Power of the Police Officers to Search a Place with and without Warrant

By | August 13, 2019
Trial of Warrant Cases under the Code of Criminal Procedure, 1973

Introduction

This article discusses the Power of the Police Officers to Search a Place with and without Warrant. During an investigation, enquiry or trial, the police or the court relies on several documents or other material objects to proceed with the proceedings. To ensure the availability of such things to the agencies conducting such proceedings, the code bestows power upon the police officers to search a place and obtain anything so discovered. The materials may be in possession or control of a certain person or persons who are required to produce such relevant documents or things before the court. However, if such person fails to produce such things, the law empowers these agencies to devise coercive methods for obtaining these material objects such as the power to search a place and seize any relevant object.

The Code of Criminal Procedure, 1973, therefore, provides initially for a summon to be issued by the appropriate agency (Magistrate or Court) to the person in possession of such things[1]; but, if this measure proves unsuccessful or is anticipated to fail, the police is empowered, on specific orders and issuance of warrant by the court to search the place for any document or thing kept or hidden by such person and may seize them[2].

The Code empowers the court to “issue warrants for general search”[3] of a place or for any specific things or documents as the case may be. Moreover, there can be circumstances when the power needs to be exercised urgently for the threat of tampering of evidence or absconding of the accused or witness. To conform to such exigencies, the Code also entitles the police to conduct a search even without a warrant from the competent Magistrate[4].

Search with a 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, documents or for persons in wrongful confinement”[5]. According to the provisions of Cr.P.C, search-warrants can be issued under six circumstances; divided into four provisions of the Code.

Three of the six circumstances are covered by Section 93 (1) which states as follows:

  •  According to Section 93 (1) (a), a search warrant can be issued “only if a person fails to produce a document or thing required to be produced under a summon”[6]. If a summon cannot be issued under Section 91, a warrant can also not be issued. In Kalanithi Maran v. State[7], the Madras High Court held that “a search warrant cannot be issued under this provision for the production of a document or property known to be in the possession of the accused person”[8].

The words ‘reason to believe’ in this clause would be construed to mean as “sufficient cause to believe” [9] that there is a necessity for the search warrant to be issued otherwise the thing would not be produced. Further, the word ‘may’ connotes that the court is not bound to issue a search-warrant whenever it is asked for. It was observed that the court may direct an investigation by the police before issuing any search warrant[10].

  • A warrant of the search may also be issued when the possessor of a relevant document or property is “not known to the court”[11]. In such circumstances, the police have the power to search all suspected places until the document or the thing is discovered and accordingly seized[12].
  • According to Section 93 (1) (c), a general search-warrant can be issued to serve the purpose of any investigation, inquiry or trial. The Calcutta High Court while explaining a general search conducted by the police observed that general search is a roving enquiry conducted by a police officer to answer questions as to whether a person is part of a criminal act or not.[13]

The word ‘inspection’ under clause (c) relate only to the inspection of the locality or place of search and the inspection of the document. In Hoshide v. Emperor[14], the court observed that the omission of the word ‘investigation’ along with inquiry and trial suggests that the legislature did not provide for the issuing of the warrant under this provision for the purpose of an investigation.

This provision can be used only for trial or inquiry or other proceedings which must be interpreted ejusdem generis to mean other judicial proceedings. Thus, a Magistrate issuing warrant under this provision for investigation purposes commits a wrong that amounts to procedural irregularity.

  • A warrant for a search of a place suspected to contain stolen properties, forged documents, etc. can be issued under Section 94 of the Code. This is the fourth circumstance when search-warrant can be issued. The essential elements or the crux of the provision provides that:
  1. The search-warrant can be “issued only by a District Magistrate, Sub-divisional Magistrate or Judicial Magistrate First Class” [15],
  2. The person authorized to search “must be a police officer above the rank of a constable”[16],
  3. Before the warrant is issued, the concerned Magistrate must have “sufficient reason to believe that a place is used for the deposit or sale of stolen property, etc.” [17]
  • Where any document such as a newspaper, book or journal contains any libellous or seditious matter or anything prohibited to be published by the Central or the State Government is circulated amongst the general public with the intention of spreading it, the government may order for forfeiture of every copy of such document containing prohibited matter [18].
  •  Lastly, search-warrant can be issued to search a place to find a person who is “confined under such circumstances that the confinement amounts to an offence under any of the laws of the country for the time being in force; such as kidnapping or abduction, etc.”[19] In Zahirul Hassan v. State of U.P.[20], the court averred that “the warrant under this section is in the nature of a writ of habeas corpus for the rescue of a wrongfully confined person by the intervention of police directed by a magisterial order”[21].

The provision was used by “a father to rescue his married daughter from her wrongful confinement by her in-laws in Pravin Singh v. Biharilal Singh[22]. The court observed that “before a warrant is issued under this section, the Magistrate only needs to satisfy himself that a person has been wrongfully confined”[23] and he is not required to hold a detailed inquiry for his satisfaction.

General Provisions relating to Search-Warrants

Certain provisions in respect of a warrant of arrest have been made applicable mutatis mutandis to search warrants issued under any of the aforementioned six circumstances by virtue of Section 99 of the Code of Criminal Procedure.

Section 99 states that “the provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search- warrants issued under section 93, section 94, section 95 or section 97”[24].

