PROJECT ONSEARCH AND SEIZURE PROCEEDINGS UNDER CrPC __________________________________________________ SUBMITTED TO Mr. Mohd. Atif Khan Faculty, Criminal Procedure Code SUBMITTED BY Mukesh Choudhary Roll Number 73 Semester VII, Batch XII _______________________________________________________ (1) TABLE OF CONTENTS Acknowledgements Research methodology Objectives Literature Review Table of Cases CHAPTER I Search & Seizure Proceedings: An Introduction CHAPTER II Search proceedings under CrPC CHAPTER III Seizure proceedings under CrPC References (iii) (iv) (iv) (iv) (v) Page 1 Page 2 Page 16 Page 18 ACKNOWLEDGMENTS (2) Mr. Sir. thank you for giving me an opportunity which helped me to develop my knowledge in this interesting subject as well as to grasp a better approach in dealing with this important branch of Law. Mohd. My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of our library and IT Lab that was a source of great help for the completion of this project. Atif Khan for putting his trust in me and giving me a project topic such as this and for having the faith in me to deliver. I would like to express my heartfelt gratitude and thank my teacher. (3) . Secondary and Electronic resources have been largely used to gather information and data about the topic.VII.At the outset. Batch XII RESEARCH METHODOLOGY This research is descriptive and analytical in nature. 73 Semester. Mukesh Choudhary Roll no. in his written book on Criminal procedure noted generally the techniques of criminal investigation. even among specialists. Amir Ratna Shrestha (1992). energy ever on the alert. his services to the public are great and his labours full of interest will be generally admitted. The cardinal principle of criminal justice administration is to be presumed an accused innocent till he is proved guilty. gradually. He is required to prove on involvement in an offence and such proving must be conducted in fair and just manner in according to procedure established by law of that country. This is a general concept of criminal investigation. I shall also discuss and cite the various cases I come across while research for this project.Books and other reference as guided by Faculty of the subject and Library staff has been primarily helpful in giving this project a firm structure. proceed skilfully. He ought to know men. but rarely. to illustrate the knowledge of fair trial in a criminal justice system and the value of protection of human rights of the accused as well as the victims of the crime. those of an Investigating Officers are certainly not the least important. observed that the concept of protection of human rights in the administration of criminal justice has been change. That is. Websites. An Investigating Officer must possess the vigour of youth. Their findings and suggestions are reviews here. He did not work on human rights aspects and its protection. robust health. and possess liveliness and vigilance. scholars. He worked generally of all the duties that an official can be called upon to perform in the course of his service. OBJECTIVES The objective of my project is to study the “Search and Seizure Proceedings under CrPC. I will describe the various manners. authors have interested in this area of research on criminal justice and published. R. studying each ground in detail.V. to impeach the credit of a witness. Kelkar’ & K. The state has to collect evidence against him (4) . and extensive acquaintance with all branches of the law. is full credit given to the difficulties of the position. prescribed by law. in his handful thesis on Constitutional Rights of an Accused: a comparative study under the Constitutions of Nepal and India. LITERATURE REVIEW Until recently many researchers.Chandrashekharan Pillai (2008). dictionaries and articles have also been referred. They have carried out numerous of handful researches by focus on different topics of research involving with criminal justice as far as criminal investigation. and has to prove that he alleged accused as involved in an offence. Therefore. the accused has the right to keep silent while interrogation and any other stage of criminal proceedings. to impeach the credit of a witness. (5) . And he also has exclusive right to defend his case before the court. A part of his work also included a part of criminal investigation. He actually covered the rights of the accused which guaranteed by the Constitutions. What is Search and Seizure Proceedings under CrPC? Which are the various manners. This is a comparative work on Indian and Nepal criminal justice systems. studying each ground in detail? . the research will also take some jurisprudential concept fair and effective investigation to make additional exploring the concept of right to fair and effective investigation in specifically criminal case proceedings area. prescribed by law. However. also discuss and cite the various cases I come across while research for this project SCOPE AND LIMITATION The geographical scope of this Project work is mainly limited to India in criminal matters in general. RESEARCH QUESTIONS To study. the study will cover on only Indian Constitutional Provisions and their own Criminal Procedure Codes. AIR 1934 Bom 74 T. Province of Orissa (6) .K. Beni. HabilMea. Subbiah v Ramaswamy AIR 1970 Mad 85. Works v. AIR 1936 All 212. M.. State Mohd. State of Bihar. 