A Project on

“Power of Court to Search and Seize under Code of Criminal Procedure,

1973, and the Fundamental Rights”

SUBMITTED TO: - Associate Professor Mohammad Asad Malik.

FACULTY, Code of Criminal Procedure - I

SUBMITTED BY: Humanyu Kabeer

Roll Number: 17BLWS1
B.A. L.LB. (Self Finance)
SEMESTER VIII
BATCH 2017-22

1
Contents

1. Introduction

2. Provisions regarding Power of Court to Search and Seize

3. Landmark Judgements

4. Constitutionality of Power of Search and Seizure

5. Conclusion

2
 Power of Court to Search and Seize under Code of Criminal Procedure,
1973, and the Fundamental Rights
Introduction
If human rights are not embodied in the constitution and the law, or even if guarantees are not
respected, no citizen would be safe, against tyranny and authoritarianism of the governmental
actions. The principles of criminal justice also envisage the safeguards to person and personal
liberty. Before the commencement of the Indian Constitution the administration of criminal
justice was fully governed by the provisions of the Criminal Procedure Code,1973 and the
Evidence Act, 1872. These are mainly concerned with the security of the state and public
peace and not with individual liberty.
The word ‘search’ refers to the operation of government machinery that involves checking
through or carefully inspecting a location, area, person, object, etc. to detect something
hidden or to reveal the pieces of evidence of a crime. The police can lookout for an individual
or a car or premises, but only after taking necessary and legitimate lawful approval.
“Seizure” is a vigorous action that unexpectedly takes over, captures, removes, or
overwhelms an entity or an individual.

Provisions regarding Power of Court to Search and Seize

The Code of Criminal Procedure, 1973, provides the power to the court to Search under
the following provisions:

Section 92 (2) provides that, If any 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
under sub-section (1).

Section 93 (c) provides that, 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.

3
Section 93 (2) provides that, 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.

Section 93 (3) provides that, nothing contained in section 93 shall authorise 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.

Section 94 (1) provides that, 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 authorise any police officer
above the rank of a constable—to search the same in the manner specified in the warrant.

According to Section 95, where — (a) any newspaper, or book, or (b) any document,
wherever printed, appears to the State Government to contain any matter the publication of
which is punishable under section 124A or section 153A 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
newspaper containing such matter, and every copy of such book or other document to be
forfeited to Government, any Magistrate may by warrant authorise 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.

As per Section 97, —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.

4
Section 103 provides, 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.

Section 105 provides for the procedure for search when a court orders search beyond its
territorial jurisdiction. In this case, the court orders another court in that territory to serve or
execute search warrant by sending such summon or warrant to the presiding officer of the
court in that territory.

The Code of Criminal Procedure, 1973, provides to the court the power of seizure under
the following provisions:
According to Section 52, The officer or other person making any arrest under this Code may
take from the person arrested any offensive weapons which he has about his person, and shall
deliver all weapons so taken to the Court or officer before which or whom the officer or
person making the arrest is required by this Code to produce the person arrested.

According to Section 95, where — (a) any newspaper, or book, or (b) any document,
wherever printed, appears to the State Government to contain any matter the publication of
which is punishable under section 124A or section 153A 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
newspaper 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 wherever
found in India.

According to Section 102 of the code, police officer shall 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.

According to Section 105E, where any officer conducting an inquiry or investigation has a
reason to believe that any property in relation to which such inquiry or investigation is being
conducted may in any manner result in disposal of such property, he may make an order for
seizing such property. Any order made under this provision shall have no effect unless the
5
said order is confirmed by an order of the Court, within a period of thirty days of its being
made.

Landmark Judgements
In the case of V. S. Kuttan Pillai v. Ramakrishnan1, the procedural validity of search warrants
was upheld, in which it was held that a search for the premises occupied by the accused did
not in any way force him to provide evidence against himself and was thus not in violation of
Article 20(3) of the Indian Constitution.

In the case of the State of Maharashtra v. Tapas D. Neogy2, it was upheld that ‘bank account’
is to be ascertained as property under section 102 of the code and the police officer is
empowered to seize the operation of such bank account in the event that these properties are
specifically related to the commission of the offence for which the investigation is conducted.

In the case of the State of MP v. Paltan Mallah3, it was held that the evidence obtained under
illegal search is not completely ruled out unless it has caused the accused serious prejudice.
The Courts have always been given the discretion to decide whether or not to accept such
evidence.

The Discretionary Power of the Courts have been upheld now and then in several cases.
Similarly, it has been upheld that the search and seize under the code of criminal procedure is
not violative of Articles 19(1)(f) & 20(3) of the Indian Constitution.

In M. P. Sharma & Others v. Satish Chandra, District Magistrate Delhi & Others4, it was
held that the provision for the search warrant under the first alternative of a. 96(1) of the
Code of Criminal Procedure does not offend art. 19(1)(f) of the Constitution.
A search and seizure is only a temporary interference with the right to hold the property
searched and the articles seized. Statutory recognition in this behalf is a necessary
and reasonable restriction and cannot per se be considered to be unconstitutional.
A compelled production of incriminating documents by a person against whom a First
Information Report has been made is testimonial compulsion within the meaning of art. 20(3)
1
AIR 1980 SC 185.
2
(1999)7 SCC 685
3
(2005) 3 SCC 169.
4
1954 AIR 300.

