SEARCH BY A PUBLIC OFFICER
MEANING OF SEARCH AND SEIZURE
The term search could be defined as a conduct in a situation involving a reasonable expectation of privacy as in case of search, state authorities come in direct contact with privacy of individual.
The term ‘seizure’ refers to taking a thing from a person in whose possession it is, by public authority without that person’s consent and includes compelling person to give such things to the authority conducting that search and seizure.
Basic principles relating to search and seizure
Search is always conducted by warrant.
Search warrant is issued by Magistrate under Section 100 of Cr PC to conduct search.
Search includes power of seizure also and without seizure, search is meaningless.
Section 100 of Cr PC provides general principles of search along with procedural safeguards protecting the right of privacy of occupant of closed place. These principles are applicable to both- search with and without warrant.
Objectives of Section 100 of Cr PC-
a)Provision of a reasonable facility to be provided to police officer over occupant of any place.
b)Enough power to police is conferred to conduct the search.
c)Procedural safeguards are also provided with main objective of obtaining reliable evidence.
Section 100(1) & (2) Whenever any place liable to search or inspection 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 thereto, and 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 S. 47.
S. 100(3) lays down that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman, with strict regard to decency.
S.100(4) A search must always be made in the presence of two or more independent and respectable inhabitants of the locality in which the place to be searched is situate. It is the duty of the officer or the person about to make the search to call upon such witnesses before making the search. He may issue an order in writing to them or any of them, if so necessary. The search shall be made in their presence and a list of things seized in the Court of such search and of the places in which they are found shall be prepared by such officer or other person and signed by such witnesses.
The object of section 100 is to ensure confidence in neighbours and in the public generally that anything incriminating, which may be found in the premises searched, was really found and was not planted. When the provisions of S. 100(4) were breached, burden lay on the prosecution to explain reasons for non-compliance thereof. The salutary provisions of S. 100(4), Cr.P.C. require "two or more independent and respectable inhabitants of the locality" to be called to witness the seizure made under the Code. This view taken in the case of State of Assam v. Gopi Kishan Taperia[ (1985) I Gauhati L.R. 193.], was based on the decisions of the Apex Court in Radha Kishan's case.[ A.I.R. 1963 S.C. 822]
S.100(5) The search shall be made in their presence, and 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; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
S.100(6) 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.
S.100(7) 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.
S.100(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence of omission to assist a public servant when bound by law to give assistance under S. 187 of the Indian Penal Code.
The rigour of the requirement contemplated under sub-section (4) of S. 100, Cr.P.C., is buttressed by that of sub-section (8). While sub-section (4) casts a duty on the officer to make search in the manner provided therein, under sub-section (8), any person who refuses when he is called to witness when a search is made is liable to conviction under S. 187, I.P.C. [ State of Madhya Pradesh v. Ram Prakash and Others, 1989 Cri. L.J. 1585]
Effect of contravention of search procedure
Section 100 provides general provisions to be followed for conduct of search. Under Section 165, 166 of CrPC, the police officer is provided with some additional powers and property which he is required to follow when search is to be conducted without warrant by such police officer. The contravention of these provisions [section 165, 166] makes the search illegal or irregular.
In case of Radha Kishan v. State of UP, AIR 1963 SC, the court observed whether such a search in contravention to these two sections would vitiate the trial or not, will depend upon the effect of such search. If it prejudice the accused only then it will vitiate the trial.
In addition to the provisions relating to effect of search conducted in violation to provisions contained in Section 100, 465 of CrPC also deals with such illegalities.
a)Non- compliance of provisions of Section 100 and 165 will not vitiate the trial or make evidence of such search inadmissible.
b)In case of Shyam Lal Sharma v. State of MP AIR 1972 SC, the court observed as under-
Court has to finally decide whether contravention of Section 100 or 165 will make the search illegal or void, thus the question was left open by the court. However, in such cases, the weight of evidence may be effected and court will closely look at such evidence which is in contravention to these two provisions.
c)However, in such cases occupant of place where search in violation to Section 100 or 165 of CrPC is being made can obstruct such search with impunity and person shall also be entitled to file a civil case for compensation for trespass of the place.
d)In State of Maharashtra v. Natwar Lal Damodar Das Soni AIR 1980 SC, the court held as under-
Even if search is illegal still the seizure of article or document is not vitiated. However in such cases, person has the power to resist the search and court will examine such evidence of document or article recovered carefully.
Where the search or seizure is with the consent of person, even if its in violation to Section 100 or 165, then search and recovery of any article will not be effected inspite of its being in violation to Section 100 or 165.
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