1959 Cri LJ 1184 Abdul Jalil Khan v. (1965) 2 Cri LJ 256 State of Bombay v. AIR 1968 Del 208 BimalKanti v. Jay Engg. Emperor. Mahtabo. Habib Ullah. State of UP Anura Begum v. (1965) 2 Cri LJ 256 Surendra Mohan v. PuriLal. BalaiGhose Sharda Singh v. Chandrasekhar Rao. State of AP Jay Engg.TABLE OF CASES State v. K. AIR 1968 Cal 407 Abraham v. Shyamlal.215 Parmeshwari Devi v. State of UP BabulalAgarwalla v. 1988 Cri LJ 287 (Pat) S. Laxmi Bai. ILR (1889) 16 Cal 487 Moti v. Ramesh v. Mani Jagdish Prasad Sharma v. Shyamlal. Bhawani Singh. State. 1986 Cri LJ 689 (Ori) State of Gujarat v. Clarke v. AIR 1936 All 852 Dhapu v. re. (1961) 2 Cri LJ 856 State of Gujarat v. Ikram Hussain v. 1997 Cri LJ 3145 (MP) Lloyds Bank Ltd. Brojendra Kishore Roy State of Punjab v. State (1977) 1 SCC 169 Dinesh Auto Finance v. Works v.P. State of MP.86 Ganga Ram v. KathiKaluOghad. Balbir Singh Emperor v. Singhal v. it must always be remembered. no officer or the State has a prerogative right to forcibly enter a citizen’s house except under the authority of Law”. 1State v. AIR 1968 Del 208 (1) . or to issue warrants for the search of places suspected to contain stolen property. therefore. 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. Just as a citizen cannot be deprived of his personal liberty except under authority of law. The Code. inquiry or trial should be available to the agencies conducting such proceedings. the law will have to devise coercive methods for obtaining these material objects for the purposes of proper investigation. 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 favour of the individual.CHAPTER I SEARCH AND SEIZURE PROCEEDINGS : AN INTRODUCTION Documents and other material objects relevant for any investigation. The Code also empowers the Court to issue a warrant for a general search of any place for the purposes of any inquiry or trial. “An Indian citizen’s house. is his castle.1 This project deals with the extent and limit of legal authority to procure evidence to make a search and to seize things for the purposes of investigation. and the Code in such cases empowers the police to make a search even without obtaining a warrant from a Magistrate. similarly. because next to his personal freedom comes the freedom of his home. the Court can issue order orders to the police for the search and seizure of such documents or things. Bhawani Singh. provides initially for a summons to produce any documents or things. The exigencies of the investigation proceedings may sometimes require the immediate search of a place. inquiry or trial. but if this method fails or is apprehended to fail. But even in a free society like ours. counterfeit coins or currency notes or stamps. A coercive search of any place is an encroachment upon the rights of the occupant of the place. trial or inquiry. It has been observed. obscene objects and such other objectionable materials. such encroachment will have to be tolerated in the larger interests of the society. It has been ruled that the Court before issuing a search warrant must have reasons to believe that the persons to whom summons under Section 91 has to issue would not produce thedocument. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. or (b) to apply to a letter. inquiry. or the Banker’s Books Evidence Act.CHAPTER II SEARCH PROCEEDINGS UNDER CrPC ORDER OR SUMMONS TO PRODUCE DOCUMENT OR OTHER THING – A police officer or a Court may. under certain circumstances. Chandrasekhar Rao. 1986 Cri LJ 689 (Ori) (2) . or to produce it. Summons to produce document or other thing. 91. This has been provided by Section 91 which is as follows. such Court may issue a summons. The Court further ruled that the expression “reasons to believe” would mean that there must be some justifiable ground for the Court to form that opinion. 1891. postcard. trial or other proceeding under the Code. to the person in whose possession or power such document or thing is believed to be. or such officer a written order.2 2BimalKanti v. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation. at the time and place stated in the summons or order. (3) Nothing in this section shall be deemed – (a) to affect Sections 123 and 124 of the Indian Evidence Act. requiring him to attend and produce it. issue an order or a summons for the production of any document or other thing if such production is necessary or desirable for the purposes of any investigation. inquiry. 1872. M. telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. trial or other proceeding under this Code by or before such Court or officer. 