The chapter VII, containing of sections 91-100 of the Code of Criminal Procedure,1973, deal with the provisions related to summons to produce things, provisions related to search-warrants and other general laws relating to searches. The provisions of this chapter relate to summons and warrants, their issue, the way they are served and executed and summons and warrants of arrests.
For a better understanding of the topic let us understand the meaning of the following terms:
1. Summons– A summon is an order from court to an individual to appear before it at a specified time and place. A summon can be issued in both criminal and in civil cases.
2. Warrants– Warrant is legal document issued by a judge or magistrate, empowering a police officer to make an arrest, search or seize premises or undertake any action, concerning the administration of justice.
3. Search– The term ‘search’ denotes that action of government machinery which includes looking through or examining carefully a place, area, person, object etc. in order to find something concealed or for the purpose of discovering evidence of a crime. Such search of a person or vehicle or premises or of any other thing can only be done by taking proper and valid permission of law.
4. Seizure– The act of seizing is well known as seizure. It is a forceful action in which an object or person is suddenly taken over, grabbed, removed, or overwhelmed.
As regards to English approach in previous days, in the Miller v. United States it was stated that “The poorest man may in his cottage bid defiance to all the force of the Crown. His cottage may be frail, its roof may shake, the wind may blow through it, the storms may enter, the rain may enter but the king of England cannot enter. No matter the nature of forces, they dare not cross the threshold of the ruined tenement.”
And henceforth the fourth amendment came about. The Fourth Amendment was only to protect the interests of the people and was directed against unreasonable searches and was intended to provide safeguards for issuing warrants, namely, that they may be issued only on probable cause which must be shown by oath or affirmation and the warrants must be shown by oath or affirmation and the warrants must clearly and explicitly describe the place, person or thing to be searched or seized.
Gradually, it came to be recognized that the power of search and seizure was a necessary power in the interest of the community and without it, the process of law enforcement might suffer to the detriment of public interest and therefore, subsequent legislation in England started conferring such power on the police and various other officers from time to time. In India too, the power of search and seizure for prevention and investigation of offences was for the first time conferred under the Code of Criminal Procedure and since search and seizure is a process exceedingly arbitrary in character, stringent statutory conditions were imposed on the exercise of the power.
The Madras High Court in the R.S. Jhaver v. Commissioner of Commercial Taxes, case elucidates the point: “All that is necessary therefore, is that there should be a balance struck, just and equitable, in all the circumstances between the sanctity of the property or individual rights and the interest of the community in law enforcement either in regard to tax collection or suppression of crimes or any other by the insistence upon proper safeguard against oppression or violation of guaranteed basic rights under the Constitution”.
General Provision relating to search proceedings
Section 91- Summons to produce document or other thing and Section 92 –Procedure as to letters and telegram-
It has been provided under these sections that in cases where any Court or any Officer-in-charge of any police station considers the production of any document or other thing to be crucial for the purpose of investigation, then in such situation the person in whose possession or power such document or thing is believed to be, is summoned i.e. a summon is issued to him which requires him to attend and produce that important thing at the said time and place as ,mentioned in the summon.
It is accepted under the code that if a person is required to produce certain document or thing, produces the same even without personally being present there.
Such a summons cannot, however, apply to any letter, post card, telegram, parcel or other documents or things in the custody of the Post and Telegraph authorities. Ss. 123 and 124 of the Indian Evidence Act, 1872 cannot also be affected by the same.
Anyhow, a magistrate other than a district magistrate or chief judicial magistrate shall not be authorised to search for any document, parcel or other thing in the custody of postal or telegraph authority.
This section states the situations in which search warrants may be issued. The situations are as follows-
a) Where the court has certain reasons to believe that any person to whom a summon or requisition has been addressed, will not duly produce the said document or the thing which is required,
b) In cases where the said document or thing is in possession of any person but is not known to the court.
c) In cases where general search and inquiry are a must for carrying out inquiry, trial or other proceeding.
d)In cases where only a specific place or part needs to be searched and inspected then in that case the same shall be explicitly mentioned in the warrant.
e) However, any magistrate other than a district magistrate or chief judicial magistrate shall not be authorised to search for any document, parcel or other thing in the custody of postal or telegraph authority.
In the case of V. S. Kuttan Pillai v. Ramakrishnan, the constitutional validity of search warrants was upheld, wherein it was opined that a search of the premises occupied by the accused does not by any means results in compelling him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India
Section 94 –
This section contains provisions relating to search of place suspected to contain stolen property, forged documents or any objectionable articles.
