CrPC – I (Online Examination)

Search with and without warrant

Submitted to Dr Asad Malik by Syed Umair Ahmed Andrabi for the fulfilment of academic
requirement of online examination (CrPC – I, VIIIth Semester)
Table of Contents
Search warrants............................................................................................................................3
When the search warrant is issued?..............................................................................................4
Search of a place suspected...........................................................................................................5
Search for persons wrongfully confined.........................................................................................5
Power to compel restoration of abducted females........................................................................6
Power to declare a publication forfeited.......................................................................................6
Constitutional validity of search warrants.....................................................................................6
Search of a place without warrant................................................................................................7
Search by a police officer during the investigation.........................................................................7
Search In the presence of magistrates...........................................................................................8
Search in the limits of another police station.................................................................................8
Search for false weights and measures..........................................................................................9
Analysis of the general provision of search....................................................................................9
Consequences of non-compliance with the provisions relating to searches..................................10
Magistrates not empowered to issue a search warrant...............................................................11
Search without warrant by police officers not authorized............................................................11
Effect of contravention of the search procedure..........................................................................12
Search with the consent of the occupant.....................................................................................12
Bibliography................................................................................................................................13
Search warrants
As per the law dictionary and as observed in different judicial decisions, the term ‘search’, in the
simplest language, denotes an action of a government machinery to go, look through or examine
carefully a place, area, person, object etc. in order to find anything concealed or for the purpose of
discovering evidence of a crime. The search of a person or vehicle or premises etc., can only be
carried out under proper and valid authority of law. It is also well established that search should have
a nexus with the crime, it cannot be a random search. 

A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police
officer or any other person authorizing them to conduct a search of a person, location or vehicle for
evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes Ltd. v. D.
Suri and in many other cases has cautioned the police officer to use search warrant with a little
precaution and care and do not abuse their power.

Section 165 of CrPC provides for the circumstances and the way in which search is carried out by a
Police Officer. A police officer while making an investigation should have reasonable grounds for
believing that something very necessary for the purpose of investigation into an offense which he is
authorized to investigate may be found in any place within the local limits of the police station in
which he is in charge. He is also required to make a record in writing specifying his grounds of belief
and why the search was conducted within the limits of such station.

When the search warrant is issued?

In the following circumstances and conditions a search warrant is issued by a court:

1. Where a court has reason to believe that a person to whom summons or orders under
Section 91 and a requisition under Section 92(1) is addressed will not produce the things
or documents as required.[Section 93(1)(a)]
2. Where the thing or document in question is not known to the court to be in the possession
of any person. [Section 93(1)(b)]
3. Where the court considers that the purposes of any inquiry, trial or other proceedings will
be served by general search or inspection. 
In the following circumstances and conditions search warrant is issued by the Magistrate:

1. If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class gets any
information and after inquiry of the same, thinks it necessary or has reason to believe that
a place is being used for the deposit or sale of stolen property or for the deposit, sale or
production of any objectionable article or any such objectionable article which is
deposited in any place, he may authorize any police officer by way of a search warrant to
enter, search or take in possession any property to which this section applies.(Section 94)
2. When any newspaper, book or document, wherever printed, contains any matter, the
publication of which is punishable under section 124-A, 153-A, 153-B, 292, 293 or 295-
A of Indian Penal Code, 1860, the State Government may, by notification stating the
reasons for such action, declare every copy of such newspaper, book, or document, to be
forfeited to the government. After such action, any Magistrate may, by a warrant,
authorize any police officer not below the rank of a Sub-Inspector to enter upon and
search for such copies in any premises where there is a sufficient reason for suspicion.
(Section 95)
3. If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has
sufficient reason to believe that he can issue a search warrant to a person against a person
who is kept under confinement for an offense, then he can direct the person to whom he
issued a search warrant to search for the person so confined. Such a search will be made in
accordance therewith,  and if found, the person shall be immediately taken before a
Magistrate who will make such order as appears to be proper. (Section 97).
4. Power to compel restoration of abducted females – A Magistrate may upon a complaint
made on oath of the abduction or unlawful detention of a woman, or of a female child
under 18 years of age, for any unlawful purpose, make an order for the instant restoration
of such woman to her liberty. It is also issued to such female child to her husband, parent,
guardian, or other person having lawful charge of such child and can compel compliance
with such order necessary by using sufficient force (Section 98).

