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 is effected. 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.
“Investigation” is, generally, conducted by a police officer or by any other authorised person (other than a magistrate); it includes all the proceedings under the criminal procedure code for the collection of evidence. “Inquiry” means every inquiry conducted by a Magistrate or a court and it does not include trial. “Trial”, particularly, is not defined in the criminal procedure code. Basically it means that judicial process where the question of guilt or innocence of the person accused of any offence 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 production of things and documents are as follows:
- summons issued by a court;
- written order issued by a police officer in charge of a police station; and
- search and seizure with or without a warrant.
Summons or written order
When the production of any document is necessary for the purpose of any investigation, trial, inquiry or any other proceedings:
- a court can issue a summon, or
- a police officer in charge of a police station may issue a written order, to any person who has a document as required by such summons or written order.
Search with a Warrant
A Search Warrant is a legal written authority given to a police officer or any other competent person by a competent Magistrate or court for the search of any place either generally or for specified things or for documents. When a search is done, the privacy of the citizen’s home is on stake, therefore, the power to issue a search warrant should be exercised with all due care, precautions and circumspection. There are some circumstances when the search warrant can be issued, they are as follows:
- When any court has any reason to believe that a person to whom a summon or written order has been addressed, will not produce the documents or things as required.
- When such document or thing is not known to the court to be in possession of any person.
- When the court considers that for the purpose of any inquiry, trial or other proceedings, a general search or inspection should be done. According to this clause, search of the premises occupied by the accused without compelling the accused to be a party to such search would not be violative of the constitutional guarantee, i.e., against self-incrimination, enshrined in article 20(3).
- If a District Magistrate, Sub-Divisional Magistrate or a Magistrate of first class has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit or sale of any objectional items like counterfeit coins, currency coins, etc., or that such objectionable articles are deposited in any place as such, he can, by warrant, authorise any police officer above the rank of a constable to enter and search the place and seize such property or articles.
- When any newspaper, book, etc. 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, etc. to be forfeited to the government. After such action, any Magistrate may, by warrant, authorise 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 reason for suspection.
- If any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class has reason to believe that any person is wrongfully confined, he may issue a search warrant for the search of such person
- During investigation, if there is no time to obtain a search warrant and immediate search of a place is necessary for the purpose of the investigation, a senior investigating police officer can conduct a search without a warrant. But there can be circumstances where police might abuse this power, therefore, some provisions have been made to restrain the police power and to restrain its possible abuse.
The power to search without a warrant can be exercised only by a police officer in charge of a police station or any other officer authorised to investigate into any offence and in fact making an investigation. Although such a police officer may, however, instead of searching the premises himself, require a subordinate officer to conduct the search under certain circumstances and thereupon, such subordinate officer shall have to conduct the search.
If a situation so require, a police officer can effectuate a search without a warrant of a place located beyond the limits of his police station. Such a search can be arranged through the Station House Officer (SHO) or in caser of urgency, by the police officer himself.
When a police officer in charge of a police station has reason to believe that weights, measures, or instruments used for weighing, which are false, are used or kept in any place, he can inspect and search the place and may seize such weights, measures, etc. After seizure, the officer is required to forthwith to give information to a Magistrate having jurisdiction.
General Provisions relating to Searches
The following provisions would apply in case of every search whether it is with or without a warrant, except in the case of a search for false weights and measures:
- Any place which is liable to search or inspection is closed, any person in occupation of such place shall, on the demand of the person making the search, allow free ingress and afford all reasonable facilities for a search.
- If such ingress cannot be obtained, the place conducting the search can enter the place; and to enter into such place can break open any outer or inner door or window if after notification of his authority and purpose, he was not granted admittance in such place.
- When during any search, a person is reasonably suspected of concealing about himself any article or any other information related to the investigation, such person should be searched.
- The search is to be made in the presence of at least two independent and respectable inhabitants of the society in which the place to be searched is located.
- He occupant of the place of search, or his nominee, shall in every case be permitted to attend the search process.
- A list of all things seized in the course of search and of the places in which they are respectively found, shall be prepared by the person making the search and shall be signed by the witnesses.
- The recovery of the articles found in a search can be proved at the trial by calling the police officer or any other person making the search as a witness.
Section 44- power of entry, search, seizure and arrest in offences relating to coca plant, opium poppy and cannabis plant.
Search of a person is to be conducted by officers authorized under Section 42. If search is done during the night time, reasons for not obtaining authorization should be recorded.
The system of India is quite corrupted which also results in faulty investigation on the part of 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 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.
A medical practitioner associated with the department of forensic medicine and toxicology, Khyber Medical College reported that “investigation is carried out on scientific lines in the modern world, but here FA passed police investigators perform the job”. Faulty Investigations are the reason of a major improvement in conviction rate.
As also stated by Justice (Retd.) U.L. Bhatt in his article on ‘Defects in Investigation’- Sections 215 and 464 of the Criminal Procedure Code, 1973 indicate what trial courts and higher courts are required to consider in case of errors in charge framed by trial courts. Sections 460 and 461 of the code deal with the effect of irregularities committed by trial –magistrates. Sections 462 and 463 deal with certain irregularities committed by criminal courts.