Before issuing a search warrant under Section 94, the Magistrate must satisfy that there is some allegation or information which is sufficient to draw an inference that a particular place is used for deposit of the stolen property or forging the documents or manufacturing of counterfeit coins, false seals etc. He has also to record the grounds on this belief. The order must, show that the application of mind of Magistrate before ordering the search of the place.
The High Court of Andhra Pradesh has observed in Dinesh Auto Finance v. State, that a search warrant under Section 94 can be issued only by District Magistrate, Sub- Divisional Magistrate, or a Magistrate of the First Class and the person authorised to search must be a police officer above the rank of a constable. Also, before issuing the warrant, the Magistrate concerned must have reason to believe that the place is used for deposit or sale of stolen property or forged documents etc.
This section deals with the power of the state government to declare by way of notification, that the publication of the copies of the newspaper, book or any document is forfeited in case it contains any matter which is punishable under the following provisions of the Indian Penal Code:—
(1) Sedition (Section 124 A), or
(2) Promoting enmity between classes (Section 153-A) or
3) Imputations, assertions that are prejudicial to national integration (Section 153-B), or
(4) Sale etc. of obscene books (Section 292)
(5) Obscene objects being sold to young persons (Section 293); or
(6) Insulting in a malicious manner the religion or the religious beliefs of any class (Section 295-A)
In the case of Anand Chintamani Diglie v. State of Maharashtra, a notification for the forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto ahe (I am Nathuram Godse speaking) including Gujarati translation was seized under Section 95 by the State Government for reasons that circulation of the said book will disturb public tranquillity, promote disharmony or feelings of enmity, hatred or ill-will among different groups or communities.
Deals with the provision of sending application to High Court to aside declaration of forfeiture.
In cases like Ram Rakha vs Sat Paul and Yeshwant Bapuji Mokashi vs State Of Maharashtra And Ors, the importance of this section has been elaborated.
This section states that if there is any such situation where the district magistrate, sub-divisional magistrate or magistrate of the first class, believe that any person is confined in such manner that such confinement may lead to an offence then in that case a search warrant may be issued to start the search for such person so confined and if such a person is found then shall be taken before a magistrate who shall further take appropriate action.
However, in the case of Ramesh vs Laxmi Bai, it was held that a son in the custody of his father will not be held to be in any illegal confinement and hence search warrant for the same cannot be issued.
In case of abduction or unlawful detention of a woman or a female child under the age of 18 years for any unlawful purpose and order of restoration of such woman to her liberty by means of issuing a search warrant may be made.
It is to be noted that the provisions of section 38, 70, 72,74,77,78 and 79 of the code may apply to every search warrant issued under section 93, 94, 95 and 97 of the Cr.P.C.
This section directs the persons residing in, or being in charge of, any such place where search or inspection is to be carried out shall allow the officer free ingress and access to all reasonable facilities for such search.
In case of violation of the above by the owner, the officer may proceed according to section 47(2) of the code of criminal procedure.
In cases where the owner of such places is suspected of concealing any article which is of crucial importance for the search then in that case such person can also be searched and in case such person is a woman then the search shall be made by another woman strictly.
It is important that before making the search or inspection the officer is bound to call upon two or more independent and respected members of the locality, where the search is supposed to take place and in case if no such person is available or they depict reluctance then in such situation an order is to be issued to them to make them attend and witness the search.
The search is carried out in the presence of such witness and a list of all things seized in the course is prepared and then it is signed by the witness. Anyhow, such witness has no boundation to attend the court until unless summoned to do so.
Under this section, in the case of Sadhu Singh vs. State of Punjab, it has been stated that in search or inspection of an enclosed area, public witness should not join, however attempt can be made to make them join according to the situations and in cases of reluctancy shown by public witness to join then genuine attempts should be made.
When a search warrant is being executed which is of any place beyond the local jurisdiction of the court which issues such warrant then in that case, if the thing for which the search is made is found, shall be immediately taken before the court issuing the warrant. However if the magistrate which has jurisdiction in such case has the court nearer then such thing shall be taken to that magistrate having competent jurisdiction.
In Matajog Dobey vs. H.C. Bhari , the court has stated that in cases where salutary provisions have not been complied with, then this may affect the weigh of evidence in support of the search and may lead to disbelieving the evidence produced unless the prosecution provides proper explanation for such lack of compliance to provisions.
What is the power of police in case of seizing certain property?
Under section 102 of the Code, if any police officer suspects and property to be stolen or if such thing is found to create suspicion that any offence is being committed then in that case he may seize such property.
The police officer is supposed to report the seizure to the magistrate with competent jurisdiction and in cases where the property seized is of such nature that it is inconvenient to transport it to the court then the officer may execute a bond to the owner of such property to produce the property before court as and when required.
