The subject matter of this study is "a constitutional aspect of search and
seizure in the Indian criminal justice system
". It observes search and seizure
from a constitutional aspect in the Indian criminal justice system. The entire
procedure mentioned in the criminal procedure code, of 1972 is entirely based on
the principle of justice and fairness, which means equals should be treated
equally and all unequals should be treated unequally.
This code is concerned
with public peace and state security, not with individual liberty. An important
part of the criminal investigation is to obtain evidence through the search of
persons and places and seizing things. A police officer or any authorized
person, who is carrying out a search or seizure is supposed to know the rules
and acts related to it.
The constitution identifies those authorities should not
be allowed to access any things or documents and seize items from any
individuals untrammeled. Because this may intrude an individual's privacy by the
agents of the state. Otherwise, state actions could severely affect individual
privacy and fundamental rights that are intended to be a predominant one, which
our constitution guarantees.
This study focuses on the powers granted to police officers to conduct searches
and seizures and will examine the extent of those powers in the light of
constraints imposed by the constitution. If the fundamental rights in the Indian
constitution are not guaranteed by its citizen, they would not be safe against
the authoritarianism of the government actions.
The question of whether a
balance can be achieved between protecting an individual's fundamental rights
and the conflict interest of the state in crime control. However, before the
analysis can be made, it is essential to consider the concepts of search and
Search And Seizure: Concept
The term ‘search' means an action taken by the government to go through or look
after or examine a place, person, object, area, etc. in order to find any
concealed evidence or for the purpose of finding evidence of the crime. The
search of a person or place should be carried out under the valid authority of
law and there should be a nexus between the crime and search, it cannot be a
A search warrant is a written authority, which is issued by a
judge or magistrate to a police officer or any authorized person to conduct a
search of a person, place and vehicle, etc. The police officers are cautioned to
use search warrant with little care and not abuse their power. Section 165 of CrPC provides the circumstances and the way in which a search is carried out by
a police officer. When may the search warrant be issued?
Where any court has to
believe, means cause to believe the magistrate or the court satisfied that there
is a necessity for the search warrant to be issued under section 91 or
requisition has been made or will be made would not produce the document or
thing as required by such summons or requisition.
Secondly, where the court is
unaware as to in whose possession the document or thing is, can issue a search
Thirdly, where the court considers that a general search or inspection
would be required for the purpose of inquiry, trial or any other proceedings. In
the above cases, only a district magistrate or judicial magistrate of first
class is authorized to grant a search warrant. The search under section 93 must
be for some specific things or thing or document and not for the stolen
property. The power of the search given under this section included the power to
take possession of the document or things.
Where the person against whom a
search warrant is issued prays for the stay and offers to produce a document, in
such case the magistrate has the jurisdiction to stay execution of the warrant
conditionally on the execution of a bond. A search warrant cannot be issued
against an accused person in respect of documents or property which is known to
be in his possession, but a general search or in such a situation is permissible
of section 93(1)(C). search warrant against an accused cannot be issued as it
will be against the principle embodied under article 20(3) of the constitution
of India 3.
An accused cannot be compelled to disclose documents which are
incriminated and based on his knowledge. The police officer authorised to search
must be above the rank of constable and the magistrate has to make sure that he
has sufficient reason to believe that place is used for the sale of the stolen
property etc. Section 95 provides the power to declare certain publication
forfeited and also gives the power to issue warrants for the same.
government can order forfeiture of any material printed in a newspaper or any
other document punishable under sections 124-A, 153-A,153-B, 292, 293 and 295-A
of the Indian penal code,1860, by stating the grounds for such forfeiture. It is
not mandated that the government should issue a notice to any person or should
afford a reasonable opportunity of being heard. In case, the person is aggrieved
by such an order of forfeiture, he has been given a remedy under section 96 of
The application under section 98 of CrPC can only be made if an order of
forfeiture has been made under section 95 of CrPC by the state government
stating the opinion that the concerned document or newspaper contains matter
publication of which is punishable under the Indian penal code,1860. Section 97
deals with a search warrant for the wrongfully confined person, where the search
warrant is issued by the district magistrate or sub-divisional magistrate to
rescue the wrongfully confined person. Further, if a woman or female child
unlawfully abducted, the magistrate shall make immediate order for restoration
of that female.
The act of seizing is known as a seizure, an action done with force in order to
grab or remove an object or person. Search and seizure is also an important
stage in the process of investigation.
There are 2 methods by which police can effect search and seizure:
- By issuing the warrant, which is dealt under sections 93,94,95, and 97
- Without a warrant, which is dealt under sections 103,165 and 166 of CrPC.
The basic provisions as to search and seizure are laid in section 100 of CrPC.
The procedure set out in the section is generally followed in offences committed
under the Indian Penal Code as well as in special and local laws with a little
variance. Thus, in all situations of search and seizure, the investigating
police should follow the procedures laid down under Sections 100 and 165 CrPC.
Section 102 provides the power of police officers to seize certain property.
They may have to effect seizure and search in one or more places. The procedure
to be followed at the time of seizure is that is to be followed in the case of
search also under section 100 of the code. Section 102 gives power to the police
officers to seize certain property which is alleged suspected to have been
stolen. Any police officer may seize any property suspected to have been stolen
or found under circumstances which create suspicion of the commission.
provisions of this section are useful for a general search. This section has a
wide sweep and covers the recoveries and seizures made during the searches. The
power given under this section to a police officer to seize the property should
be availed only in those cases where he has the power to investigate offences
conferred by the code or by any other law in force.
