SEARCH WARRANTS

Sasi K.G.

01. INTRODUCTION

People's homes and offices are private places and cannot be open to searches and entry from any authority without solid and adequate reason. The law requires anyone wanting to enter to explain why they find it necessary to disturb that right. The police have to go before a magistrate and explain the reasons for their thinking there are goods, papers or people that are hidden in the premises which will help them investigate a crime. If the magistrate gets convinced that the police officer is not on a "fishing inquiry" he will give the authority. The authority is very limited and gives the name and rank of the particular officer allowed to enter that particular place and is issued under the sign and seal of the court.

If the police come to your house for questioning they may enter only at your invitation. However, even if the police have reasonable grounds for believing that you are hiding a suspect or criminal, or you have stolen property or an illegal weapon in your home, they can only enter your house with a search warrant from a magistrate. But if the suspect, criminal or object needs to be obtained without any delay and there is fear that it will be lost without seizure then the Police can enter your house without a warrant.

It is only when there is real urgency - for example there is a real possibility that a suspect will run away or if evidence is likely to be destroyed - that the police can enter your house without a warrant. With or without a warrant there, any search has a whole procedure to be followed. This paper addresses such procedure as well as the rights and liabilities of the persons involved.

02. CODE OF CRIMINAL PROCEDURE, 1973

The Code of Criminal Procedure, 1973 is the main procedural law for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Additionally, it also deals with public nuisance, prevention of offences and maintenance of wife, child and parents. At present, the Act contains 484 Sections, 2 Schedules and 56 Forms. The Sections are divided into 37 Chapters.

01. History of Criminal Procedure Code in India

In medieval India, subsequent to the conquest by the Muslims, the Mohammedan Criminal Law came into prevalence. The British rulers passed the Regulating Act of 1773 under which a Supreme Court was established in Calcutta and later on at Madras and in Bombay. The Supreme Court was to apply British procedural law while deciding the cases of the Crown’s subjects. After the Rebellion of 1857, the crown took over the administration in India. The Criminal Procedure Code, 1861 was passed by the British parliament. The 1861 code continued after independence and was amended in 1969. It was finally replaced in 1972.

02. Scope of Criminal Procedure Code

The Criminal Procedure Code is applicable in the whole of India except in the State of Jammu and Kashmir. The Parliament's power to legislate in respect of Jammu and Kashmir is curtailed by Article 370 of the Constitution of India. The provisions of Criminal Procedure Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply (a) to the State of Nagaland and (b) to the tribal areas. However the concerned State Government may, by notification apply any or all of these provisions in these areas. Supreme Court of India has also ruled that even in these areas, the authorities are to be governed by the substance of these rules.[i]

03. Functionaries under the Code are the following

The Criminal Procedure Code, 1973 provides for the following functionaries.

1. Magistrates and judges of the Supreme Court and High Court

2. Police

3. Public prosecutors

4. Defence Counsels

5. Correctional services personnel

04. Punishments and Authority competent to award them

According to Criminal Procedure Code, Magistrates may pass the following sentences.

1. The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

2. The Courts of Judicial Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees (sub by act 25 of 2005 for rupees five thousand), or of both.

3. The Courts of Judicial Magistrate of Second Class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees(sub by act 25 of 2005 for rupees one thousand), or of both.

4. The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Courts of Judicial Magistrate of First Class

05. Warrants

Criminal Procedure Code classifies cases into two, namely, Summons-Case and Warrant-Case. Under Section 204 of the code, a Magistrate taking cognizance of an offence is to issue summons for the attendance of the accused if the case is a summons case. If the case appears to be a warrant case, he may issue a warrant or summons, as he sees fit. Section 2(w) of the Code defines summons-case as, a case relating to an Offence, and not being a warrant-case. Section 2(x) of the Code defines warrant-case as, a case relating to an Offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

03. SEARCH WARRANT UNDER VARIOUS ACTS

Apart from Criminal Procedure Code, 1973, many other Acts also provide for search warrants and seizures. However, many of such Acts give reference to the Criminal Procedure Code itself. A few of them are mentioned below.

01. Central Excise Act, 1944

Section 18 of the Central Excise Act, 1944 read with Rules 22& 23 of the Central Excise (No.2)Rules, 2001 provides that all searches should be made in accordance with the provisions of the Code of Criminal Procedure, 1873. Moreover, Section 12 of the Central Excise Act, 1944, empowers the Central Government to apply the provisions of the Customs Act to the Central Excise also. In exercise of such powers the Central Government has issued Notification No.68/63, dated 4.5.1963 modifying and extending the various sections of Customs Act, 1962 to Central Excise matters. In terms of the said rules, an officer not below the rank of the Inspector of Central Excise, duly authorized by Commissioner by special or general order, can search at any time, any premises or conveyance where he has reason to believe that excisable goods are manufactured, stored or carried in contravention of the provisions of the Act or rules. For a registered premises or for stopping and searching any conveyance in transit no search warrant is required. However, in other cases, normally search warrants are issued by the Deputy/Assistant Commissioner authorizing the search. The Central Excise Officer is also authorized to stop and search any conveyance as well. The search is to be carried out in the presence of two independent witnesses. Section 22 deals with vexatious searches, seizure etc. by Central Excise Officers. In such case the Central Excise office will be liable to punishment under the law. Similar provision is made applicable to any person wilfully and maliciously giving false information leading to vexatious search.

02. Securities and Exchange Board of India (Procedure for Search and Seizure) Regulations, 2014

According to this regulation, Rule 3 an Investigating Authority, having reason to believe that any or all of the grounds specified under sub-section (8) of section 11C of the Act exist, may make a request in writing in physical or electronic mode as per Form A of the Schedule to the Chairman for issuance of warrant of authority, specifying therein the grounds reasons for multiple execution, if required and the details of the person or enterprise and its building, place, vessel, vehicle or aircraft whose search is required to be authorized,. The chairman as per Rule 4 may, after being satisfied that it is necessary to do so, authorize the Investigating Authority or any other officer of the Board as the authorized officer by issuing a warrant of authority as per Form-B of the Schedule.

Chapter III of the Regulation stipulates the procedure in this regard. Separate provisions are prescribed for witnesses, search of place and buildings, search of vessel vehicle or aircraft, search of persons, search of computers, etc. General obligations of the investigating authorities and the rights and obligations of the person also are prescribed.

03. The Finance Act, 1994 and onwards

The Finance Acts from time to time have provided for service taxes and provisions for search and seizure of books etc. are provided therein. Section 82 of the Finance Act, 1994 had empowered the Joint Commissioner (Commissioner for the period prior to 08-04-20110 of Central Excise to authorize the search for any documents or books or things which he has reason to believe are secreted in any place and are useful or relevant to any proceedings under the service tax provisions and if necessary, to seize them. The Finance Act, 2002 w.e.f. 16-08-2002 had empowered the Commissioner (a Joint Commissioner effective from 08-04-2011) to authorize for search and seizure both. Sub-section (2) of Section 82 stipulates that the provisions of Code of Criminal Procedure, 1973 relating to searches shall apply to searches under Section 82 so far as they apply to searches under that Code.

04. Income Tax, 1961

As per Instruction No. 7 of 2003 of 30th July 2003 of the Income Tax Department, Searches should be carried out only in cases where there is credible evidence to indicate substantial unaccounted income/ assets in relation to the tax normally paid by the assesse or where the expected concealment is more than Rs. 1 crore. Survey may be converted into a search by the competent authority prescribed u/s 132 of the Income Tax Act, 1961, provided that one of the following conditions [vide clauses (a), (b) & (c) of section 132(1)] is fulfilled.

1. When information is obtained in the course of survey at business premises

2. When incriminating material is lying in a locked receptacle (almirah) or room which is not opened by the person present even after being required to do so (Survey Party is not authorized to break open locks / seals)

3. When valuables found in a survey are required to be seized (Survey Party is not authorized to seize asset)

4. On noncompliance with summons issued u/s 131(1) seeking to conduct survey in terms of section 133 A (6)

These principles are upheld in the Case law Badriram Choudhary v. ACIT.[ii] There are many other Acts empowering various authorities to conduct searches and make seizures.

04. SEARCH WARRANT UNDER Cr.P.C., 1973

Application of Provisions of Code of Criminal Procedure, 1973

Sub-section (2) of Section 82 stipulates that the provisions of Code of Criminal Procedure, 1973 relating to searches shall apply to searches under Section 82 so far as they apply to searches under that Code. The relevant provisions of the Code are contained in Sections 47, 51, 91-94, 99, 100, 101, 103, 165, 166, 460 and 461. For the purpose of continuity and brevity a section-wise treatment is resorted in this paper.

Sn. 38 Aid to person other than police officer, executing warrant

“38. When a warrant is directed to a person other than a police officer, any person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant.”

According to section 99, the provisions of sections 38 shall, so far as may be, apply to all search-warrant issued under section 93, section 94, section 95 or section 97.

Sn. 47. Search of place entered by person sought to be arrested

Section 47 of Cr.P.C. runs as follows.

“47.(1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him such free ingress thereto, and afford all reasonable facilities for a search therein

(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purposes, and demand of admittance duly made, he cannot otherwise obtain admittance:

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

(3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.”

Strictly speaking, what is executed here is only a warrant for arrest. However the provisions act as a search warrant for a person and empowers the police officer to break open the house or rooms therein, even though, of course, with restrictions, the violation of which shall make such officer liable.

Sn. 51. Search of arrested persons

Section 51 of Cr.P.C. runs as follows.

“51.(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail.

The officer making the arrests or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person

(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.”

Sn. 91. Summons to produce document or other thing

Section 91 of Cr.P.C. runs as follows.

“91.(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed—

(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891(13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority”

Section 91 ensures that where the production of a document or a thing is necessary, summons are obtained from the appropriate court or orders secured from an authorised officer requiring the person in whose possession or power the relevant document or thing is believed to be, to produce said document/thing at a stipulated time and place specified in the warrant/ order. If an Investigating Officer considers the production of any particular document or thing, necessary or desirable for the purpose of investigation, he may issue a written order to the person in whose possession or power such document or thing is believed to be, for its production under Section 91 Cr.P.C. A Court can also issue summons for production of such document or thing under Section 91 Cr.P.C.

Sn. 92. Procedure as to letters and telegrams

Section 92 of Cr.P.C. runs as follows.