4 The Courts for all these reasons. For. Kuttan Pillai v. 3 Moreover. such a construction is likely to lead to grave hardship for the accused and make investigation unfair to him. (1961) 2 Cri LJ 856 5State of Gujarat v. It would be an odd procedure for a Court to issue a summons to an accused person present in Court “to attend and produce” a document. However. (1965) 2 Cri LJ 256 6(1980) 1 SCC 264 7Ibid 8Surendra Mohan v. Secondly. The words “attend and produce” are rather inept to cover the case of an accused person who is necessarily required to attend the Court even otherwise. It has been ruled that merely because an order made by an investigating officer to produce books of accounts and other things would cause inconvenience to the person from whom it is summoned.S. on its true construction. if Section 91 is so construed as to include an accused person.P. It would be still more odd for a public officer to issue a written order to an accused person in his custody to “attend and produce” a document. Shyamlal. The language of the section in general and prima facie is apt to include an accused person. Sharma case as reconsidered in the KathiKaluOghad case7 and the one in State of Gujarat v. it could not be said that the order is beyond purview of Section 91. See also observations of the Supreme Court in State of Bombay v. the section if construed so widely would be violative of Article 20(3) of the Constitution which embodies the principle of protection against compulsion of selfincrimination. as that case was not directly relatable to a summons issued under Section 91(1).P. Shyamlal. K.8 3State of Gujarat v. the Supreme Court took note of the conflict between the observations in the M.5 In V. 1986 Cri LJ 1324 (All) (3) . But there are indications that the legislature did not intend to include an accused person.A question arises that whether a summons or an order under this section could be issued to an accused person. it was not considered necessary to refer the matter to a larger bench to resolve the conflict. Mani. (1965) 2 Cri LJ 256 4Ibid. that article has been construed to mean that an accused person cannot be compelled to disclose documents which are incriminating and based on his knowledge. Ramakrishnan6. Shyamlal. does not apply to an accused person. have taken the view that Section 91. KathiKaluOghad. . might be ordered to be produced if court chose to consider its production necessary or desirable for the purposes of any proceeding before it. But no such absolute discretion can be contemplated.”14 A person who has not been cited as a witness in the proceedings but appears in the court in pursuance of the summons under Section 91(1) does not thereby become a witness and 9Jagdish Prasad Sharma v. AIR 1936 All 212. 13 The Supreme Court has clarified that case diary is a document under Section 91 and that it can be summoned by the court. 1988 Cri LJ 287 (Pat) 10S.12It has been held that the court has inherent jurisdiction to call upon a person present in the court to produce a document which is in his possession at the time. If it were to be taken literally.215 14Ibid.10 The court’s discretion must be exercised judicially. 1997 Cri LJ 3145 (MP) 11Lloyds Bank Ltd. para. AIR 1934 Bom 74 12T. It has also been ruled by the Supreme Court that the power under Section 91 enables the court to summon records in the possession of prosecution. It has been held that the Magistrate does not have power to order production of money by way of converting it into a draft. It cannot be said that issuing of summons to a person for the purpose of taking his specimen signature or handwriting is for the production of any document or a thing within the meaning of Section 91. 220 (4) . Singhal v.e. re. 243 read with the provisions of Section 173 in its entirety and powers of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statements and documents which the prosecution has collected during investigation and upon which they rely..11 The word “thing” referred to in the section is a physical object or material and does not refer to an abstract thing. 9 But it can summon production of documents for inquiry. anything tangible and moveable.K. The court observed: “To claim documents within the purview of scope of Sections 207. Subbiah v Ramaswamy AIR 1970 Mad 85. State of MP.86 13Ganga Ram v. State of Bihar. Habib Ullah. it might appear that anything whatever which is capable of being produced i. and it is in such cases unnecessary to insist on the strict compliance with the conditions of Section 91.The language of Section 91 is very wide. or (b) where such document or thing is not known to the Court to be in the possession of any person. A search is a coercive method and involves invasion of the sanctity and privacy of a citizen's home or premises. Clause (b) of sub-section (3) of Section 91 provides that the section shall not apply to any document or thing in the custody of the postal or telegraph authorities. or might be. will not produce the document or thing as required by such summons or requisition. Evidence Act clearly provides that even if such a person produces the document he does not thereby become a witness by the mere production of the document. cross examined by the court. Section 139. s. addressed. in respect of these matters. 1860 (IPC). It is obvious that before a person is punished for failure to comply with the summons or order issued under the section it will have to be proved that the conditions for issuing the summons or order have been fulfilled and that the summons or order has been duly served on such person. It has therefore beenrepeatedly observed that the power to issue search warrant should be exercised with all the care and circumspection.92. Penal Code. State (1977) 1 SCC 169 (5) . (1)(a) Where any Court has reason to believe that a person to whom a summons or order under Section 91 or a requisition order under sub-section (1) of Section 92 has been.therefore cannot be examined a. The Code provides a separate Section i. Further. SEARCH WARRANT – A Search warrant is a written authority given to a police officer or another person by a competent Magistrate or a court for the search of any either generally or for specified things or for persons wrongfully detained.e. or 15Parmeshwari Devi v. intentional omission to produce a document as required by the section will also be punishable under Section 175. search-warrants may be issued under six circumstances. 