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AUTHORITY OF POLICE TO SEARCH AND SEIZE UNDER CRPC
Literally, the term ‘search’ means looking for something and ‘seizure’ means to take physical possession of the thing for which the search is done. In the process of investigation, the term ‘search’ means to examine the individual or premises of the suspect in order to obtain material evidence. Search deprives the individual from enjoying the property, but it has to be carried for the legal purposes. Article 19(5) of the Constitution of India mentions that right to hold property is not absolute and this right comes with certain restrictions. In M.P. Sharma v. Satish Chandra[1], the Court held that such restrictions must be subject to certain restrictions. There can also be instances of concealing the material evidences. This power guaranteed to the Police is one of the significant powers during the investigation.
The Police have an authority to seize the property even in cases of non-cognizable offences. However, this can only be done under reasonable suspicion. In Bithal v. State[2],the Court held that only the Police officer is authorized to seize the property and he cannot order another individual to do so. In spite of these powers, the Police must adhere to certain procedure as enumerated under the Code.
Under Section 47 of CrPC, the Police officer or a person who has the authority to do so are free to enter and search the premises. However, under this Section the power can be exercised only when the officers are acting under a warrant of arrest. The Police Officer has the power to break open the door or window with an aim to liberate himself or another individual. As enumerated under Section 58 the Police have the power to search a person in any place in territory of India.
In situations where the Police makes a seizure or enters illegally or has no reasonable grounds to search or seize or an individual is arrested without any reason, then they will be liable to an imprisonment of 6 months or fine or both. In the same way, a person who gives wrong information so as to lead the Police to search or arrest or not acting in good faith will be liable to an imprisonment period of two years or fine or with both.
During the process of investigation, if the Police have reasonable belief can prepare a write up for the purpose of record mentioning the grounds and the object of search and for what search is made. Mere absence of recording the writing will not vitiate the trial procedure because an irregularity in the investigation is fixable unless such an act is not done with an intention of illegality.[3]This is enumerated under Section 165(1). Under this Section, the Police can conduct search within limits of the station. This Section does not refer to the cases in which search the Court issues warrant. After legislative changes, this Section authorizes a general search to take chance if anything can be found. In State of Rajasthan v. Rehman[4], the Court held that recording the reasons being material part of the process of search, it should not be claimed that the search was carried out in compliance with the provisions of the Code unless such material parts of the process are fulfilled.
During investigation, the Police out of the search will seize few articles, the Police has to prepare a seizure mahazar on spot in compliance with the Code. Usually the individuals put allegations upon the Police officials mentioning that the articles were falsely planted. In order to avoid this, the Police are directed to make seizure mahazar. If the search and seizure are conducted by adopting an illegal procedure then, such evidence cannot be admissible in the Court of Law.[5]The procedure taken up by the Police should not be in defiance of the law as it may cause prejudice to the accused. However, in State of M.P. v. Pallan Mallah[6], the Court observed that when an illegal search is made by the Police officials, the seizure made out of the search might not always be construed in the bad sense, the evidence obtained through illegal search can be used as evidence but the articles illegally seized will be a continuous and recurring illegality. So, the Court held that the evidence obtained by improper means is not per se inadmissible and is subject to the circumstances of the case.
This provision is also applied to other officers apart from Police officials. In situation of urgency, Section 165 shall be applicable to R.P.F. officers during an enquiry under Railway Property Act, 1966.[7]Analyzing the above cases, it is unobstructed that after legislative changes and judicial interpretation of the Courts the scope of Section 165 is broad and wide. The applicability of the Section extends to cases of general search by the Police officials. This has expanded the powers of Police.
[3]Parshotam Dass v. State, 1975 CrLJ 309, 312(Del)
