A division bench of the Bombay High Court comprised of Justice TV Nalawade and Justice SM Gavhane elaborated upon some provisions in the CrPC while allowing a petition.
The petitioner claimed a 10 lakh rupees compensation for the illegal search conducted by the respondents, i.e. the police officers which infringed his fundamental right of privacy.
The petitioner complained that during the search, one Constable had tied to plant a revolver in his room but it was the alertness of the petitioner that prevented the event from happening. He also claimed that a search without proper documentation was a direct infringement of his Right to Privacy guaranteed to him under the Article 21 of the Constitution of India.
In an earlier order of the Court the Sub Divisional Police Officer was authorized to conduct a search. The petitioner complained that even though the designated authority was aware of the ill practice, he made no steps to correct them. The petitioner said that the respondents had nothing to show against him whil the respondent argued that the operation was done due to intelligence gathered.
The HC reiterated a case State v. Rehman AIR 1960 SC 210 where the court had held that “as search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power.” It was also observed that the provisions of Section 165 CrPC were enacted for the police to search in cases of urgency. The Court believed that as the police entered the house in the night especially when everyone was sleeping, the act was a gross violation of privacy. Moreover, the court stated that the respondents failed to show any record of the intelligence. Thus the court held that the action of the police was illegal. The state was thus liable to pay compensation to the petitioner.
Dnyaneshwar v. State of Maharashtra, Criminal Writ Petition No. 25 of 2019