15If a person fails to comply with the summons without any reasonable excuse he will expose himself to the penal consequences contemplated by Section 349 of the Code. Three of the circumstances are covered by Section 93 which provides: When search warrant may be issued – 93. According to the provisions of the Code. with such assistance as may be required. inquiry. specify in the warrant the particular place or part thereof to which only the search or inspection shall extend. has reason to believe that any place is used for the deposit or sale of stolen property. and the person to whom such warrant is directed. it may issue a searchwarrant. and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (b) A search warrant may also be issued where any document or other thing necessary or desirable for the purposes of any investigation. (3) Nothing contained in this section shall authorize any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document. (2) The Court may. upon information and after such inquiry as he thinks necessary. [S. (1) If a District Magistrate. if it thinks fit. 93(1)(b)] (c) A search warrant for a general search or inspection can be issued by a Court where it considers that the purposes of any inquiry. etc. trial or other proceedings under the Code would be served by such a general search or inspection. sale or production of any objectionable article to which this section applies. or for the deposit. can be issued under Section 94 which is given below: Search of place to suspected to contain stolen property. he may by warrant authorize any police officer above the rank of a constable— (a)to enter. trial or other proceeding under this Code will be served by a general search or inspection.(c) where the Court considers that the purposes of any inquiry. trial or other proceeding under the Code is not known to the Court to be in the possession of any person. or that any such objectionable article is deposited in any place. (6) . 93(1)(c)] A warrant for a search of a place suspected to contain stolen property. [S. such place. (a) According to Section 93(1)(a) a search warrant may be issued where a Court has reason to believe that a person to whom a summons or order under Section 91 or a requisition under Section 92(1) has been addressed will not produce the document or thing as required by such summons or requisition. forged documents. may search or inspect in accordance therewith and the provisions hereinafter contained. 94. etc. parcel or other thing in the custody of the postal or telegraph authority. forged documents. Sub-Divisional Magistrate or Magistrate of the first class. ) or Section 293 (Sale etc. The section that makes it clear that i) the search-warrant can be issued only be a District Magistrate. Sub-Divisional Magistrate. (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies. assertions prejudicial to national integration) or Section 292 (Sale etc. (e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit. book or any document contains any matter. (d) forged documents. and iii) before a warrant is issued the Magistrate concerned must have reason to believe that the place is used for the deposit or sale of stolen property etc. (d) to convey such property or article before a Magistrate. (2) The objectionable articles to which this section applies are— (a) counterfeit coin. 1988 Cri LJ 1876 (AP) (7) . objectionable article to which this section applies.16 Where any newspaper. (f) obscene objects referred to in Section 292 of the Indian Penal Code (45 of 1860) (g) instruments or materials used for the production of any of the clauses mentioned in clauses (a) to (f). or otherwise to dispose of it in some place of safety. (e) false seals. ii) the person authorized to search must be police officer above the rank of a constable.. the publication of which is punishable under Section 124-A (Sedition). (b) pieces of metal made in contravention of the Metal Tokens Act. or Section 153-A (Promoting enmity between classes) or Section 153-B (Imputations. or a Magistrate of the first class. as the case may be. sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or. or brought into India in contravention of any notification for the time being in force under Section 11 of the Customs Act. 1889 (1 of 1889).