CHANAKYA NATIONAL LAW UNIVERSITY

FINAL DRAFT OF FULFILLMENT OF PROJECT

OF

CRIMINAL LAW – II

TITLE: SEARCH WARRANTS

Submitted by- Aditya Raj

BALLB, 1107

Submitted to- Father Peter Ladis

ACKNOWLEDGEMENT

I am very thankful to everyone who all supported me, for I have completed my project
effectively and moreover on time. I am equally grateful to Father Peter Ladis F. He gave me
support and guided me in different matters regarding this topic. He has been very kind and
patient while suggesting me the outlines of this project and correcting my doubts I thank
him for his overall support.
Last but not the least, I would like to thank my parents who helped me a lot in gathering
different information, collecting data and guiding me. I also thank my friends who were
there with their suggestions and comments for my project.
Thanking you,
Aditya Raj
 TABLE OF CONTENTS

1. Provisions related to Search Warrants

2. When Search Warrant may be issued
3. Constitutional validity of Search
Warrant
4. Conclusion and Suggestions
 INTRODUCTION
A search warrant is a judicial document that authorizes police officers to search a person or
place to obtain evidence for presentation in criminal prosecutions. It is a written authority
given to a police officer or, any other person by a competent magistrate or, court for the
search of any place either generally or, for specific things or, documents or, for persons
wrongfully detained. Issue of search warrants is a grave matter, as it involves invasion of the
sanctity and privacy of a citizen’s house or, premises. Thus, the power to issue search
warrants should be exercised with all the care and circumspection.1 A search warrant is a
warrant issued by the competent authority authorizing a police officer to search a specified
place for evidence even without the occupant’s consent. The Court issuing the search warrant
under Section 93(1)(a) must have reason to believe that the person against whom the search
warrant is issued is not likely to produce the document or thing in his possession in pursuance
of a mere summons or order under Section 91 or a requisition under Section 92(1). The
Magistrate should give reasons for exercising his discretion in granting the issue of search-
warrant. Jurisdictions that respect the rule of law and a right to privacy constrain police
powers, and typically require search warrants or an equivalent procedure for searches police
conducted in the course of a criminal investigation. The laws usually make an exception for
hot pursuit: a police officer following a criminal who has fled the scene of a crime has the
right to enter a property where the criminal has sought shelter. This contrasts with
authoritarian regimes, where police typically can search property and people without having
to provide justification or secure court permission. Search and seizure is a procedure used in
many civil law and common law legal systems whereby police or other authorities and their
agents, who suspect that a crime has been committed, do a search of a person's property and
confiscate any relevant evidence to the crime. Some countries have provisions in their
constitutions that provide the public with the right to be free from "unreasonable" search and
seizure. Though interpretation may vary, this right sometimes requires law enforcement to
obtain a search warrant before engaging in any form of search and seizure. This right is
generally based on the premise that everyone is entitled to a reasonable right to privacy. In
this paper we will be dealing with the provisions related to search warrants and its
constitutional validity in respect to Article 21 which reads "No person shall be deprived of
his life or personal liberty except according to procedure established by law."

1
Kalinga Tubes Ltd vs. D Suri AIR 1953 Ori 153
OBJECT OF STUDY

The project research work on the topic ‘search warrant’ will aim at understanding the concept
of search warrants along with the different provisions related to its issue. Illustrative cases
and case laws will be referred to, for the better understanding of the topic.

HYPOTHESIS

The researcher feels that House searches may be conducted only when essential in the
interest of the investigation of the case after obtaining permission from the Competent
Authority.

RESEARCH METHODOLOGY

The research work will be based upon Doctrinal mode of research.

Doctrinal research or traditional research involves analysis of case laws, arranging, ordering
and systematizing legal prepositions and study of legal institutions, but it does more – it
creates law and its major tools through legal reasoning or rational deductions.

SOURCES OF DATA

1. Code of Criminal Procedure,1973

2. R.V. Kelkar's Criminal Procedure

3. The Constitution of India, 1950

 1.Provisions related to search warrants
Production of Documents under Section 91 Cr.P.C.