Search of a place suspected

Section 94 of CrPC provides for the search of a place that is suspected to contain stolen property,
forged documents etc. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of
first-class may issue warrant to a police officer above the rank of a constable authorizing him to
enter, search, take possession of any property, convey any article or to take into custody upon
information and inquiry as the Magistrate thinks necessary or has reason to believe that any place is
used for deposit or sale of stolen property, or for the deposit or sale of stolen property or for the
deposit, sale or production of any objectionable article to which this section applies. The
objectionable articles as mentioned in this subsection (2) are counterfeit coin, pieces of metal made
in contravention of Metal Tokens Act,1889, counterfeit currency or stamps, forged documents, false
seals, obscene seals or objects referred to in Section 292 of IPC, 1860 and instruments or materials
used for the production of any of the article mentioned above.

Search for persons wrongfully confined

There is a provision under Section 97 of the Code of Criminal Procedure, 1973 which provides for
direction in case of search of persons wrongfully confined. It states that a District Magistrate, Sub-
divisional Magistrate or Magistrate of first-class has enough reason to believe that a person who is
confined under such circumstances that the confinement amounts to an offense, he may issue a
search warrant, and the person to whom such a search warrant is issued may be directed to search the
person so confined. And such search shall be made in accordance therewith, and the person on being
found shall be instantly taken before a Magistrate and he shall make such order as in the
circumstances of the case seems proper.

Power to compel restoration of abducted females

Section 98 states that where a woman or a female child under 18 years of age has been abducted or
unlawfully detained for an unlawful purpose, the Magistrate may restore the woman to her liberty or
the female child to her proper custody. A sufficient amount of force is allowed for compliance with
this section.

Power to declare a publication forfeited

The power to declare certain publications forfeited and to issue search warrants for the same is
mentioned under Section 95. It provides that where any newspaper, book or any document wherever
printed contains any matter, the publication of which is punishable under section 124-A, 153-A, 153-
B, 292, 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating
the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited
to the government. After such action, any Magistrate may, by a warrant, authorize any police officer
not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises
where there is a sufficient reason for suspicion. The meaning of the newspaper, book, and document
is contained in its explanation clause.

Constitutional validity of search warrants

The entire procedure specified in the Code of criminal procedure, 1973 is based on the principle of
justice and fairness. One of the basic principles of legal jurisprudence is that a person accused of any
offence should be given an equal chance to be heard and to defend himself. It is compatible with this
theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to the issue
of process, provisions in section 161(3), provision in section 162 of the code that any statement
recorded during the course of investigation, shall not be signed by the person making the statement,
has been specified.

Similarly, upholding a similar proposition, the protection against self-incrimination has been
provided as a special fundamental right, under Part III [Under Article 20(3)] of the Constitution of
India. It provides that no person who is accused of an offence can be compelled to be a witness
against himself.

In several cases, the constitutional validity of search warrant has been questioned. For instance, in
the case of V. S. Kuttan Pillai v. Ramakrishnan, wherein it was opined by the court that a search of
the premises occupied by the accused does not amount to compulsion on him to give evidence
against himself and hence was not violative of Article 20(3) of the Constitution of India.

Search of a place without warrant

Section 165 prescribes procedure undertaken by a police officer to search a place without a warrant.
It states that whenever an officer in charge of a police station or any police officer making an
investigation has reasonable grounds to believe that in the process of investigation, there are some
things necessary for an offence, which he is authorised to investigate within the local limits of his
police station without unnecessary delay, can search even without a search warrant. He is also
required to specify the reason for such a search, cause of search, etc. Section 165(3) provides that
where a police officer is unable to conduct the search in person, and there is no other person
competent to carry out the search at the time, then he may after recording in writing his reasons for
so doing, require any officer subordinate to him to make the search. The senior authorizing for the
same has to give the subordinate officer an order in writing, specifying the place of search, the reason
for which the search is made and subsequent to this the subordinate may thereupon search for such
thing in such place. The copies made by the police officer undertaking search shall be sent to the
nearest Magistrate empowered to take cognizance of the offense. On the application of the owner or
occupier of the place searched shall be furnished, free of cost with a copy of the same by the
Magistrate.

