A Project Report on

Elaborate the term Illegalities in Conducting Search

Project submitted to:

Mrs. Shreejaya Patil

(Faculty of Criminal Procedure Code)

Project Submitted by:

Rohit Dongre

Semester VII, Section B

Roll no. 132

Submitted on:

16.08.2016

Hidayatullah National Law University, Naya Raipur Chhattisgarh.

 Declaration

I hereby declare that the project work entitled Elaborate the term Illegalities in
Conducting Search submitted to Hidayatullah National Law University, Raipur, is
record of an original work done by me under the able guidance of Mrs. Shreejaya Patil,
Faculty of Criminal Procedure Code, HNLU, Raipur.

Rohit Dongre

Semester- VII

Section B

Roll no-132

2
 Acknowledgements
I feel highly elated to work on the topic Elaborate the term Illegalities in Conducting
Search The practical realization of this project has obligated the assistance of many
persons. I express my deepest regard and gratitude for Mrs. Shreejaya Patil, Faculty of
Criminal Procedure Code. Her consistent supervision, constant inspiration and invaluable
guidance has been of immense help in understanding and carrying out the nuances of the
project report.

I would like to thank my family and friends without whose support and encouragement,
this project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful
to receive comments and suggestions to further improve this project report.

Rohit Dongre

Semester- VII

Section B

Roll no-132

3
 Contents
Declaration .......................................................................................................................... 2
Acknowledgements ............................................................................................................. 3
Introduction ......................................................................................................................... 5
Objectives ........................................................................................................................... 6
Scope of Study .................................................................................................................... 6
Research Methodology ....................................................................................................... 6
Sources of Data ................................................................................................................... 6
Organization of study.......................................................................................................... 6
Cases or illustrations ........................................................................................................... 7
Statutes ................................................................................................................................ 7
Review of literature............................................................................................................. 7
TYPES OF SEARCHES WITH OR WITHOUT WARRANT AND TO KNOW THE
ACTION ............................................................................................................................. 8
Search with warrant ........................................................................................................ 9
Action during the search ................................................................................................. 9
Action after the search .................................................................................................. 10
Conducting search for a person..................................................................................... 11
Section. 51 CrPC Search of arrested person ................................................................. 13
Searched for person wrongfully confined ..................................................................... 13
Sec. 100: Persons in change of closed place to allow search........................................ 14
Conducting Search of Premises .................................................................................... 15
Police torture and death: Rajasthan Year 1997-98 ....................................................... 20
Constitutional Validity of Search-Warrants...................................................................... 21
Consequences of Non compliance with the provision relating to Searches ..................... 22
(a) magistrate not empowered to issue a search-warrant. ............................................. 22
(b) Search without warrant by police officers not authorised ....................................... 22
Effect of Illegal Search and Seizure and its effect with help of Case Analysis ................ 25
Conclusion ........................................................................................................................ 32
References ......................................................................................................................... 33

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 Introduction

The word Search generally means looking for a thing and Seizure means taking
possession of the thing physically for which search is made. For the purpose of
investigation, search means the examination of a mans person or the premises to
discover evidence and material objects to connect the accused with the offence he has
committed. A successful search, not only will deprive the offender of the enjoyment of
the property but also fix him with the crime, which he committed. The offenders always
conceal the material objects either in a cavity caused by nature or by artificial means. It
may also be done by blatant display of things; The power of search is one of the most
important powers conferred on an I.O. or an officer in-charge of a Police Station by law.
This power is even greater then the power of arrest, as arrest can be made even by a
private person if a cognizable and non-bailable offence is committed
in his presence but a private person has no power of search.

A search warrant is a court order that a magistrate, Judge or Court issues that authorizes
law enforcement officers to conduct a search of a person, location or vehicle for evidence
of a crime and to confiscate illegal items or evidence of crime, if they find any.
In order to get a search warrant, the police must convince a judge that there is evidence of
a crime at that place and if the judge is convinced, he shall issue a warrant and the
warrant must be very specific, as it should clearly state where exactly the search should
take place, including a specific date and time.

The general law providing for the states power of search and seizure of evidence is
found in the Code of Criminal Procedure, 1973. The power to issue search warrant should
be exercised with all the care and circumstances.

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 Objectives
The Specific Objectives of the research work are-

To understand the what is meant by search warrant, and types of search

To know the Constitutional Validity of Search-Warrants
To study the Consequences of Non compliance with the provision relating to
Searches
To understand Effect of Illegal Search and Seizure and its effect with help of Case
Analysis

Scope of Study
The Research work covers mainly the Illegalities in Conducting Search and covers when
the police can search with warrant and without warrant.

Research Methodology
This Research Project is Descriptive in nature as it uses descriptive language for the
explanation of various topics and subjects discussed in this project.

Sources of Data
Secondary data has been mostly used in the making of this research project, which
includes Web sources, including reports and data analysis and studies carried out by
people in their field work in different states etc.

Tools of data collection

The data so used in the making of this Research work has been collected mainly from
web sources.

Organization of study
The Research Work has been divided into Parts, which are further divided into Sub-parts.

6
 Cases or illustrations
Cases and Illustrations are provided in the project wherever needed for easy
understanding.

Statutes
Mainly Sections 165, 166, 93,94, 100,465 have been dealt in making of this project.

