Production of books, articles, documents and other things is sometimes necessary to facilitate a trial.

Section 91, therefore, provides that whenever any Court or any Officer-in-charge of a Police Station
considers that production of any document or other thing is necessary or desirable for the purpose of
investigation, a summons may be issued to the person in whose possession or power such
document or thing is believed to be, requiring him to attend and produce it, or merely to produce it at
the time and place mentioned in the summons.
If a person is required merely to produce a document or thing, he may cause it to be produced,
instead of personally attending and producing the same and this becomes a sufficient compliance
with the summons.
Such a summons cannot, however, apply to any letter, post card, telegram, parcel or other
documents or things in the custody of the Post and Telegraph authorities. Such summons cannot
also affect Ss. 123 and 124 of the Indian Evidence Act, 1872.
In cases where any document, parcel or thing is required for the purpose of investigation, inquiry,
trial or other proceedings and the same is in the custody of the Post or Telegraph authorities, the
Magistrate can require such authority to deliver the same to such person as may be directed by the
Magistrate.

Summons to produce document or other thing
(Section 91 of CrPc)
Legal provisions regarding summons to produce document or other thing under section 91 of the
Code of Criminal Procedure, 1973.
(1) Whenever any Court or any officer in charge of a police station considers that the production of
any document or other thing is necessary or desirable for the purposes of any investigation, inquiry,
trial or other proceeding under this Code by or before such Court or officer, such Court may issue a
summons, or such officer a written order, to the person in whose possession or power such
document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the
time and place stated in the summons or order.
(2) Any person required under this Section merely to produce a document or other thing shall be
deemed to have complied with the requisition, if he caused such document or thing to be produced
instead of attending personally to produce the same.
(3) Nothing in this Section shall be deemed,—
(a) To affect Sections 123 and 124 of the Indian Evidence Act, 1872, i.e., any unpublished official
record relating to any affairs of the State and certain confidential official communications or the
Bankers‟ Books Evidence Act, 1891; or
(b) To apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of
the postal or telegraph authority.
According to Section 92 of the Code, if any document, parcel or thing in the custody of a postal or
telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of
Session or High Court, wanted for the purpose of any investigation, inquiry, trial or other proceeding
under this Code, such Magistrate or Court may require the postal or telegraph authority, as the case
may be, to deliver the document, parcel or thing to such person as the Magistrate or Court directs.
If any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or
Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for any such
purpose, he may require the postal or telegraph authority, as the case may be, to cause search to be
made for and to detain such document, parcel or thing pending the order of a District Magistrate,
Chief Judicial Magistrate or Court as mentioned above.
The issue of summons under Section 91 of the Code is in discretion of the Court to be exercised
judicially and this is an absolute discretion. Before passing the order under Section 91 the Court has
to satisfy itself that the document or thing has a bearing upon, and is desirable, necessary and
relevant to the case.
Section 91 of the Code does not apply to the accused. The Court cannot issue summons to produce
a document or thing by the accused which is incriminatory against him under Article 20(3) of the
Constitution. However, the prohibition against testimonial compulsion contained in Article 20(3) does
not apply to the case of public records or public documents which the accused has undertaken to
keep and produce when called for.
A person appearing in obedience to a summons under Section 91 does not become a witness. If he
is cited as a witness only for producing a document, he cannot be subjected to examination and
cross-examination.
The words „document‟ and „thing‟ have not been defined in this Code. The word „thing‟ refers to
physical object or material. The words „document or thing‟ are general and seem to cover any
document or thing, the production and inspection of which are necessary or desire or will serve the
ends of justice.
The document or thing called for by the magistrate must have some relation to or connection with
the subject-matter of the investigation, inquiry or trial. The words “document or thing” cover a postal
or money order or telegram.
The person called upon to produce need not be a party to the proceedings. The Magistrate can
order the production of things in the possession of the solicitor. When the Court has finished with
them, they must be returned to the attorney and not to the complainant.
Summons to produce documents whether could be issued to accused person:
The term „the person‟ used in Section 91 did not include „accused person‟. As such, order passed by
Police Officer issuing summon to accused person to produce documents was liable to be quashed.
Legal Provisions of Section 93 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
When search-warrant may be issued:
A search warrant is a written order issued by a competent Magistrate or a Court directing a police
officer or other person to take search of any place either generally or for specified documents or
things or for persons wrongfully detained. Since a search involves invasion of the sanctity and
privacy of individuals, the Court or the Magistrate should exercise utmost care and caution while
using their power to issue a search warrant. The Magistrate is required to record reasons before
issue of a search warrant. An illegal order of search and seizure shall vitiate the seizure of the
articles.