(b) to search the same in the manner specified in the warrant. State of AP. or to guard the same on the spot until the offender is taken before a Magistrate. counterfeit stamps. (c) counterfeit currency notes. of obscene books etc. of obscene objects to young persons) or Section 295-A (Maliciously insulting the religion or the religious beliefs of 16Dinesh Auto Finance v. 1962 (52 of 1962). This has been provided by Section 97 which reads as follows: Search for persons wrongfully confined 97.Ikram Hussain v. Works v. and the person. declare every copy of the newspaper containing such matter and every copy of such book or other document to be forfeited to the government. the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under Section 97 is always used. Upon such a declaration of forfeiture any Magistrate may by warrant authorize any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue of the newspaper or any such book or other documents may be. if found. who shall make such order as in the circumstances of the case seems proper. and such search shall be made in accordance therewith. Section 95 of the Code empowers the State Government that it may. or may be reasonably suspected to be. (1964) 2 Cri LJ 590 19Anura Begum v. If any District Magistrate. a search-warrant may be issued for the person so confined.17 In India. The warrant under this section is in the nature of a writ of habeas corpus for rescue of a wrongfully confined person by intervention of police directed by a magisterial order. shall be immediately taken before a Magistrate. and the person to whom such warrant is directed may search for the person so confined. he may issue a search warrant. Nor is there any for the 17Jay Engg. Sub-Divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. State of UP. HabilMea. 18 Before a warrant is issued under this section the Magistrate has to satisfy himself that a person has been wrongfully detained. AIR 1968 Cal 407 18Mohd. by notification. 19 However the section does not cast any obligation on the Magistrate to hold a detailed inquiry or to record such findings which are necessary after adjudication.any class) of the IPC.95(1)] If any person is confined under such circumstances that the confinement amounts to an offence. (1962) 2 Cri LJ 590 (8) . [Sec. State. The High Court dismissed the revision petition. AIR 1936 All 852 24Dhapu v. Beni.22 An action under this section cannot be taken except upon a complaint on oath. 1959 Cri LJ 1184 (9) . or a female child under the age of eighteen years. However. Mahtabo. the Supreme Court ruled that Section 97 is not prima facie attracted to the facts and circumstances of the case when the child was living with his own father. for any unlawful purpose. the Sessions ordered search and subsequently custody of the boy with the mother. Laxmi Bai. and may compel compliance with such order.D. 20 In case of a person wrongful.M. PuriLal. The section is intended to give immediate relief to a woman or girl abducted or detained for any unlawful purpose. guardian or other person having the lawful charge of such child. a District Magistrate. State. or of such female child to her husband. a warrant can be issued under this section for his rescue. It came to be invoked by a father to rescue his married daughter from wrongful confinement by her inlaws. parent. Sub-Divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty.affected party to be heard before the Magistrate issues the search warrant. confined by a gherao. AIR 1968 Cal 407 22Abraham v.24 The only order that can be passed under this section is one 20Ramesh v.’s rejection of the mother’s prayer for search of her son who was with his father. Upon complaint made on oath of the abduction or unlawful detention of a woman. The Supreme Court has also turned down the husband’s request for a search-warrant under Section 97 for his children who were with his wife.23 however a protracted inquiry is not contemplated by the section as that would defeat the object of the provision. as the mother is the natural guardian of her children. ILR (1889) 16 Cal 487 23Moti v. it was inapplicable to a case where after the S. The section reads as follows: Power to compel restoration 98. using such force as may be necessary.21 An additional special provision has been made by Section 98 to compel restoration of abducted females. (1998) 9 SCC 266 21Jay Engg. Works v. Emperor. They are acts of another to which he is obliged to submit and are therefore. It is also seen that a search-warrant under Section 93(I)(a) could be issued only in cases where a summons has been issued or might have been issued. A person may commit murder and bury the body in the backyard of his house and he may commit burglary and keep the loot in an almirah inside his house. search-warrant issued under Section 93(I)(b) for particular things or documents not known to the court to be in possession of any person. cannot be taken to be violative of Article 20(3) of the Constitution which gives protection to the accused person against testimonial compulsion. not his testimonial acts in any sense. or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk. or a search-warrant under Sections 94. a search-warrant for the documents or things in possession of the accused could not be issued. Therefore. However. Search-warrant is addressed to an officer of the government. 95 or 97 in respect of any particular property or person in possession or custody of the accused person. It is easy to see how a different view would lead to monstrous results. or a warrant for a general search of the premises in possession of the accused person. 