Review of literature
For the Review of Literature the book which was referred was R.V. Kelkars
Criminal Procedure

7
 TYPES OF SEARCHES WITH OR WITHOUT WARRANT
AND TO KNOW THE ACTION

Legal formalities to be followed before, during & conducting search and

seizure
The following instructions and procedure may be useful for effective searches:
Action before the search
1. The officer concerned should know the place to be searched thoroughly and if possible
he should reconnoiter it before starting.
2. He should take search list forms, sealing wax, scale etc., with him.
3. Journeys to the place should be quick but at the same time he should not arouse
suspicion in the minds of the people of the locality.
4. On reaching the police he should mount the guard at the place of exit and entrance to
prevent the escape of the offender.
5. Two respectable persons of the locality or of any other locality who are willing to act
as witnesses should be invited to witness the search. The witnesses should be
independent.
6. Before entering the house the Police Officer should disclose his identity and intimate
the purpose and the object of the search. The searching officer has the right to break
open, If on demand, ingress is not allowed.
7. All the members; of the searching party should offer themselves to be searched by the
occupant of the house, who should be asked to take of the witnesses also.
8. The Police Officer should not take unnecessary person with him.

Legal search and seizure without warrant

1. Sec. 47 Cr.PC - Search of a place entered by person sought to be arrested.
2. Sec. 51 Cr.PC - Search of the person of arrested individual.
3. Sec. 165 Cr.PC - Search of premises within the limits of the SHO in emergent cases.
4. Sec. 166 Cr.PC - Search of the premises beyond the limits of the SHO in emergent
cases.

8
Search with warrant
1. Sec. 93 Cr.PC - Search for documents.
2. Sec. 94 Cr.PC - Search for :-
a) Stolen property
b) Counterfeit currency
c) Forged documents
d) False seals
e) Obscene objects
f) (u/s 292 IPC)
3. Sec. 95 Cr.PC - Search for forfeited documents u/s 124-A 153-A,153-B,292
and 293 IPC
4. Sec. 97 Cr.PC - Search for a person wrongfully confined

Action during the search

a) Residents of the house including the women folk should be asked to collect at one
place but they should never be out of sight.
b) At least one member of the house should remain present during the search.
c) Search should be taken in spiral methods, i.e. clockwise or anti=clockwise so that no
place is left unsearched.
d) Spiral method - This method is mainly intended for indoor searches. In this
method, the term technique is utilized with good results, although a lone searcher can also
adopt this method. The searchers follow each other along the path of a spiral form the
door of a house and spiraling in towards the center.
This method ensures thorough coverage of the area by more than one officer.
If this system is enjoyment of the property seized. This, however, is only temporary and
for the limited purpose of investigation. A search and seizure
is, therefore only a temporary interference with the right to hold the premises
searched and articles seized. Statutory regulation in this behalf is necessary
and reasonable restriction cannot peruse (by its nature) be considered to be
unconstitutional. The damage if any, caused by such temporary interference,;

9
if found to be in excess of legal authority, is a matter of redress on other
proceedings.
e) The witnesses for search should not be left outside and they should remain
present with the Police Officer taking the search.
f) All possible place should be searched and newly excavated places should be
carefully scrutinized.
g) While making the search the searching officer should remain alter and read the
indications given by the occupants of the house as sometimes the occupants go on gazing
at a particular place where the property is concealed or they keep moving in the same
area.
h) When any property is recovered, it should be carefully noted, labeled and signed by
the witnesses so that subsequent identification may be made by them.
i) Search list should be prepared on the spot.
j) It should be read and explained to the witnesses and their attestation should be obtained
thereon.
k) A copy of the search list should be furnished to the house owner under proper
acknowledgment.
l) The searching officer should be very ethical during the search and should not plant any
incriminating article to fabricate evidence against any person. There are instances where
the IOs have fabricated evidence by planting incriminating articles.

Action after the search

a) Before leaving the place, the Police party and the witnesses should offer
themselves to be searched by the occupant of the house and the property
seized should also be shown to him.

b) The record of the search should be sent to the concerned Magistrate

immediately. Disposal of the property: All property seized under the
panchanama by a Police Officer should he produced before the Magistrate for
enquiry or trail as the case may be. The property seized under Section 102 Cr.
P.C should also be sent to the Court for disposal as deemed fit by the Court.

10
c) Need for proper use of power of search: The following points may also be kept in mind
as suggested by the following rulings:-

d) The police officer is restrained from conducting anything in the nature of

general search (Remprakash V s. Emperor 1944 Patna 228).

e) If is a vicious thing to allow a Police Officer to have power to conduct a

general search without knowing what he is going to search for but merely to
see if he can find anything incriminating to a persons house (Mangal Singh
Vs. Emperor 1939 Lahore 200)

f) Roving searches conducted without initial record regarding the places to be

searched and the things for which the search was to be made do not come
under the provisions. Of sec. 165 Cr.P.C. (Gangaram Vs. State 1944 N.V.C.
3862).

g) The Supreme Court held that Sec. 100 Cr.PC. would not apply to search of a person
but only to search of a place (Sunder Singh Vs. State of U.P. 1965 SC
80).

h) The Allahabad High Court held that no witnesses are necessary for search of a person.