If an Investigating Officer considers the production of any particular document or thing,

necessary or desirable for the purpose of investigation, he may issue a written order to the
person in whose possession or power such document or thing is believed to be, for its
production under Section 91 Cr.P.C. A Court can also issue summons for production of such
document or thing under Section 91 Cr.P.C.2

Search without Warrant

If the document(s) or thing(s) required for investigation are likely to be found at a place and
the Investigating Officer has reason to believe that such documents or things cannot
otherwise be obtained without undue delay, such Officer may, after recording in writing the
grounds of his belief and specifying in such writing so far as possible the document(s) or
thing(s) for which search is to be made, conduct a search of a place or dwelling u/s 165
Cr.P.C. for such document or thing. The search shall, if practicable, be made by the Officer
himself but if he is unable to conduct the search in person he may, after recording in writing
his reasons for so doing, require any Officer subordinate to him by an order in writing to
make the search. Such order shall specify the places to be searched and as far as possible the
thing or document for which search is to be made. Copies of any record made u/s 165 (1) or
(3) shall forthwith be sent to the nearest Magistrate or Special Judge empowered to take
cognizance of the offence.

Warrants to be obtained for Searches

While the Investigating Officers may conduct searches, as authorized by law, under their own
authority u/s 165 Cr.P.C. it is advisable to obtain warrants for searches under Section 93
Cr.P.C. from a competent Magistrate in important and sensitive cases (as well as where time
and circumstances permit).3

Unnecessary Searches to be avoided

House searches may be conducted only when essential in the interest of the investigation of
the case after obtaining permission from the Competent Authority, who permitted registration

2
jhr.nic.in/hcjudge/data/51-267-2009-08092009
3
cbi.nic.in/aboutus/manuals/Chapter_13
of the case. In every case, wherein the Investigating Officer desires to search a house or
dwelling Unit, he will record in his Case Diary the reasons for doing so. A house or dwelling
Unit must not be searched unless there are definite reasons to believe that certain specific
things or documents required for the investigation of the case will be found there. The
number of places to be searched should be kept at the bare minimum.

Searches after dark to be avoided

Although the law does not require that searches should be made by daylight only, searches
after dark should, as far as possible, be avoided. However, it may be necessary sometimes to
take precautions to ensure that the articles of evidentiary value for which the search is to be
made are not discharged or tampered with.

Procedure for House Searches

The procedure to conduct house searches is prescribed u/s 100 Cr.P.C. Before entering the
house, the Investigating Officer and the witnesses should submit their person for being
searched by the occupant of the house or some persons on his behalf who should be permitted
to be present during the search. No other person should be permitted to enter or approach the
house except a member of the household.4 If necessary, woman Officers should accompany
the search party. The services of woman Police Officers could be taken from local Police.
Immediately on reaching the house, all telephones should be taken charge of by the Search
Party. Members of the search party should behave politely with the inmates of the
house/place particularly with the women and aged persons. Due respect should be shown to
the place of worship but the search should cover the entire premises. The search must be
thorough and meticulous. All the incriminating documents/articles must be seized in the
presence of witnesses. A search list must be prepared on the spot, indicating the proceedings
of the search and the list of documents and articles seized during the search. A copy of the
said search list must be given to the occupant of the house under acknowledgement and the
documents/articles so seized from the premises may be recorded in his presence and that of
the witnesses. In case it is not possible to complete the search on the same day, the portion of
the premises which remained to be searched must be sealed and secured under a proper guard
before leaving the premises for the night. All important exhibits should be got video-filmed
and transferred to one-time write only CD/DVD. The original, along with a copy, should be

4
police.pondicherry.gov.in
sealed and deposited in the Court having jurisdiction. With the permission of the Court, a
copy may be made and retained for the purpose of investigation.
 2.When Search Warrant may be issued
Legal provisions regarding when search-warrant may be issued under section 93 of the Code
of Criminal Procedure, 1973.