25 To issue a warrant for the arrest of the female is not permissible under this section but that could be possible under Section 97. It has been considered that a court is precluded from issuing a summons to an accused person to produce any document or thing in custody as that would be violative of Article 20(3) of the Constitution. The Constitution is not intended to be a charter for the lawless 25Abdul Jalil Khan v. CONSITUTIONAL VALIDITY OF SEARCH-WARRANTS A question might be raised as to the constitutional validity of a search warrant where it relates to the documents or things in possession of the accused person or where the warrant is for a general search or inspection of the premises in possession or occupation of the accused person. generally a police officer. Such disastrous consequences could never have been intended by any law-maker. Neither the search nor the seizure are acts of the occupier of the searched premises. much less his testimonial acts amounting to self-incrimination. AIR 1936 All 854 (10) . and they would all be as safe as if they had been lodged in the Bank of England.to restore the female to her liberty or to her lawful guardian. In these cases the search and consequent seizure of documents or other things are not the acts of the accused person at all. (b) Search by police officer during investigation. so far as may be. and in such a case it would not be necessary to formally issue a search-warrant. SEARCH OF A PLACE WITHOUT WARRANT (a) Magistrate may direct search in his presence.26 However. apply to all search warrants issued under Sections 93. 70.and there is nothing in Article 20(3) of the Constitution to prevent a search under the provisions of the Code. Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant. 72. The legislature has however attempted to restrict and limit the powers of the police under this 26 Clarke v. Brojendra Kishore Roy. 74. in the larger interests of the administration of justice it becomes necessary that public officers engaged in investigations and inquiries relating to offences or suspected offences should be afforded fair and reasonable facilities for searches.—A Magistrate competent to issue a searchwarrant under six circumstances under Section 99 may direct a search to be made in his presence if he considers it advisable. 77. of search warrants 99. 95 or 97. Therefore the duty of balancing the two conflicting considerations in diverse circumstances has been vested in the Magistrate or court issuing search-warrants under the provisions of the Code. etc. 94. The decision as to whether a search of a citizen’s house is essential in the larger interests of society ought to be basically a judicial decision.—A citizen should have in his house a full and free life undisturbed by executive action. ILR (1912) 39 Cal 953 (PC) (11) . 78 and 79 shall. Direction. But Section 165 of the Code has been 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. This is clear from Section 103 which reads as follows: Magistrate may direct search in his presence 103. The provisions of Sections 38. search. apply to a search made under this section. and that such thing cannot in his opinion be otherwise obtained without undue delay. shall.such officer may. so far as may be. after recording in writing the grounds of his belief and specially in such writing. after recording his reasons for so doing. require any officer subordinate to him to make the search. the thing for which search is to be made. (2) A police officer proceeding under sub-section (1). and there is no other person competent to make the search present at the time. or to which he is attached. so far as possible. for such thing in any place within the limits of such station. or cause search to be made. be furnished. (c) Power to conduct search in the limits of another police stationSection 166 enables a police officer to effectuate the search of a place located beyond the limits of his own police station. conduct the search in person. if the exigencies of the situation so require. Search for false weights and measures. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence.section. specifying the place to be searched. (d).(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence 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. if practicable. and the owner or occupier of the place searched shall. and he shall deliver to such subordinate officer an order in writing. measures or instruments for weighing which are (12) . the thing for which search is to be made. (4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in Section 100 shall.Where a police officer in charge of a police station has reason to believe that weights. and such subordinate officer may thereupon search for such thing in such place. and so far as possible. (3) It he is unable to conduct the search in person. on application. free of cost. with a copy of the same by the Magistrate. he may. and has provided the citizens concerned with safeguards in order to prevent the abuse of these powers. Section 165 is as follows: Search by police officers 165. itmay vitiate the proceedings. Sections 100 and 165 have been held applicable to searches made under the Narcotic Drugs and Psychotropic Substances Act. whenever he has reason to believe that there are in such place any weights. 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. Balbir Singh. 