Section 38 referred to in Section 99 provides that a person, other than a police officer, may be aided in the execution of a warrant. Sections 70 and 72 deal with the form of the warrant, its duration and the person to whom it might be directed. Section 74 provides that “a warrant directed to any police officer may be executed by any other police officer whose name is endorsed on the warrant”[25] by the police officer who was initially directed to execute the warrant. Sections 77 to 79 deal with the jurisdiction related issues in case of warrant[26].

The search of a Place without Warrant

There can be exigencies during the process of investigation or inquiry where an immediate search of a place is vital to prevent the loss or fabrication of any document or thing relevant to the case. The Code provides for such exigencies by empowering the Magistrate to cause the search of a place in his presence where no written warrant is necessary and also empowers the police officers to conduct such search without any authorization from the Magistrate or the Court. The Code provides four circumstances where search can be conducted without a warrant[27].

  •  A Magistrate competent to issue a search warrant under any of the six circumstances mentioned above “may direct a search to be made in his presence if he considers it advisable. In such a case, it would not be necessary to formally issue a search-warrant”[28].
  • In Melecio Fernandes, the court asserted that “a citizen should have in his house a full and free life undisturbed by any executive or administrative action. However, in the larger interests of the administration of justice, it becomes necessary that public officers engaged in investigations and inquiries related to offences or suspected offences should be afforded fair and reasonable opportunities for searches” [29].

Generally, a search can be conducted only by an authority if a judicial officer. Nevertheless, Section 165 of the Code is an exception to this general rule. This provision recognizes that “in certain exceptional emergencies, it is necessary to empower responsible police officers to carry out searches before applying for a warrant to the court”[30].

An analysis of the provision will show that:

  1. The power to search under this Section can be exercised only by the officer-in-charge of the police station or any officer specifically authorized by such officer-in-charge,
  2. The search must be for specific documents or things or materials and not be a general search,
  3. The police officer conducting the search must have reasonable grounds to believe that any specific material or document may be found in that place and it cannot be otherwise obtained without undue delay.
  4. Lastly, the police officer must record in writing the ‘reasonable grounds’ aforementioned and provide a copy of the search and seizure memo to the person in possession of the place of search[31].
  •  Section 166 enables a police officer to effectuate the search of a place located beyond the limits of his own police station if the extremity so requires. The provision includes two aspects of search without a warrant[32].

Firstly, when a police officer conducting the investigation has reason to believe that certain relevant document or material things can be obtained from a place beyond the jurisdiction of his police station, such officer may ask any other police officer of the police station that has jurisdiction over such place to make the search on his behalf. The officer so required to make a search can proceed according to Section 165 and transmit any document or thing found from such search to the police station where the offence was committed.

Secondly, if the police officer has reason to believe that the delay occasioned by requiring an officer-in-charge of another police station to cause a search to be made as mentioned above will result in the concealment or destruction of any evidence, the police officer may himself search such place out of the limits of his police station and such search will not be unlawful.

  •  If a place such as a grocery shop or ration shop where goods are sold on the basis of the weight, uses false weights or any tool to deceive the customers with respect to the weight of such goods, the police officers have power to search such places for such false weights and tools and seize any illegal material found in that place[33].

[1] Code of Criminal Procedure, No. 2, Act of Parliament, §91, 1973 (India).

[2] Code of Criminal Procedure, No. 2, Act of Parliament, §93, 1973 (India).

[3] Ibid.

[4] 1 D.D. Basu, Code of Criminal Procedure, 1973 343 (6th ed. 2017).

[5] R.V. Kelkar, Criminal Procedure 97 (5th ed. 2008).

[6] Ibid.

[7] Kalanithi Maran v. State, 2004 Cri.L.J 1288 (Mad).

[8] Ibid.

[9] Bimal Kanti v. M. Chandrashekhar Rao, 1986 Cri.L.J 689 (Ori).

[10] Melecio Fernandes v. Mohan, AIR 1966 Goa 23.

[11] Supra note 6.

[12] Basu, supra note 3.

[13] Paresh Chandra Sen Gupta v. Jogendra Nath, AIR 1927 Cal 93.

[14] Hoshide v. Emperor, AIR 1940 Cal 97.

[15] Kelkar, supra note 4 at 101 – 02.

[16] Ibid.

[17] Dinesh Auto Finance v. State of Andhra Pradesh, 1988 Cri. L.J 1876 (AP).

[18] §95, Cr.P.C, 1973.

[19] Code of Criminal Procedure, No. 2, Act of Parliament, §97, 1973 (India).

[20] Zahirul Hassan v. the State of U.P., 1988 Cri. L.J 230 (All).

[21] Ibid.

[22] Pravin Singh v. Biharilal Singh, 1989 Cri. L.J 1386 (Bom).

[23] Ibid.

[24] §99, Cr.P.C, 1973.

[25] §74, Cr.P.C, 1973.

[26] Ratanlal & Dhirajlal, Criminal Procedure 101 – 02 (17th ed. 2006).

[27] Kelkar, supra note 4 at 106 – 10.

[28] Code of Criminal Procedure, No. 2, Act of Parliament, §103, 1973 (India).

[29] Melecio Fernandes v. Mohan, AIR 1966 Goa 23.

[30] §165, Cr.P.C, 1973.

[31] Ratanlal, supra note 17 at 115.

[32] Kelkar, supra note 4 at 108 – 09.

[33] Code of Criminal Procedure, No. 2, Act of Parliament, §153, 1973 (India).


1.Consequences Of Non-Compliance Of Procedure Relating To Search And Seizure(Opens in a new browser tab)

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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