(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) When 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. A search-warrant under Section
93 can be issued only in three cases:

(i) Where the Court has reason to believe that the person summoned to produce a document
or thing will not produce it;

(ii) Where the document or thing is not known to be in the possession of any person;

(iii) Where a general inspection or search is necessary.

The Court issuing the search warrant under Section 93(1)(a) must have reason to believe that
the person against whom the search warrant is issued is not likely to produce the document or
thing in his possession in pursuance of a mere summons or order under Section 91 or a
requisition under Section 92(1). The Magistrate should give reasons for exercising his
discretion in granting the issue of search-warrant.

The search under Section 93 must be for some specific article or thing or document and not
for stolen property. The law does not authorize for search of anything but specified articles
which have been or can be made the subject of summons or warrant to produce. A general
search-warrant can only be issued if the Court considers that the purpose of any enquiry, trial
or other proceeding of the Code would be served by such search. General search warrant
cannot be issued when the person, in whose possession a thing lay, is known and the place
where the things lay is also known.5

Magistrate should not issue search-warrant on mere asking of a party. Instead, he must
conduct necessary enquiry, apply his judicial mind and satisfy himself objectively about its
necessity and record reasons in support of his satisfaction.6

Search-warrant should be issued on petition using the Form No. 10 in Schedule II of the
Code. The Magistrate may amend the warrant dispensing with the production of the articles
before him. The warrant must:

(a) Be in writing, and

(b) Contain all the matters that the law requires it to be stated therein.

The Court issuing the search warrant under Section 93(1)(a) must have reason to believe that
the person against whom the search warrant is issued is not likely to produce the document or
thing in his possession in pursuance of a mere summons or order under Section 91 or a
requisition under Section 92(1). The Magistrate should give reasons for exercising his
discretion in granting the issue of search-warrant.

The search under Section 93 must be for some specific article or thing or document and not
for stolen property. The law does not authorize for search of anything but specified articles
which have been or can be made the subject of summons or warrant to produce. A general
search-warrant can only be issued if the Court considers that the purpose of any enquiry, trial
or other proceeding of the Code would be served by such search. General search warrant
cannot be issued when the person, in whose possession a thing lay, is known and the place
where the things lay is also known.

5
Code of Criminal Procedure, 1973
6
Shyam M. Sachdev vs The State And Another, 1990
Magistrate should not issue search-warrant on mere asking of a party. Instead, he must
conduct necessary enquiry, apply his judicial mind and satisfy himself objectively about its
necessity and record reasons in support of his satisfaction.

A search warrant issued under section 93 should ordinarily be directed to one or more police
officers. The Court may also issue search-warrant under section 93 to any other person if its
immediate execution is necessary if no police officer is immediately available.

The power of search given by this Section includes also the power to take possession of the
document or thing. When documents or things seized by virtue of a search-warrant are
brought before the magistrate, he would have power to allow the parties inspection thereof in
Court.

Where the person against whom a search warrant is issued prays for the stay thereof and
offers to produce the document or thing before the court whenever required, the magistrate
has jurisdiction to stay execution of the warrant conditionally on the execution of a bond.

A search in contravention with the provisions of section 93 is clearly illegal. A petition under
Article 226 of the Constitution would lie for quashing an illegal search-warrant and for
returning seized document or thing.7

A revision also lies against an order of illegal search-warrant. A person aggrieved by an

illegal search has also remedy in a civil court for an actionable trespass. A suit for damage in
such circumstance lies against those who have executed an illegal search-warrant.

An issuance of search-warrant is a serious matter and it would be advisable not to dispose of

an application for search-warrant in a mechanical way. A clear application of mind by the
Magistrate must be discernible in the order granting the search-warrant.

Legal provisions regarding search for persons wrongfully confined and abducted females
under section 97 and section 98 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

7
(1968) 9 GLR 364
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. 8 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
8
2007 CriLJ 600, 2006 (4) KLT 905
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.