Section 93 (1) (c) of Cr P. C. comprehends a situation where the Court may issue a search warrant
before proceedings of any kind are initiated and, in view of an enquiry about to be made, when the
Magistrate considers that the purpose of an inquiry, trial or other proceeding under the Code will be
served by a general search or inspection to search, seize and produce the documents mentioned in
the list.
When such a general search warrant is issued, in execution of it the premises even in possession of
the accused can be searched and documents found therein can be seized irrespective of the fact
that the documents may contain some statement made by the accused upon his personal
knowledge and when proved may have any tendency to incriminate the accused, though it may not
have even the remotest tendency to compel the accused to incriminate himself.
Clause (b) of Section 93 (1) refers to a specific situation when there is a definite allegation to recover
certain document or thing from a particular place or premises but the Court is unaware of the fact
whether that document or thing or the place is in possession of a particular person.
The Supreme Court in V. S. Kuttan Pillai v. Ramkrishnan and another, made it abundantly clear that
the constitutional immunity against self-incrimination extends to any incriminatory evidence which
the accused may be compelled to give, but it does not extend to cover such situation as where
evidence which may have tendency to incriminate the accused is being collected without in any
manner compelling him or asking him to be a party to the collection of evidence.
Search of the premises occupied by the accused without the accused being compelled to be a party
to such search would not be violative of constitutional guarantee enshrined in Article 20 (3) of the
Constitution. The Court in its concluding remarks held that there is no doubt that issuance of a
search warrant is a serious matter and Court should not dispose it of in a mechanical way.
The Code provides six circumstances under which a search warrant may be issued and three of
them are mentioned in sub-sections (1) (a), (b) and (c) of this section.
The issue of a search warrant whether general or special under Section 93 is an integral step in the
investigation, of a case. The search and seizure being only a temporary interference with the right of
a person to hold the premises searched, it is a reasonable restriction and, therefore, it is not per se
considered unconstitutional under Article 20 (3) of the Constitution.
The Supreme Court in M.P. Sharma v. State observed that a search by itself is not a restriction on
the right to hold and enjoy property as it is only a temporary interference with the right to hold in
premises searched and the articles seized. Therefore, it cannot be said that it is violative of Article
19 (1) (f) of the Constitution.
Sub-section (2) does not make it mandatory to specify the place to be searched in the warrant. A
direction to search any house which the officer thinks necessary will not render the warrant illegal
merely for this reason.
The final order of disposal of documents seized in execution of a search warrant is to be made by
the Court. Therefore, an application for this purpose should be made to the concerned Court.
A person aggrieved by a search warrant issued against him may seek recourse to any of the
remedies stated below:
(1) He may file a writ petition under Article 226 of the Constitution for quashing of the illegal search
warrant and for the restoration of the articles or documents seized during the search.
(2) He may file a revision petition under Section 401, Cr. P.C. if it can be shown that the Magistrate
did not apply his mind judicially and issued search warrant in a routine manner and arbitrary fashion.
(3) He can sue the person who had executed the illegal search warrant for actionable trespass and
claim damages against him.
Search of place suspected to contain stolen
property, forged documents, etc (Section 94 of
CrPc)
Legal provisions regarding search of place suspected to contain stolen property, forged documents,
etc under section 94 of the Code of Criminal Procedure, 1973.
As per section 94(1) of the Code of Criminal Procedure, if a District Magistrate, sub-divisional
Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks
necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or
for the deposit, sale or production of any objectionable article to which this section applies, or that
any such objectionable article is deposited in any place, he may by warrant authorize any police
officer above the rank of a constable:
(a) To enter, with such assistance as may be required, such place;
(b) To search the same in the manner specified in the warrant;
(c) To take possession of any property or article therein found which he reasonably suspects to be
stolen property or objectionable article to which this section applies;
(d) To convey such property or article before a Magistrate, or to guard the same on the spot until the
offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety;
(e) to take into custody and carry before a Magistrate every person found in such place who appears
to have been privy to the deposit, sale or production of any such property or article knowing or
having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable
article to which this section applies.
According to section 20(2) of the Code, the objectionable article to which this section applies are,—
(a) Counterfeit coin;
(b) pieces of metal made in contravention of the Metal Tokens Act, 1889, or brought into India in
contravention of any notification for the time being in force under section 11 of the Customs Act,
1962;
(c) Counterfeit currency notes; counterfeit stamps;
(d) Forged documents;
(e) False seals;
(f) Obscene objects referred to in section 292 of the Indian Penal Code, 1860;
(g) Instruments or materials used for the production of any of the articles mentioned in clauses (a) to
(f).
The essential requirement of section 94 of the Code is that there must be some allegation or
information which the Magistrate believes that a particular place is used for the deposit or sale of
stolen property or for the manufacture of forged documents, false seals, counterfeit coins, etc.
Before the issue of search-warrant under section 94, the Magistrate has to make an enquiry in the
manner he thinks fit and on the basis of his enquiry, he must have reason to believe that the
property is a stolen property.
