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ARREST, SEARCH, AND SEIZURE

Table of Contents

( Ss. 41 to 60) and (Ss. 91 to 105).

QUESTION BANK

1. Discuss fully the constitutional validity of search and seizure proceedings.

Q.2. Explain the provisions as to police search during investigation.

Q.3. Explain power and procedure of court in relation to proclamation of absconding accused and attachment of property of absconding person.

Q.4. Explain the circumstances in which an arrest without warrant can be made.

SYNOPSIS

A) ARREST (Ss. 41 to 60)-
Meaning-
Necessity of Arrest-

III. Arrest with a warrant-

III. Arrest without warrant-

Who may arrest?

a) Police officer (Ss. 41 and 42)-
b) Magistrate (S. 44)-
c) Private person (43)-
Arrest how made (S. 46)-
Right of arrested Persons-
i) Right to know grounds of arrest-
ii) Right to be informed about bail-

iii) Right to be produced before Magistrate-

iv) Right to inform relative or friend (S. 50 A)-
v) Right to consult lawyer-
vi) Right to be examined by doctor (S. 54)-
B) SERCH (Ss. 91 to 105)-
General –
Summons to produce things-

Constitutional validity of search and seizure-

III. Search with warrant-

(1) By Court –

(2) By Magistrate –

(3) By Police Officer(S.165)-

(4) By State Government

(5) By any person-

Search Without Warrant-
a) Search in magistrates presence (S.103)-
b) Search by Police officer (S.165)-
c) If situation so requires (S.166)-
d) Inspection of weight and measures (S.153)-
Procedure of conducting search (S.100)-

) Person in charge of closed to place allow search-

2) Break open any outer or inner door-

3) Search of a person concealing article.

4) Two or more witnesses-

5) Search in witnesses’ presence:

C). SEIZURE-

A) ARREST (Ss. 41 to 60):-

Ss. 41 to 60 of the Code deals with the arrest and rights of the arrested person. The arrest is the very first stage in the investigation and trial of an offence. A person can be arrested with or without a warrant from the court. In cognizable cases, the offender can be arrested without a warrant. (This topic is explained in light of the amendment carried on under the Code by Amendment Act, 2008. Ss. 41 A to 41 D; however, implementation of them differed)

I. Meaning:-

Arrest means “apprehension of a person by legal authority resulting in deprivation of his liberty”. In other words, arrest means “taking of a person in custody under legal authority”.

II. Necessity of Arrest:-

There are the following purposes of arrest-

i) to prevent further commission of an offence,
ii) to comply obedience to the order of the court of justice,

iii) to secure the attendance of an accused at trial and answer allegations against him.

III. Arrest with a warrant:-

A Magistrate may issue a warrant for arrest after taking cognizance of any offence, whether it is cognizable or non-cognizable. The distinction between a summons case and a warrant case is relevant here. If the case is a summons, the Magistrate issues a summons for the accused to appear before it. If it is a warrant case, the court issues a warrant to a police officer to arrest the accused.

Ss. 70 to 73 of the Code lay down detailed provisions regarding the form and contents of a warrant for arrest. Ss. 74 to 81 deal with the modes of its execution.

III. Arrest without warrant:-

Who may arrest?

The following persons may affect the arrest of the offender viz-

a) Police officer (Ss. 41 and 42):-

Police officers can arrest a person in the following circumstances even without a warrant from the Magistrate-

(a) who commits, in the presence of a police officer, a cognizable offence.

(b) who has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years for the following reasons-

i) to prevent the offender from committing any further offence,
ii) for proper investigation of the offence or

iii) to prevent the offender from disappearing or tampering with evidence.

iv) to prevent the offender from inducing, threatening, or promising to any person acquainted with the fact of the offence.
v) to secure his presence in court (which otherwise could not be preserved).

(d) in whose possession anything is found which may reasonably be suspected to be stolen property.

(e) who obstructs a police officer while in the execution of his duty, or who had escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union or

(g) who is concerned about an offence committed at any place out of India.

(h) who, being a released convict, commits a breach of any rule from a previous conviction.

(i) For whose arrest has any requisition been received from another police officer.

(j) who, in the presence of a police officer, has committed a non-cognizable offence and refused to give his true name and address (S. 42).

(k) who designs to commit a cognizable offence which cannot otherwise be presented (S. 151).

(l) whose suspension or remission of the sentence has been cancelled by the Government.

(m) who conceals his presence with a view to committing a cognizable offence (S. 109 and 41 (2)).

(n) who is a habitual robber, house-breaker, thief, forger, the receiver of stolen property, protector or harbourer of thieves, or a habitual offender (S. 110 and S.41 (2)).

(o) any desperate or dangerous person (S. 110 and S.41 (2).

However, no person concerned in a non-cognizable offence shall be arrested except under a warrant or order of a Magistrate.[1].