“92.(1) If any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or Court may require the postal or telegraph authority, as the case may be, to deliver the document, parcel or thing to such person as the Magistrate or Court directs.

(2) If any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or Judicial, or of any Commissioner of police or District Superintendent of Police, wanted for any such purpose, he may require the postal or telegraph authority, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or Court under sub-section (1).”

Thus the delivery (practically seizure) of a parcel or a thing in transit under the custody of a postal or telegraph authority to a particular person can be ordered by the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court. Meanwhile, pending order of the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court, any other Magistrate, whether Executive or Judicial, or of any Commissioner of police or District Superintendent of Police may require the postal or telegraph authority to cause search to be made for and to detain such document, parcel or thing.

Sn. 93 When search warrant may be issued

Section 93 of Cr.P.C. runs as follows.

“93.(1) (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or

(b) where such document or thing is not known to the Court to be in the possession of any person, or

(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.

(2) The Court, may, if it thinks fit, specify in. the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.”

Search and seizure pursuant to a warrant under Sn. 93 obtained during an investigation is nothing but an integral step in an investigation.[iii] Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court is unaware not only of the person but even the place where the documents may be found and a general search is necessary. One cannot cut down the power of the Court under S. 93(1)(c) by importing into it some of the requirements of s. 93(1)(b). Search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and therefore is not violative of Art. 20(3) of the Constitution.[iv] The Magistrate is required to record reasons before the issue of a search warrant. An illegal order of search and seizure vitiates the seizure of the article.[v] This section contemplates the production of some specified or distinct thing or object which may be deemed essential to the conduct of any inquiry, and to the conviction of the accused person such, for instance, as a bloody knife, a vessel containing poison, a forged document, a piece of stolen property, and so on. It provides for an efficacious procedure for the production of a document or thing, when the summons to produce it has failed or in other cases. A summons or order under s. 91 or a requisition under s. 92(1) is addressed to the person who has the document or thing; but the warrant under S. 93 is directed to a police-officer. Under s. 91 any Court or any officer in charge of a police-station can take action; whereas under this section, only the Court can proceed.

It is desirable, though not obligatory under s. 93(1) to record reasons in writing. As a search warrant is not a mere formality but a drastic act, necessary precaution should be taken to see that powers vested are not abused.[vi]

A search-warrant under this section can be issued only in three cases:-

(1) where the Court has reason to believe that the person summoned to produce a document or thing will not produce it;

(2) where the document or thing is not known to be in the possession of any person;

(3) where a general inspection or search is necessary.

This section applies not only when there is an enquiry pending, but also when an inquiry is about to be made.[vii] The search warrant may be general or restricted in its scope as to any place or part thereof.

S.93 provides that where the Court has reasons to believe that a person to whom summons or requisition is made would not produce the required document or thing or where the person or in whose possession a document or a thing is not known, and where the Court considers that the purpose of inquiry/trial will be served, it may issue of search warrant for the discovery of such a document or a thing. While the Investigating Officers may conduct searches, as authorized by law, under their own authority u/s 165 Cr.P.C. it is advisable to obtain warrants for searches under Section 93 Cr.P.C. from a competent Magistrate in important and sensitive cases (as well as where time and circumstances permit).

Sn. 94 Search of place suspected to contain stolen property, forged documents, etc.

Section 94 of Cr.P.C. runs as follows.

“94. (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorize any police officer above the rank of a constable-

(a) to enter, with such assistance as may be required, such place,

(b) to search the same in the manner specified in the warrant,

(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which section applies

(d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety,

(e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies.

(2) The objectionable articles to which this section applies are--

(a) counterfeit coin;

(b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);

(c) counterfeit currency note; counterfeit stamps;

(d) forged documents;

(e) false seals;

(f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);

(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).”

The ingredients of this section can be split up as follows.

If the Magistrate-

(1) upon information and after inquiry

(2) has reason to believe that any place is used-

(a) for the deposit or sale of stolen article; or

(b) for the deposit, sale or production of any objectionable article mentioned in sub-so (2); or

(c) such objectionable article is deposited in any place;

(3) then he may by warrant authorise a police-officer (above the rank of a constable) to-

(i) enter, if necessary with assistance, such place;

(ii) search the same as provided in the warrant;

(iii) take possession of the stolen or the objectionable article;

(iv) convey the same to the Magistrate or otherwise keep the article safely; and

(v) take into custody every person found in the place who appears to be suspect and produce them before the Magistrate.

The words used in this section like "stolen property", "counterfeit currency notes", "forged documents" etc. are defined in the Indian Penal Code, 1860.

In cases of improper search and seizure, consequence is only that the evidence should be examined with caution.[viii] In this case, criminal breach of trust, warrant issued without assigning reasons or making preliminary inquiry, was held improper, but search already completed and things recovered, had no interference.

While considering S. 94 Cr. P.C. and S. 10 of Railway Property (Unlawful Possession) Act, 1966, Calcutta High Court held that the basic difference between the two provisions is that S. 94 Cr. P.C, does not prescribe any territorial limitations with regard to the jurisdiction of the Magistrate issuing search warrant, but S. 10 of the Railway Act says that the application for issuance of search warrant has to be made "to the Magistrate having jurisdiction over the area in which that place is situated", Thus search and seizure made in pursuance of a search warrant issued u/s. 10 of the Railway …………Act by a Magistrate having no jurisdiction over the area, in which the place is situated, was held by the Calcutta High Court to be illegal. It was further held that ss. 94 and 460, Cr. P.C. could not validate such search and seizure.[ix]

Sn. 95 Power to declare certain publications forfeited and to issue search-warrants for the same

Section 95 of Cr.P.C. runs as follows.

“95. (1) Where-

(a) any newspaper, or book, or

(b) any document,

wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of Sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.

(2) In this section and in section 96,-

(a) "newspaper" and "book" have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867);

(b) "document" includes any painting, drawing or photograph, or other visible representation.

(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of Section 96.”

Section 95 and Section 96 should be read together. The grounds of opinion should be clearly stated in the Notification; they are a vital and essential part of the Notification revealing as they do the justification for issuance of the Notification.[x] Where the Government does not state the ground in the Notification, the High Court will set aside the order of forfeiture.[xi] Where instead of stating the grounds of its opinion, the State Government reproduced certain words of section 124A, IPC after making reference to certain pages of the book, which had been forfeited, it was held that the order failed to state the grounds of opinion of the State Government and was liable to be set aside.[xii] An order for the forfeiture of publications under S. 95 would be bad if there is total absence of the grounds for Government's opinion. It is not necessary to prove the intention to commit an offence. But the High Court must be satisfied that the offending material is punishable under the relevant sections of the I.P.C..[xiii] The daily "Ajit" of Punjab challenged the validity of the guidelines issued in this regard to the District Magistrates by the State Government. They were held valid. It was further held that publishing news items extolling virtues of Khalistan, publishing directives and obituary notices of Khalistan terrorists do fall within the ambit of sections 124A, 153A and 153B of I.P.C. and seizure of such issues of the paper was justified under this section.[xiv] It is the pernicious tendency of the words which is enough to bring the publication within the four corners of ss. 95(1) and 96(4) I.P.C.. If a news-item has the requisite pernicious tendency, which would prima facie constitute an offence u/s. 153B IPC, forfeiture is justified.[xv]

The order of forfeiture can be valid only (a) if the Government has formed an opinion that the concerned document contains matter publication of which is punishable by the sections mentioned; and (b) the order states the grounds on which the opinion was based. Failure to comply with either of the conditions will invalidate the order.[xvi] A specific remedy has been provided for in s. 96; it is not necessary that prior to the issue of the order the State Government should issue notice to the party or parties and give them an opportunity of being heard.[xvii]

The section does not violate the guarantees contained in Arts. 19(1)(a),19(1)(b) and 19(1)(g) of the Constitution of India and is, therefore, valid.[xviii]

In terrorist infested Punjab, while it was under President's rule, many restrictions were imposed on various publications. Many issues of a Punjabi daily 'Ajit' were forfeited for violation of such restrictions u/s. 95 Cr. P.C. constitutional validity of s. 95 Cr. P.C. was challenged. Full Bench of Punjab and Haryana High Court held,-

(1) Restrictions u/s. 95 Cr. P.C. are reasonable and do not violate Articles 14, 19(1)(g) or 21 of the Constitution though they, place limited restriction on the right to trade of publisher but not total prohibition.

(2) It is neither possible nor practicable to afford opportunity of being heard to the person concerned before passing orders of forfeiture u/s. 95 Cr. P.C.

(3) But there are inbuilt safeguards u/ss. 95 and 96 Cr. P.C. viz-

(i) Government is required to state the grounds of its opinion.

(ii) Power of forfeiture can be exercised where the publication contain any matter punishable under specific sections of I.P.C.

(iii) Effective remedy is provided in s. 96 Cr. P.C.[xix]

If the notification docs not spell out the facts on the basis of which the opinion was arrived at by the State Government regarding forfeiture of a play ("Mee Naturam Godse Baltay"), mere reference to the statutory provisions of section 153 A and 295A IPC could not save the notification against the consequence of invalidity.

The power of forfeiture which has been conferred by section 95 upon the State Government is a drastic power, the exercise of which has to be strictly conditioned by due observance of the requirements of the section. The section does not empower the State Government to issue an order of forfeiture merely because it apprehends "that a law and order situation" may arise due to the opposition of a segment of the society to the message which is sought to be conveyed in the offending material (a play entitled "Mee Naturam Godse Baltay" in this case).[xx]

Sn. 96. Application to High Court to set aside declaration of forfeiture

Section 96 of Cr.P.C. runs as follows.

“96. (1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of Section 95.

(2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court.

(3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made.

(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (1) of Section 95, set aside the declaration of forfeiture.

(5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those judges.”