The sine qua non for issuing the search warrant and production of the property is that the magistrate
must have reason to believe and satisfy that property is stolen property. Under section 94, a
magistrate is not required to record his reasons for issuing the search-warrant.
The words used in this section like „stolen property‟, „counterfeit currency notes‟, „forged documents‟,
„coin‟, etc. are defined in the Indian Penal Code. 1860.
Obscene objects referred to in section 292 of the Indian Penal Code are not defined. However, they
refer to books, articles or stories which deprave and corrupt by reading it or might arouse impure and
treacherous thoughts in their minds in whose hands they fall.
Power to declare certain publications forfeited, and
to issue search-warrants for the same (Section 95
of CrPc)
Legal provisions regarding power to declare certain publications forfeited, and to issue search-
warrants for the same under section 95 of the Code of Criminal Procedure, 1973.
As per section 95 of the Code of Criminal Procedure where any newspaper or book (as defined in
the Press and Registration of Books Act, 1867) and any document (including any painting, drawing
or photograph or other visible representation) wherever printed, appears to the State Government to
contain any matter the publication of which is punishable under section 124-A or section 153-A or
section 153-B or section 292 or section 293 or section 295-A of the Indian Penal Code, 1860, the
State Government may, by notification, stating the grounds of its opinion, declare every copy of the
issue of the newspaper containing such matter, and every copy of such book or other documents to
be forfeited to Government, and thereupon any police officer may seize the same, wherever found in
India, and any Magistrate may, by warrant authorize any police officer not below the rank of sub-
inspector to enter upon and search for the same in any premises where any copy of such issue, or
any such book or other document may be or may be reasonably suspected to be.
No order passed or action taken under this section shall be called in question in any court otherwise
than in accordance with the provisions of section 96 of the Code.
Section 96 of the Code of Criminal Procedure provides that —
(1) Any person having any interest in any newspaper, book or other document, in respect of which a
declaration of forfeiture has been made under section 95, may, within two months from the date of
publication in the Official Gazette of such declaration, apply to the High Court to set aside such
declaration on the ground that the issue of the newspaper, or the book or other document, in respect
of which the declaration was made, did not contain any such matter as is referred to in sub-section
(1) of section 95.
(2) Every such application shall, where the High Court consists of three or more judges, but heard
and determined by a Special Bench of the High Court composed of three judges and where the High
Court consists of less than three judges, such Special Bench shall be composed of all the judges of
that High Court.
(3) On the hearing of any such application with reference to any newspaper, any copy of such
newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs
or visible representations contained in such newspaper, in respect of which the declaration of
forfeiture was made.
(4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other
document, in respect of which the application has been made, contained any such matter as is
referred to in sub-section (1) of Section 95, set aside the declaration of forfeiture.
(5) Where there is a difference of opinion among the judges forming the Special Bench, the division
shall be in accordance with the opinion of the majority of those judges.
The order of forfeiture under section 95 of the Code can be valid only if:
(i) The Government has formed an opinion that the concerned document contains matter the
publication of which is punishable under sections 124-A or 153-A or 153-B or 292 or 293 or 295-A of
the Indian Penal Code; and
(ii) The order states the grounds on which the opinion is based.
Failure to comply with either of the conditions will invalidate the order.
The power under section 95 of the Code vests in the State Government. The State Government has
the power to rescind the order by cancelling the notification issued under section 95 and to issue a
fresh order. The notification need not incorporate the detailed reasons on the basis of which the
State Government has formed its opinion.
Section 95 does not violate the guarantees contained in Articles 19(l) (a), (b) and (g) and also Article
21 of the Constitution. It is not necessary for the Government to hear the party or parties before the
issue of the order as a specific remedy is provided for by section 96 of the Code.
In Chandanmal v. State of West Bengalit was held that the Koran being a sacred book and „an
object held sacred by a class of persons‟ within the meaning of section 295 of Indian Penal Code,
against such a book no action can be taken under section 295-A of the Indian Penal Code.
Consequently banning or forfeiture of the Koran is unthinkable and cannot be ordered under section
95 of the Code of Criminal Procedure.
To come within the ambit of section 295-A of the Indian Penal Code the intent must be both
malicious and deliberate. The offending publication is to be viewed as a whole and the intent of the
author has to be gathered from a broader perspective and not merely from a few solitary lines or
quotations upon the declaration of forfeiture of the State Government, any magistrate may, by
warrant, authorize any police officer not below the rank of sub-inspector to enter upon and search for
such copies in any premises where these may reasonably suspected to be.
The order of forfeiture of the State Government cannot be questioned in any Court except on an
application to the High Court within two months from the date of the order. The Special Bench
constituted under section 96 of the Code has to confine its inquiry within the limits of sub-section (4)
of section 96 of the Code.
