AN ANALYSIS OF SEARCH

WARRANT UNDER THE CODE OF

CRIMINAL PROCEDURE, 1973

CRIMINAL LAW - III

PROJECT

NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

SUBMITTED BY: ADHITYA SRINIVASAN

ROLL NO: 2008 B.A. LL. B 55

SUBMITTED TO: PROFESSOR P. K. GUPTA

 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

DECLARATION

I, Adhitya Srinivasan, III yr. student at the B.A. LL. B (Hons.) programme at
the National Law Institute University, Bhopal, M.P. do hereby declare that no
part of the creative matter in this project report has been plagiarized nor has any
portion within this project been reproduced without correctly citing and
crediting the source from which such portion may have been taken.

ADHITYA SRINIVASAN

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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

TABLE OF CONTENTS

INTRODUCTION 4

STATUTORY REGIME OF SEARCH WARRANT 5

SECTION 93 5

SECTION 94 6

SECTION 95 6

SECTION 96 7

SECTION 97 7

SECTION 98 8

SECTION 99 8

SECTION 100 8

SECTION 101 9

SECTION 102 10

SECTION 103 10

SECTION 104 11

SECTION 105 11

CONCLUSION - CRITICAL COMMENT 12

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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

INTRODUCTION

The provisions for search warrant in the Code of Criminal Procedure Code are

very important for the purpose of law enforcement and to enable the police and

the criminal justice system in general to be able to effectively achieve its

mandate. The concept of search warrant implies that some person enabled under

the Cr.P.C has the power to approach any property, belonging to any person

whatever, and to perform search upon that property so as to investigate into the

crime and find evidence against the accused. Without this provision, the Cr.P.C

would be an ineffective legislation i.e. it will have no teeth. The regime for

search warrant under the Cr.P.C is given under ss. 93 – 105.

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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

STATUTORY REGIME OF SEARCH WARRANT

93. When search warrant may be issued

(1) (a) Where any court has reason to believe that a person to whom a summons or order
under section 91 or a requisition under sub-section (1) of section 92 has been, or might be,
addressed, will not or would not produce the document or thing as required by such summons
or requisition, or

(b) Where such document or thing is not known to the Court to be in the possession of any
person, or

(c) Where the court considers that the purposes of any inquiry, trial or other proceeding under
this Code will be served by a General search or inspection.

it may issue a search-warrant; and the person to whom such warrant is directed, may search
or inspect in accordance therewith and the provisions hereinafter contained.

(2) The court may, 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.

(3) Nothing contained in this section shall authorize any Magistrate other than a District
Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or
other thing in the custody of the postal or telegraph authority.

In Cartier International v. B. V. v. Choosy Corner and Ors.1 it was observed by the Hon’ble
Delhi High Court that “Warrants under Section 93, Cr.P.C. were issued and certain premises
at Hotel Le Meridien were searched from where a huge quantity of goods bearing falsified
trade mark, trade description "Cartier" were recovered. The person from whose possession
these goods were recovered disclosed that these were purchased from Bombay and
consequently, seizure operations were carried out at Bombay also. In spite of these searches
and seizures, the defendants were continuing their activities in the matter of manufacturing,
distributing and sale of garments under the trade mark "Cartier" and having "Cartier logo" so
as to pass off those goods as of the plaintiff.”

94. Search of place suspected to contain stolen property, forged documents, etc.

1
2003 (26) PTC 160 (Del)
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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

(1) 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.

In Smt. Parmeshwari Devi v. The State and Anr.,2 it was observed by the Hon’ble Supreme
Court that “It will be recalled that it was the complainant who made an application under
Section 94 of the Code stating that as the deed of dissolution of the partnership was essential
for the trial of the case, Smt. Parmeshwari Devi may be directed to produce it. Smt.
Parmeshwari Devi was not a party to the case, and no reason whatsoever was given in the
application why the document was likely to be in her possession or power beyond stating that
the accused had stated in their reply to the earlier application under Section 94 that they were
employees of the firm and were not in possession of the document, and she was the widow of
the late Mohan Lal Gupta.”

95. Power to declare certain publications forfeited and to issue search warrants for the
same.

(1) Where-

(a) Any newspaper, or book, or

(b) Any document,

2
(1977) 1 SCC 169
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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

Whenever printed appears to the State Government to contain any, matter the publication of
which is punishable under section 124A or section 153 A or section 153B or section 292 or
section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government
may, by notification, stating the grounds of its opinion, declare every copy of the issue of the
news paper containing such matter, and every copy of such book or other document to be
forfeited to Government, and thereupon any police officer may, seize the same whenever
found in India and any, Magistrate may by w\arrant authorize any police officer not below the
rank of sub-inspector to enter upon and search for the same in any premises there any copy of
such issue or any Such book or other document may be reasonable, suspected to be.

96. Application to High Court to set aside declaration of forfeiture

(2) Every such application shall, where the High Court consists of three or, more Judges be
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.

97. Search for persons wrongfully confined

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.

In Yamanaji H. Jhadav v. Nirmala,3 the Hon’ble Supreme Court observed that “It is further
claimed that the defendant forcibly took her and wrongly confined her which led her father to
make an application under Section 97 of Cr.P.C. It is also stated that subsequently under
threat and coercion she was taken to the office of the Sub-Registrar on the 26 th of June. 1982
and signed a document which has turned out to be a deed of divorce.”

98. Power to compel restoration of abducted females

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,
3
(2002) 2 SCC 637
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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

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 or such child, and may compel
compliance with such order, using such force as may be necessary.