3.Constitutional validity of Search Warrant

From time to time the constitutional validity of the warrant issued under Section 93(1) (a), in
context of Article 20(3) has been raised. The contentions were raised that the term “any
person” in section 91(1) not only includes witnesses and other persons, but also includes the
accused. Therefore if the accused person do not obeys the summons, he will have to face a
compelled search in his house, and this itself shows the compulsion put on the accused.
Further, the compelled search made will be an intrusion into the privacy. Also there will be a
prosecution for the offence committed under section 174 of the Indian Penal Code, 1860.
Therefore in light of all this the summons issued is a compulsion on the accused person to
produce self-incriminating evidences, thereby completely violating his fundamental right
guaranteed under Article 20(3). The protection against self incrimination as has been
provided in Article 20(3) is based on the following principle: “nemo tenetur prodere or nemo
tenetur scripsum accusare”9 which means that an accused should not be compelled to furnish
any evidence against him. It is the duty of the State/ prosecution to prove him guilty, beyond
reasonable doubt. This is just to give proper equal opportunity to accused to know what
charges has been levelled against him, what case the prosecution has prepared and then on
the basis of which he will prepare a proper defence for himself.

The law of privacy is recognition of the individual's right to be let alone and to have his
personal space inviolate.10 The need for privacy and its recognition as a right is a modern
phenomenon. It is the product of an increasingly individualistic society in which the focus
has shifted from society to the individual. In early times, the law afforded protection only
against physical interference with a person or his property. As civilization progressed, the
personal, intellectual and spiritual facets of the human personality gained recognition and the
scope of the law expanded to give protection to these needs.

The essence of the law derives from a right to privacy, defined broadly as "the right to be let
alone." It usually excludes personal matters or activities which may reasonably be of public
interest, like those of celebrities or participants in newsworthy events. Invasion of the right to
privacy can be the basis for a lawsuit for damages against the person or entity violating the
right.

Under the constitutional law, the right to privacy is implicit in the fundamental right to life
and liberty guaranteed by Article 21 of the Constitution.

9
World Dictionary of Foreign Expressions: A Resource for Readers and Writers By Gabriel Adeleye, Kofi
Acquah-Dadzie
10
Cyber Terrorism and Information Warfare By Dr M N Sirohi
The first privacy case in Indian jurisprudence was that of Kharak Singh v. State of U.P. 11,
where the Supreme Court considered the constitutionality of police regulations that permitted
the police to keep a close watch on would-be criminals. However, like all unfettered power,
the provision was misused. The aggrieved complained that the police would inter alia: (i)
enter his house; (ii) knock and shout at his door; (iii) wake him up during the night; (iv) ask
him to accompany them to the station; and (v) ask him to report his departure to the local
constable. The most inhumane of all regulations under challenge was Regulation 236 which
permitted the police to render domiciliary visits at night.

While Regulation 236 was struck down as being unconstitutional, Ayyangar, J. speaking for
the majority, observed: (AIR para 20)

"The right of privacy is not a guaranteed right under our Constitution and therefore the
attempt to ascertain the movements of an individual which is merely a manner in which
privacy is invaded is not an infringement of a fundamental right guaranteed by Part III."

However, Subba Rao, J. while partly concurring with the majority, stated: (AIR para 31)

"It is true our Constitution does not expressly declare a right to privacy as a fundamental
right, but the said right is an essential ingredient of personal liberty. Indeed, nothing is more
deleterious to a man's physical happiness and health than a calculated interference with his
privacy."

Thereafter, in Gobind v. State of M.P 12 the aggrieved complained that "his reputation had
sunk low in the estimation of his neighbours” as a result of similar activity. Mathew, J. after
reasoned deliberation, delivered a learned judgment and observed that: (SCC paras 23-24)

"Privacy primarily concerns the individual. It therefore relates to and overlaps with the
concept of liberty. The most serious advocate of privacy must confess that there are serious
problems of defining the essence and scope of the right. Privacy interest in autonomy must
also be placed in the context of other rights and values.”

