ANSWER-3

INTRODUCTION
The word ‘Search’ generally means looking for a thing and ‘Seizure’ means taking possession
of the thing physically for which search is made. For the purpose of investigation, search
means the examination of a man’s person or the premises to discover evidence and material
objects to connect the accused with the offence he has committed. A successful search, not
only will deprive the offender of the enjoyment of the property but also fix him with the crime,
which he committed. The offenders always conceal the material objects either in a cavity
caused by nature or by artificial means. It may also be done by blatant display of things; the
power of search is one of the most important powers conferred on an I.O. or an officer in-
charge of a Police Station by law. This power is even greater than the power of arrest, as arrest
can be made even by a private person if a cognizable and non-bailable offence is committed in
his presence but a private person has no power of search.
Search and seizure is a significant stage in the process of effective investigation. There are two
ways by which the police can affect search and seizure. One under a warrant issued under any
of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any of
the provisions of Sections 103, 165 and 166. General provisions as to search and seizure are
set out in Section 100 of CrPC. The procedure laid down in the section is generally followed in
offences committed under the Indian Penal Code as well as in special and local laws with a
little variance. Thus, in all circumstances of search and seizure, the investigating police should
follow the procedures laid down under Sections 100 and 165 of Code of Criminal Procedure.
The statutory power of search and seizure and the regulation thereof by the statute is the power
under certain sections of the Code of Criminal Procedure. Apart from the power of search and
seizure in relation to particular matters or in special circumstances, the general provisions we
have is the one made in Section 93, of the Code of Criminal Procedure. Under the said Section
where any Court has reason to believe that person to whom a summons or order or a
requisition has been or might be addressed, will not produce the document or things as
required by such summons or requisitions, or where such document or thing is not known to
the court to be in the possession of any person, or where the court considers that the purposes
of any enquiry, trial or other proceeding under the Code will be served by a general search of
inspection, it may issue a search warrant. Section 93(2) empowers the court which issued a
search warrant to restrict the same in such manner as it may think fit.
Section 100 (4) to (8) of the code contains detailed provisions regarding the manner in which a
search should be conducted. All such searches must be conducted pursuant to and in
accordance with the terms of a warrant issued by a Magistrate. The documents or things
searched are also produced before the Magistrate where after they will be used as evidence in
connection with some proceeding in accordance with some proceeding in accordance with the
provisions general or special of the Evidence Act.
With reference to investigations into offences, the provisions of the Code of Criminal
Procedure authorize a search by an investigating police office even without obtaining a search
warrant from a Magistrate in cases of emergency subject to certain strict conditions such as the
previous recording of the reasons by the investigating officer and subsequent submission by
him of a report of the result of the search to the judicial Magistrate. Such searches are also
governed by the general provisions contained in Section 100 of the Code.
The Code of Criminal Procedure is a pre-Constitutional law. After the promulgation of the
Constitution, questions were raised as to whether the provisions relating to search contained in
the Code of Criminal Procedure were, and if so, to what extent, violative of any of the
Fundamental Rights guaranteed under the Constitution.
The Supreme Court in M.P.Sharma v. Satish Chandra, 1954 pointed out that the whole
idea conveyed or all ideas conveyed by the American Fourth Amendment has not or have not
been incorporated in our Constitution and that therefore, there is no justification to import into
it a totally different Fundamental Right by some process of strained construction. It further
observed that a coercive search of any place is an encroachment upon the rights of the
occupant of the place. But even in a free society like ours, such encroachment will have to be
tolerated in the larger interests of the society. The provisions in the Code strive to strike a
balance between the interests of the individual and of the society by providing certain
safeguards in favour of the individual.
It has been observed in State v. Bhawani Singh, 1968 Delhi HC - “An Indian Citizen's house,
it must always be remembered, is his castle, because next to his personal freedom comes the
freedom of his home. Just as a citizen cannot be deprived of his personal liberty except under