Under this section it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied
that the grounds, on which the Government formed its opinion, could justify that opinion. It is not its
duty to find for itself whether the book contained any such matter whatsoever so as to justify the
order of forfeiture.
In Karnataka Dr. P.V. Narayanna published a novel in 1995 entitled „Dharmakarana‟. On receiving
objections, the State Government issued a notification under Section 95 of Cr.P.C. ordering the
forfeiture of the book. A petition was filed under Section 95, Cr.P.C. The petition was dismissed by
the High Court. A special leave petition was filed before the Supreme Court.
It was observed by the Apex Court that Section 95 of the Code does not by itself create criminal
offence inasmuch as Sections of I.P.C. referred therein are merely descriptive which need to be
prevented.
A declaration under Section 95 is preventive in nature. The onus of proof that the book was
malicious and intended to outrage feelings of a group of citizens would not lie on State Government
because intention has, to some extent, to be inferred from the nature of publication.
It was also made clear that forfeiture of a book, if called for in public interest, it must have pre-
eminence over any individual interest. Efficacious remedy is available to the aggrieved party under
Section 96 of the Cr.P.C. and Section 95 of the Code is not violative of Article 19(1) (a) of the
Constitution.
It was held that the impugned notification shows that the State Government had applied its mind to
the contents of the novel and the allegation made therein and taken a balanced and reasoned
decision on the matter. Therefore, the notification declaring the forfeiture of book cannot be said to
be made mala fide or without application of mind by Government.
Under Section 96, it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied
that the grounds, on which the Government formed its opinion that the books contained matters the
publication of which would be punishable under anyone or more of Sections 124-A, 153-A or 295-A
of the I.P.C., could justify that opinion. It is not its duty to find for itself whether the book contained
any such matter whatever so as to justify the order of forfeiture.
Section 96 of Code of Criminal Procedure, 1973
(Cr.P.C.) – Explained!
Legal Provisions of Section 96 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Application to High Court to set aside declaration of forfeiture:
In fact, Section 96 and the previous Section 95 should be read together as the order passed by the
State Government under Section 95 can be challenged under Section 96 in the High Court having
territorial jurisdiction of the State which passes the order. But the inquiry by the High Court will be
confined only to the issue whether the publication in question contains objectionable matters referred
to in Section 95 of the Code. It is not necessary for the Court to consider whether the words
contained in the publication actually brought about enmity and hatred between the two communities
or not.
In a case where only some of the grounds in the notification by State Government were valid the
High Court refused to set aside the order on the ground that merely some of the grounds were not
valid.
Sub-section (1) also lays down the limitation for filing an application to set aside an order of
forfeiture. Application must be made within two months from the date of publication in the Gazette of
such notification relating to forfeiture and not from the date of order of forfeiture. Section 5 of the
Limitation Act, 1963 applies to such applications. An application filed beyond two months of date of
publication is liable to be dismissed unless there are valid reasons for condonation of delay in the
opinion of the High Court.
Search for persons wrongfully confined and
abducted females (Section 97 of CrPc)
Legal provisions regarding search for persons wrongfully confined and abducted females under
section 97 of the Code of Criminal Procedure, 1973.
Section 97 of the Code of Criminal Procedure provides that if any District Magistrate, sub-divisional
Magistrate or Magistrate of the first class has reason to believe that any person is confined under
such circumstances that the confinement amounts to an offence, he may issue a search-warrant,
and the person to whom such warrant is directed may search for the person so confined, and such
search shall be made in accordance therewith, and the person, if found, shall be immediately taken
before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
Section 98 of the Code deals with the power to compel restoration of abducted females. It provides
that upon complaint made on oath of the abduction or unlawful detention of a woman, or a female
child under the age of eighteen years, for any unlawful purpose, a District Magistrate, sub-Divisional
Magistrate or Magistrate of the first class may make an order for the immediate restoration of such
woman to her liberty, or of such female child to her husband, parent, guardian or other person
having the lawful charge of such child, and may compel compliance with such order, using such
force as may be necessary.
It is only wrongful confinement which is punishable under the Indian Penal Code and a search-
warrant can be issued for the search of such person. The place and name of person, quoted in the
warrant are merely enabling. They do not confine the process of search, nor is it delegatory for the
Magistrate to hold a detailed enquiry before the issue of warrant.
However, it is necessary that the Magistrate should examine the facts and apply his mind before
issuing search warrant. If person is found in the course of search he shall be forthwith taken before a
Magistrate who shall pass appropriate order in the case.
In Harihar v. State of U.P., it was held that where a husband keeps his minor wife at his house, even
though against her wish, he cannot be said to have been acting wrongly and thereby guilty of
wrongful confinement.