Conducting search for a person

Section 47 Cr.P.C (Search for a person) - This Section reads as follows: Sec.
47 Search of a place entered by person sought to be arresteda)
If any person acting under a warrant of arrest, or any Police Officer having
authority to arrest, has reason the believe that the person to be arrested has
entered into, or is within any place, any person residing in, or being in charge
of such place shall, on demand of such person, acting as aforesaid or such

11
Police Office, allow him free ingress there to, and afford all reasonable
facilities for a search therein.

b) If ingress to such place cannot be obtained under Sub-Section (1), it shall be

lawful in any case for a person acting under a warrant and in any case in which a warrant
may issue, but cannot be obtained without affording the person to be arrested an
opportunity of escape, for a Police Officer to enter such place and to break open any
outer or inner door or window of any house or place, whether that of the person to be
arrested, or of any other person, if after notification of his authority and purpose. And
demand of admittance duly made, he cannot otherwise obtain admittance:

c) Provided that, if any such place is an apartment in the actual occupancy of a female
(not being the person to be arrested) who, according to custom; does
not appear in public, such person or Police Officer shall, before entering such
apartment, give notice to such female that she is at liberty to withdraw and
shall afford her every reasonable facility for withdrawing, and may then break open the
apartment and enter it.

d) Any Police Officer; or other person authorized to make an arrest may break open any
outer or inner door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the
purpose of making an arrest, is detained therein.

e) As per Section 47 Cr.pc. any Police Officer having authority to arrest any
person accused of an offence can search a place where the accused is hiding
without a warrant of search. If the Police Officer is not allowed to enter the
place, he can use force to gain entry to arrest the accused. If such place is in
occupation of a female, the Police Officer should give her sufficient notice to
withdraw herself in carrying out his duties (Ramesh 41 C 350, 376). If in order to arrest
suspected person, the Police Officer enters into a building, his action prima facie
justifiable (Daitari A 1965 Orissa 97). Where the door is open, it is not required that the

12
Police Officer should wait and make a formal demand to the occupier for entry in the
house. Sec. 51 and 52 Cr.P.C. regarding search of person read as-

Section. 51 CrPC Search of arrested person

Whenever a person is arrested by a Police Officer under a warrant which does
not provide for taking of bail, or under a warrant, which provides for the taking of bail,
but the person arrested cannot furnish bail, and Whenever a person is arrested without
warrant or by a private person under a warrant, and cannot legally be admitted to bail, or
is unable to furnish bail,
The Police Officer making the arrest or, when the arrest is made by a private
person, the Police Officer to whom he makes over, the person arrested, may search such
person, and place in safe custody all articles, other then 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. Whenever
it is necessary to cause a female to be searched, the search shall be made by another
female with strict regard to decency.

This Section provides that no warrant is needed to search under certain

circumstances a person who has been arrested by a Police Officer or, made over to Police
Officer by a private person after the arrest. When the person of a female is to be searched,
it should be searched by another female and it should be done with strict regard to
decency. If any articles were seized from any such person, a receipt for the same should
be given to him.
Sec. 52 Cr.P.c. provides that whenever a person is arrested under the Code of
Criminal Procedure, the officer making arrest of such person may seize any offensive
weapon found in his possession and produce the same before the Court along with the
arrested person.

Searched for person wrongfully confined

Section 97 Cr.P.c. authorizes any District Magistrate, Sub-Divisional

13
Magistrate or Magistrate of the First Class of issue a search warrant for a wrongfully
confined person and the person if found shall be immediately produced before the
Magistrate. Procedure for Search. Section 100 Cr.P.C reads:-

Sec. 100: Persons in change of closed place to allow search

Whenever any place liable to search or inspection under this Chapter is closed, any
person residing in, or being in charge of such place, shall, on demand of the officer or
other person executing the warrant, and on production of the warrant allow him free
ingress there an afford all reasonable facilities for a search therein.
If ingress into such place cannot be so obtained, the officer or other person
executing the warrant may proceed in the manner provided by Sub-section (2) of Sec. 47.
Where any person in or about such place is reasonably suspected of concealing about his
person any article for which search warrant was made, such person may be searched any
if such person is a woman, the search shall be made by another woman, with strict regard
to decency.
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 situated or 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 to do so.

The search shall be made in their presence, and a list of all thing 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; but no person
witness of the search shall be called to the court unless specially summoned by it.
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.
When any person is searched under sub-section (3), a list of all things taken
possession of shall be prepared, and a copy thereof shall be delivered to such person.

14
Any person who, without reasonable cause, refuses or neglects to attend and
witness a search under this Section, when called upon to do so by any order in writing
delivered or tendered to him, shall be deemed to have committed an offence under
Section 187 of the Indian Penal Code( 45 of 1860).

Conducting Search of Premises

Power of search: Search may be conducted to seize objects which will connect
the accused with the offence which he has committed, for example, stolen property in
cases of theft and burglary; weapon of offence in case of murder robbery, dacoity, riots
and die, ink, etc., in case of counterfeiting of notes, Search may also be conducted to
apprehend the accused a well as to recover a kidnapped or abducted
person. The provision contained in the Cr. P.C. in respect of search is discussed
hereunder:
Search of a place (Sec. 165 & 166 Cr.P.C.): Law contemplates that all searches should be
conducted under a warrant of search obtained from a competent
Magistrate, but in emergent cases where there may be immediate necessity of search and
there being not time to obtained the warrant from Magistrate, powers of search are given
to Officer in charge of a Police Station or a Police Officer making an investigation of an
offence to conduct searches without a warrant. Example: If an investigating Officer in a
far away place gets information that stolen property is concealed in a house in the village
and it is apprehended it may be removed to some other place if it not seized immediately,
he can conduct a search without warrant u/s 165 Cr.PC

The Section read as- Sec. 165: search by Police Officer - Whenever an
Officer in charge of a Police Station making an investigation into any offence which he is
authorized to investigate may be found in any place within the limit of the Police Station
of which he is attached, and such thing cannot in his opinion be otherwise obtained,
without 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 limit of such
station.