authority of law, similarly, no officer of the State has a prerogative right to forcibly enter a
citizen's house except under the authority of law which, it maybe courts of law and justice. In
our egalitarian set-up under the Constitution framed after deep deliberation, the poorest man in
his thatched mud-hut or in his cottage, even though made of straw, is entitled to resist and defy
forcible entry except when such entry has the sanction and authority of law.”
SEARCH AND SEIZURE AT THE SCENE OF CRIME
As soon as the investigating police officer arrives at the scene of crime, he should, as a golden
rule, never alter the position of the scene of crime, pick up, even touch any object before it has
been minutely described in an official note, and a photograph taken of it. He should contact the
man who reached the scene first and make enquires. He should ensure that the scene of crime
is not interfered with. He should not allow any unauthorized person to meddle in the inspection
of the scene. He should avoid crowding at the spot and all thoughtless interference, as they
always result in the destruction of clues. He should never leave the inspection of the scene to
his subordinates especially those who are untrained. He should never take anything to be trivial
but make his inspection thorough and minute; and search methodically, patiently and in a
definite order. He should summon some local and independent witnesses to assist him to draw
panchnama as required under S.100, CrPC .
The investigating police officer causing the search should take down accurate and detailed
notes, supported by accurate sketches drawn to scale, showing the whole lay-out and the exact
places where the articles, etc., were found. An article is in a certain room or on a particular
table. Its exact position must be noted and, if necessary, an enlarged sketch of that portion of
the scene must be drawn by a qualified draftsman. They introduce method into investigation
and help judges, magistrates, and others to an accurate understanding of case. They also enrich
the powers of observation of investigating police officer. The sketches should be prepared to
scale indicating the compass point and mentioning the distance correctly. Invariably he should
use a ruler, scale and compass for measurements at the scene of crime.
The Apex Court has held in the case of Partap Singh (Dr.) v. Director of Enforcement, 1985
SC that the provisions contained in CrPC relating to search and seizure are safeguards to
prevent the clandestine use of powers conferred on the law-enforcing authorities. They are
powers incidental to the conduct of investigation and the legislature has imposed certain
conditions for carrying out search and seizure in the Code.
S.47 CrPC states any Police Officer having authority to arrest any person accused of an
offence can search a place where the accused is hiding without a warrant of search. If the
Police Officer is not allowed to enter the place, he can use force to gain entry to arrest the
accused. If such place is in occupation of a female, the Police Officer should give her
sufficient notice to withdraw herself in carrying out his duties. If in order to arrest suspected
person, the Police Officer enters into a building, his action prima facie justifiable. Where the
door is open, it is not required that the Police Officer should wait and make a formal demand
to the occupier for entry in the house. This Section provides that no warrant is needed to search
under certain circumstances a person who has been arrested by a Police Officer or, made over
to Police Officer by a private person after the arrest. When the person of a female is to be
searched, it should be searched by another female and it should be done with strict regard to
decency. If any articles were seized from any such person, a receipt for the same should be
given to him.
S.52 CrPC provides that whenever a person is arrested under the CrPC, the officer making
arrest of such person may seize any offensive weapon found in his possession and produce the
same before the Court along with the arrested person.
In Bimal Kanti v. M. Chandrasekhar Rao, 1986 Orissa HC it has been ruled that the Court
before issuing a search warrant must have reasons to believe that the persons to who summons
under S.91, CrPC are to be issued would not produce the document. The Court further ruled
that the expression “reasons to believe” would mean that there must be some justifiable ground
for the Court to form that opinion.
SEARCH 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. A search is a coercive method and involves invasion of the
sanctity and privacy of a citizen's home or premises. It has therefore been repeatedly observed
that the power to issue search warrant should be exercised with all the care and
circumspection. According to the provisions of the Code, search-warrants may be issued under
six circumstances. Search Warrants are of two types namely, 1. General Warrant 2.
Special/Particular Warrant. Three of the circumstances are covered by S.93 which provides:

(a) According to Section 93(1)(a) a search warrant may be issued where a Court has
reason to believe that a person to whom a summons or order under Section 91 or a
requisition under Section 92(1) has been addressed will not produce the document or
thing as required by such summons or requisition.
(b) A search warrant may also be issued where any document or other thing necessary or
desirable for the purposes of any investigation, inquiry, trial or other proceeding under
the Code is not known to the Court to be in the possession of any person. [S. 93(1)(b)]
(c) A search warrant for a general search or inspection can be issued by a Court where it
considers that the purposes of any inquiry, trial or other proceedings under the Code
would be served by such a general search or inspection. [S. 93(1)(c)].
The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to
which only the search or inspection shall extend; and the person charged with the execution of
such warrant shall then search or inspect only the place or part so specified. Only a District
Magistrate or Chief Judicial Magistrate can grant a warrant to search for a document, parcel or
other thing in the custody of the postal or telegraph authority. A warrant for a search of a place
suspected to contain stolen property, forged documents, etc can be issued under S.94 which is
given below:
Search of place to suspected to contain stolen property, forged documents, etc is specified under
S.94 of the Code whereby the section makes it clear that

i) the search-warrant can be issued only be a District Magistrate, Sub-Divisional

Magistrate, or a Magistrate of the first class;
ii) the person authorized to search must be police officer above the rank of a
constable.
In Dinesh Auto Finance v. State of AP., 1986 A.P. High Court it has been observed that
before a warrant is issued the Magistrate concerned must have reason to believe that the place
is used for the deposit or sale of stolen property etc.

Where any newspaper, book or any document contains any matter, the publication of which is
punishable u/s124-A (Sedition), or S.153-A (Promoting enmity between classes) or S.153-B
(Imputations, assertions prejudicial to national integration) or S.292 (Sale etc. of obscene
books etc.) or S.293 (Sale etc. of obscene objects to young persons) or S.295-A (Maliciously
insulting the religion or the religious beliefs of any class) of the IPC, S.95, CrPC empowers the
State Government that it may declare every copy of the newspaper containing such matter and
every copy of such book or other document to be forfeited to the government. Upon such a
declaration of forfeiture any Magistrate may by warrant authorize any police officer not below
the rank of sub-inspector to enter upon and search for the same in any premises where any
copy of such issue of the newspaper or any such book or other documents may be, or may be
reasonably suspected to be [Sec.95(1)].

If any person is confined under such circumstances that the confinement amounts to an
offence, a search-warrant may be issued for the person so confined. This has been provided by
S.97 which specifies the search against wrongfully confined person whereby, any District
Magistrate, Sub-Divisional Magistrate or Magistrate of the first class has reason to believe that
any person is confined under such circumstances that the confinement amounts to an offence,
he may issue a search warrant, and the person to whom such warrant is directed may search for
the person so confined; and such search shall be made in accordance therewith, and the person,
if found, shall be immediately taken before a Magistrate, who shall make such order as in the
circumstances of the case seems proper. In Jay Engg. Works v. State, 1968 Calcutta HC it
has been held that the warrant under this section is in the nature of a writ of habeas corpus for
rescue of a wrongfully confined person by intervention of police directed by a magisterial
order.

Before a warrant is issued under this section the Magistrate has to satisfy himself that a person
has been wrongfully detained. However the section does not cast any obligation on the
Magistrate to hold a detailed inquiry or to record such findings which are necessary after
adjudication. Nor is there any for the affected party to be heard before the Magistrate issues the
search warrant.

In case of a person wrongfully confined a warrant can be issued under this section for his
rescue. An additional special provision has been made by S.98 to compel restoration of
abducted females. In Abraham v. Mahtabo, 1889 Calcutta HC it has been observed that this
section is intended to give immediate relief to a woman or girl abducted or detained for any
unlawful purpose. An action under this section cannot be taken except upon a complaint on
oath; however a protracted inquiry is not contemplated by the section as that would defeat the
object of the provision. In Abdul Jalil Khan v. Emperor, 1936 Allahabad HC it has been
observed that the only order that can be passed under this section is one to restore the female to
her liberty or to her lawful guardian. To issue a warrant for the arrest of the female is not
permissible under this section but that could be possible under S.97.