An order passed by the State Government under s. 95 can be challenged in that High Court only which has jurisdiction in relation to the territories of that State.[xxi] The inquiry by the Special Bench is confined to only one issue, namely, whether the publication in question contains matter of the nature referred to in the previous section.[xxii] Sub-section (4) of s. 96 of the Code requires the High Court to examine whether the book or document in question "contained any such matter" as is referred to in sub-section (1) of s. 95, and whether the matter objected to by the State Government is prima facie punishable under any or more of the offences specified in s. 95. The High Court has inherent powers u/s. 482 Cr. P.C. to award compensation to the victim, where order of forfeiture has been set aside.[xxiii] As the order of forfeiture can be issued only if the State Government forms an opinion that the concerned document contains matter publication of which is punishable under sections mentioned in s. 95(1) and as the order should state the grounds on which such opinion was based, on failure of the State to comply with either of the conditions, the High Court will invalidate such an order.[xxiv] Where the Government does not state the ground in the notification or the Court is not satisfied that the opinion could have been arrived at on the grounds stated in the notification, the High Court should set aside the order of forfeiture.[xxv]

Where the accused was prosecuted for an offence under s. 295A, Indian Penal Code, for being in possession of certain prescribed books, and the Magistrate acquitted him of that offence, but directed that the said books should be confiscated and destroyed, it was held that the Court had no power to order the confiscation and destruction of the books under this section but could only direct the restoration of the books to the authorities who had seized them.[xxvi] A notification issued under section 95 is quashed if the publication of the book complained against was not punishable by any of the sections of the I.P.C. mentioned above.[xxvii] It is necessary to give the grounds for forfeiture of a book in the notification. Mere reproduction of statutory provision is not enough.[xxviii] Where some of the grounds in the notification are valid, it cannot be set aside on the ground that some grounds are not valid.[xxix]

State Government issued order of forfeiture of book on the ground that it contained matter punishable under sections 124A 153A and 295A High Court may set aside such order if opinion of Government is not found correct.[xxx]

Sn. 97 Search for persons wrongfully confined

Section 97 of Cr.P.C. runs as follows.

“ 97. If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstance that the confinement amounts to an offence, he may issue a search-warrant and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.”

Section 97 comes into operation when a person is wrongfully confined (s. 340, Indian Penal Code). The Magistrate has jurisdiction to issue search warrant to search for a person wrongfully confined beyond the local limits of his jurisdiction. Whenever a Magistrate receives a complaint that a person has been arrested within his jurisdiction but has not been produced before him within 24 hours of his arrest, and is being detained beyond 24 hours of arrest, he can always issue a search warrant u/s. 97 Cr. P.C. This power is independent of and distinct from power flowing from clauses (1) and (2) of Article 22 of the Constitution.[xxxi] All that has to be done to make it effective is to follow the procedure prescribed in s. 78 or 79 of the Code.[xxxii] An order made in exercise of the discretion vested in the Magistrate is subject to an implied proviso that the order should be otherwise legal. Therefore, if a person who has neither committed nor is likely to commit an offence is produced before the Magistrate, he cannot order his detention.[xxxiii]

The words "reason to believe" mean that the belief must have been arrived at judicially after considering all the relevant materials with a sense of responsibility.[xxxiv] Where a child was in the lawful custody of the mother and the father of the child removed it from such custody by using physical force, a warrant under section 97 could be issued.[xxxv] A Magistrate issued search warrant for a child below five years at the instance of his mother. The child was recovered from his father's place. The Magistrate passed an order delivering the custody of the child to the mother, with a direction to have custody till the child attained majority. It was held that the Magistrate was not justified to direct that child shall be in custody of mother till he attained majority as such a direction is not contemplated in terms of Section 97 of the Code, and the order was not tenable.[xxxvi]

Where a search warrant was issued for recovery of a woman but the person claiming to be her husband was found to be a false claimant and she did not want to go to her real husband due to his cruelty the Magistrate's order for detaining her in a State Protective Home was held to be improper and she was set at liberty to go wherever she liked.[xxxvii]

Where the child of 9 years was living with his own father, it was held that s. 97 was not attracted. The court added that that this was not to have any effect upon the merits of the controversy regarding the custody of the child in the pending proceedings under the Guardian and Wards Act, 1890.[xxxviii]

Children recovered from mother under court in favour of father, the Supreme Court restored them to the mother and said that this would not affect rights under the Hindu Minority and Guardianship Act, 1956. The case was pending before the Family Court.[xxxix] A girl, who was not minor, stated that she had married of her own choice a person of another religion, she was not guilty of any offence nor her husband of abducting.[xl]

Sn. 98 Power to compel restoration of the abducted females

Section 98 of Cr.P.C. runs as follows.

“98. Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.”

Where a woman or a female child under eighteen years has been abducted or unlawfully detained for an unlawful purpose, a District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class may restore the woman to her liberty or the female child to her proper custody. Necessary force may be used in carrying out the order. Both the detention and the purpose must be unlawful. The exclusion of male children goes to show not only that some definite purpose, unlawful in itself, was contemplated, but that the purpose had some special reference to the sex of the person against whom it was entertained.[xli] Sections 97 and 98 cannot be used by one parent even if he is a legal guardian to obtain the custody of his minor children from the other parent. The proper remedy in such a case is to proceed under the Guardians and Wards Act. The summary jurisdiction under section 98 can be used only in a clear case of wrongful confinement.[xlii]

Section 97 may be compared with Section 98. Section 97 refers to "any Person confined" wrongfully. Section 98 enables the Magistrate concerned to act in cases of "abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose."

Sn. 99 Directions, etc., of search-warrants

Section 99 of Cr.P.C. runs as follows.

“99. The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search-warrant issued under section 93, section 94, section 95 or section 97.”

Sn. 100 Persons in charge of closed place to allow search

Section 100 of Cr.P.C. runs as follows.

“100. (1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by Sub section (2) of section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section; when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 or the Indian Penal Code (45 of 1860).”

The object of Section 100 is two-fold: first, it provides for the right of free ingress in case of closed premises on demand and on production of the warrant of search by the police-officer and, secondly, it seeks to ensure that searches are conducted fairly and squarely and that there is no "planting" of articles by the police. In order to achieve that object the law makes it obligatory, first, that at least two independent and respectable witnesses of the locality should be present. Only if no such persons are available or willing to be witness to search then two such persons of another locality may attend and witness the search. The word "independent and respectable" will equally govern the latter case. Secondly, the search should be made in their presence; and the list of things seized in the search should be signed by them. Thirdly, the occupant of the place searched or his representative should be permitted to attend during the search, and to have a copy of the list prepared. When provisions of this section and s. 165 of the code are contravened the search can be resisted by the persons whose premises are sought to be searched.[xliii]

When a search has been conducted under this section evidence can be given regarding the things seized in the course of the search and regarding the place in which they were found in addition to the evidence of the list which the law directs to be drawn up relating to the particulars of the property found.[xliv]

The witnesses are to be selected by the officer conducting the search.[xlv]

Recovery of articles in search and seizure, the evidence of the witness was not to be rejected for the reason that he was not from the locality of the search.[xlvi] A person does not cease to be an independent witness merely because he has acquaintance with the police; every citizen is presumed to be independent unless the contrary is shown; the fact that the witness was a complainant in a robbery case or was a witness is two other cases also would not render him to be not an independent person, the fact that one of the witnesses was the driver of vehicle on which the police party went to the place of search did not destroy his status of being an independent person.[xlvii] The witnesses so selected should be unprejudiced and uninterested as the object of the section is to ensure fair dealing and a feeling of confidence and security amongst public.[xlviii] Where no independent witness is available the evidence requires greater scrutiny by the Court.[xlix] Absence of all independent witness from the locality to witness the search is not material as per the circumstances.[l] The words "respectable inhabitants of the locality in which the place to be searched is situate" clearly refer to the search of a place and this section does not apply to the search of a person.[li] A motor-car is not a place within the meaning of this section and, therefore, the provisions relating to searches contained herein will not apply to searches of a motor-car.[lii] A person witnessing the seizure need not attend the Court. However, where one of the witnesses is summoned the seizure must be proved by such a witness.[liii] 1f the provisions of sec. 100(4) are not applied the accused is entitled to the benefit of doubt.[liv] The evidence of a Panch witness cannot be discarded merely on the ground that he was not a local resident.[lv] Narcotic substances were recovered from the possession of the accused on search by a raiding party, it was held that simply because the panchas of the same locality were not called as required by s.100 Cr. P.C., the search was not vitiated unless grave prejudice was shown thereby.[lvi] Where the accused persons were being searched for gambling, opium was recovered from their pocket, but no independent witness could be associated with the search as required u/s. 100(4) Cr. P.C., it was held that in the circumstances, it would amount only to an irregularity and could not vitiate the trial unless the accused was prejudiced by such non-joining of independent witness.[lvii] Where a contraband article was recovered by the police while on patrol duty, from the possession of the accused, but the recovery memo was not attested by independent persons, it was held that s. 100(4) Cr. P.C. was not a mandatory provision and statements of the police personnel inspired confidence and their sworn testimony could not be discarded only because they were official witnesses.[lviii]

Where there was recovery of an article (blood-stained knicher of the deceased) on disclosures made by the accused to the police, it was held that there is no requirement that the seizure memo be attested by any independent witnesses. Absence of witnesses at the time of the statement and then again at the time of recovery is not a sufficient ground to discard the evidence. The evidence of the police officer regarding the recovery at the instance of the accused should ordinarily be believed. It is for the accused to show that the evidence in question was not reliable. But the position is different when search is made under Ch. Vll, Cr.P.C..[lix]

The search should be made in the presence of panchas. It is not a sufficient compliance with the provisions of this clause that the panchas should be summoned and kept present outside a building while the search is being carried on within it.[lx] Panchas may be summoned by Court to appear as witnesses.

The right of presence given by the section applies only to the "occupant of the place searched or some person in his behalf.” The words "occupant of the place" are not intended to cover every person who happen to be in the place at the time, but they refer back to the person mentioned as “a person residing in, or being in charge of the place" in sub-sn.(1).[lxi] This sub-section applies when a search is to be made of a place. It does not apply to the search of a person.[lxii]

The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 would be attracted when a person in possession of such material is located by some chance. The duty of the investigating officer to follow and apply the provisions of the Act would come into play.[lxiii]

Public witnesses may not be joined, but attempt must be made to join the public witnesses.[lxiv] There can be cases when public witnesses are reluctant to join or are not available All the same, the prosecution must show a genuine attempt having been made to join public witnesses.[lxv] A stereo-type statement of non-availability of any Public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness.[lxvi]

Sn. 101 Disposal of things found in search beyond jurisdiction

Section 101 of Cr.P.C. runs as follows.