However the Code under which investigation of offences is conducted does not contain any provision to deal with irregularities committed by investigation officers (I.O) in the course of investigation. This omission is perhaps due to belief that defects in investigation have a role to play in appreciation of evidence by courts. Of course, in appropriate circumstances, writ jurisdiction of the High Courts could be invoked.
As a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused.
Also, in Arushi Murder Case, defaults in investigation was the main concern which was highlighted during the victim’s parents Rajesh and Nupur Talwar, who are accused were in Dasna Jail near Delhi. In this case there were about seven faults during the investigation. Some very important evidences such as the evidences were not properly collected during the investigation and it was also found out that the evidences which were collected by the police during the investigation process were also found to be misplaced, etc.
These faults in investigation proceedings minimizes the citizens’ trust on the judiciary and this is a sad, yet true fact. These faults in investigation proceedings causes irregularities in a search. And these irregularities have some consequences which are as follows:
- Where a magistrate, not empowered by law to issue a search warrant for search of a place suspected to contain stolen property, in good faith issues such a warrant, the search proceedings shall not be set aside merely on the basis that the magistrate was not empowered to issue such a search warrant.
- No Magistrate other than a District Magistrate or a CJM shall issue a search warrant to search for a document, parcel or other things in the custody of the postal or telegraph authority.
- A search without a warrant conducted by a police officer who is not authorised to do so, is illegal and devoid of illegal authority.
- If the search procedure followed by the police officer is not strictly legal, the occupant of the place of search with full authority can obstruct the officer attempting the search.
- Non-compliance with search procedure would make entry into the place of search as an unlawful authority.
A police officer making any search has far wider powers to seize any incriminating things, though they were not the specific things for which the search was to be made. It has been provided that the police officer making a search can seize any property which he suspects to be stolen or which may be found under the circumstances which create suspicion of the commission of any offence. In M.T. Enrica Lexie vs Doramma, the supreme court examined the validity of seizure of Italian Vessel, from which marines opened fire and killed fisherman and opined that vessel can be released on fulfillment of certain conditions. The court, however, did not make any observation regarding the validity of seizure of a vessel which does not fall in any of the categories mentioned in section 102.
“Seizure” under Section 102 means actually taking possession in persuance of a legal process. Seizure is made at a particular moment when a person or authority takes into possession some property which was earlier not in his possession.
The police officer seizing the property shall forthwith report the seizure to the magistrate having jurisdiction and if such an officer is subordinate to the SHO, he shall also report forthwith the seizure to the SHO.
Production of Materials
Section 91-Section 105 explains the process to compel the production of things.
Section 91: Summons to produce a document or thing
Whenever any officer or any court considers that the production of a document or thing is necessary for the purpose of any investigation, inquiry or trial, that court or police officer can issue a summon or written order, respectively to the person in whose possession or power such document or thing is believed to be with and that particular person has to present himself in the court of law with that document or thing at the place and time as mentioned in the summon or written order. if that person does not want to be present in the court of law, he/she can produce the documents required without having his personal attendance.
Section 92: Procedure as to letters and telegrams
If any parcel or thing is in custody of a postal or telegram authority and in the opinion of District Magistrate or CJM, it is required for the purpose of any investigation, trial or inquiry, such Magistrate may require the authority to deliver such parcel or thing to such person as court directs. If such judicial Magistrate wants, he can require the postal or telegram authority to make a search for it.
Section 93: When search-warrant may be issued
If the court has a reason to believe that the person to whom summon or order has been issued, will not produce such document or thing, the court may direct a competent person to make a search for it by issuing a search warrant.
Section 94: Search of place suspected to contain stolen property, forged documents etc.
Section 95: Power to declare certain publications forfeited and to issue search warrants for the same
Section 96: Application to High Court to set aside declaration of forfeiture
Section 97: Search for persons wrongfully confined
Section 98: Power to compel restoration of abducted females
Section 99: Direction, etc, of search warrants
Section 100: Persons in charge of a closed space to allow search
Section 101: Disposal of things found in search beyond jurisdiction
Section 102: Power of police officer to seize certain property
Section 103: Magistrate may direct search in his presence
Section 104: Power to impound document etc. produced
Section 105: Reciprocal arrangements regarding processes
Search, Seizure and Production of Materials are important for the process of investigation, inquiry and trial. These are to be done after the summons or written order which is sent to the accused by the court or police officer of any police station, respectively, are not produced, the Magistrate may require a search for which search warrants are issued. The documents or things which are suspected to be connected with any offence are seized and their production can be done in the court of law keeping the police officer who made the search as a witness.
Even after all these procedures, there are found some faults in investigations which are required to be avoided as much as possible. As these defaults in investigation, create a doubt in the minds of citizens’ regarding our judicial system. this is not appropriate. Arushi murder case is the prime case law in which faulty investigation was found out.
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