Notice of appearance before police officer (S. 41 A):-

The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-Section (1) of S. 41, issue a notice directing the person accused of a cognizable offence to appear before him or at such other place as may be specified in the notice.

b) Magistrate (S. 44):-

A Magistrate, whether executive or judicial, may arrest without a warrant-

i) any person who commits an offence in his presence;
ii) any person (who is a suspected offender) for whose arrest he is competent to issue a warrant.

c) Private person (43):-

A private person can arrest without a warrant-

i) any person who commits a non-cognizable and cognizable offence in his presence; or
ii) any person who is a proclaimed offender.

-and without unnecessary delay, make him over to a police officer.

IV. Arrest how made (S. 41B and S. 46):-

Sections 41B and S. 46 provide a manner as to how an arrest can be effected, viz-

i) Every police officer, while making an arrest, shall-
a) bear an accurate, visible, and clear identification of his name, which will facilitate easy identification;
b) prepare a memorandum of arrest, which shall be –

(i) attested by at least one witness, who is a member of the family or the person arrested or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and

c) Inform the person arrested that he has the right to be informed by a relative or friend named by him.

(ii) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested (unless there be a submission to the custody by word or action by the accused). However, provided that where a woman is to be arrested, her submission to custody on an oral intimation of arrest shall be presumed. Unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

(iii) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such police officer or another person may use all means necessary to effect the arrest.

(iv) No officer has the right to cause the death of a person who is not accused of an offence punishable with death or imprisonment for life.

(v) No woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall effect such arrest with the prior permission of the Magistrate.

V. Right of arrested Persons:-

Arrested persons have the following rights-

i) Right to know the grounds of his arrest[2]:-

A police officer or other persons affecting arrest shall communicate the grounds of his arrest to an accused.

ii) Right to be informed about bail[3]:-

A police officer arresting an offender without a warrant is duty-bound to inform the accused that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

iii) Right to be produced before Magistrate[4]:-

Any person arrested shall be produced before the nearest Magistrate without unnecessary delay and should not be detained for more than twenty-four hours.

iv) Right to inform relative or friend (S. 41 B and S. 50 A):-

Every arrested person has the right to have his relative or friend or other persons as may be disclosed or nominated by the arrested person being informed about the facts, time, and place of his arrest.

v) Right to consult a lawyer (Art. 22 of the Constitution and S. 41 D of the Code):-

Every person arrested has a right to consult a legal practitioner of his choice, even during interrogation.

vi) Right to be examined by doctor (S. 54):-

An arrested person can ask for a medical examination.

vii) Health and safety of arrested person (S. 55A)[5] :-

It shall be the duty of the person having custody of an accused to take reasonable care of the health and safety of the accused.

viii) Arrest to be made strictly according to the Code (S. 60 A)[6]:-

No arrest shall be made except in accordance with the provisions of the Code or any other law for the time being in force providing for arrest.

B) SEARCH:-

I. General:-

Search and seizure are the natural concomitants of the investigation process. Producing documents, things, and other material relevant for investigation, inquiry, or trial is necessary. The right to search and seizure is necessary for the investigation. So, relevant documents, things, and other material must be produced before the court for inquiry and trial. Ss. 91 to 105 deal with the process to compel the production of things, documents, or other relevant materials. Search means trying to find something by seeing or examining it thoroughly and carefully.

II. Summons to produce things:-

When a Court or an officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry or trial, or other proceedings, the court may issue a summons or the officer may pass an order to the person in whose possession or power such document or things are to produce it at specified time and place. Such document may be produced by the person himself or any other person on his behalf.

However, the above rule does not apply to –

a) Any unpublished record relating to any affairs of the state or certain confidential official communication[7].
b) Any letter, telegram, etc., in the custody of postal or telegraph authority (because there are separate rules regarding the production of things in their custody) S.92
c) Accused person (Art 20(3) of the Indian Constitution prohibits such production summons or notice to an accused on the ground of self-incrimination.)

The constitutional validity of search and seizure:-

In Sabbayya v. the State of Karnataka[8].

Held- That search is a temporary interference with the right to hold premises to be searched. Therefore, it does not violate Art.14 or Art.19 of the Indian Constitution. Similarly, the provisions relating to search and seizure do not violate Art 30 (3) against self-incrimination.

However, the Court cannot issue a summons or a police officer a written order to the accused to produce any document necessary for any investigation, inquiry, or trial because it affects Art. 20(3).

III. Search with a warrant:-

A search is a written authority given to a police officer or other person by a magistrate or court to search any place for specific things, documents, or persons wrongfully detained.

A search is a coercive method that amounts to an invasion of the sanctity and privacy of a citizen’s home. The Code provides that the power to issue a search warrant should be exercised with all care and circumspection.

A search warrant may be issued in the following cases –

(1) By Court:-

The court may issue a search warrant in the following cases –

(a) Where the Court has reason to believe that a person to whom summons, order, or requisition has been addressed will not produce the document or thing as required, or

(b) Where such document or thing is not known to the Court to have any person.

(c) Where the Court considers that the purpose of any inquiry, trial, or other proceedings will be served by a general search or inspection[9].

