The Criminal Procedure Code, 1973 is a procedural law consolidating the law relating to criminal procedure. The law prescribes a detailed format as to how the criminal law comes into motion.
Usually, under CrPC, a police officer or an investigating officer has the power to search. The power to search comes under two heads:
1. Search with warrant
2. Search without warrant
This CrPC law note explains the procedure of search by a police officer in India with or without a search warrant.
Search With Warrant
Search warrants are written orders issued by a magistrate authorising the search of any place. But before issuing a search warrant, the court:
- must have reason to believe that the person to whom summons have been issued under section 91 of CrPC would not produce documents or things, and
- there must be justifiable grounds for the court to form such an opinion.
When the court satisfies itself with these two points, then only it issues a search warrant.
Sections 93 to 98 of CrPC specify the circumstances under which the court may issue a search warrant.
Section 93: Search for Documents or Things Necessary for Investigation, Trial etc.
Section 93 of CrPC provides that where any document or thing is required by the court which is necessary for the investigation or other proceedings, the court may issue a search warrant for the same if:
- Despite having been summoned under sections 91 or 92, the person in whose possession the document or thing is placed refuses to produce it.
- Where the court does not know who has possession of such thing or documents.
- Where the court considers that purpose will only be served by general inspection.
Note: If the thing to be searched is in the custody of the postal or telegraph authority, only District Magistrate or Chief Judicial Magistrate can issue a search warrant.
Section 94: Search for Stolen Property, Forged Documents, etc.
Where any District Magistrate, Sub-divisional District Magistrate or Magistrate of the first class has reason to believe that any place is used for the sale or deposit of any stolen property or other objectionable articles given under section 94(2) of CrPC, then he may authorise any police officer by way of the warrant to enter such place and conduct a search therein.
Section 95: Search for Any Seditious or Obscene Document
Under section 95 of CrPC, the Magistrate may issue a search warrant authorising the police officer to search any premises where any newspaper or book, or any document, whose publication is punishable by section 124A, 153A, 153B, or section 292 or section 293 or 295A of the Indian Penal Code and such matter is declared by the state government to be forfeited.
Section 97: Search for Persons Wrongfully Confined
Section 97 of CrPC empowers the District Magistrate, Sub-divisional Magistrate and Magistrate of the first class to issue a search warrant:
- in case he has reason to believe that any person is confined,
- and such confinement amounts to an offence.
Section 98: Power to Compel Restoration of Abducted Females
Section 98 of CrPC empowers the District Magistrate, Sub-divisional Magistrate, and Magistrate of first-class to make an order for immediate restoration of a woman or a female child to her lawful guardian and to compel the compliance of the order by using such force as may be necessary. An order under this section may be made only when:
- There is a complaint on oath;
- The complaint is about the abduction or unlawful detention of a woman or a female child under 18 years;
- Such abduction or detention is for any unlawful purpose.
Search Without a Warrant
The Criminal Procedure Code is exhaustive law. It also deals with the situation where there is no time to get a search warrant from a Magistrate. In such a situation where the police officer has reasonable grounds to believe that any delay will be fatal to the investigation, he can search without having a search warrant.
Following are the sections dealing with the search without a warrant:
Section 165: Search by a Police Officer
As per section 165 of CrPC, when an officer in charge of a police station or an investigating officer has reasonable grounds for believing:
- that anything necessary for investigation of any offence which he is authorised to investigate,
- and that the search is necessary for investigation and such search is within his local jurisdiction, and any undue delay will be fatal for investigation,
the police officer can search without a warrant.
Furthermore, before the search, it is the police officer’s responsibility to document in writing the grounds of his belief, naming the object to be searched.
Section 166: Search in Other Police Station’s Jurisdiction
This situation arises when a search is done outside the local jurisdiction. For example, when the police of Varanasi want to search in Lucknow, they have to comply with section 166.
It says when a search has to be conducted in the jurisdiction of another police station, whether, in the same or a different district, the police officer making the investigation is required under section 166(1) to ask the officer in charge of another police station in whose jurisdiction the search is to be made.
However, when the police officer has reason to believe that any delay will cause concealment or hampering of evidence, according to section 166(3) of the Code of Criminal Procedure, the investigating officer may search himself. As soon as possible, the police officer searching shall send the notice of the search, along with the list prepared according to section 100 of the CrPC, to the officer in charge of the police station within the jurisdiction of which the search took place, and to the Magistrate empowered to take cognisance of the offence.
When the police officer searches under section 165 or section 166 of the Code of Criminal Procedure, the police officer will make a list under section 100 (clause 5) of CrPC. The witnesses must sign it. Furthermore, a copy shall be delivered to the owner or occupier of the place searched.
The Code of Criminal Procedure explicitly mentions the situation where a search is necessary. Primarily, the court issues a summons under section 91 for the production of documents or things because a search is not a simple thing; it directly infringes the fundamental right, that is, the right to privacy of a person; thus, reasonable grounds must be established for the search.
Further, before issuing a search warrant under section 93, the court must satisfy itself that the person to whom the summons was issued will not produce the documents or things. Sections 93 to 98 of CrPC deal with search with a warrant.
CrPC also deals with situations where the search is imperative (of vital importance), and any delay will be fatal to the investigation. In these circumstances, the law allows the police officer having reasonable grounds to search without a warrant under sections 165 and 166 of CrPC.
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