In Meherunnisa Khan v. Kamlesh Naik and Anr.,4 the Hon’ble Bombay High Court held that
“At the very outset I am at loss to see any complicated question of law arising in this case and
there should be really no problem to assess the correct issue in its true perspective in view of
the plain language of Section 98 which is meant to provide for an effective and immediate
relief for the parents of a female child under the age of eighteen years when illegally detained
for any unlawful purpose.”

99. Direction, etc. of search warrant

The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all
search-warrants issued under section 93, section 94, section 95 or section 97.

100. Persons in charge of closed place to allow search

(1) Whenever any place liable to search of inspection under this Chapter is closed, any person
residing in, or being in chare 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-

(2) 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 section 47.

(3) 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.

(4) 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.

(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 witness; but no person witnessing a search under
4
I (1995) DMC 302
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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

this section shall be required to attend the court as a witness of the search unless specially
summoned by it.

(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.

(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.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a
search under this section, when called upon to do so by an order in writing delivered or
tendered to him, shall be deemed to have committed an offence under section 187 of the
Indian Penal Code (45 of 1860).

In Ghasita Sahu v. State of Madhya Pradesh,5 the Hon’ble Supreme Court held that “The
right of the search being taken only in presence of a Magistrate or a gazetted officer is
restricted where the search is to be taken of a "person" of the accused. In this case the search
was of a house and, therefore, all that the investigating officer had to follow was the
conditions under Section 42 of the Act read with Section 100 Cr.P.C. Therefore, the argument
that the accused had any right in respect of the aforementioned search and that right has been
breached is wholly incorrect.”

101. Disposal of things found in search beyond jurisdiction

When, in the execution of a search-warrant at any place beyond the local jurisdiction of the
court which issued the same, any of the things for which search is made, are found, such
things, together with the list of the same prepared under the provisions hereinafter contained,
shall be immediately taken before the court issuing the warrant, unless such place is nearer to
the Magistrate having jurisdiction therein than to such court, in which case the list and things
shall be immediately taken before such Magistrate; and unless there be good cause to the
contrary, such Magistrate shall make an order authorising them to be taken to such court.

102. Power of police officer to seize certain property

(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.

5
(2008) 3 SCC 52
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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

(2) Such police officer, if subordinate to the officer in charge of a 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, 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.]

In Monisha Gupta v. State and Anr.,6 it was held that “It will be appropriate if the petitioners
herein approach the trial court raising all contentions as raised in the present petitions,
including the contention that they have right to be heard. If any such application is filed, the
same will be considered in accordance with law. It will be open to the respondent-
complainant to raise all contentions with regard to maintainability, locus standi and on all
other aspects. Parallel proceedings without any order by the trial court deciding any
lis/dispute are not justified and required.”

103. Magistrate may direct search in his presence

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.

In Delhi Administration v. Bal Krishnan and Ors.,7 it was observed that “the evidence of
recovery of property in consequence of a confessional statement made by the accused was
inadmissible in evidence and secondly that the recovery also was illegal as it had been made
in violation of the mandatory provisions of Section 103 of the Criminal Procedure Code
relating to searches. It is true that certain portions of the judgment lend themselves to the
above criticism.”

104. Power to impound document, etc., produced.

Any court may, if it thinks fit impound any document or thing produced before it under this
Code.

In Avinash Bhosale v. Union of India (UOI), Directorate of Revenue Intelligence, Mumbai

Zonal Unit – 13, Enforcement Directorate and State of Maharashtra,8 the Hon’ble Bombay

6
Decided on 16.09.2010

7
(1972) 4 SCC 659

8
(2008) 110 BOMLR 3405
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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

High Court held “As per Section 104 of CrPC, which categorically deals with power of the
court to impound documents, document does not include a passport. If by an interpretative
process the Apex Court has held that even a court cannot impound a passport, then it would
be highly inappropriate to interpret the term "documents" used in Section 131(3) of Income
Tax Act, so as to enable the executive authorities to impound the passport. It is also to be
borne in mind that power to seize cannot be equated with power to impound. Power of
seizure under Section 131(3) could not be extended to validate impounding of passport.
Therefore, there is no iota of doubt that the respondent's act of impounding of petitioner's
passport is without authority of law.”

105. Reciprocal arrangements regarding processes

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 An analysis of Search Warrant under the Code of Criminal Procedure, 1973

CONCLUSION - CRITICAL COMMENT

Jurisdictions that respect the rule of law and a right to privacy put constraints on the powers
of police investigators, and typically require search warrants, or an equivalent procedure, for
searches conducted as part of a criminal investigation. An exception is usually made for "hot
pursuit": if a criminal flees the scene of a crime and the police officer follows him, the officer
has the right to enter a property in which the criminal has sought shelter. Conversely,
in authoritarian regimes, the police typically have the right to search property and people
without having to provide justification, or without having to secure the permission of a court.

Under the Fourth Amendment to the United States Constitution, most searches by the police
require a search warrant based on probable cause, although there are exceptions. Any police
entry of an individual's home always requires a warrant (for either search or arrest),
absent exigent circumstances, or the free and voluntary consent of a person with reasonably
apparent use of or control over the property. Under the Fourth Amendment, searches must be
reasonable and specific. This means that a search warrant must be specific as to the specified
object to be searched for and the place to be searched. Other items, rooms, outbuildings,
persons, vehicles, etc. may require additional search warrants.

U.S. police do not need a search warrant to search a vehicle they stop on the road or in a non-
residential area if they have probable cause to believe it contains contraband or evidence of a
crime. In that case, police may search the passenger compartment, trunk, and any containers
inside the vehicle capable of holding the suspected article. By comparison, under Australian
law, police can exhaustively search any vehicle on a public road, and any electronic devices
therein (mobile phone, computer), without the responsible persons' permission, for evidence
of criminal acts, with or without proof or suspicion of any kind.

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