Search And Seizure: Other Affected Constitutional Rights
The code of criminal procedure is based on the principle of justice and
fairness, which means equals should be treated equally and unequal should be
treated unequally. One of the very principles of natural justice, even an
accused should be given an equal chance to be heard and given chance or arrange
a prosecutor to defend himself in the court of law.
Supporting this, there are
some provisions in section 161(3) and provision in section 162 of the code
converse that any statement recorded during the course of an investigation shall
not be signed by the person making the statement has been specified. Likewise,
the protection against self-incrimination has been provided as a special
fundamental right under part III of the Indian constitution.
Article 20(3) states that:
No person accused of any offence shall be compelled to be a witness against
This means an accused person should not be compelled to be a witness against
him. The constitutional validity of section 93(1)(a) in the context of article
20(3) has been raised. The contentions raised that "any person" in section 91(1)
not only witnesses and other persons it also includes the accused.
So, if the
accused person does not obey the court he will face the compelled search in his
house and this compelled search itself shows the accused compelled to allow a
search in his house, this will be considered an intrusion into the privacy of
the person. Further, there will be a prosecution for the offence committed under
section 174 of IPC. Therefore, in the light of all this, the summons issued is a
compulsion on the accused person to produce self-incriminating evidence,
violating his fundamental rights guaranteed under article
With regard to this, the hon'ble supreme court in the leading case M.P Sharma
and others v. Satish Chandra
It may be mentioned in passing that the provision for the issue of general
search warrants appears for the first time in procedure Code of 1882 and even
there the issue of general warrants is not based on non compliance with a
previous summons for production.
It is, therefore, clear that there is no basis in the Indian law for the
assumption that a search or seizure of a thing or document is in itself to be
treated as compelled production of the same. Indeed a little consideration will
show that the two are essentially different matters for the purpose relevant to
the present discussion. A notice to produce is addressed to the party concerned
and his productions in compliance therewith constitute a testimonial act by him
within the meaning as explained above.
But search warrant is addressed to an officer of the government, generally a
police officer. Neither the search nor the seizures 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."
This means "to be a witness
" means to become a witness but not to appear as a
witness, thus the protection of self-incrimination not only extends to compelled
testimony but also to the investigation and interrogation. Further stated that
the search conducted by police officers is only valid if it has been conducted
without anyone's help.
A similar interpretation had also been made in the case
of Shyam Lal Mohan Choksi v. State of Gujarat
and State of Bombay v. Kathi Kalu
. Even in the Kalu oghad case, the majority stated that "to be witness"
means providing knowledge in respect of relevant facts, by means of oral
statements in writing, by the person who has personal knowledge of the facts. In
the event that a person has been accused of any offence and he has any document
that has the tendency to expose his guilt or even something that will
necessarily confirm the criminal charges against him, he can be summoned by a
competent court or police authority to produce it.
The best requirement is that
the content material of the file ought to now no longer screen any records
primarily based totally on the private know-how of the accused. This
interpretation is criticized with the aid of using numerous jurists and students
and stated that "such acts will quantity to self-incrimination
". For example, if
an accused character has in his ownership a letter, to be written with the aid
of using someone imagined being his co-conspirator having a connection with
their not unusual place aim for committing an offence.
Article 20(3) states that "No one may be accused of being a witness against
". The defence against self-incrimination under the Indian Constitution
is based on the principle of "nemo tenetur prodere or nemo tenetur scripsum
slander", which means that the accused cannot be forced to testify against
The state is obliged to prove the guilt of the accused beyond a
reasonable doubt. The simple principle is based on giving the accused an equal
opportunity to know what he is accused of and based on that he will prepare an
appropriate defence for him. At times, the constitutional effect of section
93(1) order has been elevated in the context of section 20(3) of the
Many jurists and academics have stated that:
section 91(1) also includes the defendant along with other witnesses. For these,
they will be prosecuted for crimes under article 174 of the Penal Code. Even,
The Supreme Court in the State of Shyamlal Mohanlal Choksi v Gujrat
the term "any person" in Section 91 of the CrPC did not include the accused and
could not give an opinion on the accused. However, the ruling in the Shyamlal
case did not limit the defendants completely.
The deciding score of the court
decision in Bombay State v Kathi Kalu Oghad
leaves open the possibility of
flexibility. In the above case, one of the most ridiculous decisions was made by
the Supreme Court with a narrow interpretation of the term "witness" as set out
in Article 20 (3). But in a decision after the Gujarat v. Shyamlal Mohan Choksi
. The Supreme Court ruled that the term "person" under Article 91 (1) does
not include the accused.
However, following the decision on the proportion of
the judgment, the court found that Article 91 (1) implicitly stated that the
defendant was not required to prepare a document of self-incrimination. Is that
person accused of any offence completely excluded from the application of power
under section 91(1)? The Supreme Court's decision should be considered in light
of the court's decision in Kalu Oghad.
Therefore, from the combination of these
two judgments, it is very clear that the defendant respects the right to
self-guilt and is completely exempt from producing documents that are summoned
and convicted. Knowledge is based. Thus, Authorities first call the accused with
the document and then are told if the document is guilty
It has long been said that the right not to accuse oneself is in fact a
prerogative of the accused and a major factor in the failure of justice. This is
not the first time such an attempt has been made to change the nature of what is
stated in Article 20(3). The Malimath Commission report titled "Criminal Justice
System Reform" even argues that although the defendant has the right to remain
silent, an inference can be drawn from the defendant's silence, which is also
against the principle of the right to silence. accused.
promulgation of the constitution of India in 1950, India. this human right of
the accused, the right to resist self-incrimination has been included in Article
20 of the Constitution of India, not to offend the defendant's right in this way
as has been done by interpreting it narrow. So, the legislators of the country
are asked to respect this right just as other fundamental rights are respected.