“101. When, in the execution of a search-warrant at any place beyond the local Jurisdiction of the Court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the Court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such Court, in which case the list and things shall be immediately taken before such Magistrate; and unless there be good cause to the contrary, such Magistrate shall make an order authorizing them to be taken to such Court.”

Thus Section 101 makes it mandatory for the police to immediately take before the Court whatever is found in the search along with its list.

Sn. 102. Power of police officer to seize certain property

Section 102 of Cr.P.C. runs as follows.

“102. (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of' a police station, shall forthwith report the seizure to that officer.

[[lxvii](3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, [[lxviii]or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation] he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]

[[lxix]Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.]”

The amendment to sub-section (3) of section 102 is intended to give greater discretion to the police for releasing seized property, where there is difficulty in securing proper accommodation for the custody of property or where the continued retention of the property in police custody is not considered necessary for the purposes of investigation. If the seized property is of perishable nature and value of such property is less than five hundred rupees and if the person entitled to the possession of such property is unknown or absent, the police be empowered to sell such property by auction under the orders of the Superintendent of Police. This is the purpose of the insertion of the proviso to sub-section (3) of section 102 of the Code.

Where the petitioners were suspected to have entered into a conspiracy to defraud the Government of India by claiming subsidy, the CBI freezed their Bank account either in their own name or in the names of their relatives, the Delhi High Court held that issuance of directions by the CBI to various Bankers /Financial Institutions freezing the accounts of the petitioners was based on sound footing and legal.[lxx]

The bank account of an accused person and that of his relatives have been held to constitute "property" for the purposes of this section. Where there are circumstances creating suspicion about an offence relating to the account, the provisions of s. 102(1) would be attracted. This would empower the police officer to seize the bank account and issue orders prohibiting its operation.[lxxi] Freezing of the bank account of a third party was held to be illegal. The party was not the accused person in the case, connection of the accused with it was also not shown.[lxxii] Where the inspector of police was only authorised to inspect the banker's books, it was held that freezing of the accounts operated by the petitioners and his family members by the police was illegal. Allegations of disproportionate wealth are to be proved by looking at the sources of income and not by freezing accounts.[lxxiii] Mere allegation of the prosecution that the freezing of the bank account was a equal to the discovery of the crime was not sufficient.[lxxiv]

In the matter of search and seizure under the Armed Forces (Special Provisions) Act, 1958, it has been held that the relevant provisions of the Criminal Procedure Code have to be followed.[lxxv]

The offence alleged against the petitioner was forgery and misappropriation of funds. The investigating officer conducted the raid and seized certain properties including the passport of the petitioner and his wife. The passport was neither the subject of theft, nor it had created any suspicion about commission of any offence. The seizure of the passports was held to be illegal.[lxxvi]

The bank account of the accused or any of his relation to `property' within the meaning of section 102 of Criminal Procedure Code and police officer in course of investigation can seize the operation of said account if such assets have direct link with the commission of offence for which the police officer is investigating into.[lxxvii]

Sn. 103 Magistrate may direct search in his presence

Section 103 of Cr.P.C. runs as follows.

“103. Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant.”

However such searches are made only in rare occasions. It is a practice that Magistrates abstain from searches, unless otherwise necessary.

Sn. 104 Power to impound document, etc. produced

Section 104 of Cr.P.C. runs as follows.

“104. Any Court may if it thinks fit, impound any document or thing produced before it under this code.”

The word "impound" means to take legal possession; a document is impounded when it is ordered by the Court to be kept in the custody of its officer.

Sn. 105 Reciprocal arrangements regarding processes

Section 105 of Cr.P.C. runs as follows.

“105. (1) Where a Court, in the territories to which this Code extends (hereafter in this section referred to as the said territories) desires that-

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or

(d) a search-warrant,  [[lxxviii]issued by it shall be served or executed at any place,-

(i) within the local jurisdiction of' a Court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a Magistrate in the said territories;

(ii) in any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such Court, Judge or Magistrate, and sent to such authority for transmission, as the Central Government may, by notification, specify in this behalf;]

(2) Where a Court in the said territories has received for service or execution-

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(c) a summons to any person requiring him to attend and produce a document or other thing or to produce it, or

(d) a search-warrant, [[lxxix]issued by-

(1) a Court in any State or area in India outside the said territories;

(2) a Court, Judge or Magistrate in a contracting State,

It shall cause the same to be served or executed;] as if it were a summons or warrant received by it from another Court in the said territories for service or execution within its local jurisdiction; and where-

(i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81.

(ii) a search-warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101.

[[lxxx]Provided that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the Court issuing the summons or search warrant through such authority as the Central Government may, by notification, specify in this behalf.]

This self-explaining section provides for summons, and warrants for, the arrest of accused persons, search warrants, or summonses to produce a document or thing etc. issued by Courts in Jammu and Kashmir being served or executed by Courts in the rest of India and vice versa. The same is extended to any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters.

Sn. 165 Search by police officer

Section 165 of Cr.P.C. runs as follows.

“165. (1) Whenever an officer in charge of police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station

(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may there upon search for such thing in such place

(4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.”

S.165 (1) of Cr. PC ensures that the enforcement authority before entering into any premises to effect search/seizure of relevant evidence, shall record in writing, as far as possible, the reasons for believing that search would lead to discovery of such evidence.

If the document(s) or thing(s) required for investigation are likely to be found at a place and the Investigating Officer has reason to believe that such documents or things cannot otherwise be obtained without undue delay, such Officer may, after recording in writing the grounds of his belief and specifying in such writing so far as possible the document(s) or thing(s) for which search is to be made, conduct a search of a place or dwelling u/s 165 Cr.P.C. for such document or thing. The search shall, if practicable, be made by the Officer himself but if he is unable to conduct the search in person he may, after recording in writing his reasons for so doing, require any Officer subordinate to him by an order in writing to make the search. Such order shall specify the places to be searched and as far as possible the thing or document for which search is to be made. Copies of any record made u/s 165 (1) or (3) shall forthwith be sent to the nearest Magistrate or Special Judge empowered to take cognizance of the offence.

Sn. 166. When officer in charge of police station may require another to issue search-warrant

Section 166 of Cr.P.C. runs as follows.

“166. (1) An officer in charge of a police station or a police officer not being below the rank of sub- Inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.

(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made

(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station

(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of section 165 (5)

(5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub-section (4).”

This self-explaining Section empowers a Police Officer to require another Police Officer to make a search.

Sn. 460 Irregularities which do not vitiate proceedings

Section 460 of Cr.P.C. runs as follows.

“460. If any Magistrate not empowered by law to do any of the following things, namely:—

(a) to issue a search-warrant under section 94;

………………………

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

This section protects the erroneous but bonafide action of a Magistrate.

Sn. 461 Irregularities which vitiate proceedings

Section 461 of Cr.P.C. runs as follows.

“461 If any Magistrate, not being empowered by law in this behalf, does any of the following things,

namely:—

(a) attaches and sells property under section 83;

(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;

…………………….

his proceedings shall be void.

Thus if a Magistrate, not being empowered by law in this behalf (having no jurisdiction) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority his proceedings shall be void.

Forms

Form 10 and 11 of Criminal Procedure Code commonly used for issuing search warrants are reproduced in Appendices I and II.

05. PROCEDURE FOR SEARCHS AND SEIZURES BY POLICE AND OTHER AUTHORITIES

A few guidelines are prevalent in practice as a consolidation of the provisions of the Criminal Procedure Code and various precedents issued by the Supreme Court of India and High Courts of India. Some of them are mentioned below.

01. Unnecessary Searches to be avoided

House searches may be conducted only when essential in the interest of the investigation of the case after obtaining permission from the Competent Authority, who permitted registration of the case. In every case, wherein the Investigating Officer desires to search a house or dwelling Unit, he will record in his Case Diary the reasons for doing so. A house or dwelling Unit must not be searched unless there are definite reasons to believe that certain specific things or documents required for the investigation of the case will be found there. The number of places to be searched should be kept at the bare minimum.

02. Searches after dark to be avoided

Although the law does not require that searches should be made by daylight only, searches after dark should, as far as possible, be avoided. However, it may be necessary sometimes to take precautions to ensure that the articles of evidentiary value for which the search is to be made are not discharged or tampered with.

03. Search to be witnessed by Independent Witnesses

It is mandatory, as per provision of Section 100 (4) Cr.P.C., for an Officer making search, to get two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them to do so. Non-compliance of this order amounts to an offence u/s 187 IPC provided u/s 100(B) Cr.P.C. In the latter case it will, however, be necessary to place on record the fact of having made attempts to have witnesses of the locality in which the search is to be made but no witness was available. The Officer conducting the search must insist on the witnesses being present with him throughout the search and when an article or document is discovered, attention of the witness should be drawn to all the circumstances relating to it. While conducting searches in a computerized environment, it would be better to have computer literate witnesses. A witness should not be selected repeatedly to witness the searches. This can be facilitated by making entries of witness details in the CRIMES Module.

04. Procedure for House Searches

The procedure to conduct house searches is prescribed u/s 100 Cr.P.C. Before entering the house, the Investigating Officer and the witnesses should submit their person for being searched by the occupant of the house or some persons on his behalf who should be permitted to be present during the search. No other person should be permitted to enter or approach the house except a member of the household. If necessary, woman Officers should accompany the search party. The services of woman Police Officers could be taken from local Police. Immediately on reaching the house, all telephones should be taken charge of by the Search Party. Members of the search party should behave politely with the inmates of the house/place particularly with the women and aged persons. Due respect should be shown to the place of worship but the search should cover the entire premises. The search must be thorough and meticulous. All the incriminating documents/articles must be seized in the presence of witnesses. A search list must be prepared on the spot, indicating the proceedings of the search and the list of documents and articles seized during the search. A copy of the said search list must be given to the occupant of the house under acknowledgement and the documents/articles so seized from the premises may be recorded in his presence and that of the witnesses. In case it is not possible to complete the search on the same day, the portion of the premises which remained to be searched must be sealed and secured under a proper guard before leaving the premises for the night. All important exhibits should be got video-filmed and transferred to one-time write only CD/DVD. The original, along with a copy, should be sealed and deposited in the Court having jurisdiction. With the permission of the Court, a copy may be made and retained for the purpose of investigation.