15
A Police Officer proceeding under sub-section (1) shall if practicable conduct
the search in person. 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 to for so doing require any Officer 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 there upon search for such thing in such place.

The provision of this code as to search contained in section 100 shall so far as
may be, apply to a search made under this section. 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 of the occupier of the placed search
shall, on application, be furnished, free of cost, with a copy of the same by the
Magistrate.

The contents of the Sec. 165 Cr.PC can be summarized into the following ten
points. The power of search without warrant is given to the Officer in charge of the
Police Station or an Officer investigation a case. Search may be necessary for
investigation. The offence must be such as a Police Officer is authorized to investigate.
i.e cognizable offence Reasonable grounds must exist for believing that the thing required
will be found in that place. There would be undue delay in getting the thing in other way.
Ground of belief as to the necessity of search must be previously recorded and
communicated to the Magistrate forthwith. The article of search must be specified, as far
as possible in the record a Procedure of the search may be adopted as prescribed in
section 100 Cr.PC opies of the record made, i.e (I)
the reason for conducting the search without warrant, (ii) ordering the subordinate to
conduct the search, and (iii) the search list should be sent to the Magistrate empowered to
take cognizance of the offence. he search should be within the limit of the Police Station
of the Officer investigating the case.
Sec. 166 Cr.PC - this section enables an Officer in charge of a Police Station
to have a search made within the limits of another station through the Officer in charge of
that station who will act as laid down in Sec. 165 Cr.PC In emergent case, the Officer in

16
charge of one Police Station may search or cause to be searched places within the limits
of another Police Station subject to the conditions and procedure laid down ills 165 and
100 Cr.PC
Search warrant for document (Sec. 93 Cr.PC) Sec. 93 when a search warrant
may be issued 1.a) Where any court has reason to believed that a person or whom
summons or order under section 91 or a requisition under sub-section (1) of Sec. 92 has
been or might.
b) where such document or thing is not known to the court to be in possession
of any person or where the court consider that the purposes of any enquiry,
trial or other procedure under this code will be served by general search or
inspection
c) it may issue a search warrant; and the person to whom such warrant is directed, may
search or inspect; in accordance therewith and the provisions hereinafter contained.

2. The Court may, if it thinks fit, specify in the warrant the particular place or
part thereof to which only the search or inspections shall extend; and the person charge
with the execution of such warrant shall then search or inspect only the place or part so
specified.
3. Nothing contained in this Section shall authorize any Magistrate other than a District
Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document,
parcel or other, thing in the custody of the postal or telegraph authority.

However, for a document, parcel or other thing in the custody of the postal or
telegraph authority, only District Magistrate or Chief Judicial Magistrate can issue the
warrant. Search of a place for stolen property (Sec. 94 Cr.P.C.) This Section authorize the
District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class to issue a
search warrant for stolen property, counterfeit currency notes, forged documents, false
seals and obscene objects (as contemplated u/s 292 IPC) etc.
Under this Section, the Court is authorized to issue search warrant to any
Police Officer above the rank of a Constable. Search for forfeited publication (Sec. 95
Cr.P.C) The section authorizes any Magistrate to issue a search warrant to any officer not

17
below the rank of Sub-Inspector to seize any newspaper or book or by document, which
the State Govt. by notification declared to be forfeited. (Documents includes any
painting, Drawing or photograph or visible interpretation) Criteria for forfeiting
publications u/s 95 Cr.P.C. are that they should be punishable u/s 124-A or 153-A or 153-
B or 292 or 293 or 295-A IPC, the contents of which are briefly as follows:- Sec. 124-A
IPC refers to amongst others any written matter bringing hatred or contempt or exciting
disaffection towards to Govt. of India.
Sec.153-A IPC refers to among other things, any written matter promoting enmity
between different groups on grounds of religion, race, language etc. Sec.153-B IPC deals
with imputations, and assertions prejudicial to notational integration. Sec.292 IPC
provides penalty for the sale, import r export or advertisements of obscene books.
Sec.293 IPC deals with sale or distributions of obsence objects to young person.
Sec.295-A IPC deals with deliberate and malicious acts intended to outrage religious
feelings of any class by insulting its religion or religious belief. For greater certainty and
security. It has been made obligatory that At least two independent and respectable
witnesses preferably of the locality
or of any other locality who are willing to be witness should be present.The search should
be conducted in their presence and the list of the things seized should be signed by the
witnesses.

The occupant of the place or his representative shall be allowed to attend

during the search and a copy of the search list signed by the witnesses shall be given to
him when any person is searched u/s 100(3) Cr.P.C a copy of the list of things taken
possession of, shall be given to him. The rule as to offering the search of the persons of
the Police Officers and of the search witnesses before entering the house should not be
neglected so that there may be no suspicion that anything has been planted (Mohod. Ali
55 A 557; Sohan 34 Cr.L.J 56(8). Persons shall not be allowed to enter the room without
being searched (Sultan 59 CWN 391). Failure to observe the formalities of personal
search of the searching officer and witnesses renders the recovery highly suspicious (Kpil
A 1969 SC 53). When the failure to comply strictly with the provisions of the Sections is

18
satisfactorily explained, it does not make the search illegal (Stagopala 23 MLJ 455;
Johnson A 1957 AP 829).