6
of the Constitution. But a search and seizure of a document under the provisions of sections
94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the
meaning of art. 20 (3) and hence does not offend the said Article.
A power of search and seizure is, in any system of jurisprudence, an overriding power of the
State for the protection of social security and that power is necessarily regulated by law.
When the Constitution makers have thought fit not to subject such regulation to constitutional
limitations by recognition of the fundamental right to privacy, analogous to the American
Fourth Amendment, there is no justification for importing into it, a totally different
fundamental right by some process of strained construction.

Constitutionality of Power of Search and Seizure

A power of search and seizure is, in any system of jurisprudence, an overriding power of the
State for the protection of social security and that power is necessarily regulated by law.
When the Constitution makers have thought fit not to subject such regulation to constitutional
limitations by recognition of the fundamental right to privacy, analogous to the American
Fourth Amendment, there is no justification for importing into it, a totally different
fundamental right by some process of strained construction.
Article 20(3)
A search and seizure is only a temporary interference with the right to hold the property
searched and the articles seized. Statutory recognition in this behalf is a necessary and
reasonable restriction and cannot per se be considered to be unconstitutional.5
A compelled production of incriminating documents by a person against whom a First
Information Report has been made is testimonial compulsion within the meaning of art.
20(3) of the Constitution. But a search and seizure of a document under the provisions of
Section 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof
within the meaning of art. 20 (3) and hence does not offend the said Article.
Article 19(1)(f)
Article 19(1)(f) declares the right of all citizens to acquire, hold and dispose of property
subject to the operation of any existing or future law in so far as it imposes reasonable
restrictions, on the exercise of any of the rights conferred thereby, in the interests of general
public. It is urged that the searches and seizures as effected in this case were unreasonable
and constitute a serious restriction on the right of the various petitioners, inasmuch as their
buildings were invaded, their documents taken away and their business and reputation
5
1954 AIR 300.

7
affected by these largescale and allegedly arbitrary searches and that a law (section 96(1),
Cr.P.C.) which authorises such searches violates the constitutional guarantee and is invalid.
But, a search by itself is not a restriction on the right to hold and enjoy property. No doubt a
seizure and carrying away is a restriction of the possession and enjoyment of the property
seized. This, however, is only temporary and for the limited purpose of investigation. A
search and seizure is, therefore, only a temporary interference with the right to hold the
premises searched and the articles seized. Statutory regulation in this behalf is necessary and
reasonable restriction cannot per se be considered to be unconstitutional.6
Article 21
The Code for Criminal Procedure, 1973, under Chapter VII, titled “Processes To Compel
The Production of Things” provides for the provisions of search and seizure. The Code under
S. 93, 94, 95 or 97 provides for search warrants and its issuance by court when it considers
necessary for the purpose of inquiry, trial or other proceedings under the code. It further lays
down certain procedures that have to be followed in order to put check on unnecessary police
actions such as search to be made in the presence of respectable inhabitants of the locality
etc. As stated earlier the right to privacy is not absolute and can be breached by the state for
larger public benefit by following the due process of law. Hence, in order to strike balance
between the individual rights and public benefits any encroachment of privacy by the state
must withstand the threefold test prescribed for Article 21 which are-

1. Legality i.e., the existence of legitimate legislation.

2. Legitimate state needs.
3. Proportionality i.e., adoption of reasonable means to achieve the objective.7

In this regard, the code already safeguards the privacy rights of individuals by providing
conditions for search and seizure. Before conducting search prior sanction of court in the
form of a warrant has to be taken and courts generally grant such warrant after careful
consideration of the facts, hence protecting the individual from unwanted intrusion and
harassment. Further, to uphold the legitimacy of such search and seizure the code provides
that two or more independent localities must be called to attend the search and a list of items
seized is to be handed over to the person searched.

6
M. P. Sharma & Others v. Satish Chandra, District Magistrate Delhi & Others, 1954 SCR 1077.
7
Law Commission of India, 94th report on ‘Evidence obtained Illegally or Improperly’ (1983) available on
– http://lawcommissionofindia.nic.in/51-100/report94.pdf.

8
The Supreme Court has held that exclusion of evidence obtained by illegal search would be
wrong as neither the Constitution per se has any such provision nor extended construction of
any portion under Part III prescribes this.8

Conclusion
The authority to search and seizure is an essential power lying in the zone of Rule of Law. It
is a perfect example of the doctrine of Rule of Law, Predominance of Legal Spirit, and
Supremacy of law. Search and Seizure is an extremely subjective mechanism by nature, and
specific procedural limitations have been placed on the exercise of power. The officers
empowered to perform a search and seizure have specific powers and reporting to a senior
official responsibly is required at each level so that no officer acts in an arbitrary manner.

The authority to search and seize must be specifically prescribed in the law and the officer in
question must act in compliance with the specified rules and procedure laid down. Police
officers are provided with the authority to conduct inquiries, arrest people, conduct searches,
conduct seizures of persons and their property and even use appropriate force in the line of
duty; Yet this power must be exerted within the limits of the law, and when officers exceed
those limits, they jeopardize the admissibility of any information gathered for prosecution.

8
Law Commission of India, 94th report on ‘Evidence obtained Illegally or Improperly’ (1983) available on
– http://lawcommissionofindia.nic.in/51-100/report94.pdf.