CONSTITUTIONAL VALIDITY OF SEARCH-WARRANTS

A question might be raised as to the constitutional validity of a search warrant where it relates
to the documents or things in possession of the accused person or where the warrant is for a
general search or inspection of the premises in possession or occupation of the accused person.
It has been considered that a court is precluded from issuing a summons to an accused person
to produce any document or thing in custody as that would be violative of A.20(3) of the
Constitution. It is also seen that a search-warrant u/s.93(1)(a) could be issued only in cases
where a summons has been issued or might have been issued. Therefore, a search-warrant for
the documents or things in possession of the accused could not be issued. However, search-
warrant issued u/s.93(I)(b) for particular things or documents not known to the court to be in
possession of any person, or a warrant for a general search of the premises in possession of the
accused person, or a search-warrant u/Ss. 94, 95 or 97 in respect of any particular property or
person in possession or custody of the accused person, cannot be taken to be violative of
Article 20(3) of the Constitution which gives protection to the accused person against
testimonial compulsion. In these cases the search and consequent seizure of documents or
other things are not the acts of the accused person at all, much less his testimonial acts
amounting to self-incrimination.

Search-warrant is addressed to an officer of the government, generally a police officer. Neither

the search nor the seizure is acts of the occupier of the searched premises. They are acts of
another to which he is obliged to submit and are therefore, not his testimonial acts in any
sense. It is easy to see how a different view would lead to monstrous results. The Constitution
is not intended to be a charter for the lawless and there is nothing in Article 20(3) of the
Constitution to prevent a search under the provisions of the Code.

SEARCH OF A PLACE WITHOUT WARRANT

Magistrate may direct search in his presence. - A Magistrate competent to issue a search
warrant under six circumstances u/s 99 and may direct a search to be made in his presence if
he considers it advisable, and in such a case it would not be necessary to formally issue a
search-warrant. Magistrate may direct search in his presence u/s. 103 to be made in his
presence of any place for the search of which he is competent to issue a search-warrant.
Further, although, a citizen should have in his house a full and free life undisturbed by
executive action but police officer can search a place during investigation However, in the
larger interests of the administration of justice it becomes necessary that public officers
engaged in investigations and inquiries relating to offences or suspected offences should be
afforded fair and reasonable facilities for searches. The decision as to whether a search of a
citizen’s house is essential in the larger interests of society ought to be basically a judicial
decision. Therefore the duty of balancing the two conflicting considerations in diverse
circumstances has been vested in the Magistrate or court issuing search-warrants under the
provisions of the Code but S.165 CrPC has been enacted as an exception to this general law of
searches because it is recognized that in certain exceptional emergencies it is necessary to
empower responsible police officers to carry out searches without first applying to the Courts
for authority. The legislature has however attempted to restrict and limit the powers of the
police under this section, and has provided the citizens concerned with safeguards in order to
prevent the abuse of these powers.

S.165 specifies search by police officers whereby whenever an officer in charge of a police
station or a police officer making an investigation has reasonable grounds for believing that
anything necessary for the purposes of an investigation into any offence which he is authorized
to investigate may be found in any place within the limits of the police station of which he is in
charge, or to which he is attached, and that such thing cannot in his opinion be otherwise
obtained without undue delay. Such officer may, after recording in writing the grounds of his
belief and specially in such writing, so far as possible, the thing for which search is to be made,
search, or cause search to be made, for such thing in any place within the limits of such station.
The search shall be conducted by the police officer in person. Further, if he is unable to
conduct the search in person, and there is no other person competent to make the search
present at the time, he may, after recording his reasons for so doing, require any officer
subordinate to him to make the search, and shall deliver to such subordinate officer an order in
writing, specifying the place to be searched, and so far as possible, the thing for which search
is to be made; and such subordinate officer may thereupon search for such thing in such place.
S.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. Search for false weights and
measures- Where a police officer in charge of a police station has reason to believe that
weights, measures or instruments for weighing which are false, are used or kept in any place,
he can inspect and search the place and may seize such weights, measures etc. this has been
provided by S.153.