19
Police torture and death: Rajasthan Year 1997-98

The Commission took cognizance of a news item which reported the death of one
Hussain Teli, who was brought to the police station at Bonli in Rajasthan for
interrogation in connection with the case of the murder of one Prahlad Yadav. It was
alleged that Hussain Teli was tortured to death.

The Commission directed its Investigation Division to investigate the matter.

Accordingly, an investigation was undertaken and a report was submitted indicating that
this was, indeed, a case of death by torture as a result of police interrogation and that the
body of Hussain Teli was buried in unusual circumstances by the police with a view to
covering-up their misdeeds.

On an examination of the information before it, the Commission noted that Hussain Teli
was called to the police station for interrogation and detained illegally. As Hussain Teli
died the very next morning after he was released from police custody and as it was found
that blood was oozing from his mouth and nose, there was a nexus between the death and
conduct of the police during investigation. Even though no external injuries had been
noticed in the inquest and the post-mortem report, the circumstances indicated that
Hussain was illegally detained and tortured during the police investigation.

The Commission observed that while steps were being taken to prosecute the concerned
officials, a case having already been registered against them, this was a fit case for award
of compensation to the dependents. Having regard to the circumstances, the Commission
directed payment of interim compensation of Rs.50,000/- to the dependents of the
deceased Hussain Teli. The State Government has since complied with the
recommendations of the Commission.1

1
http://nhrc.nic.in/PoliceCases.htm

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 Constitutional Validity of Search-Warrants
A question might be raised as to the Constitutional validity of search-warrants where it
relates to the documents or things in possession of the accused person or where the
warrant is for a general search or inspection of the premises in possession or occupation
of the accused person. However, search warrant issued under Section 93(i)(b) for
particular things or documents not known to the court to be in possession of any person,
or a warrant for a general search of the premises in possession of the accused person, or a
search-warrant under Sections 94, 95 or 97 in respect of any particular property or person
in possession or custody of the accused person, cannot be taken to be violative of Article
20(3) of the Constitution which gives protection to the accused person against testimonial
compulsion.

In these cases the search and consequent seizure of documents or other things are not the
acts of the accused person at all, much less his testimonial acts amounting to self-
incrimination. Search-warrant is addressed to an officer of the government, generally a
police officer. Neither the search nor the seizure are acts of the occupier of the searched
premises. They are acts of another to which he is obliged to submit and are, therefore, not
his testimonial acts in any sense.2 It is easy to see how a different view would lead to
monstrous results. A person may commit murder and-bury the body in the backyard of
his house and he may commit burglary and keep the loot in an almirah inside his house;
or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk,
and they would all be as safe as if they 'had been lodged in the Bank of England. Such
disastrous consequences could never have been intended by any law-maker. The
Constitution is not intended to be a charter for the lawless and there is nothing in Article
20(3) of the Constitution to prevent a search under the Provisions of the Code3

2
M.P. Sharma v. Satish Chandran 1954 Cri LJ 865: air 1954 sc 300,302. See also, V.S. Kuttan Pillai v.
Ramakrishnan, (1980) I SCC 264: 1980 SCC (Cri) 226: 1980 Cri LJ 196.
3
Sorualingam , re (1995) 56 Cri LJ 1602:AIR 1955 Mad 685; Melicio Fernandes v. Mohan, 1966 Cri LJ
1258: air 1966 Goa 23,32; M.P Sharma v. Satish Chandra, 1954 Cri LJ 865: air 1954 SC 300

21
Consequences of Non compliance with the provision relating to
Searches
(a) magistrate not empowered to issue a search-warrant.
(i) A search-warrant for a search of place suspected to contain stolen property, forged
documents etc. can only be issued by a District Magistrate, Sub-Divisional Magistrate or
Magistrate of the First Class.' If, however, such a search-warrant is issued by any other
Magistrate erroneously and in good faith, such a warrant shall not be the ineffective
merely on the ground that the Magistrate was not empowered to issue the same. This has
been specifically provided by Section 4604.
(ii) According to Section 93(3), only a District Magistrate or Chief Judicial Magistrate
can issue a warrant for a document, parcel or other thing in the custody of the postal or
telegraph authority. 5If any other Magistrate not so empowered issues such a war-rant,
then according to Section 461 the warrant shall have no effect.
(iii) Search-warrants for persons wrongfully confined can be issued under Section 97 by
any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class.6 If
any other Magistrate purports to issue a search-warrant under Section 97, the warrant, it
is submitted, will be illegal and any entry into any place in consequence of such illegal
warrant would be without any legal authority.7

(b) Search without warrant by police officers not authorised.It has been
seen that under Sections 153, 165 and 166 a place can be searched without a warrant by a
police officer of a certain rank or by one specially authorised according to the provisions
of law. A search conducted by any other police officer or other person would be illegal,
and the entry into the house or place for such search would be unlawful. A search by a
police officer outside the limits of his police station and in the circumstances in which he
is not authorised to do so under Section 166(3), is without legal authority and is illegal.