Legally, it is not necessary for the DSPE to obtain consent of the Head of Department or Office concerned before making search of the premises of an Officer working under him. The DSPE Officers should, however, take him into confidence before conducting search or if they do not think it practicable to do so, inform him as soon as possible after the search has commenced. In case of search to be conducted in the premises of armed forces or an armed forces Officer, which is located in a sensitive area and falls within the category of “Prohibited Areas”, the DSPE Officers should take the Commanding Officer of the Unit/Senior authorities concerned into confidence beforehand. Their assistance should be sought for entry in such premises and also for conducting the search.

05. Guidelines to be observed during Searches

While the broad principles for taking a decision to conduct search have been mentioned in the foregoing paragraphs, the Investigating Officers or other Officers participating in the search may keep the following guidelines in mind. Guidelines for conducting search where computers or any other electronic data storage equipment are available have been discussed separately.

(a) Searches must always be carried out in strict conformity with law. Provisions of Sections 94, 165, 166, 100, 101, 102, and 103 Cr.P.C. must be fully complied with.

(b) Searches should preferably be conducted after obtaining Search Warrants. In the case of accused persons, search warrants should be obtained under Section 93 (1) (c) of Cr.P.C., 1973. In all cases where searches are decided to be carried out, prior approval of the Competent Authority should be obtained. For this purpose, a self-contained note personally prepared in hand or self-word processed by the I.O. with the comments of the SP, should be sent to the Competent Authority. This note should be treated as “Secret” and sent to the Competent Authority by name in a sealed cover with due precautions against leakage of information. Wherever possible, the note should be hand-delivered or sent by registered post (in name cover). In urgent cases, it could be sent through encrypted electronic mail message with digital signatures of the Officer(s) concerned. The SSP should exercise due caution against possible leakage. A watch of the place to be searched may be kept wherever necessary during the period of verification of information. It will not be possible to follow this procedure in certain emergent cases where there is evident risk of loss of evidence due to inherent delays. In such cases, the provisions of Section 165 Cr.P.C. may be invoked after completing all necessary legal formalities, including preparation of grounds of search. Searches after dark should be avoided as far as possible. In such cases, it is for the Branch SP to personally satisfy himself about the need for taking emergent action. However, approval of the Competent Authority should be taken as soon as possible.

(c) Soon after registration of the case, the need for conducting searches should be evaluated and the proposal for search should be sent to the Competent Authority without causing undue delay.

(d) In case during the course of a search/investigation/enquiry, the involvement of an Officer of the level of Joint Secretary and above becomes apparent, the inquiry/investigation against the latter would be initiated only after obtaining permission u/s 6-A of Delhi Special Police Establishment Act, 1946 (DSPE) Act.

(e) Members of the search party should be fully briefed about their allotted tasks and about the do’s and don’ts on searches contained in this Manual and other instructions issued from time to time, before they set out for actual search.

(f) Once a search party reaches the place of search and starts the proceedings, normally persons from the house should not be allowed to go out or outsiders allowed to come in. However, in genuine cases like school going children and medical emergency etc. the persons may be allowed to go and come after proper personal search. If the person whose house is being searched happens to be out at that time and returns during the course of search, he would, of course, be allowed to come in. The search party should have control over all the access points and outlets to the house. The search party should also take control of the telephones.

(g) The addresses and places to be searched should be verified before taking a decision and confirmed before searches are actually launched.

(h) Whenever searches are being organized, monitoring of the progress by senior Officers involved should be done at the Branch. A stand-by reserve team along with a vehicle should also be kept at the Branch/Unit, to move immediately to assist a search party. Whenever required, it could also be utilized if, during a search, necessity of searching other premises arises.

(i) As far as possible, searches should be completed in one stretch. In case, search is to continue, after a break, on the next day due to any reason, the premises should be properly sealed in the presence of witnesses and unsealed again in their presence. Adequate guarding/ security arrangement should be ensured for this period.

(j) In cases, such as those of disproportionate assets, searches could be held not only at the residence and office of the suspect Officer, but also at the place of his close relation, friends and Chartered Accountants etc., who very often are entrusted with incriminating documents. Such an assessment will have to be made prior to the registration of the case. In cases of disproportionate assets, a separate inventory should be prepared of items, which are not seized. The value, preferably as per agreement of all concerned, should be indicated against each item. Milometer reading of cars and scooters should also be shown in the inventory list. A conscious effort should be made to locate and seize the locker keys; which have a typical appearance. The locker concerned should be located quickly and sealed for conducting a search later on (within a day or two), if immediate search is not possible.

(k) Searches should not, unless unavoidable, be carried out on the occasion of festivals/celebrations or mourning etc. going on in the house concerned.

(l) Searches must always be conducted quickly and quietly and in a manner to avoid unnecessary embarrassment, humiliation or inconvenience to the occupants and members of their families. Due courtesy should be shown to them.

(m) In cases of disproportionate assets, articles of trifling value and/or daily use need not be mentioned individually in the search list nor seized. It would, however, be useful to note down the lump sum value of such articles in the house. Colour photographs of various parts of the house should be taken and got signed at the back by the photographer. His statement should also be recorded under Section 161 Cr.P.C.

(n) Disproportionately large cash or jewellery, unaccounted foreign exchange, costly electronic gadgets, arms and ammunition without licence etc. should be seized. It should be borne in mind that even if such an item is not covered by the search warrant, Section 102 Cr.P.C. could be invoked.

(o) The size of the raiding party should depend on the requirements. Show of force should be avoided. If for any special reasons, some force is required, it may be kept in reserve at some distance. However in important cases where violent conduct on part of the accused or individual being searched is expected, adequate assistance of local Police should be taken. SP of the Branch may make an assessment and take necessary steps.

(p) Officers not below the rank of Inspector should invariably head search parties. In case of searches of houses of senior Officers or big firms, the SP should supervise the searches personally. According to the importance of the case, the DIG concerned also should supervise such searches. However, the DIG/SP shall not be a formal witness to the search, as he would not remain continuously present during the searches.

(q) Informants/colleagues/subordinates of the public servant/accused whose house is searched should not as a rule be selected as search witnesses and should not accompany the search party.

In the inventory that is prepared, the incriminating documents should be listed with relevant details. The remaining documents could be inventorised in bulk. However, page numbering and identity should be given and the witnesses etc. should individually initial the contents.

No unauthorized Press publicity should be given about the searches. Strict instructions should be given to members of the raiding party not to divulge any information about searches to unauthorized persons.

A search report should be sent to the Officer with whose permission the case was registered or the searches were conducted at the earliest and in any case not later than a week after the search along with the analysis of the same. Apart from the evidence collected, the report should also mention the time at which the search began and ended, the constitution of each search party and any other fact, which may be relevant. In case the preparation of search list etc. has taken an unduly long time, this fact should also be clearly brought out in the report.

When the I.O. of one Branch goes to conduct a search in a place within the jurisdiction of another Branch, the SP of the latter Branch should be contacted to depute an Officer of his Branch to be present at the time of search. Necessary endorsement in the search warrant should be obtained before conducting a search if a house is located outside the jurisdiction of the Magistrate issuing the search warrant. (Sections 78 and 79 Cr.P.C.)

06. legal rights of the person searched to be respected

In the course of a search, it should be ensured that the legal rights of the person searched are respected because any violation thereof may affect the search adversely. The occupant of the premises reserves the following rights: –

(i) to see the warrant of authorization duly signed and sealed by the issuing authority;

(ii) to verify the identity of each member of the search party;

(iii) to have at least two respectable and independent residents of the locality as witnesses;

(iv) to have personal search of all members of the search party before commencement and conclusion of the search;

(v) to ensure that a personal search of females are carried out by another female only, with strict regard to decency;

(vi) to have a copy of the panchnama together with all annexures, for which acknowledgment should be given;

(vii) to call a medical practitioner, if required;

(viii) to have the children permitted to go to school, after discreet examination of their bags; and

(ix) to have the facility of having meals etc. at the normal time.

07. Concerned Departments to be informed

Copy of the search list/seizure memo may also be made available to the Department concerned, whenever the Departments make a specific request in the said regard.

08. Statements under Section 161 Cr.P.C. of the Search Witnesses

The I.O. shall record the statements of the search witnesses under Section 161 Cr.P.C., immediately after completion of the search.

09. Search and Seizure of Digital Evidence

In order to avoid duplication, the principles and procedures to be followed while seizing digital evidence as prescribed.

10. Production of Government Records

The Police Officers are authorized to inspect official or secret records at all stages of the investigation. They can, therefore, have access to all official records required by them for the purpose of investigation or for production in Courts. The detailed procedure in respect of records/ documents of certain Departments is described in the following paragraphs:–

(i) Post Office Records

Officers of the DSPE (Delhi Special Police Establishment Act – Practically CBI) have no authority to require the production of letters, postcards, parcels, telegraphs or other documents or things in the custody of Postal or Telegraph authorities. The procedure prescribed in Section 92 Cr.P.C. must be followed if their production is considered necessary. This prohibition, however, does not extend to the other ordinary records maintained in a post office and information available in them shall be given on the written order of the Investigating Officer. Only those entries in such records will, however, be disclosed, which relate to the person or persons accused of the offence under investigation or which are relevant to the offence.

(ii) Securing of Income-Tax Records

It is permissible under the Income-Tax Act, 1961, subject to the provision of any notification issued under Section 138(2) of the Act, to obtain any information in respect of the assessment of any assessee and to ask for the inspection of assessment records or any other information contained therein either by making an application under Section 138(i) of the Act or by sending a requisition under Section 91 Cr.P.C. or from any list of assesses published by the Central Government under section 187 Income-Tax Act. However, in view of very large number of assesses, the Ministry of Finance do not publish assessment figures in all cases particularly as the assessments would be in the names of the firms and not in the names of individuals. The latter source of information would therefore, ordinarily not be available. DSPE Officers should obtain the requisite information, as a rule by sending a requisition under section 91 Cr.P.C., instead of making an application under Section 138(i) of the Income-Tax Act, 1961.