An application for the issue of search-warrant under section 97 in respect of the wife is not,
therefore, maintainable and when the wife is produced before the Magistrate in execution of the
search-warrant, the wife is to be handed over to the husband unconditionally and not subject to his
furnishing security.
In Lokumal v. Vivek, it was held that when the person confined is an adult woman who is not willing
to go with her husband, the Magistrate cannot compel her to go with him and can set her free to go
anywhere at her will.
Section 98 of the Code is applicable only where there is a complaint before him on oath of the
abduction or unlawful detention of a woman or of a female under the age of 18 years. Under this
section, both the detention and the purpose must be unlawful. Detention of a minor girl by a person
not legally entitled to her custody, against will of her guardian, is unlawful within the meaning of this
section.
The detention of a girl by the father in his house against the will of her husband does not amount to
unlawful detention, unless it is shown that the detention was contrary to the wish of the girl. If a
woman is residing with her relatives who are aiding her in endeavouring to procure a divorce, such
detention is not unlawful.
The natural mother is the legal guardian and is entitled to the custody of the child. The stepmother
has no right whatsoever to that custody unless she gets herself appointed by the court as a guardian
under the Guardians and Wards Act. The detention of the child by the stepmother is, therefore,
unlawful within the meaning of section 98.
Section 98 of Code of Criminal Procedure, 1973
(Cr.P.C.) – Explained!
Legal Provisions of Section 98 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Power to compel restoration of abducted females:
The section applies where there has been abduction or unlawful detention of a woman or a female
child under the age of eighteen years for an unlawful purpose. Where the allegation is for unlawful
detention but there is no allegation that it was for an unlawful purpose, the section will not be
applicable in such a case.
Where the complaint of the husband was that his wife was unlawfully detained by her mother-in-law
with a view 10 get her married to another person it was held that the provisions of Section 98 were
applicable in such a case.
But detention by the father his minor daughter contrary to the wishes of her husband cannot be said
to be unlawful unless it was further proved to be against her will, and therefore, the case was not
covered by Section 98 of the Code. Thus it is clear that the powers under this section can be
exercised only under two conditions, viz., (i) there must be unlawful detention; and (ii) such detention
should be for an unlawful purpose.
It may be stated that the present section differs from the earlier Section 97 in two major aspects,
namely,
(1) This section refers to “unlawful detention of a woman or a female child under the age of 18 years
for any lawful purpose”, but Section 97 refers to “any person confined wrongfully”; and
(2) The only order that can be passed under this section is restoration of the female to her liberty or
to her lawful guardian. But a warrant for arrest of a female who has wrongfully confined to someone
may be issued under Section 97 of the Code.
Section 100 of Code of Criminal Procedure, 1973
(Cr.P.C.) – Explained!
Legal Provisions of Section 100 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Persons in charge of closed place to allow search:
This section applies when a search is made of a place. It does not apply to search of a person.
The provisions of Section 100 are applicable to both kinds of searches, namely, search under a
warrant issued under any of the provision of Sections 93, 94, 95 and 97 or search conducted without
a warrant under any of the provisions of Sections 103, 165 and 166. Not only this, the Supreme.
Court in Naga People‟s Movement of Human Rights v. Union of India has held that the principles
underlying the provisions governing search will be applicable even in cases where the Code of
Criminal Procedure is not applicable.
The object of the section is threefold,—
(1) The occupant of the place to be searched extends all reasonable facilities to the persons
authorised to conduct a search;
(2) The police and others authorised to make search are given necessary powers for the effective
conduct of the search; and
(3) Reliable evidence is obtained by making a search and possibilities of concoction, malpractice
such as planting of articles or fabrication of any false evidences are completely eliminated.
In order to eliminate the chance of any person stealthily taking away on his person any article or
thing for which the place is being searched, sub-section (3) provides for the search of such person. If
the person to be searched is a woman then, in order to protect her modesty, her search should be
made by another woman with utmost decency.
Sub-section (4) requires that before a search is made, the officer concerned will call upon two or
more independent respectable inhabitants of the locality in which the place to be searched is situate,
to attend and witness the search.
The object of this provision is to guard against any possibility of unfair dealing or planting by persons
making the search. If no such inhabitants of the locality are available or they are not willing to be a
witness, then inhabitants of any other locality may be made witnesses to the search. The Supreme
Court has in a number of cases observed that presence of the witnesses at a search is always
desirable and their absence may weaken the evidence.
The Supreme Court, in Hazara Singh v. State of Punjab, ruled that the witnesses who had been
joining in the police raids and had been appearing as witnesses for the police for the last fifteen
years could not be considered as independent witnesses.
It is submitted that respectable persons are generally reluctant to be a witness to a search because
of the reason that they are subsequently required to attend the Court as witnesses and refusal or
neglect to do without reasonable cause is punishable under Section 187 I.P.C.