Any right to privacy must encompass and protect the personal intimacies of the home, the
family, marriage, motherhood, procreation and child-rearing. This catalogue approach to the
question is obviously not as instructive as it does not give an analytical picture of the
11
AIR 1963 SC 1295
12
1975 AIR 1378, 1975 SCR (3) 946
distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be
offered as a unifying principle underlying the concept has been the assertion that a claimed
right must be a fundamental right implicit in the concept of ordered liberty." 13 However, the
Court stated that the right to privacy was subject to "restrictions on the basis of compelling
State interest". Thus, the regulations were upheld since they applied to a limited class of
citizens i.e. habitual criminals.

Similarly, in Malak Singh v. State of Punjab14 surveillance was held to be intrusive and an
encroachment upon the right to privacy and in Sunil Batra v. Delhi Admn. The Supreme
Court considered the question of whether two individuals, sentenced to death, were entitled
to privacy and human rights. The Court found that though a minimum intrusion of privacy
may have been inevitable, the guards were under an obligation to ensure that human rights
and privacy standards were observed.

In People's Union for Civil Liberties v. Union of India (hereinafter the first PUCL case) , the
constitutionality of "telephone-tapping" was under consideration. While recognizing that
conversations on the telephone were of an intimate and confidential character, the Court held
that tapping into conversations was unconstitutional unless brought about by a procedure
established by law. The Court also found the concept of privacy "too broad and moralistic"
for serious judicial consideration.

4.   Conclusion and Suggestions

A search occurs when the expectation of privacy is removed due to reasonable consent by
society, this is where laws come into place. A search cannot legally occur without the

13
Privacy Law: A Comparative Study By S.K. Sharma
14
1981 AIR 760, 1981 SCR (2) 311
authority of a judge or magistrate and the issuing of a warrant stating that a search may take
place. Before entering the house, the Investigating Officer and the witnesses should submit
their person for being searched by the occupant of the house or some persons on his behalf
who should be permitted to be present during the search. Magistrate should not issue search-
warrant on mere asking of a party. Instead, he must conduct necessary enquiry, apply his
judicial mind and satisfy himself objectively about its necessity and record reasons in support
of his satisfaction.

Property can be seized when there is reasonable cause to believe that the individuals'
ownership can be inferred in the act of criminal actions or behaviour. An example of this
would be a drug dealer who purchased a car with money used from illegal activities. There
have been multiple cases in which drug dealers have had their homes, cars and all assets
seized by the authorities for the implication that they may have been purchased with illegal
funds.

It can hence be inferred that search can only take place when there is a probable cause to
validate the same. This Code itself provides for remedies available to an aggrieved person
against whom a search warrant has been issued. The person can file a writ under Article 226
of the Constitution for quashing an illegal search warrant and for the return of the seized
thing an document. Also, before any search warrant is issued, it is mandatory for the
Magistrate to apply his mind judicially and in cases where he has not done the same, an order
under Section 93 can be set aside under Section 401, Cr.P.C in revision. Also, a search
carried out in contravention of law constitutes an actionable trespass, and a suit for damages
can be filed against the person executing the illegal warrant. Hence, it can be rightly said that
search warrants do not infringe ones privacy. The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, is not be
violated under the provisions mentioned in the Code. A revision also lies against an order of
illegal search-warrant. A person aggrieved by an illegal search has also remedy in a civil
court for an actionable trespass. A suit for damage in such circumstance lies against those
who have executed an illegal search-warrant. An issuance of search-warrant is a serious
matter and it would be advisable not to dispose of an application for search-warrant in a
mechanical way. A clear application of mind by the Magistrate must be discernible in the
order granting the search-warrant.

 
BIBLIOGRAPHY-
1. Code of Criminal Procedure, 1973
2. Indian Evidence Act, 1872
3. Basu D.D. Introduction to the Constitution Of India, Lexis Nexis Butter Worth
Wadhwa, Nagpur
4. Ratanlal Dheerajlal; Code of Criminal Procedure, Lexis Nexis Butterworth Wadhwa
5. Ratanlal Dheerajlal; Indian Penal Code, 1860, Lexis Nexis Butterworth Wadhwa