(iii) Production of Records by Bank and Public Offices

It should be considered as sufficient compliance of an order under Section 91 Cr.P.C. by Banks or Public Offices if the required documents or books are shown or produced at the bank premises or in public offices as the case may be. IOs should not generally insist on an Officer of the Bank attending and producing the records at any place other than the Bank premises. Section 18 of the Prevention of Corruption Act, 1988 provides that certified copies of the relevant entries relating to the accounts in the Bankers’ Books of any person suspected to have committed any offence under that Act, or of any other person suspected to be holding money on behalf of such person can be taken or caused to be taken and the bank concerned is bound to assist in the exercise of these powers. These powers can, however, be exercised only by a Police Officer empowered to investigate under Section 17 of the Prevention of Corruption Act, 1988 provided that they shall not be exercised by a Police Officer below the rank of a Superintendent of Police, unless he is especially authorized in this behalf by Police Officer of or above the rank of a Superintendent of Police. Copies of Statement of Accounts certified under the Bankers’ Books Evidence Act are admissible in evidence without production of the Books/Ledgers in the Court.

(iv) Records pertaining to Company

Any Registrar of companies should not be asked under the provisions of Section 209A of the Companies Act for seizure of records in such cases where records are required by the DSPE. DSPE Officers may conduct search for the records, at the premises of the company or procure it by issuing notice under Section 91 Cr.P.C. In spite of having enabling statutory powers to search or to demand production of documents the Officers normally conduct themselves with the active cooperation of the Department concerned for smooth progress in the investigation. Therefore, the Investigating Officers should try to enlist the support and cooperation of the concerned R.O.C. who may render all assistance to DSPE in exercise of their powers under Section 209A of Companies Act and then inspect the same for doing the needful and/or take attested copies thereof for the purpose of carrying on investigation. The DSPE officials while investigating any case against any Company or its partners/Manager/Director can seize any account book or papers, as per the procedure laid down in the Cr.P.C., from the statutory functionaries of the company or from any place where the relevant documents are available, including the account books called by Registrar of Companies for their inspection under Section 209A of the Companies Act. For seizure of documents while investigating any case, the DSPE Officers need not invoke Section 209A of Companies Act as the Cr.P.C. contains enough provisions in different Sections like 102, 91, 51 etc. to summon or seize any document or thing required for the purpose of investigation. In order to obtain the original documents filed by the Department/Public Sector Undertakings including the Banks in the Courts in civil matters we may approach the Department/ Public Sector Undertakings to file photostat copies of the documents in the Courts and make available the original records to the DSPE for expediting investigation in the connected cases.

11. Unnecessary Inconvenience to Parties to be avoided

While exercising the powers under Section 91 Cr.P.C. or while taking into possession documents, records etc., required for the investigation, the Investigating Officer must be careful not to act in a manner, which may cause unnecessary hardship or dislocation of work to the persons or offices concerned.

12. Memos for Records taken into Possession

In all cases, where any records or articles are taken into possession during the course of investigation without formal search, a proper recovery memo in prescribed form attested by two respectable witnesses and the person from whom the records or articles are taken possession of should invariably be prepared on the spot and each of the documents or articles should be got initialed and numbered by the persons producing it and the witnesses to preclude any changes or substitution.

13. Records of Seized Property Deposited in Malkhana

As per the directions to DSPE, as soon as any property is seized, the Investigating Officer should hand over the property along with a copy of the seizure memo to the Officer-in-charge of the Malkhana who will make  an entry in the Malkhana Sub-Module or Seized Property Register. Entries in the Malkhana Sub-Module or Seized Property Register should be made chronologically and blank spaces should not be left for entering subsequent seizures in the case. Seizure of cash (including trap money), jewellery and other valuables will also be entered in this register. In case, entries are made in the register, the same pertaining to the cash should be made in red ink. All such money and valuables will be deposited with the Malkhana by the Investigating Officer in the first instance in sealed covers and will be entered in the Malkhana Register by the Officer-in-charge of the Malkhana. After that, the sealed cover will be re-sealed in bigger covers or in small box in the presence of Sr.PP or any other Law Officer for safe custody in a safe/locker. A record of sealing of the covers or the boxes, as the case may be and their contents will be made in the Malkhana Register and will be signed by the Officer in charge of the Malkhana and the Sr.PP or any other Law Officer. Valuable jewellery and cash whose identity is required to be established in the Court, must be kept in the locker of a Nationalized Bank, which should be hired by the Branch for Joint operation by the Branch SP and the Malkhana Incharge of the Branch. The cash whose identity is not required to be established, should be deposited in the Nationalized Bank in a Current Account operable jointly by the SP of the Branch and the Malkhana Incharge and a remark to the said effect must be made against the relevant entries in the Malkhana Register/Sub-Module of CRIMES for ready reference and further necessary action for disposal of the properties so seized by CBI.

Record of seized property shall be maintained in the Malkhana Sub-Module of CRIMES or in the prescribed form in all the CBI Branches. Data entry in Malkhana Sub-Module in the Crimes Module shall be made by the Malkhana incharge on real-time basis. This Module must be actively utilized by the Branch for day-to-day handling of documents/material objects kept in the Malkhana. This record will be maintained year wise. It will show the items carried over from the previous year in the Malkhana.

The Officer-in-charge of the Malkhana shall place the Seized Property Register before the Superintendent of Police of the Branch once in two months for his check and inspection. The Superintendent of Police should check the sealed covers or boxes containing seized money or valuables once in a month at least.

The Officer-in-charge of the Malkhana shall prepare a monthly statement of seized property pending in the Malkhana at the end of the month through Malkhana Sub-Module of CRIMES or in the following proforma in the register itself.

Sl. No.	Item No.	RC/PE No.	Date of seizure	Reasons for pendency	Remarks

The Law Officer looking after the Malkhana should scrutinize it and issue necessary directions. He shall countersign the statement after satisfying himself that all the properties entered in the record are available and no un-recorded property has been kept in the Malkhana. He will take rectification steps in case any discrepancy is noticed. He is also required to carry out a detailed inspection every three months. He may also carry out additional surprise inspections. In addition, the SP of the Branch should physically check the Malkhana in January and July each year to ensure that the properties in the Malkhana are available as per the Malkhana Module or Register.

Items or documents kept in the Malkhana may be required during the course of investigation or trial and hence these may be issued to the Law Officer and Investigating Officer handling the trial case. A provision has been made for such issue and receipt in Malkhana Sub- Module. Any item, so required, may be temporarily issued only after making the necessary data entries in the said Module. Similar entries would be made once these are received back. Whenever the Malkhana Sub-Module is not working, a Temporary Issue Register in the following form will be maintained for keeping a record of items issued to the Law Officer and investigating Officer handling the case. The status of temporarily issued items will be reviewed every month by the Law Officer-in-charge of the Malakhana. In case, it is felt that a document/item has been pending with an Officer for a long time, he may be asked to return the same. The Branch SP may also exercise necessary supervision in this regard by reviewing such temporarily issued items at least once a month and take steps to get these documents/ items back if these are no longer required by the concerned Officer(s).

Sl. No.	Item No	RC/ PE No.	Name of I.O. or Law Officer issued  documents and any other item	Signatures of the Officer to whom the document / item is issued with date	Date of Issue	Date of return	Signature of the Malkhana Incharge receiving back the documents/ articles

In case the property is produced in the Court or before an Enquiry Officer conducting Departmental enquiry as an exhibit, the Law Officer/Presenting Officer concerned should send a report to the Malkhana Incharge. Similarly, in cases where property has been given to the IOs for being returned to the parties concerned, the IOs should submit the acknowledgment of the party concerned before the Malkhana Incharge at the earliest. If for some reasons, the property could not be returned to the party, it should be promptly returned to the Malkhana Incharge. The  return of property to the concerned parties will be monitored by the Law Officer- in-charge of the Malkhana on every fortnight. The records of properties taken out of Malkhana would be maintained through a prescribed invoice generated through Malkhana Sub-Module or in a printed pro-forma to be maintained in triplicate. The Law Officer-in-charge of Malkhana and SsP should ensure that these invoices are used for transmitting property.

14. Inspection of Documents

Whenever inspection of documents kept in the Malkhana is permitted by a Court, the Law

Officer-in-charge of Malkhana or the SP of the Branch should make an Officer responsible for supervising such inspection. Such designated Officer shall be responsible for ensuring safety of all the documents. In important cases, even two or more Officers could be nominated for being present at the time of inspection. Persons conducting inspection should be searched and not allowed to carry anything by which he could damage or destroy the documents. Under no circumstances he should be permitted to carry any match sticks, cigarette lighters, ink or ball point pens etc. He may be permitted only to carry white papers and pencils for making notes if they so desire. The Officer-in-charge of Malkhana supervising the inspection should maintain a register in which details of the orders for inspection of document, and description of documents whose inspection has been permitted should be entered. This register will be seen and signed by the Law Officer-in-charge of the Malkhana or the SP of the Branch.

The Officer-in-charge of the Malkhana in each Branch will be responsible for the security of the articles kept therein. He may be provided with the assistance of an Armed Guard, wherever feasible and necessary. The Superintendent of Police should pay frequent visits to the Malkhana to ensure that necessary precautions against fire, water seepage or any other damage to articles are taken.

Whenever a new Officer takes charge of the Malkhana or is made temporary incharge in case of Malkhana Incharge going on leave or duty, he should check each item and submit a certificate to that effect, to the Incharge Law Officer after due checking and verification. In case, any discrepancy or shortage is noted, the same should be brought to the notice of Law Officer-In charge of Malkhana and the SP of the Branch.

15. Orders of Courts to be obtained regarding seized Property

All properties seized during investigation under the provisions of the Cr.P.C. should invariably be forwarded to the Court in order to obtain orders under Section 457 Cr.P.C. for their custody during the pendency of the case. No case property relevant to the trial should be retained by CBI after the trial of the case has commenced unless it has been so ordered by the Court of competent jurisdiction.

16. Records required in another case

As soon as a Branch comes to know that the property seized in one case (whether of the same Branch or of any other Branch) will be required in another case, a clear note may be made in red ink in the Malkhana Register. The Investigating Officer, who originally seized the property, should also keep a note in the said regard. A written intimation should be sent to the SP concerned if the property is found useful for some case in any other Branch.

If the property has to be produced in the trial of a case other than the one in which it was originally seized, it should be routed through the Court concerned with the first case. A clear request should be made to the second Court to return the property to the Court concerned with the first case as soon as the trial in the second case is over and that it should not be disposed of in any other manner. Photostat copies or certified copies (in the case of documents) should be retained with the Court within the jurisdiction of which the property is originally seized.

