A Comparative Study of the Laws in India, U.K., and U.S.A

“SEARCH AND SEIZURE – DOES ILLEGALITY IN THE PROCEDURE VITIATE THE RESULTS- A COMPARATIVE STUDY OF THE LAWS IN INDIA, U.K., AND U.S.A”

 

INTRODUCTION

If any individual is in control of document pertinent for the investigation does not participate with the law to deliver such document consequently the code gives at first to the summons to create such report and if this strategy flops then court can issue orders for search and seizure of such report. Search and seizure is a legitimate system whereby Magistrate approves police or different experts and their operators, who speculate that a wrongdoing has been carried out, do an search of a man’s property and grab any applicable proof to the wrongdoing.[1] Searches in India generally, covered under section 97-103 and 165[2] of the Criminal Procedure Code.

At the point when any of the mandates identified with search and seizure of any of these sections, or orders by exceptional acts are violated, then the search so performed is known as an illegal search. Nevertheless, it can be expected that non-compliance can’t have an indistinguishable impact from absolutely destroying the search or seizure.[3]

POSITION IN INDIA

Generally Search and seizure is governed by Criminal procedure under section 97 to 103 and 165 of the code.

Consequences of non-compliance with the code-[4]

  • Where an officer, not approved by law to issue a request for search of a place suspected to contain stolen property, etc under section 94of the code, wrongly and as per some fundamental trustworthiness issues such a warrant, the search proceeding cannot be set aside.[5]
  • It has been particularly given by the section93 (3) that no magistrate other than a locale officer or CJM might issue a warrant to search for a record in the protection of the postal or broadcast specialist.[6] On the off chance that any officers not all that predetermined issue such a warrant the search proceeding should be void.[7]
  • A search without a warrant led by the officer who is not approved to do as such, is unlawful.[8]
  • Normally, court have taken the view that resistance with the inquiry proceeding won’t vitiate the trial however that may influence the weight of proof in support of the search and recuperation.[9]

The arrangement identified with search proceeding is supposed to be directory only. There is no law that without the free witness being related with search; the seizure can’t be depended upon.

  • If the search system took after by the officer is not entirely lawful then the inhabitant of the place of hunt can deter the officer endeavoring such an inquiry.[10]

In Mohammad Kunhi v Mohammed Koya[11]

In the Court’s view since, all searches are finished with the goal of seizing the property. At that point an unlawfully directed search would imply that the seizure of any proof found through such inquiry is additionally illicit and inadmissible.[12]

State of Maharashtra v Natwarlal Damodardas Soni[13]

It was said by the Supreme Court that regardless of the possibility that the search is unlawful that won’t influence the legitimacy of the seizure and further examination or the legitimacy of the trial.[14]

Radha Krishan v State of U.P.[15]

For this situation the court said that, if search is not directed as per the arrangement of section 103 and 165 of the code and the seizure was not advocated then the inquiry can be opposed by the individual whose premises are tried to be searched.[16]

In Pooran Mal v Director of Inspection[17]

In opposing view with Mohammad Kunhi[18] case, the Supreme Court said that unless it has been uniquely ordered by statutes or the constitution, evidence that has been acquired through unlawful search is not void.[19]

Further in Bishnu Krishna Shrestha v Union of India[20]

The court decided that if there was some inconsistency or abnormality in the method through which a search or seizure was done, the way that such a search or seizure bore critical and implicating proof did not invalidate the illicitness of the inquiry.[21] 

 

POSITION IN UK

In U.K. the application of Search and seizure is governed by Police and Criminal Evidence Act 1984 (PACE). In England and Wales, a search warrant is issued by the local magistrate and this required that a constable provide evidence in the support of the warrant.

Section 8 of the code gives the ability to give a search order. However, there are some condition that there are sensible ground for accepting –[22]

  • That an unlawful offense has been conferred.
  • There is significant proof on premises indicated in the application, which is probably going to be generous incentive to the investigation of the offense.
  • It will be practicable to access the confirmation unless the warrant is conceded

Up until the freedom of the United States, the courts of England barred self-implicating proof that was given accordingly of authority compulsion, irrespective of its dependability.

