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.