A separate Case Index Register should be maintained in the Malkhana in the following form for the purpose of locating the various items concerned in a particular case:–

Sl. No.	Case No., Name and address of the accused	M.R. Serial No.	Name of the I.O.	Remarks (The particulars of Almirahs or racks where the documents are kept. Court case or RDA reference with the present location of documents in movement)

17. Storage of Arms/Ammunitions/Explosives

Arms and ammunitions require specialized and careful handling with certain additional security measures. Wherever armed guard has been provided to the Branch, the SP concerned may keep the seized arms and ammunitions in the Malkhana. In the absence of armed guard, such items may be kept in the nearest CBI Branch where such facility is available or with the nearest establishment of paramilitary forces/army under proper documentation. In no circumstances, explosives/ explosive substances shall be kept in the Malkhana of a Branch and they should be deposited under receipt with the nearest establishment of paramilitary/army, capable of handling or storing such objects. The firearms and the ammunition issued to the Branch for official use should be kept separate in the secured vault of the Malkhana. The Branch SP shall get periodic cleaning, oiling, and maintenance of the weapons by taking help of local Police or paramilitary units, wherever required.

18. Storage of seized Computer Media

Similarly, special care has to be taken for storing seized computer systems or any other electronic storage media. These must be kept in dry and cool environment.

19. File of Seizure Memos

A complete file of photocopies of seizure memos should be maintained for the purpose of checking the Seized Property Register. The number and date of seizure in connection with a case should be entered in the Crime Register in red ink. These memos and the Seized Property Register should be examined by the Senior Public Prosecutor of the Branch during his bi-monthly inspection of the Malkhana.

20. Disposal of Properties

The return of property to parties concerned should be done through proper invoices with supporting entries in the Malkhana Register of the Invoice No. & G.D. particulars. Properties relating to cases recommended for suitable action may be disposed of after giving information to the Department concerned as mentioned in the chapter pertaining to the Preliminary Enquiry. As regards property relating to disciplinary cases in which the punishment imposed is regarded as adequate, action may be taken to dispose of the property after ascertaining from the Department that no appeal has been filed by the Delinquent Officer against the punishment awarded. In case an appeal is filed the property will be disposed of after the appeal is decided. 13.39 Delay in the disposal of properties in cases which have been closed should be avoided and the Superintendent of Police should ensure that such properties are disposed of within 15 days after the final orders are passed by the Court on the Closure Report. In order to watch the disposal of closed cases, a register of closed cases in the following form should be maintained:–

Sl. Nos. of M.R. items pertaining to cases	Date of Disposal	Remarks

The Senior PP or PP must invariably inspect the Malkhana every three months and record an inspection note which should be seen by the Superintendent of Police who may give suitable directions to them and/or to the Malkhana Incharge on the lines mentioned above.

06. SEARCHES UNDER KERALA POLICE ACT, 2011

Kerala Police Act, 2011 provides some powers to the Police and other Authorities for search and seizure. Some of them are reproduced below.

Sn. 45. Special powers in disturbed areas

“45. (1) The Government may declare any area as a "disturbed area" when such area is widely and intolerably beset with violence or disruptive activities or destruction of public property on account of communal or political causes or violence or terrorist or anti-national activities.

(2) When an area is declared as a "disturbed area", an Officer, not below the rank of Deputy Superintendent of Police and deputed by the District Police Chief, in the interest of maintenance of law and order, may -

(a) impose reasonable restrictions on the movement of persons and vehicles in such area;

(b) order to any person, who in the opinion of the Police, may carry on activities prejudicial to the maintenance of law and order if restrictions are not imposed on his activities, to keep the Police informed of his whereabouts in the manner directed by the Police;

(c) suspend arms and explosive licences in such area and direct the licencees to lodge their weapons with the Police for keeping them;

(d) search any person or vehicle or container entering into or leaving from such area.”

Sn. 57. Police to attempt to locate missing persons

“57. (1) Whenever a Station House Officer receives any information from which he reasonably suspects that any person is missing and there are circumstances to believe that,-

(a) such person is in danger or not under the protection of lawful guardianship; or

(b) such person may be subjected to some dangerous offence ; or

(c) such person is absconding himself to prevent someone from implementing a lawful right declared by any court,  

such officer shall register the information in a manner similar to the procedure prescribed for a cognizable offence and take immediate action to locate the missing person.

(2) During such enquiries such officer or any officer deputed by him may examine and record the statement of any witness and search any place.

……………………

(4) All searches under this section shall be done in accordance with the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)”

Sn. 71. Police officer to furnish information, etc

“71. Any police officer may furnish any official information before a Magistrate and apply for the issue of summons or warrant or search warrant or such other lawful processes under law against any person who had committed an offence or for the discovery of a thing.”

Sn.116. Vexatious arrest, search, seizure, violence, etc

“116. Whoever, being a police officer,—

(a) enters into or conducts unnecessary searches or causes to be searched without lawful authority or reasons in any building, vessel, tent or place for causing annoyance; or

(b) seizes the property of any person or detains a person in custody or conducts search or arrests any person illegally for causing annoyance and without reasonable cause; or

(c) deliberately subjects, any person in custody or with whom he comes into contact in the course of his duties, to torture or any kind of inhuman or unlawful personal violence or grave misconduct; or

(d) deliberately, knowingly and maliciously with intent to implicate an innocent person in a criminal offence records a false statement or make a forged document or raises a false allegation of attack on the police ; or

(e) deliberately and directly aids or abets for the commission of an offence which, as a police officer, he is bound to prevent,

shall on conviction, be punished with imprisonment for a term which may extend to three years or fine or with both:

Provided that nothing in this section shall preclude any court from punishing any police officer, under any other law for the time being in force, if the same matter is an offence under the provisions of that law.”

07. SEARCHES AND CONSTITUTION OF INDIA

The General Trend of the judicial approach to search warrants is that they do not violate the Right to privacy enshrined in Article 21 of the Constitution of India. However the Apex Court also keeps in memory that the dignity and privacy of the person searched is respected and there is no use of force or aggression in searches and seizures.

Article 20(3) provides that “No person accused of any offence shall be compelled to be a witness against himself.” However, the Supreme Court has held that if search of a woman is made only by a woman keeping in with the dignity of a woman, it is not violative of Art. 20(3) of the Constitution.[lxxxi]

The Supreme Court has also held that Section 95 does not violate the guarantees contained in Arts. 19(1)(a),19(1)(b) and 19(1)(g) of the Constitution of India and is, therefore, valid.[lxxxii]

The general approach of the Apex Court is in tune with the above judgments.

A list of rights guaranteed by Criminal Procedure Code are given below.

Rights guaranteed by Criminal Procedure Code and Constitution in searches and seizures

Section	Provision guaranteeing Right
S.165 (1) Cr. PC	Ensure that the enforcement authority before entering into any premises to effect search/seizure of relevant evidence, shall record in writing, as far as possible, the reasons for believing that search would lead to discovery of such evidence.
S.91	Ensure that where the production of a document or a thing is necessary, summons are obtained from the appropriate court or orders secured from an authorised officer requiring the person in whose possession or power the relevant document or thing is believed to be, to produce said document/thing at a stipulated time and place specified in the warrant/ order
S.93	Ensure that where the Court has reasons to believe that a person to whom summons or requisition is made would not produce the required document or thing or where the person or in whose possession a document or a thing is not known, and where the Court considers that the purpose of inquiry/trial will be served, it may issue of search warrant for the discovery of such a document or a thing.
	Ensure that before proceeding to search the suspect or his belonging with a view to recover contraband under NDPS Act the person concerned is informed that he has a right to insist on a search to be conducted in the presence of a magistrate/gazetted officer and, if the person concerned exercises his right, he must be searched in the presence of such magistrate/gazetted officer. Obtain a search warrant for a person who is allegedly in unlawful confinement by another person and order her production before the Magistrate.
	Ensure that generally raids for conducting search should not be made after sunset and before sunrise. But where exigencies require immediate search, the reasons must be recorded in writing for making such exception.
Art. 21 of the Constitution	Ensure that the dignity and privacy of the person searched is respected and there is no use of force or aggression.
	Ensure that search of a woman is made only by a woman keeping in with the dignity of a woman.

08. CONCLUSION

Search warrants are most necessary for the execution of appropriate justice for the investigation works and crime deterrence.  The privacy and tranquility of the citizens and individuals are also of the prime importance. In the same time planting of bogus evidence and other corrupt practices by the authorities have also to be restrained. A balance between these aspects was the prime objective of the legislature. However, bureaucracy, excessive force, excess work load and lack of respect to fundamental and human rights have raised a great challenge in the real arena of the ordinary life.

People needs educated more and more on both their rights and duties. Officers should be trained regularly and the real purpose and soul of the legal frame work of India should be borne in mind both by those taking action, and by those acted upon.

APPENDICISES

APPENDIX I FORM NO. 10 CR.P.C. Warrant to Search After Information of a Particular Offence

FORM NO. 10

Warrant to Search After Information of a Particular Offence

(See section 93)

To……………………………(name and designation of ‘the Police officer or other person or persons who is or are to execute the warrant)

Whereas information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of………………………….(mention the offence concisely), and it has been made to appear to me that the production of………………………………(specify the thing clearly) is essential to the inquiry now being made (or about to be made) into the said offence (or suspected offence);

This is to authorise and require you to search for the said ………………………………(the thing specified in the ……………………………………..(describe the house or place or part thereof to which the search is to be confined), and if found, to produce the same forthwith before this court ,returning this warrant , with an endorsement certifying what you have done under it, immediately upon its execution.

Dated, this …………………day of…………… 20………….

(Seal of the court)

(Signature)

APPENDIX II FORM NO. 11 CR.P.C. Warrant to Search Suspected Place of Deposit

FORM NO. 11
Warrant to Search Suspected Place of Deposit

(See section 94)

To ……………………….. (name and designation of a police officer above the rank of a constable,).

WHEREAS information has been laid before me, and on due inquiry thereupon had, I have been led to believe that the …………………………(describe the house or other place) is used as a place for the deposit (or sale) of stolen property (or is for either of the other purposes expressed in the section, state the purpose in the words of the section);

This is to authorise and require you to enter the said house (or other place) with such assistance as shall be required, and to use, if necessary, reasonable force for that purpose, and to search every part of the said house (or other place, or if the search is to be confined to a part, specify the part clearly), and to seize and take possession of any property (or documents, or stamps, or seals. or coins, or obscene objects, as the case may be) (add, when the case requires it) and also of any instruments and materials which you may reasonably believe to be kept for the manufacture of forged documents, or counterfeit stamps, or false sells or counterfeit coins or counterfeit currency notes (as the case may be), and forthwith to bring before this court such of the said things as may be taken possession of, returning this warrant, with an endorsement certifying what you have done under it, immediately upon its execution.

