Introduction to Search & Seizure
This article deals with the consequences of non-compliance of the procedure of search and seizure. A trial is a stage when the court examines documents and witnesses to determine the guilt of the person accused of an offence. Thus, anything that assists in the commencement of trial is called a pre-trial procedure. As already said, during the trial, the court examines documents and witnesses including the accused itself.
Therefore, to ensure the presence of such persons and production of such documents before the court, several powers have been conferred upon the police officers and procedure established to be followed while exercising these powers. The power to search a place can be exercised either under a valid warrant issued by the Magistrate or without a warrant as required by the law.
Section 93 of the Code of Criminal Procedure provides that a court may issue a search warrant if (i) it believes that “a person required to produce a document in the court will fail to do so”[1], (ii) if the document is “not known to the court to be in the possession of any person”[2] and (iii) the court believes that “a general search of a place will serve the purpose of the trial”[3]. On the other hand, Section 103 of the Code allows a Magistrate to conduct a search in his presence without the need of a warrant. Thus, a search may be conducted with and without a warrant.
What is a Search Warrant?
A search warrant is “a written authority given to a police officer or other person by a competent Magistrate or a court for the search of any place either generally or for specified things or documents or persons wrongfully detained”[4].
A search is “a coercive method” and involves invasion of a person’s privacy and sanctity of his home. Therefore, the courts have repeatedly held that “the power to issue search warrant must be exercised with ‘all the care and circumspection’”[5].
A warrant of search can be issued under six circumstances:
- When the courts have sufficient belief that a vital document is in the possession of a person who, in all probability, will not produce it by the issuance of summoning [6],
- There can be circumstances where the investigating agency is not aware if certain is in possession of a person or not. In such cases, the warrant can be issued to search any suspected place[7],
- Where some evidence is still missing but no specific search is required because the nature of the evidence is not known. In such cases, a general search may be conducted under warrant[8],
- Where information is received or self-acknowledged that a place is used for certain illegal purposes which are not allowed by the IPC or any other law, such places can be searched under warrant[9] (e.g. Narcotic substances),
- When the case relates to confinement of a human being in a manner not allowed by the law and in a place not consented by that person [10] (e.g. wrongful confinement or abduction or kidnapping) and
- Where “a District Magistrate, Sub-divisional Magistrate or Magistrate of First Class” receives a complaint on oath about the abduction of any female below the age of 18 years for any unlawful purposes.
Mandatory Search & Seizure Procedures
Whether a search is made with or without a warrant, the provisions of Sections 100 and 165 of the Cr.P.C have been made applicable. According to these provisions, the relevant procedure are:
- The police officer must conduct the search in person and if he is not available, he can delegate the search to a sub-ordinate officer but after recording his reasons for doing so.
- The warrant must be issued by “a competent Magistrate or Court”, as the case may be.
- The police officer should call upon two independent and respectable persons from the nearby locality[11] (called the “panchas”) and the search must be conducted in their presence.
- The police must prepare a record or memorandum of all things or documents recovered during the search and the document must be signed by the
- The copy of the memorandum must be provided to the person whose place is being searched.
Consequences of Non-Compliance with the said Procedure
The aforementioned provisions apply generally to all types of searches made by a police officer. As already stated before, the search is a coercive method and violates several fundamental and legal right of the person whose house is searched. However, the constitutional validity of the search warrant has been upheld by the Supreme Court considering the interest of the public at large kept juxtaposing to the rights of an individual[12]. Thus, the question arises is as to the impact of non-adherence to these procedures. Whether a non-compliance of procedure of search and seizure vitiate the trial or whether it loses its evidentiary value.
It has been reiterated by the apex 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)”[13]. Besides the general impact on the evidentiary value of the seized things or documents, the following consequences arise due to disobedience of the following procedures:
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Magistrate not empowered to issue a search warrant
The Code ordains that in certain circumstances the warrant can be issued by any specific Magistrate for instance, in case of the kidnap of a girl, the warrant can be issued by District Magistrate, Executive Magistrate or Sub-divisional Magistrate. If, however, such a warrant is issued by any other Magistrate erroneously and in good faith, the validity of the warrant will not be affected.
The warrant continues to be effective and the subsequent procedure is that if anything is recovered from such search, it must be handed over to the appropriate authority having jurisdiction. This is provided specifically under Section 460 (a) of the Cr.P.C.
Under Section 93 (3) only “a District Magistrate or Chief Judicial Magistrate”[14] can issue a warrant for a search of a document or thing “in the custody of the postal or telegraph office”. If the warrant is issued by any other Magistrate, in this case, the warrant shall be ineffective and any proceeding that has commenced shall vitiate[15].
Further, if the warrant is not issued by a District Magistrate, Sub-divisional Magistrate or First Class Magistrate under Section 97 for unlawful detention, the warrant shall “be illegal and any entry into the place in consequence of such illegal warrant would be without any legal authority”[16].
