Lawwatch

Search & Seizure by police without warrant

Search and seizure of documents or material objects is indispensible
during investigation and prosecution of crime.

The Station House Officer (SHO) or Investigation Officer is provided
with powers to conduct fair and reasonable searches during the process
of investigation, in the interest of justice.

Power to make a Search

Both the court and the Police have power to order search a place to
seize documents or materials objects required for investigation or
prosecution.

In normal course, the court issues summons to produce the documents or
things to the person in control of them initially. If it is not possible
or does not work on account of some reasons the court has enough power
to issue search warrant (search warrant is a written authority issued to
police or other person by a magistrate directing the search of any
place) to conduct a general search of any place, for the purpose of
investigation or prosecution. The Court can issue a search warrant
specifying to search a particular place or part of that space thereof.

The Court can issue warrant for searching any place suspected to store
stolen property, counterfeit coins or currency, fake stamps, obscene
materials or other objectionable materials also.

In addition to all these possibilities, the law authorizes the police
officer with enough powers to make a search, without a warrant from a
court, for some documents or material objects in some peculiar
circumstances in the interest of justice.

House to be kept undisturbed

However the law considers that a person’s house is his castle. Freedom
of his house comes second to his personal freedom. A coercive search of
any place like one’s house is deemed to be an encroachment upon the
rights of the occupant of that place.

Normally, no officer of the executive or police has any right to enter
his house for search except under due authority of law. Any law or
procedure depriving life or liberty of a person must be reasonable, fair
and just.

But in some special circumstances such an encroachment will have to be
tolerated in the larger interest of the society. There need to be a fine
balance between the citizen’s interest and that of the society in the
matter of search and seizure.

Any search or seizure, which directly affects the personal liberty and
right to privacy of the individual, is not tantamount to testimonial
compulsion or self incriminating in nature if the search diligently
follows due law and procedure when it is carried out.

The decision to search a house which should be kept undisturbed by any
executive action is a judicial decision. It is normally bestowed on the
court.

Timely search inevitable at times

In investigation of crime, the police will come across some situation in
which they have to make a timely search and seizure of some materials or
documents in possession of a person who is unwilling to produce it.

To overcome such a situation the police is clothed with enough powers to
search and seize such materials or documents even from a private place
like his house, without a formal warrant form a court in exceptional
circumstances. An officer in charge of a police station or a police
officer conducting the investigation of a crime can make a search even
in one’s house to seize documents or materials specifically needed for
the purpose of investigation of a crime, without a formal warrant. This
can be done in exercise of powers under Section 165 of the Criminal
Procedure Code, 1963 (CrPC),

For a warrantless search by a police officer as stated above, all the
provisions relating to search warrants and searches under Section 100 of
the CrPC are applicable. The Section 165 actually provides for
additional safeguards to be scrupulously followed when a police officer
conducts a warrantless search. The police have to follow such fair and
reasonable safeguards not only to prevent its possible misuse but also
to make the search legal or regular in effect.

Police Officer’s reasonable belief

To conduct a search under Section 165 of the CrPC, the police officer
must reasonably believe that anything necessary for the purpose of
investigation of the crime might be found in any place within the limits
of the police station of which he is in charge. The officer must be of
the opinion that if search without warrant is not conducted well in
time, the document or material cannot be obtained.

The Section provides some procedural safeguards. Before conducting the
search the police officer must record in writing the grounds of his
belief. The officer should record the material things for which the
search is to be made, before conducting the search. The recording of the
reason for the search is an important element in search. Ignoring such a
crucial step is nothing but total neglect of the material part of the
provisions governing search.

When sufficient time is there for the police to seek a search warrant
from a magistrate, a search of such kind by a police officer without
obtaining a warrant cannot be justified.

The officer must conduct the search himself, if practicable. If it is
not possible to conduct the search himself and no other competent person
is present there to make the search, he can authorize any other person
to make the search. The police officer thus authorizing the person must
record his reasons for doing so. The recorded reasons should specify the
place to be searched and the thing for which the search is made.

An illegal search may entail punishment of the police officer. In
addition, he may be asked to pay compensation to the person whose house
has been searched.