Though this section does not prohibit searches being carried out during night but it has been held
that unless otherwise necessary, they should be conducted during day time.
Sub-section (5) provides that the police officer or other person making the search shall prepare a list
of articles and things seized in the course of the search and it shall be signed by the witnesses but
not the accused. It is highly objectionable to make the accused sign or put his thumb impression on
the search-list.
Where the search-memo was signed only by the policemen and not by any independent witnesses
though they were present, the search was held to be doubtful and untrustworthy and, therefore,
invalid.
Sub-section (6) provides that the occupant of the place of search or his nominee shall be permitted
to be present during the search except where there is reason to believe that securing his presence
might cause inordinate delay which might frustrate the purpose of the search.
The Supreme Court has held that a motor car is not a “place” within the meaning of Section 100 and,
therefore, provisions relating to searches as contained in this section will not apply to searches of
motor cars.
Briefly speaking, it may be said that Section 100 generally provides for the procedure to be followed
in case of every search of a place. Besides, Sections 165 and 166 provide for additional procedure
to be followed when search is made by a police officer without a warrant. The contravention of these
provisions will render the search irregular, if not illegal. Whether it should be treated as irregular or
illegal, would depend upon the extent of prejudice caused to the accused person due to non-
compliance of the said procedure.
Where the official witnesses were examined in a case to prove search and recovery had no animus
or hostility against the accused and the cross-examination directed against them had not elicited
anything which could possibly cause a dent in the prosecution case. The accused was acquitted
because of the non-compliance of Section 100 (4) of the Code.
Power of police officer to seize certain property
(Section 102 of CrPc)
Legal provisions regarding power of police officer to seize certain property under section 102 of the
Code of Criminal Procedure, 1973.
(1) Any police officer may 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.
(2) Such police officer, if subordinate to the officer in charge of police station, shall forthwith report
the seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the
Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently
transported to the Court, or where there is difficulty in securing proper accommodation for the
custody of such property, or where the continued retention of the property in police custody may not
be considered necessary for the purpose of investigation, he may give custody thereof to any person
on his executing a bond undertaking to produce the property before the Court as and when required
and to give effect to the further orders of the Court as to the disposal of the same.
Provided that where the property seized under sub-section (1) is subject to speedy and natural
decay and if the person entitled to the possession of such property is unknown or absent and the
value of such property is less than five hundred rupees, it may forthwith be sold by action under the
order of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as
may be practicable, apply to the net proceeds of such sale.
Seizure under section 102 of the Code means actual taking physical possession of movable property
in pursuance of a legal process. This section gives the police officer power to seize only the property
suspected to be stolen.
As such, police cannot seize the account and locker held by an accused in a bank, nor can the
police prohibit the accused from withdrawing money or taking away property from the lockers.
Section 102 of the Code does not authorize a police officer to prohibit the payment of debt by a
debtor to the accused person or to ask a bank to stop payment to the accused person. Seizure of
bank account of wife by the police after arrest of husband under the Official Secrets Act is illegal.
The bank account or postal account of the accused or any of his relations is properly within the
meaning of section 102 of the Code and the police officer in course of investigation, can seize or
prohibit operation or freeze the account of the said account if such assets have direct link with the
commission of the offence.
The police have power to seize animals under section 102 of the Code even in non-cognizable
cases committed under the Prevention of Cruelty to Animals Act, 1960 and other ancillary Acts.
Vehicles can be seized by a police officer if it carried smuggled goods or some other contraband
items and is involved in an offence under section 279 of the Indian Penal Code without an accident,
and also for an offence of non-payment of tax as the words used in section 102 are „any offence‟.
Immovable property like lands, houses, mountains, rivers, roads, streets and similar properties
cannot be seized by a police officer under section 102 of the Code, nor the Magistrate pass any
order under section 451 of the Code in respect of such properties.
The police officer seizing the property shall forthwith report the seizure to the magistrate having
jurisdiction; and if such an officer is subordinate to the Station House Officer, he shall also report
forthwith to the Station House Officer. The Magistrate shall make such order as he thinks fit
respecting the disposal of such property or the delivery of such property to the person entitled to the
possession thereof.
Where on enquiry it is found that no offence has been committed in respect of the property seized by
the police under section 102 of the Code on suspicion of theft, the property should be returned to the
person from whose possession the property was seized under section 457 of the Code of Criminal
Procedure.
Reciprocal arrangements for assistance in certain
matters and procedure for attachment and
forfeiture of property (Section 105 of CrPc)
Legal provisions regarding reciprocal arrangements for assistance in certain matters and procedure
for attachment and forfeiture of property under section 105 of the Code of Criminal Procedure, 1973.
