3. Discuss the provisions relating to the search with warrant and without warrant.
The term ‘search’ denotes that action of government machinery which includes looking
through or examining carefully a place, area, person, object etc. in order to find something
concealed or for the purpose of discovering evidence of a crime. Such search of a person or
vehicle or premises or of any other thing can only be done by taking proper and valid
permission of law.
Search with warrant
A Search warrant is a written authority given to a police officer or another person by a
competent Magistrate or a court for the search of any either generally or for specified things
or for persons wrongfully detained.
Section 93 provides for two kinds of searches, one particular and the other general.
A general search means a search not in respect of specific documents or things which the
officer considered were necessary or desirable for the purpose of the investigation in hand,
but a roving inquiry for the purpose of discovering documents or things which might involve
persons in criminal liability ( Kalinga Tubes v D Suri, AIR 1953 Ori. 153 ).
Clauses (a) and (b) of sub-section (1) of section 93 provide for a ‘particular’ search and
clause (c) for a general search. A general search warrant can be issued as contemplated under
section 93(1)(c) of the Code, it cannot be issued in case covered under section 93(1) (a) of the
Code [Awadhesh Singh Tomar vs The State Of Madhya Pradesh (Writ Petition
No.2352/15)].
In the following circumstances and conditions a search warrant is issued by a Court under
Section 93 of CrPC :
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. [Section 93(1)(c)]
In the following circumstances and conditions search warrant is issued by the Magistrate:
1. Search of a place suspected- Section 94
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.
2. Power to declare a publication forfeited- Section 95
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.
3. Search for persons wrongfully confined- Section 97
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.
4. Power to compel restoration of abducted females – Section 98
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.
Search of a place without warrant
1. Search by a Police Officer during Investigation- Section 165
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(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) authorises 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.
2. Search In the presence of Magistrates- Section 103
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.
3. Power to conduct search in the limits of another police station- Section 166
Section 166 enables a police officer to effectuate the search of a place located beyond the
limits of his own police station, if the exigencies of the situation so require.
4. Search for false weights and measures- Section 153
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.