4
Section 420 of Criminal procedure code
5
Section 90(3) of Criminal Procedure Code
6
Section 97 of Criminal Procedure Code
7
R. V. Kelakars Criminal Procedure , 6th Edition page no 118

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(c) Effect -of contravention of the search-procedure.--Section zoo generally provides for
the procedure to be followed in case of every search of a place8 Besides, Sections 165
and 166 provide for additional procedures to be followed when the search is made by a
police officer without warrant. The contravention of these provisions would make the
search illegal or at least irregular.9 Whether such contravention would vitiate the trial or
its effect would depend on the question of prejudice caused to the accused person

It has been observed that non-compliance with the provisions of Section 100 and 165 of
the code , will not vitiate the trial of the search officer inadmissible in evidence. The
provisions are sometimes considered to be directory only." The Supreme Court in Shyam
Lal Sharma v. State of M.P10, reviewed its earlier decisions and observed that "this Court
has not finally decided whether a search already made in contravention of the provisions
of Section 165 CrPC, makes it illegal or void or merely provides a justification for an
obstruction to the search when it is intended or in the process of its being conducted".
On the findings of the case in hand the Supreme Court considered it unnecessary to
resolve this doubt and the question still remains open today. In any case, the non-
compliance with the provisions of Sections 1oo and 165 would affect the weight of
evidence in support of the search and recovery." The court in such a case may be
circumspect to closely scrutinise the evidence of seizure;" al-aims and may refuse to act
upon the solitary evidence of the police officer.
Secondly, if the search-procedure is not strictly legal, as for instance when the police
officer has failed to comply with the provisions of sub-sections (1) and (5) of Section
165, the occupannt of the place of search can obstruct with impunity the police officer
attempting to search the place."

Thirdly, as the non-compliance with the search-procedure would make the entry into the
house as one without lawful authority, the police officer or the other person making the
search could be liable to pay damages for trespass in a suit in civil court. in State of

8
Section 100 Criminal Procedure Code
9
Sharda Singh v,. State of U.P 1999 Cri LJ 880 (All)
10
(1972) I SCC 764:1972 SCC (Cri) 470:1972 Cri LJ 638.

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 11
Maharashtra v. Natwarlal Damodardas Soni, the Supreme Court has quoted with
approval the following observations made in its earlier decision in Radha Kishan v. State
of U.P."12: 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 [S. Too of the new Code] 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.

(d) Search with consent of the occupant.If the entry into the place f search and the
subsequent search are with the consent of the occupant, le search and recovery will not be
affected on the ground that the search procedure in Sections ioo and 165 was not
followed. Where it is alleged ad proved that the articles were produced by the accused
person himself, !vice 165 does not " apply.

11
(1980) 4 SCC 669:1981 SCC (Cri) 98, 102:19580 Cri LJ 429.
12
(1963) I Cri LJ 809:AIR 1963 SC 822,824.

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 Effect of Illegal Search and Seizure and its effect with help of
Case Analysis
Search and seizure is a legal procedure whereby police or other authorities and their
agents, who suspect that a crime has been committed, do a search of a person's
property and confiscate any relevant evidence to the crime. Searches generally, are
covered by Section 97-103 and 165 of the CrPC. When any of the directives related to
search and seizure of any of these sections, or directives by special acts are violated,
then the search so performed is known as an illegal search. It is commonsensical that
if the safeguards are not followed the logical consequence would be that the search
would not have the same credibility which a search would have if the safeguards were
duly followed. Nevertheless, it can be expected that non-compliance cannot have the
same effect as totally effacing the search or seizure.

The primary remedy in illegal search cases is known as the exclusionary rule.This
means that any evidence obtained through an illegal search is excluded and cannot be
used against the defendant at his or her trial.

To better understand the position of law as is condoned and espoused by the

Judiciary, esp. the Supreme Court, a select few important cases relating to illegal
search and the use of such evidence collected, have been analyzed here.

As will be seen, these cases clearly hold that illegal searches do not affect the trial.
The only consequence of illegality in search is reduced credibility so that the courts
have to examine the evidence more carefully as well as conferring a right on the
person accused to resist and refute it. 13

Case Analysis:
In State Of Himachal Pradesh vs ShriPirthiChand And Another the respondents
house was raided and charas was found. After a consideration of the charge sheet the
Sessions judge discharged the respondent from the offence. The High confirmed the

13
http://www.lawteacher.net/free-law-essays/constitutional-law/illegal-search-and-use-of-evidence-
constitutional-law-essay.php#ftn7

25
same. The Sessions judge discharged the accused, even before the trial was conducted
on merits, on the ground that the provisions of Section 50 of theNarcotic Drugs and
Psychotropic Substances Act, 1985 had not been complied with. Here, the SC referred
to and relied upon the judgment in PooranMals case and held that the evidence
collected in a search in violation of law does not become inadmissible in evidence
under the Evidence Act. The Court further observed that even if search was found to
be in violation of law, what weight should be given to the evidence collected was a
question to be gone into during trial.With the above observations, the Bench recorded
a finding that the Sessions Judge was not justified in discharging the accused after
filing of the charge sheet holding that mandatory requirements of Section 50 had not
been complied with. The court further elaborately considered the effect of the
violation of Section 50 and held that any evidence recorded and recovered in violation
of the search and the contraband seized in violation of the mandatory requirement
does not ipso facto invalidate the trial.