In Richard Roe and Thomas Urry v William Harvey[23] Justice Mansfield said that the-

In civil cases, the court will force parties to produce evidence which may prove against themselves; or leave the refusal to do it as a strong presumption, to the jury….But in a criminal or penal cause, the defendant is never forced to produce any evidence; though he should hold it in his hands in court.”[24]

In King V Warickshall[25] the court declined to quash prove got by unlawful compulsion and it was said that proof was accumulated accordingly of an unintentional confession, and the court said that the confirmation (however not the confession itself) could be conceded.[26]

Before 1789 the English law did not give as solid an exclusionary rule as that one which is created later under the Fourth Amendment of the US Constitution, with respect to unlawful search and seizures. The Fourth Amendment was somewhat a response against English law including the general warrant and the writs of help.[27]

The British laws on the issue of suitability of proof gathered in unlawful search and seizure has created in a way like that in Indian laws. Prove gathered can be utilized as a part of an official courtroom unless it is explicitly or essentially precluded under the Constitution or some other law.[28]

POSITION IN USA

Mid the early time of law of search and seizure, the judges were fundamentally required in a progressing operation to limit government direction of business that included controlling government access to business records. This anti-regulation introduction is the fundamental driver of the Fourth Amendment[29] of the U.S. Constitution which came in presence in Weeks v United State[30] in 1914. This is the situation that developed the Fourth Amendment Exclusionary rule. For this situation, the litigant appealed a conviction in light of proof seized by government specialists without a warrant.[31] The Supreme Court used the now famous “Exclusionary Rule[32] to capsize the defendant’s conviction.

The Exclusionary rule restrains government from utilizing the proof that was gathered disregarding the US Constitution. This rule applies to the confirmations that were picked up from unlawful search and seizure. The extension of the Fourth Amendment and its exclusionary rule is stated in case Mapp v Ohio[33], the fact if the case is that Officer looked for a suspect in bombarding and evidence of this is at the petitioner’s (Ms. Mapp’s) house. In the wake of neglecting to gain passage on an underlying visit the officers came back with a court order and they coercively went into the house, looked and discovered some vulgar material. The petitioner was tried and convicted for these materials. The contention of the petitioner is that the search and seizure is conducted in violation of the Fourth Amendment and whether this is admissible in the court.

Justice Tom Clark in the majority opinion said that “the exclusionary rule applies to the proof acquired infringing upon the fourth amendment in this way the confirmation so got is not permissible in the court.[34]

This judgment was based on the decision of the Boyd v United State[35] which said that necessary generation of proof against oneself disregarding the fourth and Fifth Amendment with an irrational search and seizure and held that the constrained confirmation had been illegally conceded.

This principle is extended by the doctrine of “Fruit of the Poisonous Tree” in the case Silverstone Lumber Co v United State[36], Justice Holmes said that “the essence of a provision forbidding the acquisition of evidence in a certain way is not merely evidence so acquired shall not be used before the court but that it shall not be used at all” [37]

So, Court prohibited use of the constitutionally seized business records against the accused.

ANALYSIS

From the above discussion and case analysis we came to know about the legal position dealing with illegal search and seizure and evidence obtained from it in India, UK and USA. Here, In India, if evidence is obtained from illegal search and seizure then it does not become inadmissible per se and even if it is found in gross violation of law then also the court observes the weight that evidence stands to establish the case of prosecution. In US, if the evidence is obtained, directly or indirectly, through illegal search and seizure, then it cannot be produced before the court to prove the crime of the accused. The position of law in England is relatively similar to that of India. There also if the evidence is obtained by illegal search, it can be used in a court unless it is obtained by a gross violation of the Constitution. However, the law of search and seizure in India are relatively more substantial from the law in England.

CONCLUSION

Search and seizure is a legitimate methodology utilized as a part of numerous common law and civil law legal frameworks whereby police or different experts and their operators, who presume that a wrongdoing has been carried out, do a search of a man’s property and take any significant proof to the wrongdoing. Most nations have arrangements in their constitutions that furnish people in general with the privilege to be free from “absurd” search and seizure. This privilege is for the most part in view of the start that everybody is qualified for a sensible right to security. These protected rights are regarded in democratic governments. There is a consistent fight between adjusting the forces which should be granted to law-keeping specialists and the privilege to security of the people. For this reason, as has been talked about in detail, laws set down controls and rules for aversion of abuse of power. In the contingency that illegal activities take place in the procedure of search and seizure the courts have to battle with the question of whether incriminating evidence found is admissible in courts or not.

The position of law in such possibility shifts in various wards. As English and Indian law are much similar, the courts said that mere illegality or inconsistency is not reason enough to render prove unacceptable. Despite the fact that it has been perceived that if such illegality has been explicitly or fundamentally denied by the constitution the evidence can be held to be prohibited. The US Constitution however differs from the English and Indian position. The Fourth Amendment in USA holds the privilege of security of the general population incomparable and renders any proof got through illicit search and seizure as forbidden, subject to specific exemptions and restrictions. US Constitution in this matter adopts two principles- the ‘exclusionary rule’ and the ‘fruit of the poisonous tree doctrine’.

