Introduction
A search warrant is an ‘official document that gives police officers the authority to search a building for stolen property, illegal goods, or information that might help to solve a crime’. It is a court order giving the police authority for the examination of a place for the purpose of discovering certain documents or other things necessary for investigation, inquiry, trial or other proceedings under the criminal law.
Under the Code of Criminal Procedure, 1973 (the code) for the purpose of ensuring fair investigation, inquiry, trial or any other proceedings it becomes necessary to require a person to produce a document or thing which may be in his possession or power and which may have a bearing in the case, this can be secured by way of –
- Summons (section 91 and 92)
- Warrants (section 93 – 98)
Search Warrant
Issue of search warrant
Under section 93(1) of the code, a search warrant may be issued by the court in the following three cases:
Firstly, where, any court has a reason to believe that a person to whom summons is issued will not or would not produce the document or thing as required by such summons or requisition,
Secondly, where the document or thing is not known to the court to be in the possession of any person,
Lastly, where the court considers that any purpose under the code is served by a general search or inspection.
The person to whom such warrant is issued may search or inspect in accordance with the provisions which are discussed later. The issue of a search warrant is an integral step in the procedure for investigation. A search warrant may be general or specific in its scope as to any place or part. The court may also issue a warrant when it is unaware not only of the person but also the place where the documents may be found and a general search becomes necessary. A magistrate has to record his reasons for the issue of a Search warrant. Necessary precautions need to be taken that the powers vested with the officer are not abused by him.
The constitutional validity of this section was challenged, in the case of V.S. Kuttan Pillai vs. Ramakrishna wherein the constitutional validity of search warrants was upheld and it was opined that a search of the premises occupied by the accused does not by any means results in compelling him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India.
Search of place
It the Magistrate upon information and after the inquiry has reason to believe that any place is used for the deposit or sale of any stolen article or any objectionable article like counterfeit coins, currency and or stamps; forged documents; false seals; obscene objects referred in section 292 of Indian Penal Code (IPC)may by warrant authorize a police officer, not below the rank of a constable under section 94 of the code to –
- Enter if necessary such place
- Search the place
- Take possession of the stolen or objectionable article,
- Convey the same to Magistrate or keep the article safely and,
- Take into custody every person found in the place as suspect and produce him before the Magistrate
Search warrants for forfeited publications
When any newspaper, book, or any document, painting, drawing, photograph or other visible representation where printed appears to the State Government to contain any matter which is punishable under section 124A(sedition), 153A(promoting enmity between different groups), 153B(imputation, assertions prejudicial to national integration), 292(sale of obscene books), 293(sale of obscene objects to young persons), or 295A (deliberate or malicious act, intended to outrage religious feelings), of IPC, declare every copy of such issue to be fortified and then the police officer may seize the same and the Magistrate may issue a warrant and authorize any police officer to enter and search any premises for any copy of such issue under section 95 of the code. The State government however has to state its ground of opinion, and this section does not violate any guarantees of article 19 of the Constitution.
However, an effective remedy is provided under section 96, that an order passed by the State Government can be challenged in the High Court by way of Application within 2 months, in which case, if the High court is satisfied, may set aside the declaration of forfeiture.
Every such application shall be heard and determined by a Special Bench of the High Court composed of 3 judges.
A book named “Jinnah – India, Partition, Independence” was forfeited, the notification by the State only said that the contents of the book were highly objectionable and against national interest, no explanation as to the contents of the book affecting or disturbing the public peace or interest of the state was given, the notification was quashed by the High Court of Gujarat in the case of Manishi Jani vs. State of Gujarat because it fell short of statutory requirements. In another case of Ishwar Lal Khatri vs. State of Rajasthan[1], a petition challenging a notification forfeiting a book was filed after the lapse of 45 years, the court held that this petition was barred by limitation and such a ‘petition cannot be entertained by considering the bar of limitation as an objection of technical nature’.
Search for person wrongfully confined
Section 97 comes into operation when the Magistrate has reasons to believe that any person is confined in such a way that the confinement may lead to an offence, then a search warrant may be issued for the search of such person and if found such person shall be taken immediately to a Magistrate who shall take further action.
Compel restoration of abducted females
Where a woman or female minor has been abducted or unlawfully detained a Magistrate may restore her liberty or the proper custody as per the power under section 98 of the code, and in restoring such position necessary force can be used. The exclusion of male children goes to imply that not only an unlawful purpose was contemplated but also the purpose had some special reference to the sex of the person.
Provisions of search warrant
General provisions related to search warrants are provided from section 99 to 101 of the code.
It is to be noted that the provisions of section 38, 70, 72,74,77,78 and 79 of the code may apply to every search warrant issued under section 93, 94, 95 and 97 of the Cr.P.C. Section 99 would not apply to a Special Act, where there is no specific provision which provides for invoking this section.
Search of a closed place
According to section 100, when any place which is required to be searched or inspected is closed, then any person who is residing or is in charge of such closed place shall on demand of the officer who has the search warrant allow him free ingress and afford all reasonable facilities for search. If entry into such place cannot be obtained the officer may proceed in the manner provided u/s 47(2) i.e. break open any door or window of any house or place.
The objective of this section is two-folds, firstly it provides right of search and secondly, it ensures that the search conducted is fair and ‘no articles are planted’ by the officer.
Sub-section 3 provides for the search of the person in case such person is suspected of concealing about his person any article for which search is being made, and if such person is a woman she will be searched by another woman with regards to decency.
Before making a search, the officer shall call upon two or more independent and respectable inhabitants of the locality as witnesses, to attend and witness the search, the witnesses are to be selected by the officer conducting the search and they should be uninterested so as to ensure fair dealings, although the person called as a witness is not required to attend the court unless called for. If any person without a reasonable cause refuses to attend and witness a search when called upon by an order in writing, shall be deemed to have committed an offence u/s 187 of IPC.
As per section 100(5) the search is to be made in the presence of the witnesses and a list of all the things seized and the places searched shall be prepared by the officer making the search and signed by the witnesses. Section 100(6) provides that the occupant of the place searched or his representative will be allowed to attend the search and will be provided with copy of the list prepared.
In Mahesh Pal Singh vs. Pooran Singh Tewari, it was held that if certain things have been recovered in a different district beyond the local jurisdiction of the court which issued the warrant, the things recovered have to be taken to the court which issued the warrant so that the details of the case in the FIR might be ascertained and further investigation can be made as per section 101.
Conclusion
Chapter VII of the code containing sections 91-101 provides for the provisions related to search warrant and other general provisions relating to searches, i.e. the issue of warrants, execution, powers, procedures. All these sections ensure a free, fair and just investigation, inquiry and trial of a criminal case in order to provide justice. The officer executing such warrants should comply with all the statutory requirements provided in order to ensure the objective of the code.
[1] AIR 2010 NOC 630 Raj
This article is authored by Priyanshi Gupta, LLM, a student at Nirma University.
Also Read – Understanding Arrest, Search and Seizure under Cr.P.C
