SEARCH AND SEIZURE WITH / WITHOUT WARRANT UNDER CRPC

THIS ARTRICLE IS WRITTEN BY Falguni Ghude & TOPIC DISCUSSED IS SEARCH AND SEIZURE

Introduction

The search and seizure process outlined in the criminal procedure code plays an important role to maintain the investigative framework. The law enforcement agencies employ two distinct approaches for execution of certain actions ie. searches with a warrant and searches without warrant, the legal warrant is issued under specific sections like section 93,94, 95 and 97. This warranted searches require judicial approval on a probable cause while the unwarranted searches are permitted only under specific circumstances. The searches without warrant are discussed under section 103,165 and 166. These procedures are crucial for collection of evidence, felicitating an investigative process and maintaining legal integrity by remaining within the legal boundaries of law. A warrant is a legal document which is issued by a judge or magistrate that lets the police officer arrest someone, search a place or seize any property and authorizes him to do something related to the justice system. It’s an official permission for the police authorizing them to take specific actions in the course of investigation of crime.

The term ‘Search’ pertains to the operation of government machinery which involves examining the location, object, etc.to detect something hidden or to unravel evidence of the crime. The police can search for a person, his vehicle or his property after obtaining legitimate approval and fulfilling the formalities required by the law. On the other hand ‘Seizure’ involves an intense or forceful action that captures, removes or over powers an entity or individual unexpectedly. Chapter VII of the code of Criminal Procedure 1973 covers section 91 to 100 which deals with the matter relating to summoning for production of documents or other things, search warrant, procedure and other provisions related to the search and seizure. This chapter outlines the procedure for issuing summons and warrants the method for the execution of the same is also given. The general procedure for the rules of search and seizure are specified in section 100 of the CrPC; these rules are generally adhered to in cases under the IPC and other laws with some variations. Therefore in all cases involving search and seizure the investigating authorities must strictly follow the guidelines given in section 100 and 165 of CrPC. It shall be noted that some special legislations like Narcotic Drugs and Psychotropic Substances Act 1985 have their own specific search and seizure procedure to be followed by the police. Search could be conducted at multiple places by the police. It could be at the crime scene any location where there is possibility of obtaining evidence or any offenders hiding. Search must be legal and with a valid reason. This right is given to authorities as mentioned in article 19 (5) of the Indian Constitution, that right to own property comes with reasonable restrictions.

Here are some important guidelines for seizure of a property.

The authority to seize any property lies with the police official which cannot be delegated further.
In the cases of any non cognizable offense the police officer has authority to seize property on the basis of reasonable suspicion.
Section 47 of CrPC empowers a police officer having a warrant to enter and search the premises. If the investigation is not cooperated then they have power to break, open the doors and windows.
Section 58 authorizes the police officer to search a person anywhere in India.
After search and seizure the police have to make the same report.
The evidence obtained through illegal search and seizure is not admissible in the court.

Procedure for search and seizure under CrPC :

The procedure for conducting of searches and seizures is given as follows:

Section 91: according to this section the court or designated officer has authority to issue summons or directive to compell an individual to produce concerned documents or other things essential for the investigation inquiry or the proceeding. The person having possession of such documents shall comply with the rules or orders and furnish them at the time and location required.

Section 92: this section says that if the law enforcement authorities, district magistrate and high court think that if any document or parcel which is essential for investigation is in the custody of postal authorities or telegraph authority they must co-operate and comply with the orders or directions by the court. The court may also allow these authorities to conduct a search for documents which are required by the court for its legal proceedings.

Section 93: this section States conditions for the search warrant to be issued. If the court believes that the person whom summons has been issued won’t comply with the order of the court or bring the said document essential for the proceeding it can issue a warrant against that person. The warrant can also be issued in case the court is not aware of the person having the documents. Only district magistrate or chief judicial magistrate can grant permission under this section.

Section 94: this section deals with the search of places suspected to contain stolen property, for documents etc. District magistrate, sub divisional magistrate or magistrate of first class can issue permission under this section. If they have reason to believe that any place is used to deposit property, or any objectionable substance is deposited at any place. The officer to whom a warrant is issued should not be below the rank of a constable.

Section 95: this section deals with power to declare certain publications forfeiture and issue search foreign for the same. The state government can issue search warrants against any newspaper or document printed in any state and if these printed matters are punishable under IPC then the state government can forfeit such documents.

Section 97: this section is regarding the search of a person whose confinement amounts to an offense.

Section 98: section 98 discusses the Restoration of an abducted woman, also a female child under 18 years of age.

Section 99: this section includes or gives directions for search warrant. The provisions given under section 38,70,72,74,77,78 and 79 are applicable for issuing search warrants.

Section 100: it is one of the important sections when it comes to CrPC. In this section it is discussed in detail about the procedure for searching a closed place.

The person residing in that place must allow a reasonable search facility.
In case of denial, police can break and open the door or window.
A Suspicious person can be searched in case a female officer will search such a suspected person.
There shall be two independent witnesses
List of seized items shall be made and signed by witnesses.
A copy is to be provided to the occupant or person on his behalf.
Same process for suspected person
Refusing or neglecting to co-operate will act as violation of section 187 that is omission to assist public servants bound by law.

Search without warrant

Section 165 and 166 of CrPC.

Section 165: this section says that if a magistrate is satisfied with existing conditions he made direct search to be made in his presence and in such case it would not be necessary to formally issue a search warrant. The related provision is section 103 any magistrate may direct a search to be made in his presence in such case a warrant is not necessary.

Section 166: this section is continuation of section 165. It says the officer in charge of the police station may require another officer to issue a search warrant and procedure for the same is given in this section.

Conclusion :

This process of search and seizure is one of the essential elements in the framework of investigation. It is crucial for societal well being, it’s inherently subjective. The officers empowered to carry these functions must adhere to rules and report to their superiors. They should act within their legal capacity. The authorities must act responsibly and within the framework of law. These procedures empower free, fair and speedy administration of justice.