165 and 166. measures or instruments for weighing which are false. It has been reiterated by the Supreme Court that if the discovery of a fact is otherwise reliable its evidentiary value is not diminished by reason of non-compliance of Section 100(4) and 100(5). used or kept therein. without a warrant. and shall forthwith give information of such seizure to a Magistrate having jurisdiction.false. 95 and 97 or whether it is conducted without a warrant under any of the provisions of Sections 103. (1994) 3 SCC 299 (13) . 94. (1) Any officer in charge of a police station may. etc. Mere non-compliance of the provisions in the Code would not by itself vitiate the prosecution. GENERAL PROVISIONS RELATING TO SEARCHES Whether a search is made under a warrant issued under any of the Sections 93. submitted that even in such a case the provisions of 27State of Punjab v. measures. 1985 also. It is. he can inspect and search the place and may seize such weights. this has been provided by Section 153 which is as follows: Inspection of weights and measures 153. he may seize the same. are used or kept in any place. measures etc. measures or instruments for weighing which are false. (2) If he finds in such place any weights. But if the person searched is not informed of his right to demand that the search be made in the presence of a gazetted officer or a Magistrate as provided for under the Act. however. 27 The only case where these provisions have not been expressly made applicable is a search without warrant under Section 155 for false weights. the provisions of Section 100 have been made applicable. (8) Any person who. such person may be searched and if such person is a woman. shall be delivered to such occupant or person. (1) Whenever any place liable to search of inspection under this Chapter is closed. (4) Before making a search under this Chapter. allow him free ingress thereto. b) the police and others authorized to search are armed with necessary powers for the proper and effective (14) . on demand of the officer or other person executing the warrant. without reasonable cause. the search shall be made by another woman with strict regard to decency. shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860). such place. the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search.Section 100 would be made applicable to the extent it is practicable to do so. The section has three important aspects: a) the occupant of a place liable to search is required to give all reasonable facilities to the persons authorized to conduct a search. shall. (6) The occupant of the place searched. be permitted to attend during the search. or being in charge of. (5) The search shall be made in their presence. (2) If ingress into such place cannot be so obtained. and afford all reasonable facilities for a search therein. in every instance. and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witness. any person residing in. (7) When any person is searched under sub-section (3). (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made. a list of all things taken possession of shall be prepared. and on production of the warrant. signed by the said witnesses. but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it. shall. refuses or neglects to attend and witness a search under this section. and a copy of the list prepared under this section. Section 100 is as given below: Persons in charge of a closed place to allow search 100. or some person in his behalf. and a copy thereof shall be delivered to such person. the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. to attend and witness the search and may issue an order in writing to them or any of them so to do. when called upon to do so by an order in writing delivered or tendered to him. execution of the search. 165 and 166. Besides. can only be issued by a District Magistrate. c) procedures have been designed “to obtain as reliable evidence as possible of the search and to exclude the possibility of any concoction. (C) Effect of contravention of the search procedure –Section 100 generally provides for the procedure to be followed in case of every search of a place. order. summons. This has been specifically provided in Section 460. such a warrant shall not be ineffective merely on the ground that the Magistrate was not empowered to issue the same. (B) Search without warrant by police officers not authorized – It has been seen that under Sections 153. judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code. or any error. on finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal. warrant. BalaiGhose. or 28Emperor v. omission or irregularity in the complaint. The contravention of these provisions would make the search illegal or at least irregular. Sub-Divisional Magistrate or Magistrate of the First Class.28 CONSEQUENCES OF NON-COMPLIANCE WITH THE PROVISIONS RELATED TO SEARCHES (A) Magistrate not empowered to issue a search warrant – A search warrant for a search of place suspected to contain stolen property. a place can be searched without a warrant by a police officer of a certain rank or by one specifically authorized according to the provisions of Law. omission or irregularity 465. proclamation. 