Crpc 245g14

CrPC Presentation on the topic

SEARCH AND SEIZURE Submitted To- Mukesh Sir Submitted By - Yuvan Sharma Bcom LLb 5th Semester Section D 211/15

ACKNOWLEDGEMENT I would like to express my special thanks of gratitude to my teacher Mukesh sir who gave me the golden opportunity to do this wonderful project on the topic Search and Seizure under CrPC, which also helped me in doing a lot of Research and i came to know about so many new things I am really thankful to them. Secondly i would also like to thank my parents and friends who helped me a lot in finalizing this project within the limited time frame.

CONTENT

Police plays one of the most significant roles in the criminal justice system. The responsibility of maintaining law and order is on the police. The investigation of an offence is the field exclusively reserved for the police officers whose powers in this field are unfettered. Immediately after the registration of FIR (First Information Report), the powers of police to investigate the case comes into play.

The Hon’ble Supreme Court of India in case of H.N. Rishbud v. State of Delhi 1 has mentioned that under the Code of criminal Procedure, investigation consists generally of the following steps: “(1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of: (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173.

1. AIR 1955 SC 196

It is evident that investigation by a police officer includes power of arrest, search and seizure. Search and seizure is a necessary exercise and plays an important role in the collection of evidence during the process of investigation of an offence.

There are several provisions under the Code of Criminal Procedure regarding search and seizure. Section 47, 51, 52, 93, 94, 97, 99, 100 to 103, 105E, 165 and 166 are the significant and relevant sections for search and seizure. Powers of the Court as well as powers of police officer concerning search and seizure are mentioned and given in these sections. Section 100 and 165 are one of the most important sections concerning search and seizure. These sections also specify about the procedure to be followed during search and seizure.

In Partap Singh (Dr.) v. Director of Enforcement, the Apex Court has held that the provisions contained in the Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law-enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. In the Criminal Procedure Code there are four groups of sections regulating the searches authorised under it.

 Section 47 provides that if 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, then the police officer has power to search the place entered by person sought to be arrested.  Section 51 provides for search of an arrested person by the police officer. Whenever a person is arrested by a police officer under a warrant he 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.  Section 52 gives the power to a police officer to seize offensive weapons while making an arrest.  Section 93 lay downs the power to be exercised by the Court to issue search warrant. Vide this section the court has the power to direct the police to search or inspect. The Court may also, 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.  Section 94 specifies about search of place suspected to contain stolen property, forged documents, etc.  Section 97 provides the power to a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class to issue a search warrant, if he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence and the person to whom such warrant is directed may search for the person so confined;

 Section 100 specifies that the persons in charge of closed place shall allow search to the search team. He shall, on demand of the police 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.  Clause (4) of section 100 mandates that 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 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 so to do. Further 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;  Clause (6) provides that 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 said witnesses, shall be delivered to such occupant or person.  Further clause (7) mentions that when any person is searched, a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

 Under section 102, the police officer has the power to 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. The police officer who is acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction.

 Under section 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. Section 105-E provides the power to a police officer conducting an inquiry or investigation, to make an order of seizure or attachment of a property if has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property.  Section 165 is an important section and specifically mentions about Search by police officer. Finally section 166 reads ‘when officer in charge of police station may require another to issue search warrant’.

From the aforesaid sections it is apparent and evident that police has extensive powers to carry out search and seizure and it plays a very important role for the same.

VIEW OF INDIAN COURTS ON SEARCH AND SEIZURE In State of Punjab v. Balbir Singh 1994(3) SCC 299 after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.

The Hon’ble Supreme Court in State of M.P. v. Paltan Mallah has held that in India, the evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused. The discretion has always been given to the court to decide whether such evidence is to be accepted or not.

In Radhakishan v. State of U.P. speaking for a three-Judge Bench, Justice Mudholkar held: “So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the

articles is not vitiated. It may be that where the provisions of Sections 103 and 165 of the Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”

In Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 it has been held that “If the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not the prosecution version”.

The case of State of Punjab v. Balbir Singh is one of the landmark judgments in the field o search and seizure. The Hon’ble Supreme Court had laid down certain guidelines in the said case. The same are:

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police

officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections

100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like

delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.