Thus, in conclusion one might say that there exists a need to adjust the privileges of the people versus the forces which should be given on law keeping organizations. The justification embraced by courts in various nations goes for finding control stability in context of that nation with the end goal that powers of the state can be expanded while privileges of the people remain protected.


BIBLIOGRAPHY

BOOKS USED-

  1. K.N. Chandrasekhran Pillai, R.V. Kelkar’s Lecture on Criminal Procedure.

STATUTE USED-

  1. Code of Criminal Procedure Act (CrPC) 1973.
  2. Police and Criminal Evidence Act (PACE) 1984.

CASES USED-

  1. Mohammad Kunhi v Mohammad Koya, (1973) 91 ITR 301.
  2. State of Maharashtra v Natwarlal Damodardas Soni, (1980) 4 SCC 669.
  3. Radha Krishan v State of U.P., AIR 1963 SC 822.
  4. Pooran Mal v Director of Inspection, (1974) 1 SCC 354.
  5. Bishnu Krishna Shrestha v Union of India, 1987 (27) ELT 369 Cal.
  6. Weeks v United State, 232 U.S. 383 (1914).
  7. Mapp v Ohio, 367 U.S. 643 (1961).
  8. Boyd v United State, 116 U.S. 616 (1886).
  9. Silverstone Lumber Co v United State, 251 U.S. 385 (1920).
  10. Richard Roe and Thomas Urry v William Harvey, [1769] EngR 17.
  11. King v Warikshall, 1 Leach C.C. 263 (1783).

ARTICLES-

  1. Thomas Y. Davies, The Supreme Court Giveth and The Supreme Court Taketh away: The Century of Fourth Amendment “Search and Seizure” Doctrine, available at http://www.jstor.org/stable/25766113
  2. Carolyn Jaffe Andrew, Abstract of Recent Cases, available at http://www.jstor.org/stable/1141217
  3. Fourth Amendment: Illegal Searches and the Exclusionary Rule, available at http://www.jstor.org/stable/1142565
  4. Charles A. Bell, Criminal Law: Search and Seizure: New Limitations on the California Doctrine of Consent to Search, available at http://www.jstor.org/stable/3479038
  5. Stephen Cragg QCand Adam Straw, Search and Seizure Update, available at https://www.criminallawandjustice.co.uk

    References

[1] “Illegal Search and Use of Evidence”, available at http://www.lawteacher.net/free-law-essays/constitutional-law/illegal-search-and-use-of-evidence-constitutional-law-essay.php

[2] Search by Police officer- 1) Whenever an officer in charge of a 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 authorized to investigate may be found in any place with 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 thereupon 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 of 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

[3] Supra note 1

[4] Dr. K.N. Chandrasekhran Pillai, R.V. Kelkar’s Lecture on Criminal Procedure (4th Edn, Eastern Book Company, 2014) 53.

[5] See section 460(a).

[6] Supra note 2.

[7] See section 461(b).

[8] Supra note 2

[9] See section 100 and 165.

[10] Supra note 2.

[11] Mohammad Kunhi v Mohammad Koya, (1973) 91 ITR 301

[12] Ibid.

[13] State of Maharashtra v Natwarlal Damodardas Soni, (1980) 4 SCC 669.

[14] Ibid.

[15] Radha Krishan v State of U.P.,  AIR 1963 SC 822.

[16] Ibid.          

[17] Pooran Mal v Director of Inspection, (1974) 1 SCC 354

[18] Supra note 5.

[19] Ibid.

[20] Bishnu Krishna Shrestha v Union of India, 1987 (27) ELT 369 Cal

[21] Ibid.

[22] Police and Criminal Evidence Act 1984, available at http://www.legislation.gov.uk/ukpga/1984/60/pdfs/ukpga_19840060_en.pdf

[23] Richard Roe and Thomas Urry v William Harvey, [1769] EngR 17.

[24] Ibid.

[25] King v Warikshall, 1 Leach C.C. 263 (1783).

[26] Ibid.

[27] Supra note 1.

[28] Supra note 1.

[29] Fourth Amendment stated that-‘the right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizure, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

[30] Weeks v United State, 232 U.S. 383 (1914).

[31] Ibid.

[32] This rule states that a person, against whom evidence has been produced, has the right to argue before the court at the pre-trial stage that such evidence has been illegally procured.

[33] Mapp v Ohio, 367 U.S. 643 (1961).

[34] Ibid.

[35] Boyd v United State, 116 U.S. 616 (1886).

[36] Silverstone Lumber Co v United State, 251 U.S. 385 (1920).

[37] Ibid.

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