Search & Seizure by police without warrant

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

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

Power to make a Search

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

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

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

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

House to be kept undisturbed

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

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

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

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

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

Timely search inevitable at times

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

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

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

Police Officer’s reasonable belief

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

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

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

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

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

Search party to be searched

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

Magistrate to be informed of search

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

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

Searching a closed space

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

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

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

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

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

Prepare a list of things seized

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

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

Police cannot make a general search 

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

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

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

Search without authority illegal

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

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

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

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

Conclusion

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

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

The author is a member of the Thrissur Bar Association (TBA), Thrissur