer or other person searching is to call the above-said persons [panch witnesses] to attend and witness the search and they make for this purpose issue a written order to them. If a person so ordered to be a witness neglects or refuses without reasonable cause to attend and witness a search, then according to sub-section (8) of Section 100 he shall be deemed to have committed an offense under Section 187 IPC.
5. As far as possible a search has to be conducted in daylight. If information is received after dusk necessitating the immediate search of a house and if it is apprehended that delay till daybreak might result in evidence being concealed or destroyed, the house should be sealed and guarded and if that is not possible, search should be conducted during the night itself.
6. Before entering the premises to be searched, the exterior of the place shall be inspected to see whether facilities for introducing property from outside exist.
7. Before commencing the search the investigating and the panch witnesses should ensure that mutual search of each other is done.
8. Search and seizure must be systematic and thorough.
9. Women should be allowed to withdraw while affecting search and seizure.
10. Indiscriminate search and damage to property should be avoided.
11. The occupant of the place of search, or his nominee, shall in every case be permitted to attend during the search. Denial of such permission may cause suspicion as to the reliability of the discoveries made out. However, where the securing of the presence of the occupier or his nominee might cause such delay as to frustrate the purpose of the search, it may be permissible to dispense with his presence.
12. List of all things seized in the course of the search and of the places in which they are respectively found shall be prepared by the police officer or other person searching and shall be signed by the panch witnesses. The signature of the accused on the search is not required under the law.
13. A search list shall be prepared in quadruplicate; all the copies being signed by the police officer making the search and the witnesses to the search. One copy will be handed over to the owner or occupant of the house, the second copy should be sent to the Magistrate and the third copy should be sent with the case diary to the superior officer to whom case diaries are sent. The fourth copy will form the station record.
POWERS OF THE POLICE OFFICER
While it is the Police’s obligation to maintain law and order in society; we’ve all listened to incidents where the Police traversed their boundaries and violated our rights. So here is a short explanation of Police powers in India applicable to searches and seizures.
The subsequent legislation grants power to the Police and the law enforcement agencies. The power of Police Officers to seize specific property is given under Section 102 in The Code Of Criminal Procedure, 1973. Any Police Officer can capture any property that may be known or suspected to have been stolen or found in events that inflate suspicion of any crime being committed. This Police Officer has to proclaim the seizure to the senior officer if he is subordinate to the senior officer who is the In -charge of the police station. Every police officer shall immediately notify the seizure to the Magistrate with jurisdiction. Where the seized property is such that it can not be conveniently brought 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 search without a warrant in a house or office if they suspect some items are hidden that are considered illegal like narcotics, etc. Police may likewise search a towed or confiscated car without prior permission.
The authority to search and seizure is a fundamental power for the betterment of society; Search and Seizure is a remarkably subjective mechanism by nature, and specific procedural limitations have been located on the exercise of power. The officers authorized to perform a search and seizure have specific powers and reporting to a senior official responsibly is demanded at each level so that no officer acts arbitrarily.
The authority to search and seize must be explicitly prescribed in the law and the officer in question must act in compliance with the specified rules and procedure placed down. Police officers are rendered with the authority to regulate inquiries, arrest people, conduct searches, conduct seizures of persons and their property, and even use suitable force in the line of duty; Yet this power must be exercised within the limits of the law, and when officers surpass those limits, they jeopardize the admissibility of any information assembled for prosecution.
1. Ratanlal & Dhirajlal: Code of Criminal Procedure (PB), 23rd ed / The Code of Criminal Procedure, 1973
2. R.V Kelkar’s Criminal Procedure, 6th Edition