Reciprocal arrangements for assistance in certain matters such as transfer of person and procedure
for attachment and forfeiture of property with other contracting States have been inserted as
Sections 105-A to 105-L by the Code of Criminal Procedure (Amendment) Act, 1993 as the
Government of India has signed an agreement with the Government of United Kingdom of Great
Britain and Northern Ireland for extending assistance in the investigation and prosecution of crime
and the tracing, restraint and confiscation of the proceeds of crime (including crimes involving
currency transfers) and terrorist funds, with a view to check the terrorist activities in India and the
United Kingdom for giving full effect to this agreement.
Contracting State:
Section 105-A(a) of the Code states the „contracting State‟ means any country or place outside India
in respect of which arrangements have been made by the Central Government with the Government
of such country through a treaty or otherwise.
Assistance in securing transfer of persons:
Section 105-B of the Code of Criminal Procedure provides that:
(1) Where a Court in India, in relation to a criminal matter, desires that a warrant for arrest of any
person to attend or produce a document or other thing issued by it shall be executed in any place in
a contracting State, it shall send such warrant in duplicate in such form to such Court, Judge or
Magistrate through such authority, as the Central Government may, by notification, specify in this
behalf and that Court, Judge or Magistrate, as the case may be, shall cause the same to be
executed.
(2) Notwithstanding anything contained in this Code, if, in the course of an investigation or any
inquiry into an offence, an application is made by the investigating officer or any officer superior in
rank to the investigating officer that the attendance of a person who is in any place in a contracting
State is required in connection with such investigation or inquiry and the Court is satisfied that such
attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person
to such Court, Judge or Magistrate, in such form as the Central Government may, by notification,
specify in this behalf, to cause the same to be served or executed.
(3) Where a Court in India, in relation to a criminal matter, has received a warrant for arrest of any
person requiring him to attend or attend and produce a document or other thing in that Court or
before any other investigating agency, issued by a Court, Judge or Magistrate in a contracting State,
the same shall be executed as if it is the warrant received by it from another Court in India for
execution within its local limits.
(4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in
India, the Court in India or the Central Government may impose such conditions as that Court or
Government deems fit.
(5) Where the person transferred to India pursuant to sub-section (1) or sub-section (2) is a prisoner
in a contracting State, the Court in India shall ensure that the conditions subject to which the
prisoner is transferred to India are complied with and such prisoner shall be kept in such custody
subject to such conditions as the Central Government may direct in writing.
Assistance in relation to orders of attachment or forfeiture of property:
According to Section 105-A(d) of the Code, „property‟ means property and assets of every
description whether corporeal or incorporeal, movable and immovable, tangible or intangible and
deeds and instruments evidencing title to, or interest in, such property or assets derived or used in
the commission of an offence and includes property obtained through proceeds of crime.
Section 105-C of the Code of Criminal Procedure provides that:
(1) Where a Court in India has reasonable grounds to believe that any property obtained by any
person is derived or obtained, directly or indirectly, by such person from the commission of an
offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under
the provisions of Sections 105-D to 105-J (both inclusive).
(2) Where the Court has made an order for attachment or forfeiture of any property under sub-
section (1), and such property is suspected to be in a contracting State, the Court may issue a letter
of request to a Court or an authority in the contracting State for execution of such order.
(3) Where a letter of request is received by the Central Government from a Court or an authority in a
contracting State requesting attachment or forfeiture of the property in India derived or obtained,
directly or indirectly, by any person from the commission of an offence committed in that contracting
State, the Central Government may forward such letter of request to the Court, as it thinks fit, for
execution in accordance with the provisions of Sections 105-D to 105-J (both inclusive) or, as the
case may be, any other law for the time being in force.
Identifying unlawfully acquired property:
Section 105-D of the Code of Criminal Procedure provides that:
(1) The Court shall, under sub-section (1), or on receipt of a letter of request under sub-section (3) of
Section 105-C, direct any police officer not below the rank of sub-inspector of police to take all steps
necessary for tracing and identifying such property.
Here „tracing‟ means determining the nature, source, disposition, movement, title or ownership of
property [Section 105-A (e) of the Code]. And, the word „identifying‟ includes establishment of a
proof that the property was derived from, or used in the commission of an offence. [Sec. 105-A (b)].
(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in
respect of any person, place, property, assets, documents, books of account in any bank or public
financial institutions or any other relevant matters.
(3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer
mentioned in sub-section (1) in accordance with such directions issued by the said Court in this
behalf.
Seizure or attachment of property:
As per Section 105-E of the Code of Criminal Procedure:
(1) Where any officer conducting an inquiry or investigation under Section 105-D 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, he may make an order for seizing such property and where it is not practicable to seize
such property, he may make an order of attachment directing that such property shall not be
transferred or otherwise dealt with, except with the prior permission of the officer making such order,
and a copy of such order shall be served on the person concerned.