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Search without warrant by unauthorised police officers
Under certain circumstances, the Code allows a police officer to conduct the search without a warrant. This can be seen in Sections 153, 165 and 166 of the Code where the police officers are allowed to search and seize without a warrant to avoid delay in the investigation or prevent escapism of the suspects, etc. This power can be exercised by a police officer of a certain rank or by one who is specifically authorised by the law. If the search is conducted by any officer other than the one prescribed by law, the search shall be illegal and the entry into such a place will be unauthorised[17].
Further, under these provisions, a police officer may search a place only within the jurisdiction of his police station. To conduct a search of a suspicious place not in his jurisdiction, the officer “shall request the officer in charge of the police station in whose jurisdiction the place lies”. Further, the code entails that “a search by a police officer outside the limits of his police station and in the circumstances in which he is not authorised to do so under Section 166 (3), is without legal authority and hence, illegal”[18].
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Effect of Non-adherence of Search Procedure
The code abounds with several kinds of searches to be conducted by the police officers. For instance, search of the accused after the arrest, search of the crime scene after receiving information, a search of a place suspected to contain evidence, etc. Some of these searches are with the warrant and some are without a warrant.
The code renders a standard procedure to be followed in every case of search under Section 100 whereas Sections 165 and 166 deal with procedure with respect to search to be conducted without a warrant. The Allahabad High Court in Sharda Singh v. the State of U.P.,[19] observed that these procedures are mandatory in nature and any contravention will render the search illegal or at least irregular.
In Musheer Singh v. State of Madhya Pradesh[20], the apex court observed that certain facts discovered out of illegal or irregular search can be admissible if they are reliable. It can be inferred from this pronouncement that contravention of search procedures is not prima facie illegal and does not vitiate the trial in its entirety. As in Radha Kishan v. the State of U.P.[21] it was held that the effect of any procedural irregularity under the code has to be tested on the touchstone of it prejudicing the accused person in his defence. It means that if the irregularity in search procedure does not allow the accused to defend himself completely, such irregularity may vitiate the trial.
For instance, the panchas brought as a witness to search procedure is not independent but the complainant itself, such procedure will not allow the accused to defend himself because the prosecution is the witness to the procedure which was supposed to be fair.
According to Section 465 of Cr.P.C, “no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by the same court or by a higher court only because of an error, omission or irregularity in the issue of warrant unless it has occasioned a failure of justice against the accused”. The test to determine the failure of justice has been provided in Section 465 (2) where the Code states that if an objection could and should have been raised by the accused at an earlier stage of the proceeding and he failed to do so, this fact shall be regarded while considering the failure of justice.
The Supreme Court in Shyam Lal Sharma v. State of Madhya Pradesh observed that “this court has not finally decided whether a search already made in contravention of the provisions of Cr.P.C makes it illegal or void or merely provides a justification for an obstruction to the search when it is intended or in the process of being conducted” [22]. On the finding of the case in hand, the apex court refused to resolve this doubt and the question still remains unanswered even today.
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Search with Consent of the Occupant
“If the entry into the place of search and the subsequent search is with the consent of the occupant of such place, the search and recovery will not be affected on the ground that the search procedure under Sections 100 and 165 were not followed”[23].
In Malak Khan v. Emperor[24], where it was alleged and proved that the articles were produced by the accused person himself, the Privy Council held that Section 165 does not apply.
[1] §93 (1) (a), Cr.P.C, 1973
[2] §93 (1) (b), Cr.P.C, 1973.
[3] §93 (1) (c), Cr.P.C, 1973.
[4] R.V. Kelkar, Criminal Procedure 97 (5th ed. 2008).
[5] Kalinga Tubes Ltd. v. D. Suri, (1953) 54 Cri. L.J. 1041; Also, Stephen v. Chandra Mohan, 1988 Cri. L.J. 308 (Ker.).
[6] Cr.P.C, §93 (1) (a), 1973.
[7] Cr.P.C, §93 (1) (b), 1973.
[8] Cr.P.C, §93 (1) (c), 1973.
[9] Cr.P.C, §94, 1973.
[10] §97, Cr.P.C, 1973.
[11] §100, Cr.P.C, 1973.
[12] V.S. Kuttan Pillai v. Ramakrishnan, (1980) 1 SCC 164.
[13] Musheer Khan v. State of Madhya Pradesh, AIR 2010 SC 762.
[14] §93, Cr.P.C, 1973.
[15] Cr.P.C, §461 (b), 1973.
[16] Kelkar, supra note 1 at 117.
[17] Ratanlal & Dhirajlal, Criminal Procedure 103 (17th ed. 2006).
[18] Ibid.
[19] Sharda Singh v. the State of U.P., 1999 Cri. L.J 1880 (All).
[20] Supra note 9.
[21] Radha Kishan v. the State of U.P., AIR 1963 SC 822.
[22] Shyam Lal Sharma v. State of Madhya Pradesh, (1972) 1 SCC 764.
[23] Malak Khan v. Emperor, AIR 1946 PC 16.
[24] Ibid.
