Write short notes on Search and Seizure.

Question: Write short notes on Search and Seizure [JJS 2018]

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Answer

Search is defined under Section 93 of the Code of Criminal Procedure. The process of search refers to examining a person, place, or premises to discover and collect material evidence that may be used in the investigation or prosecution of a criminal offence. It has to be conducted with or without a warrant, depending on the scenario and specific provisions laid down under the code.

Search process when issued with a warrant falls under provisions such as Sections 93, 94, 95, and 97 of the CrPC and search without a warrant, issued often in urgent situations where obtaining a warrant is not feasible falls under Sections 103, 165, and 166 of the code.

Section 100 of the code is the most significant provision that outlines detailed procedure for conducting search in any premise, or of a person ensuring that the process is carried out in the most fair and lawful manner. This section mandates that before making a search, the officer must call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search. The search should be conducted in their presence, and a list of all things seized must be prepared and signed by the witnesses.

Seizure refers to the process of taking possession of items, property, or evidence found during a search that is related to a crime. Seizure is typically a part of the search process. When evidence or items related to a crime are discovered during a search, they are seized by the investigating officer, thus the seizure procedure. The aim of seizure is to secure and preserve the material evidence collected during the investigation by the police.

It is to be noted that the criminal code does not specify separate procedures for seizure since it is a part of the search procure, however, it calls for proper documentation of the seized materials and maintaining their chain of custody.

In essence, search and seizure are integral part of criminal investigations under the criminal code, designed with the aim to gather evidence while ensuring legal safeguards and transparency. Section 100 of the CrPC mandates procedures that protect the rights of individuals and maintain the integrity of the evidence collected.

Some of the landmark judgments addressing various aspects related to search and seizure are discussed herein below:

In the case of V. S. Kuttan Pillai v. Ramakrishnan, 1980 AIR 185, upheld the legality of search warrants when the premises to be searched are occupied by the accused. It was held that the procedural validity of search warrants does not violate Article 20(3) of the Indian Constitution, as a search for premises occupied by the accused does not compel the accused to provide evidence against themselves.

In another case of Ramesh v. Laxmi Bai, 1999 AIR SCW 4783, it was established no search warrant can be issued in a circumstance where the custody of a son by his father is challenged to be an unlawful detention.

In Matajog Dobey v. H.C. Bhari, AIR 44 1955, it was clarified that failure to adhere to the statutory provisions related to searches diminishes the credibility of the evidence supporting the search.

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