(2) Any order made under sub-section (1) shall have no effect unless they said order is confirmed by
an order of the said Court, within a period of thirty days of its being made.
Management of properties seized or forfeited under this Chapter:
According to Section 105-F of the Code of Criminal Procedure:
(1) The Court may appoint the District Magistrate of the area where the property is situated, or any
other officer that may be nominated by the District Magistrate, to perform the functions of an
Administrator of such property;
(2) The Administrator appointed under sub-section (1) shall receive and manage the property in
relation to which the order has been made under sub-section (1) of Section 105-E or under Section
105-H in such manner and subject to such conditions as may be specified by the Central
Government.
(3) The Administrator shall also take such measures, as the Central Government may direct, to
dispose of the property which is forfeited to the Central Government.
Notice of forfeiture of property:
Section 105-G of the Code of Criminal Procedure provides that:—
(1) If as a result of the inquiry, investigation or survey under Section 105-D, the Court has reason to
believe that all or any of such properties are proceeds of crime, it may serve a notice upon such
person (i.e., the person affected) calling upon him within a period of thirty days specified in the notice
to indicate the source of income, earnings, or assets, out of which or by means of which he has
acquired such property, the evidence on which he relies and other relevant information and
particulars, and to show cause why all or any of such properties, as the case may be, should not be
declared to be proceeds of crime and forfeited to the Central Government.
Here, the words „proceeds of crime‟ mean any property derived or obtained directly or indirectly, by
any person as a result of criminal activity (including crime involving transfers) or the value of such
property [Sec. 105-A(c) of the Code].
(2) Where a notice under sub-section (1) to any person specified any property as being held on
behalf of such person by any other person, a copy of the notice shall also be served upon such other
person.
Forfeiture of property in certain cases:
According to Section 105-H of the Code of Criminal Procedure:
(1) The Court may, after considering the explanation, if any, to the show cause notice issued under
Section 105-G and the material available before it and after giving to the person affected (and in a
case where the person affected holds any property specified in the notice through any other person,
to such other person also) a reasonable opportunity of being heard, by order, record a finding
whether all or any of the properties in question are proceeds of crime.
However, if the person affected (and in a case where the person affected holds any property
specified in the notice through any other person, such other person also) does not appear before the
Court or represent his case before it within a period of thirty days specified in the show cause notice,
the Court may proceed to record a finding under this sub-section ex parte on the basis of evidence
available before it.
(2) Where the Court is satisfied that some of the properties referred to in the show cause notice are
proceeds of crime but it is not possible to identify specifically such properties, then, it shall be lawful
for the Court to specify the properties which, to the best of its judgment, are proceeds of crime and
record a finding accordingly under sub-section (1).
(3) Where the Court records a finding under this Section to the effect that any property is proceeds
of crime, such property shall stand forfeited to the Central Government free from all encumbrances.
(4) Where any shares, in a company stand forfeited to the Central Government under this Section,
then, the company shall, notwithstanding anything contained in the Companies Act, 1956 or the
Articles of Association of the company, forthwith register the Central Government as the transferee
of such shares.
Fine in lieu of forfeiture:
Section 105-1 of the Code of Criminal Procedure provides that:
(1) Where the Court makes a declaration that any property stands forfeited to the Central
Government under Section 105-H and it is a case where the source of only a part of such property
has not been proved to the satisfaction of the Court, it shall make an order giving an option to the
person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part.
(2) Before making an order imposing a fine under sub-section (1), the person affected shall be given
a reasonable opportunity of being heard.
(3) Where the person affected pays the fine due under sub-section (1), within such time as may be
allowed in that behalf, the Court may, by order, revoke the declaration of forfeiture under Section
105-H and thereupon such property shall stand released.
Certain transfers to be null and void:
Section 105-J of the Code of Criminal Procedure provides that where after the making of an order
under sub-section (1) of Section 105-E or the issue of a notice under Section 105-G, any property
referred to in the said order or notice is transferred by any mode whatsoever such transfers shall, for
the purposes of the proceedings under this Chapter, be ignored and if such property is subsequently
forfeited to the Central Government under Section 105-H, then, the transfer of such property shall be
deemed to be null and void.
Procedure in respect of letter of request:
As per Section 105-K of the Code of Criminal Procedure, every letter of request, summons or
warrant, received by the Central Government from, and every letter of request, summons or warrant
to be transmitted to a contracting State under this Chapter shall be transmitted to the contracting
State or, as the case may be, sent to the concerned Court in India in such form and in such manner
as the Central Government may, by notification, specify in this behalf.
Application of this Chapter:
According to Section 105-L of the Code of Criminal Procedure, the Central Government may, by
notification in the Official Gazette, direct that the application of this Chapter in relation to a
contracting State with which reciprocal arrangements have been made, shall be subject to such
conditions, exceptions or qualifications as are specified in the said notification.