Search by a police officer during the investigation

The procedure adopted by a police officer during the search in an investigation is provided in Section
165. Section 165(1) provides that whenever an officer in charge of a police station or a police officer
making an investigation in a particular matter has reasonable grounds for believing that anything
necessary for the investigation into any offense on which he is authorized to investigate may be
found in any place within his local limits and that thing according to him be otherwise obtained
without unnecessary delay. Such officer may record the grounds of his belief in writing and
prescribing in such writing the thing for which the search is made, or cause a search to be made with
the local limits of his station. Section 165(2) authorize the police officer to conduct the search in
person. Section 165(3) states that if he is unable to conduct the search in person, he may after
recording in writing the reason for so doing authorize a person subordinate to him to conduct search.
Section 165(4) says that all the general conditions regarding the search warrant will be applied to this
section as contained in Section 100. Section 165(5) provides that copies of the record made in sub-
section (1) and (2)  should be sent to the Magistrate who is empowered to take cognizance of the
offence. The owner or occupier of the premises can also, on the application, be provided with a copy
of the same that is present with the Magistrate, without any cost.

Search In the presence of magistrates

Section 103 of CrPC states that the Magistrate may direct search in his presence. It provides that any
magistrate may order a search to be made in his presence of any place in which he is legally
competent to issue a search warrant.

Search in the limits of another police station

Section 166 provides the conditions under which the search is conducted in the limits of another
police station. Sub-section(1) states that an officer in charge of a police station or a police officer not
below the rank of sub-inspector making an investigation may if he requires an officer of another
police station whether in the same or different district to cause a search to be made in any place
within the limits of the former officer’s jurisdiction. Sub-section(2) the officer shall now carry out
the search according to the provisions of Section 165 and forward the thing found on such search to
the police officer at whose request the search is made. Sub-section (3) permits an investigating
officer who belongs to one police station to search any place that belongs to the limits of another’s
police station in certain emergency situations. The one that has been expressly mentioned is when
there is a possibility of delay in requisitioning the services of police personnel of another police
station and if such delay can destroy the very purpose of the search. Sub-section (4) says that the
officer in charge of conducting the search has to send a notice of search to the officer within whose
local jurisdiction such place is situated and shall also send a copy of the notice to the nearest
Magistrate. Sub-section (5) says that on the application of the owner of the premises of the place
searched, he shall be provided a free copy of the said notice that was sent to the Magistrate.

Search for false weights and measures

Section 153 provides for the inspection of weights and measures. This section authorizes a police
officer in charge of a police station to enter any place within the limits of such station for the purpose
of inspecting or searching for any weights or measures or instruments for weighing, used or kept
there without a warrant. The police officer must have a valid reason to believe that there are presence
of false weights, measures or instruments in that place. It also provides that if he finds such weights,
measures or instruments to be false, he has the option of seizing them or give information of such
seizure to the Magistrate within the jurisdiction.

Analysis of the general provision of search

Section 99, Section 100 and Section 101 contains the general provisions which are necessary while
carrying out the process of search. Section 100 primarily provides for the provision relating to
searches. This section provides the right of free ingress in the case of closed premises on demand and
on the production of the search warrant by the police officer. It also ensures that searches are
conducted fairly and squarely. 

Sub-section (1) provides that whenever any place which is liable to search of inspection is closed,
any person who is residing in, or being in charge of on-demand of the officer or other person
executing the warrant may allow him to free ingress(enter upon) into and afford all reasonable
facilities for a search therein.
Sub-section (2) provides that if ingress to such place can’t be obtained, then the officer may proceed
in the manner provided in Section 47(2) which provides for breaking a door or window. 

Sub-section (3) provides that where a person is suspected of concealing about his person any article
for which the search should be made can be searched. Where the search is made of a female then it
will be carried out by another female with strict regard to decency.

Sub-section (4) mandates that the police officer is required to call two or more independent and
respectable inhabitants of the locality in which the place to be searched is situated. If he cannot find
any such person or no such inhabitant of the locality is available then a person from the other locality
available or is willing can also be called upon to be a witness to such search.

Sub-section (5) requires a police officer to keep a record in writing the things seized on the search
and of the places in which they are respectively found, in the presence of the witnesses. The
witnesses who are present at the time of search under this section are not required to attend the court
as a witness of the search unless specially summoned by it.

Sub-section (6) states that the occupier whose place is searched or any other person on his behalf has
every right to attend the search and also be delivered a copy of the list prepared during the search
which is duly signed by the witnesses.

Sub-section (7) provides that the person who is searched under sub-section (3) shall be entitled to get
the copy that contains the list of all things taken in possession of at the time of the search.

Sub-section (8) states that a person who without reasonable cause refuses or neglects to attend and
witness a search 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. 