In State of Punjab v. Balbir Singh the SC has considered the provisions of the Act.
Section 50 has been held to be mandatory. In paragraph 16, the SC has held that it is
obligatory on the part of the empowered or the authorized officer to inform the
suspect that, if so required, he would be produced before a Gazetted Officer or a
Magistrate and search would be conducted in his presence. It was imperative on the
part of the officer to inform the person of the above right and if he failed to do the
same, it amounted to violation of the requirement of Section 50 of the Act.It was held
that when the person was searched he must have been aware of his right and that it
could be done only if the authorized or empowered officer informed him of the same.
Accordingly, this Court by implication read the obligation on the part of authorized
officer to inform the person to be searched, of his right to information that he could be
searched in the presence of the Gazetted Officer or the Magistrate. This was the
illegal search carried out by the police.

The evidence obtained under an illegal search and seizure does not exclude relevant
evidence on that ground. It is wrong to invoke the spirit of Constitution to exclude
such evidence. This view has also been voiced in Pooran Mal v. Director of

26
Inspection and in this case. The evidence obtained through illegal search cannot be
excluded completely for consideration only on the grounds that it has been obtained
through illegal search and seizure. When the test of admissibility of evidence lies in
relevancy, unless there is an express or necessarily implied prohibition in the
Constitution or other law, evidence obtained as a result of illegal search and seizure,
is not liable to be shut out. Search and seizure are not a new weapon in the armory of
those whose duty it is to maintain social security in its broadest sense.

It is settled law that illegality committed in investigation does not render the
evidence obtained during that investigation inadmissible. Inspite of illegal search
property seized, on the basis of said search, still would form basis for further
investigation and prosecution against the accused. The manner in which the
contraband is discovered may affect the factum of discovery but if the factum of
discovery is otherwise proved then the manner becomes immaterial."

The following case lawswere also referred to in the case:

In RadhaKishan v. State of U.P.,theSC held that the evidence obtained by illegal

search and seizure would not be rejected but requires to be examined carefully.In
State of Maharashtra v. Natwarlal , even if the search was illegal, it will not affect the
validity of the seizure and further investigation of the authorities or the validity of the
trial which followed on the complaint by the customs officials. In ShyamLal v. State
of M.P., it was held that even if the search and seizure is illegal being in
contravention of Section 165, that provision does not have any effect in its application
to the subsequent steps taken in the investigation.

In Sunder Singh v. State of Uttar Pradesh a three Judge Bench of this Court held that
under Section 103 of the CrPC, 1898 though respectable inhabitants of the locality
were not associated with the search, that circumstance would not invalidate the
search. It would only affect the weight of the evidence in support of the search and

27
the recovery. At the highest, the irregularity in the search and the recovery would not
affect legality of the proceedings.14

In light of these arguments the SC held in paragraph 7 of the judgment that it would
thus be settled law that every deviation from the details of the procedure prescribed
for search, would not necessarily lead to the conclusion that search by the police
rendered the recovery of the articles pursuant to the illegal search, irrelevant evidence
nor the discovery of the fact inadmissible at the trial. Weight to be attached to such
evidence depends on facts and circumstances in each case. The court is required to
scan the evidence with care and to act upon it when it is proved and the court would
hold that the evidence would be relied upon.

In MatajogDubey v. H.C. Bahri it was held that when the salutary provisions have not
been complied with, it may, however, affect the weight of the evidence in support of
the search or may furnish a reason for disbelieving the evidence produced by the
prosecution unless the prosecution properly explains such circumstances which made
it impossible for it to comply with these provisions.

In Balbir Singhs case theSC held that if the provisions of the Act have not been
complied with, the Court has to consider whether any prejudice has been caused to
the accused and also examine the evidence in respect of the search in the light of the
fact that the provisions have not been complied with and further consider whether
weight of evidence is in any manner affected because of the noncompliance. The
testimony of witness is not to be doubted or discarded merely because he happens to
be official. As a rule of caution and depending upon the circumstances of the case the
court may look for corroboration from independent evidence. This again depends
upon the question whether the official has deliberately failed to comply with the
provisions or failure was due to lack of time and opportunity to associate some
independent witness with the search and strictly comply with the provisions.

14
http://www.lawteacher.net/free-law-essays/constitutional-law/illegal-search-and-use-of-evidence-
constitutional-law-essay.php#ftn7

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In Rakesh Kumar SachdevaDeva v. State [Delhi Administration] (1994) Supp. 3 SCC
729 it was held that failure to join independent witness of locality is also not fatal.
Conviction based on evidence of police officers alone is not improper.

In Mrs. RupanDeol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr.the SC held that
when the complaint or charge sheet filed disclosed prima facie evidence the Court
would not weigh at that stage and find out whether offence could be made out. The
order of the High Court exercising the power under Article 226, was accordingly set
aside. [20] It is thus settled law that the exercise of inherent power of the High Court
is an exceptional one. Great care should be taken by the High Court before embarking
to scrutinize the FIR or charge Sheet or complaint.

The evidence collected in a search in violation of law does not become inadmissible
in evidence under the Evidence Act. The consequence would be that evidence
discovered would be to prove unlawful possession of the contraband under the Act.
Even if the search may be illegal the evidence collected would be admissible at the
trial.

The accused involved in an economic offence destabilizes the economy and causes
grave incursion on the economic planning of the State. When the legislature entrusts
the power to the police officer to prevent organized commission of the offence or
offences involving moral turpitude or crimes of grave nature and are entrusted with
power to investigate into the crime in intractable terrains and secretive manner in
concert, greater circumspection and care and caution should be bornein mind by the
courts when they consider evidence obtained from illegal search. Otherwise, the
social order and security would be put in jeopardy and to grave risk. The accused will
have field day in destabilizing the economy of the Stale regulated under the relevant
provisions.