1999 Cri LJ 1880 (All) (15) .29 It is important to take note of Section 465 which is as follows: Finding or sentence when reversible by reason of error. State of UP. If however such a warrant is issued by another Magistrate erroneously and in good faith. confirmation or revision on account of any error. Sections 165 and 166 provide for additional procedures to be followed when the search is made by a police officer without warrant. (1) Subject to the provisions hereinbefore contained. or malpractice of any kind”. forged documents etc. (1930) 31 Cri LJ 667 29Sharda Singh v. a failure of justice has in fact been occasioned thereby. (D) Search with consent of the occupant – If the entry into the place of search and the subsequent search are with the consent of the occupant. Such (16) . the police officer making any search has far wider powers to seize any incriminating things other than the specified things for which the search is made. 100(5) and (7) have already been considered. omission or irregularity in any proceeding under this Code. However. the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. he has the power to seize such things if recovered in the search. Similarly. the search and recovery will not be affected on the ground that the search procedure in Sections 100 and 165was not followed. (2) In determining whether any error. or any error. or irregularity in any sanction for the prosecution has occasioned a failure of justice. 95. Where it is alleged that the articles were produced by the accused person himself. the police officer or other person making the search has been empowered to seize such things if recovered during such search. where a police officer during the investigation of any offence searches a places for any particular things.irregularity in any sanction for the prosecution unless in the opinion of that court. Section 165 does not apply. CHAPTER III SEIZURE PROCEEDINGS UNDER CRIMINAL PROCEDURE CODE Where a search-warrant is issued for the search of any particular things. This has been provided either expressly or impliedly in Sections 93 (read with Form 10) and 94 (read with Form 11). shall forthwith report the seizure to that officer. He should also give notice of the seizure to the accused and allow him to operate the bank account subject to his executing a bond. if it thinks fit. he should inform the Magistrate concerned forthwith regarding the prohibitory orders. a police officer may seize any property found under suspicious circumstances. (1954) 55 Cri LJ 1625 (17) . nor is it confined only to cases in respect of cognizable offences. undertaking to provide the accounts in Court as and when required to hold them subject to such orders. Province of Orissa. impound any document or thing produced before it under this Code”. (2) Such police officer. The words “any offence” show unmistakably that even though there may be the commission of a non-cognizable offence.30 The Madras High Court has ruled that in case of seizure of bank account. 30BabulalAgarwalla v. or which may be found under circumstances. the police officer should do two things. The section has a wide sweep and is not restricted to recoveries during the search alone. (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be. or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigational. which create suspicion of the Commission of any offence. he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as and when required and to give effect to the further orders of the Court as to disposal of the same:] The provision is particularly useful when the search is under a warrant for a general search. Firstly. It may be pertinent to notice that according to Section 104 “any Court may. if subordinate to the officer in charge of a police station.powers are necessary for the effective discharge of police functions and have been provided by Section 102 which is as follows: Power of police officer to seize certain property 102 (1) Any police officer may seize any property which may be alleged or suspected to have been stolen. conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property. D. and unless there be good cause to the contrary. The word “hereinafter” in the section in this connection is somewhat misleading and inappropriate. Vol 3. 8th Edition 2008. in the execution of a search-warrant at any place beyond the local jurisdiction of the court which issued the same. The provisions regarding the preparation of the list of things recovered in a search have been made earlier in Section 100. 1872 Books referred (1) Basu D. in which case the list and things shall be immediately taken before such Magistrate. such things. When. unless such place is nearer to the Magistrate having jurisdiction therein than to such court. such Magistrate shall make an order authorizing them to be taken to such court. REFERENCES Statutes referred (1) Code of Criminal Procedure. are found.Disposal of things found in search beyond jurisdiction 101. 1860 (3) Indian Evidence Act. 1973 (2) Indian Penal Code. together with the list of the same prepared under the provisions hereinafter contained. Nagpur (18) . Commentary on the Constitution Of India. Lexis Nexis Butterworth Wadhwa. shall be immediately taken before the court issuing the warrant. any of the things for which search is made. 30th Edition reprint 2009. Lexis Nexis Butterworth Wadhwa. 17th Edition reprint 2009. 1860. Lexis Nexis Butterworth Wadhwa. Code of Criminal Procedure.(2) RatanlalDheerajlal. Nagpur (19) . Nagpur (3) RatanlalDheerajlal. Indian Penal Code.