Section 101 prescribes for disposal of things found in search beyond the jurisdiction of the court.
When in the execution of a search warrant at any place beyond the jurisdiction of the court which
issued the warrant, the things found in such search shall immediately be taken before the court
issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction than to such
court, in which case the list and things and shall be taken to the Magistrate unless there is a good
cause to the contrary, such Magistrate shall make an order authorizing them to be taken to such court.
Consequences of non-compliance with the provisions relating to searches
There are different sections in the Code which prescribes for the effects when the provisions relating
to searches are not complied with.

Section 460 of CrPC prescribes that if a search warrant is issued under Section 94 by a Magistrate
who is not empowered by law to issue such warrant will not vitiate(destroy or impair) the
proceedings. A search warrant for the search of a place that is suspected to contain stolen property,
forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or
Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than
a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just
because the Magistrate was not empowered to issue such a warrant.

Section 461 also provides for irregularities which can vitiate the proceedings. It says that under
Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a
document, parcel or another thing in the custody of postal or telegraph authority. According to
Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same,
will make the warrant ineffective.

A Magistrate, not empowered by law, issues a search warrant in case of wrongful confinement under
Section 97, then the warrant will become illegal and any entry into such place subsequent to such
illegal warrant shall be considered to be without legal authority.

Magistrates not empowered to issue a search warrant

Section 460 states the circumstances in which a search warrant is not vitiated even when it is issued
by a Magistrate who has no authority to do so. A search warrant for the search of a place that is
suspected to contain stolen property, forged documents, etc can only be issued by a District
Magistrate, Sub-divisional Magistrate or a Magistrate of the first class. But, if a situation arises that
the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then
the warrant will not become ineffective just because the Magistrate was not empowered to issue such
a warrant.

Section 461 of CrPC clearly provides for conditions in which a search warrant will be illegal when a
Magistrate who is not empowered issues a warrant. It says that under Section 93(3) only a District
Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing
in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not
empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.

Search without warrant by police officers not authorized

It has been comprehended from various sections like Section 153, 165 and 166, that a place can be
searched by a police officer of a certain rank or any other person authorized by law without a
warrant. A search by any other police officer or any other person would be illegal and the sentry into
such place will also be unlawful. Even a search by a police officer outside the limits of his police
station and in the situations where he is not authorized to do so would be without legal authority and
illegal. [Section 166(3)]. Section 165 of the CrPC provides for an exception to this, which states that
where there is reasonable ground for if the search is not conducted immediately, then the valuable
evidence and facts will be destroyed then in such cases, he may straight away search, after sending
advance intimation to the court. It has been comprehended from various sections like Section 153,
165 and 166, that a place can be searched by a police officer of a certain rank or any other person
authorized by law without a warrant. A search by any other police officer or any other person would
be illegal and the sentry into such place will also be unlawful. Even a search by a police officer
outside the limits of his police station and in the situations where he is not authorized to do so would
be without legal authority and illegal [Section 166(3)]. Section 165 of the CrPC provides for an
exception to this, which states that where there is reasonable ground for if the search is not conducted
immediately, then the valuable evidence and facts will be destroyed then in such cases, he may
straight away conduct the search, after sending advance intimation to the court.

Effect of contravention of the search procedure

Section 100 of CrPC provides general procedures that need to be necessarily followed at the time of
the search. Besides this, Section 165 and Section 166 also provides for additional procedures to be
followed, when the search is made by a police officer without a warrant. Contravention of these
articles would make the search illegal or irregular. Whether the contravention would vitiate the
proceedings or not is provided in Section 460 and Section 461, discussed above.

Search with the consent of the occupant

If the entry into the place of search is with the consent of the occupant of such place, then the search
and recovery will not be affected on the ground that the search procedure mentioned under Section
100 and Section 165 was not followed. In addition to this, where it is proved that the articles were
produced by the accused himself, Section 165 of CrPC does not apply.
Bibliography

Statutes

The Code of Criminal Procedure, 1973

The Constitution of India, 1950

The Indian Penal Code, 1860

Books

R. V. Kelkar, Criminal Procedure, Eastern Book Co., Lucknow, 1998.

D. D. Basu, Criminal Procedure Code, 1973, Ashoka Law House, New Delhi, 2001

Other

Class Notes, Dr Mohd. Asad Malik, Professor concerned, CrPC – I .

Online resources

www.indiankaknoon.com

www.legalservicesindia.com

www.vakilno1.com

www.manupatra.com

www.lawcommissionofindia.nic.in

www.scconline.com

www.livelaw.in