In State Of Punjab vsJasbir Singh And Ors. [22] the court held that itwas settled law
that evidence collected during investigation in violation of the statutory provisions
does not become inadmissible and the trial on the basis thereof does not get vitiated.
Each case is to be considered on its own backdrop.

29
In M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others
[23] the SC held that search and seizure was a temporary interference with the right to
hold the premises searched and the articles seized and did not in any way violate any
of the Constitutional or fundamental rights of the individual. As to the current
position of the law, the SC held in State of Punjab v. Baldev Singh [24] that an illicit
article seized from the person of an accused, during search conducted in violation of
the safeguards provided in Section 50 of the Act, cannot by itself be used as
admissible evidence of proof of unlawful possession of the contraband on the
accused. Any other material/article recovered during that search may, however, be
relied upon by the prosecution in other/independent proceedings against an accused
notwithstanding the recovery of that material during an illegal search and its
admissibility would depend upon the relevancy of that material and the facts and
circumstances of that case.

Giving the accused benefit of every small irregularity is no longer permissible. The
interest of the society is also to be considered, with equal concern for the liberty of
the individual.

The current position of law according to State of Punjab v. Baldev Singh is that an
illegal search and seizure may not vitiate the trial but would render the recovery of the
illicit article suspect and vitiate the conviction and sentence of an accused, where the
conviction has been recorded only on the basis of the possession of the illicit article,
recovered from his person, during a search conducted in violation of the provisions of
Section 50 of the Act. The SC also held that the judgment in Ali Mustaffas case
correctly interprets and distinguishes the judgment in PooranMals case and the broad
observations made in PirthiChands case and Jasbir Singhs case are not in tune with
the correct exposition of law as laid down in PooranMals case.Seizures of all objects
and substances, other than narcotics, when made during an illegal search and seizure,
as has been stated above, may be relied upon by the prosecution in other/independent
proceedings against an accused and its admissibility would depend upon the
relevancy of that material and the facts and circumstances of that case.

30
This law settled by the judiciary very well answers the problems faced by the Indian
society and scenario. There is indeed need to protect society from criminals. The
societal intent in safety will suffer if persons who commit crimes are let off because
the evidence against them is to be treated as if it does not exist. The answer, as has
been provided in Baldev Singh [26] , is that the investigating agency must follow the
procedure as envisaged by the statute scrupulously and the failure to do so must be
viewed by the higher authorities seriously inviting action against the concerned
official so that the laxity on the part of the investigating authority is curbed.15

An accused is entitled to a fair trial. A conviction resulting from an unfair trial is

contrary to our concept of justice.In every case the end result is important but the
means to achieve it must remain above board. The remedy cannot be worse than the
disease itself. The legitimacy of judicial process may come under cloud if the court is
seen to condone acts of lawlessness conducted by the investigating agency during
search operations and may also undermine respect for law and may have the effect of
unconscionably compromising the administration of justice. That should not be
permitted.

In light of the cases studied and discussions therein provided discussed, and on an
analysis of such relevant cases, it appears that the recent and current position of the
judiciary on the question of law pertaining to the admissibility of evidence collected
during illegal searches is just, fair and compatible with our system of jurisprudence.

15
http://www.lawteacher.net/free-law-essays/constitutional-law/illegal-search-and-use-of-evidence-
constitutional-law-essay.php#ftn7

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 Conclusion
A warrant is required to police to conduct a search. But police may not use this as an
arbitrary power like as if the police search your home and a court says that the search
was unlawful, any evidence they seized during search cant be used against you in court
and some rights are given to an occupant like person can ask for identification and
explanation as to why they are at your location and can also restrict the search to the area
specified in the warrant or if they search in an area where they are not supposed to or not
listed in the warrant then person can challenge the search.
However, in reality, police in India is known to use the power given in Section 165 in a
very wide manner to fish for evidence in houses of any suspect or non-suspect, and
sometimes even as a tool for harassment and oppression. Due to the general language of
Section 165, police can first search your house on a whim and subsequently validate such
search retrospectively if the Station In-Charge backs up the search.
It is not a good idea to restrict the police from searching if they demand to search your
house or office even if they do not have an warrant to do so, since they can use force with
impunity and later on justify the search under Section 165. They can also arrest you for
obstruction of a police officer, which is an offence.
At best, you may demand that a police office be present during the search. You can also
demand that respectable civilian people in the area be present during the search. Also, the
police should prepare a seizure list and make you sign the same.
The real danger is that one may plant evidence against you during a search and police
may use this against you in a case. This is why, if possible searches should be video
recorded.
If search is not video recorded and it appears that evidence has been planted against you
the best recourse you have is in the court of law, and it is unlikely that you will be able to
reason with the police.
It is possible to demand that your lawyer, if immediately available, be present during a
search. In fact, it is a great idea to have a good lawyer present during a raid or search of
your premises.

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 References

Bibliography
R.V. Kelkars Criminal Procedure

Webliography
http://www.lawteacher.net/free-law-essays/constitutional-law/illegal-
search-and-use-of-evidence-constitutional-law-essay.php
http://nhrc.nic.in/PoliceCases.htm
http://blog.ipleaders.in/can-police-search-house-office-without-warrant-
india/#ixzz4H9hJOiiL

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