(2) By Magistrate:-

A Magistrate may issue a search warrant in the following cases –

(a) Where a District Magistrate, Sub Divisional Magistrate, OR JMFC has reason to believe that any place is used for the deposit or sale of stolen property or the deposit, sale, or production of any objectionable article like counterfeit coins, stamps, currency notes, false seals, etc[10].

(b) Where DM, SDM or JMFC has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence[11].

(3) By Police Officer (S.165):-

Where an officer in charge of a police station or a police officer making an investigation has reasonable grounds to believe that anything necessary for the purpose of an investigation into any offence cannot be obtained without undue delay and without issuing a search warrant.

(4) By State Government:-

State Government issues a search warrant when it appears to the State Government that a newspaper, book, or document contains any matter, the publication of which is punishable under S.124A (relating to seduction), S. 153A (relating to promoting enmity between different groups). S.153B (imputation prejudicial to nation integration), S.292 (Sale of obscene literature), S.293 (sale of obscene objects), or S.295A (Outrageous religious feelings) of the Indian Penal Code.

(5) By any person:-

A Police officer or any other person can issue a search warrant where any person acting under a warrant of arrest has reason to believe that a person to be arrested has entered into or has been kept at any place, and the person in charge of that place does not allow free ingress and offers facilities for search.[12].

IV. Search Without Warrant:-

a) Search in magistrates’ presence (S.103):-

Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a warrant.

b) Search by Police officer (S.165):-

According to this section, police officers can make a search without a warrant under the following conditions –

The search may be necessary for investigation.
The offence must be such that the police officer is authorised to investigate, i.e., it must be a cognizable offence.
Reasonable grounds must exist for believing that the thing required will be found in a place.
There would be undue delay in getting the thing any other way.
Grounds of belief regarding the necessity of search must be previously recorded. If the grounds are not recorded, the search will be illegal.

c) If the situation so requires (S.166):-

If the situation requires a police officer to be able to effectuate a search without a warrant of a place located beyond the limits of his police station, he can arrange the search through the concerned station House Officer or, in case of urgency, by the police officer himself.

d) Inspection of weight and measures (S.153):-

Officers in police stations can enter any place within the limits of such stations for the purpose of inspecting or searching for false weights or measures.

V. Procedure of conducting a search (S.100):-

The following procedure is to be applied while conducting a search, except for the search for false weights and measures-

1) Person in charge of closed place to allow search:-

Whenever any place liable to search or inspection is closed, any person in occupation of such place shall, on demand of a person making the search, allow free ingress thereto and afford all reasonable facilities for a search therein.

The occupant of the place searched or some person on his behalf shall, in every instance, be permitted to attend the search, and a copy of the list prepared of searched articles, signed by the witnesses, shall be delivered to such occupant or person.

2) Break open any outer or inner door:-

If ingress to a place can not be obtained, the person conducting the search can enter the place and in order to effect an interference into such place, can break open any outer or inner door or window.[13].

3) Search for a person concealing an article:-

When any person in or above such place is reasonably suspected of concealing on his person any article for which a search should be made, such person may be searched. If such a person is a woman, the search shall be made by another woman with strict regard to decency. When any person is so searched, the list of all things taken from such person’s possession shall be prepared, and a copy thereof shall be delivered to such person.

4) Two or more witnesses:-

Before making the search, the officer or other person shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated to attain and witness the search and may issue an order in writing to them. Any person who, without a reasonable cause, refuses or neglects to attend a witness search when called upon to do so by an order in writing shall be deemed to have committed an offence under S.187 of the Indian Penal Code.

5) Search in witnesses’ presence: –

The search shall be made in the presence of witnesses, and a list of all things seized in the course of such search is to be prepared.

Provisions under this topic are made to ensure a fair search.

C) SEIZURE:-

‘Seizure’ is the ‘taking possession of property by an officer under legal process.’

(1) Power of police officer to seize certain property:-

Any police officer may seize any property alleged or suspected to have been stolen, which may be found under the circumstances which create suspicion of the commission of any offence.

(2) Duty to report:-

If a subordinate police officer makes a seizure, he shall forthwith report of seizure to the office in charge of a police station. The Officer in charge of the police station then has to report the seizure to the Magistrate.

(3) Power to seize documents: –

Any Court may, if it thinks fit, impound any document or thing produced before it.

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[1] S. 41 is explained as amended by 2008 amendment in the Code specifically in S. 41 Cl. (1) (a) and (b).

[2] Art. 22 of the Constitution and Ss. 50 (1), 55 and 75 of the Code.

[3] (S. 50 (2).

[4] Ss. 56, 57, 76 of the Coder and Art. 22 (2) of the Indian Constitution.

[5] Inserted by Amendment Act, 2008.

[6] Inserted by Amendment Act, 2008

[7] S.123 & 124 of Indian Evidence Act 1872, or the Banker’s Books Evidence Act 1891

[8] AIR 1979 SC 711

[9] S.93 (1)

[10] S.94

[11] S.97

[12] S.47

[13] S.100 lead with S.47(2) of the code.