Dated, this …………………day of…………… 20………….

(Seal of the court)                                                                                                                                (Signature)

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[i] Mowu v. Suptd., Special Jail 1972 SCC (Cri) 184, 189:(1971) 3 SCC 936

[ii] 67 DTR 107 (Jodhpur ITAT)

[iii] V.S. Kumar Pillai v. Ramakrishna, AIR 1980 SC 185: 1980 Cr LJ 196

[iv] Ibid

[v] Shyam M. Sachdev v. State 1991 Cr LJ 300 (Del)

[vi] Fernandes v. Mohan Nair AIR 1966 Goa, Daman & Diu 23 SB; Shiv Dayal v. Sohan Lal AIR 1970 Punj 468, 471

[vii] Clarke v. Brojendra Kishore Roy Chowdhury (1912) 39 IA 163: 39 Cal 953: 14 Bom LR 717

[viii] T. Sarojini Ammal v. Union of India 1992 Cr LJ 3110 (Ker); Md. Asghar v. Reshma 1996 Cr LJ 3602 (Cal)

[ix] Sakti Steel Traders v. Ashok Chakraborty 1993 Cr LJ 969 (Cal)

[x] Mohammad Khalid AIR 1968 Del 13 (FB)

[xi] Harnam Das AIR 1961 SC 1662: 1961 (2) Cr. LJ 815

[xii] Barjinder Singh v. State of Punjab 1993 Cr LJ 2040 (P&H-FB)

[xiii] Nand Kishore Singh v. Stale of Bihar 1985 Cr LJ 797 (Pat)

[xiv] Sadhu Singh Humdard Trust Jalandhar v. State of Punjab 1992 Cr LJ 1002 (P&H)

[xv] Barjindar Singh v. Stale of Punjab 1993 Cr LJ 2040 (P&H- FB)

[xvi] Lalai Singh 1971 Cr LJ 1519 SB

[xvii] Ibid

[xviii] Gopal (1969) 72 Bom LR 871 SB; Lalai Singh 1971 Cr LJ 1519 SB

[xix] Barjinder Singh v. State of Punjab 1993 Cr LJ 2040 (P&H)

[xx] Anand Chintamani Dighe v. State of Maharashtra 2002 Cr LJ 8 (Bom-FB)

[xxi] Gopal (1969) 72 Bom LR 871 SB; M. T. Patel 1972 Cr LJ 373 SB

[xxii] Baba Khalil Ahmad AIR 1960 All 715: 1960 Cr LJ 1528

[xxiii] Barjinder Singh v. State of Punjab 1993 Cr LJ 2040 (P&H-FB)

[xxiv] Lalai Singh 1971 Cr LJ 1519 SB

[xxv] Harnam Das AIR 1961 SC 1662: 1961(2) Cr LJ 815

[xxvi] Kapur (1955) Mad 1307

[xxvii] Azizul Haq Karusar v. State of Uttar Pradesh AIR 1980 All 448

[xxviii] Virendra Bandhu v. State of Rajasthan AIR 1980 Raj 241 (FB) : 1980 Cr LJ (NOC) 171; Hemlatha v. State of A.P. AIR 1976 AP 375

[xxix] Hemlatha v. State of A.P. AIR 1976 AP 375

[xxx] Hemandas v State of Uttar Pradesh AIR 1961 SC 1662: (1961) 2 Cr LJ 815

[xxxi] Poovan v. Sub-Inspector of Police, Aroor 1993 Cr LJ 2183 (Ker)

[xxxii] Kochukochu Bhaskaran (1954) TC 296

[xxxiii] Lokumal Kishinchand v. Vivek (1971) 74 Bom LR 290

[xxxiv] Ashok Thodani v. Ramesh K. Advani 1982 Cr LJ 1446

[xxxv] K. Pareekutty v. Ayyikkal Ayissakutty 1978 Cr LJ NOC 98; Purushottam Wamanrao Thakur v. Warsha 1992 Cr. LJ 1688 (Bom)

[xxxvi] Duryodhana Mohanta v. Saraswati Mohanta 1992 Cr LJ 2231 (Ori)

[xxxvii] Kulwant Kaur v. State of Punjab 1995 Cr LJ 1530 (P&H)

[xxxviii] Ramesh v. Laxmibai (1998) 9 SCC 266 : 1999 Cr U 5023, see also Anjali Anil Rangari v. Anil Kripasagar Rangari (1997) 10 SCC 342.

[xxxix] Anjali Anil Rangari v. Anil Kripasagar Rangari (1997) 10 SCC 342

[xl] Shahana v. State of U.P. 2003 Cr LJ 3438 (All)

[xli] Abraham v. Mahtabo (1889) 16 Cal 487, 502; Thakoredas v. Bhagvandas (1902) 4 Bom LR 609

[xlii] Md. ldris v. State of Bihar 1980 Cr LJ 764; Sabastian v. Moideen 1983 Cr LJ 407 (Ker)

[xliii] Radhakrishnan AIR 1963 SC 822 : 1963( 1) Cr LJ 809

[xliv] Solai Naik (1910) 34 Mad 349 (FB)

[xlv] Raman (1897) 21 Mad 83, 89

[xlvi] Ronny v. State of Maharashtra AIR 1998 SC 1251 : 1999 Cr LJ 1638

[xlvii] State of U.P. v. Zakullah AIR 1998 SC 1474: 1998 Cr LJ 863 : 1998 All LJ 290

[xlviii] Kuttan Panicker (1963) 1 Cr LJ 669; Kaur Sain AIR 1974 SC 329: 1974 Cr LJ 358

[xlix] Premchand v. State of Punjab 1984 Cr LJ 1131 (Punj)

[l] The State of Maharashtra v. Madhukar Keshav Waity AIR 1980 SC 1224: 1980 Cr LJ 923

[li] Parmeshwar Singh (1963) 1 Cr LJ 342

[lii] Bhagwanbhai (1963) 3 SCR 386: 64 Bom LR 784: (1963) 2 Cr LJ 694

[liii] Bhanda Garh v. State of Assam 1984 Cr LJ 217 (Gau)

[liv] Prem Lata v. State of H.P. 1987 Cr LJ 1539 (HP)

[lv] Abdul Sattar v. State of Maharashtra 1989 Cr LJ 430 (Bom)

[lvi] D.B.Thakur v. State of Gujarat 1995 Cr LJ 3751 (Guj)

[lvii] Som Nath v. State of Haryana 1995 Cr LJ 3322 (P&H)

[lviii] Krishan Lal v. State of Haryana 1996 Cr LJ 1401 (P&H)

[lix] Government (NCT of Delhi) v. Dellu Sunil 2001 Cr LJ 504 (SC); State of HP v. Sukh Ram 2003 Cr. LJ 216 (All), the two witnesses to search, being not respectable inhabitants of the locality did not affect the validity.

[lx] Rustam Lam (1931) 34 Bom LR 267

[lxi] Ramesh Chandra Banerjee (1913) 41 Cal 350, 377

[lxii] Sunder Singh v. State of U.P. AIR 1956 SC 411: 1956 Cr LJ 301

[lxiii] State of Punjab v. Baldev Singh AIR 1999 SC 2378: 1999 Cr LJ 3672

[lxiv] Sadhu Singh v State of Punjab, (1997) 3 Crimes 55 (PH)

[lxv] Sadhu Singh v State of Punjab, (1997) 3 Crimes 55 (PH)

[lxvi] Sadhu Singh v State of Punjab, (1997) 3 Crimes 55 (PH)

[lxvii] Sub-sn (3), inserted by Act No. 45 of 1978. s. 10

[lxviii] Inserted by the Cr. P.C. (Amendment) Act, 2005, s. 13 (w.e.f. 23-6-2006 vide Notfn. No. SO 923 (E), dt. 21-6-2006)

[lxix] Inserted by the Cr. P.C. (Amendment) Act, 2005, s. 13 (w.e.f. 23-6-2006 vide Notfn. No. SO 923 (E), dt. 21-6-2006)

[lxx] P.K. Parmar v. Union of India 1992 Cr LJ 2499 (Del)

[lxxi] State of Maharashtra v. Tapas Das Neogy (1999) 98 Comp Cas 626: 1999 Cr LJ 4305: (1999) 1 SCC 685; Rajamani v. Inspector of Police 2002 Cr LJ 2902 (Mad)

[lxxii] Rajamani v. Inspector of Police 2002 Cr LJ 2902 (Mad)

[lxxiii] B. Ranganathan v. State 2003 Cr LJ 2779 (Mad); R. Chandrasekar v. Inspector of Police 2003 Cr. LJ 294 (Mad)

[lxxiv] R. Chandrasekar v. Inspector of Police 2003 Cr. LJ 294 (Mad)

[lxxv] Naga People's Movement of Human Rights v. Union of India, AIR 1998 SC 431 at 463: (1998) 2 SCC 109

[lxxvi] S. Sathyanarayana v. State of Karnataka 2003 Cr LJ 1983 (Kant)

[lxxvii] State of Maharashtra v Tapas D Neogy 1999 (7) SCC 685: 1999 (5) Scale 613: 1999 (7) JT 92: 1999 (8) Supreme 149

[lxxviii] Substituted by the Code of Criminal Procedure (Amendment) Act, 1988 (32 of 1988) for the "issued by it shall be served or executed at any place within the local jurisdiction of a Court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent where a Magistrate in the said territories".

[lxxix] Substituted by the Code of Criminal Procedure (Amendment) Act, 1988 (32 of 1988) for the words “issued by a Court in any State or area in India outside the said territories, it shall cause the same to be served or executed".

[lxxx] Inserted by the Code or Criminal Procedure (Amendment) Act, 1988 (32 of 1988), s. 2.

[lxxxi] V.S. Kumar Pillai v. Ramakrishna AIR 1980 SC 185: 1980 Cr LJ 196

[lxxxii] Gopal (1969) 72 Bom LR 871 SB; Lalai Singh 1971 Cr LJ 1519 SB