Search party to be searched

It is an unwritten rule that the search party and the search witnesses
must be searched before they are allowed to enter the house for search.
This practice will prevent the possibility of planting something by the
search team in the place to be searched. If such a body search is not
done, it will give the defence a valid ground to question the veracity
of the materials unearthed in the search.

Magistrate to be informed of search

The Magistrate must be informed of the search. The copies of the record
in which the police officer writes the ground of his belief in regard to
search, the things for which search is made, must be immediately sent to
the nearest magistrate competent to take cognizance of the offence.

If the occupier of the place where search was conducted makes an
application, the magistrate shall furnish him a copy of the entire
record received by the Magistrate, free of cost.

Searching a closed space

If any place to be searched is closed, the police officer making the
search must demand the occupier of the place ingress into the place,
under Section 100 of the CrPC. The occupier, in turn, should afford all
reasonable facilities for a search therein.

If the occupier does not allow such ingress, even after notifying him
the police officer’s authority and purpose, the police officer can break
open any outer or inner door or window to enter the place. If any person
in or about such place is reasonably suspected of concealing any article
for which search would be made, such a person can be searched. If the
person to be searched is a woman the search should be made only by
another woman, keeping strict regard to decency.

The search by the police must be made in the presence of two independent
and respectable inhabitance of the locality of the place searched. The
police officer making the search has power to call such inhabitants to
attend and witness the process of search. The officer has power to issue
a written order to such witnesses. The search witness thus ordered to be
present should accompany the searching officer and be a witness to the
finding of the document or material object. Keeping the witnesses
outside the building when search is going on inside is not sufficient.

If the person, who receives the order to witness the search, neglects or
refuses without a reasonable cause to attend and witness the search, he
is deemed to have committed an offence of omission to assist public
servant when bound by law. The offence is punishable under Section 187
of the Indian Penal Code, 1880.

The occupant of the place of search shall also be permitted to attend
the process of search.

Prepare a list of things seized

The officer making the search shall list all things seized from the
place in the course of the search. The list shall be signed by the
witnesses. It is quite objectionable to make the accused sign or put his
thumb impression on the search list. When the search memo was not signed
by the witnesses though they were present the Supreme Court held that
the prosecution story was unnatural.

There could be cases in which public witnesses are reluctant to join or
are not available. If that be the case, the prosecution must show the
court that the investigating officer made due effort to bring public
witnesses to the place of search though it failed. When there was a
difficulty in obtaining the services of public witness, a stereotypical
statement of non availability of any public witness will not suffice.

Police cannot make a general search

The Section 165 of the CrPC, which deals with Police’s inherent power to
search as part of investigation, does not envisage the conduct of a
general search by Police.

If an officer searches a house for stolen articles generally but not for
any specific article mentioned by a complainant, it obviously becomes a
general search. The police have no legal authority to conduct such a
search under this section.

A promiscuous entry into a house by even Police is not permissible under
the criminal law.

Search without authority illegal

A search without a warrant conducted by a police officer, who is not
authorized to conduct such a search by any provision of law, is illegal.
His search is devoid of any legal sanctity.

However non-compliance of the search procedure will not affect the
validity of the search and seizure, but it may affect the weight of
evidence. The alleged illegality of search by investigation officer does
not vitiate the collected evidence. The procedural lapses may not make
the evidence altogether inadmissible, unless such procedural illegality
results in undue prejudice to the accused.

However the non compliance with the search procedures would make the
entry of police officer into the place of search unauthorized by law. If
the entry or search by the officer is illegal, the occupant of the
premises can resist or obstruct the entry or search. The police officer
making such an illegal search could be made liable to pay damages as
well.

So in order to make the search lawful the officer must follow the
procedural tangles in regard to search intact.

Conclusion

The provision for warrantless search by Police is provided in the CrPC
to facilitate easy recovery of materials for investigation. The power,
as it provides enough discretion, is quite amenable to misuse by the
police. Enough safeguards are therefore provided to avoid such misuse of
power.

Of course the power, though being exercised by police, is meant for
safeguarding the society from the distastes of crime.

NB: - The author is a member of the Thrissur Bar Association (TBA),
Thrissur - 680003