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 Honble 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 Honble 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 support 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 Honble 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 non-
compliance 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.