GENERAL PROVISIONS RELATING TO SEARCHES

Whether a search is made under a warrant issued under any of the Sections 93, 94, 95 and 97
or whether it is conducted without a warrant under any of the provisions of Sections 103, 165
and 166, the provisions of Section 100 have been made applicable. It has been reiterated by the
Supreme Court that if the discovery of a fact is otherwise reliable its evidentiary value is not
diminished by reason of non-compliance of Section 100(4) and 100(5). Sections 100 and 165
have been held applicable to searches made under the Narcotic Drugs and Psychotropic
Substances Act, 1985 also. Mere non-compliance of the provisions in the Code would not by
itself vitiate the prosecution. But it has been held in State of Punjab v. Balbir Singh, 1994
SC that if the person searched is not informed of his right to demand that the search be made in
the presence of a gazetted officer or a Magistrate as provided for under the Act, it may vitiate
the proceedings. The only case where these provisions have not been expressly made
applicable is a search without warrant under Section 155 for false weights, measures, etc. It is,
however, submitted that even in such a case the provisions of Section 100 would be made
applicable to the extent it is practicable to do so. The section has three important aspects: a) the
occupant of a place liable to search is required to give all reasonable facilities to the persons
authorized to conduct a search; b) the police and others authorized to search are armed with
necessary powers for the proper and effective execution of the search; c) procedures have been
designed “to obtain as reliable evidence as possible of the search and to exclude the
possibility of any concoction, or malpractice of any kind”.
CONSEQUENCES OF NON-COMPLIANCE WITH THE PROVISIONS RELATED
TO SEARCH
A search warrant for a search of place suspected to contain stolen property, forged documents
etc. can only be issued by a DM, SDM or Magistrate(Class-I). If however such a warrant is
issued by another Magistrate erroneously and in good faith, such a warrant shall not be
ineffective merely on the ground that the Magistrate was not empowered to issue the same.
This has been specifically provided in S. 460. Search without warrant by police officers not
authorized – It has been seen that under Ss. 153, 165 and 166, a place can be searched without
a warrant by a police officer of a certain rank or by one specifically authorized according to the
provisions of Law.
Effect of contravention of the search procedure –Section 100 generally provides for the
procedure to be followed in case of every search of a place. Besides, Sections 165 and 166
provide for additional procedures to be followed when the search is made by a police officer
without warrant. In Sharda Singh v. State of UP, 1999 Allahabad HC the court opined that
the contravention of these provisions would make the search illegal or at least irregular.

Finding or sentence when reversible by reason of error, omission or irregularity is specified

under S.465, CrPC whereby on finding sentence or order passed by a court of competent
jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on
account of any error, omission or irregularity in the complaint, summons, warrant,
proclamation, order, judgment or other proceedings before or during trial or in any inquiry or
other proceedings or any error/ irregularity in any sanction for the prosecution unless in the
opinion of that court, a failure of justice has in fact been occasioned thereby. In determining
whether any error, omission or irregularity in any proceeding or any error, or irregularity in
any sanction for the prosecution has occasioned a failure of justice, the court shall regard to the
fact whether the objection could and should have been raised at an earlier stage in the
proceedings.

Search with consent of the occupant if the entry into the place of search and the subsequent
search are with the consent of the occupant, the search and recovery will not be affected on the
ground that the search procedure in Sections 100 and 165 was not followed. Where it is alleged
that the articles were produced by the accused person himself S.165 does not apply.
Where a search-warrant is issued for the search of any particular things, the police officer or
other person making the search has been empowered to seize such things if recovered during
such search. Similarly, where a police officer during the investigation of any offence searches
place for any particular things, he has the power to seize such things if recovered in the
search. This has been provided either expressly or impliedly in Ss. 93, 94, 95, 100(5) and (7)
which have already been considered. However, the police officer making any search has far
wider powers to seize any incriminating things other than the specified things for which the
search is made. Such powers are necessary for the effective discharge of police functions and
have been provided by Section 102.
The provision is particularly useful when the search is under a warrant for a general search.
The section has a wide sweep and is not restricted to recoveries during the search alone, nor is
it confined only to cases in respect of cognizable offences. In Babulal Agarwalla v. Province
of Orissa, (1954) Orissa HC the words “any offence” show unmistakably that even though
there may be the commission of a non- cognizable offence, a police officer may seize any
property found under suspicious circumstances.

The Madras High Court has ruled that in case of seizure of bank account, the police officer
should do two things. Firstly, he should inform the Magistrate concerned forthwith regarding
the prohibitory orders. He should also give notice of the seizure to the accused and allow him
to operate the bank account subject to his executing a bond, undertaking to provide the
accounts in Court as and when required to hold them subject to such orders. It may be
pertinent to notice that according to S.104 “any Court may, if it thinks fit, impound any
document or thing produced before it under this Code”.