Here it is to be noted that ‘bank account’ is to be ascertained as property under section 102,of the code and the police officer has power to seize the operation of such bank account in case such assets have direct link with the commission of offence for which the investigation is being carried on. This has been upheld in the case of State of Maharastra vs. Tapas D. Neogy.
Procedure to be followed while carrying out search
- Without a valid search warrant issued by the proper authority, no search of premises should be carried out
- The presence of a lady officer in the search team is not negotiable.
- The search and seizure should normally be done after sunrise and before sunset. However if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action and why it was not possible to obtain a warrant should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior. However, search, seizure and arrest may be carried out any time if there is court warrant or if there is authorization from an empowered gazetted officer or if the gazetted officer himself is carrying out the same.
- The officers before starting the search are required to disclose their identity by showing their identity cards to the owner of the premises and by taking their signatures on the search warrant.
- It is also important to take signatures of at least two witnesses on the search warrant and the search should be made in the presence of such two independent and respected witnesses of the locality.
- A document known as the Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to this Panchnama/Mahazar. This document and the list of things seized needs to be invariably signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.
- After examination of the seized goods or things by the authority, the original copy of the samples is supposed to be sent to the chemical Examiner within 72 hours through a test memo for further research.
- It is mandatory here to prepare Form-F and to send it immediately to the respective authorities.
- Once the search is over, the search warrant should be returned in original to the issuing authority with a report regarding the outcome of the search. It is necessary that the names of the officers who participated in the search be mentioned in the search warrant.
- It is to be noted that a copy of the Panchnama / Mahazar, so formed should be given to the person in- charge/owner of the premises being searched under acknowledgement.
Forms relating to search warrants and summons-
1) FORM NO.10 – Under this, warrant to search after information of a particular offence has been given is filed.
2) FORM NO.11 – Under this, warrant to search any suspected place of deposit is filed.
3) FORM NO. 30 – Under this, special summons are issued to a person accused of petty offence.
4) FORM NO. 33 – Under this form, summons to witness are executed.
Frequently Asked Questions:
1) What is the punishment in case of vexatious entry, search, seizure or arrest?
In case of illegal entry, search, seizure or arrest without any reasonable ground of suspicion or when somebody vexatiously and unnecessarily seizes the property of person on the pretence of searching and seizing for narcotic drug or when a person is arrested without any valid reason then in such cases imprisonment up to 6 months or fine up to 1000 or both can be levied.
In cases somebody maliciously gives false information, leading to search, arrest then in such case the person giving such false information is punishable for imprisonment up to 2 years or fine up to 1000rs or both can be levied.
2)Can police carry out search without warrant?
Under section 165 of the code, the circumstances in which a police officer does not need a search warrant to conduct a search are stated which are briefed out as following-
1. In cases where police officer making an investigation has a reasonable grounds to believe that things necessary for the purpose of an investigation to prove an offences may be found in any place and that thing in his opinion cannot be obtained without any delay, then such officer may search for such thing in any place within the limits of such station.
2. If there is a situation where police officer is unable to conduct the search in person and there is no other person competent to make the search at the time, he may, require any officer subordinate, to make the search and order him to search for such thing in such place provided that he records his reasons in writing.
3. In situations where a police officer remains outside the house while the search was being carried on inside by some subordinate officer, the search will not be held as illegal.
4. Copies of record made during the search shall be sent to the nearest magistrate empowered so that he can take cognizance of the offence.
3)Are Search Warrants and seizures an invasion to privacy?
It was when question, arose in the case of M.P Sharma vs. Satish Chandra, in front of the apex court, that whether search warrant is an infringement to fundamental rights or not, the court then stated that search warrants and seizures are only means of temporary interference with the right to hold premises searched and the articles seized. Hence, the court upheld the fact that there is no infringement of article 19 or article 20(3) of the Constitution.
Since Search warrants and seizures are considered equivalent to invasion of fundamental rights the code has laid down certain limitations with regard to searches and seizures which are–
1) The thing or document to be searched or seized must be explicitly mentioned.
2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search warrant with a respect to a document of postal authority.
3) It is expected that judicial discretion be excercised by the magistrate while issuing search warrants.
4) The provision to section 100 of Cr.P.C. need to be complied with while exercising search and seizures.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje
3) AIR 1954 SC 300
5) 1965 57 ITR 664 Mad
6) A.I.R. 1977 S.C. 403
7) 4760 SC [1999 CRI. L. J. 5023]
8) (1973 Crl. LJ. 93)
9) CDJ 2002 BHC 1461
10) AIR 1968 BOMBAY 273
11) 2001 (2) S.C.T 778