In the case State of Maharashtra v. Tapas B. Nyogi 2007 Delhi HC the question was raised
whether police officer investigating into offence can issue prohibitory order seizing into bank
account of the accused u/s. 102, CrPC? The court held that police in course of investigation
can seize and prohibitory the operation of said account if such asset has direct link with
commission of offence for which police is investigating.

Further, in the case of Suresh Nanda v. CBI, 2008 SC it was observed that seizing of passport
is allowed by police. It is permissible under authorizing S.102 but the police has impounding
for a certain period authorized under S.10(3), Passport Authority Act.

Moreover, in the case of State of Punjab v. Balbeer Singh 1994 SC it was observed that the
intrusion in life of people but also tampering of privacy under Ss.100, 165 and 168, CrPC
prescribes certain checks on the power of the police. The Hon’ble Supreme Court in State of
M.P. v. Paltan Mallah 2005 SC has held that in India, the evidence obtained under illegal
search is not completely excluded unless it has caused serious prejudice to the accused. The
discretion has always been given to the court to decide whether such evidence is to be accepted
or not.

In Radhakishan v. State of U.P. 1963 SC the court held so far as the alleged illegality of the
search is concerned it is sufficient to say that even assuming that the search was illegal the
seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and
165 of the Code of Criminal Procedure are contravened the search could be resisted by the
person whose premises are sought to be searched. It may also be that because of the illegality
of the search the Court may be inclined to examine carefully the evidence regarding the
seizure. But beyond these two consequences no further consequence ensues. In Modan Singh
v. State of Rajasthan 1978 SC, it has been held that “If the evidence of the investigating
officer who recovered the material objects is convincing, the evidence as to recovery need not
be rejected on the ground that seizure witnesses do not support the prosecution version.”

PROCEDURE TO BE FOLLOWED DURING SEARCH AND SEIZURE U/S 100 OF

CRPC
The investigating police officer while conducting search has to bear in mind the following
procedures and follow them accordingly. Any deviations or violations of the procedures laid
down under the S.100, CrPC will adversely affect the prosecution case and vitiate the trial as
well. The procedures in simplified form are as follows:

1. The free ingress and reasonable facilities are to be made under both for search under a
warrant as well as for a search without a warrant.

2. The police officer or other conducting the search is empowered to enter the place and in
order to effect an entrance into such a place can break open an outer or inner door or window
of any house or place if after notification of his authority and purpose, and demand of
admittance duly made, he could not otherwise obtain admittance. S.47(2) provides a
safeguard in favour of a pardanash in woman and the same would apply in case of a search
also. Further, it has been held that if in the exercise of the power or the performance of the
official duty, improper or unlawful obstruction or resistance is encountered, there must be the
right to use reasonable means to remove the obstruction or overcome the resistance. This
accords with common sense and does not seem contrary to any principle of law.

3. In order to obviate the chance of any person stealthily taking away on his person any
article or thing for which the search of a place is to be made, S.100 (3) provides for the search
of such a person. The provision is necessary to prevent the object of the search getting
frustrated. If the person to be searched is a woman, then, in order to protect her modesty it
has been provided that the search shall be made by another woman with strict regard to
decency.
4. The search is to be made in the presence of at least two independent and respectable
inhabitants of the locality in which the place to be searched is situated. However, if no such
inhabitant of the said locality is available or willing to be a witness to the search, the search
can be made in the presence of persons of other locality. What is more important to be
emphasized is the respectability of the witness rather than his locality or independence. The
object of the provision is to guard against possible chicanery and unfair dealings on the part
of the persons authorized to search and ensure that anything incriminating which may be said
to have been found in the premises searched was really found there and was not introduced
by the members of the search-party. The presence of witnesses at a search is always desirable
and their absence will weaken and may sometimes destroy the admissibility of the evidence
as to the finding of the articles. S.100(4) also lays down that the officer or other person
making the search is to call the above-said persons to attend and witness the search and they
make for this purpose issue a written order to them. If a person so ordered to be a witness
neglects or refuses without reasonable cause to attend and witness a search, then according to
S.100(8), CrPC he shall be deemed to have committed an offence under S.187 IPC.

5. As far as possible a search has to be conducted in daylight. If information is received after

dusk necessitating the immediate search of a house and if it is apprehended that delay till
daybreak might result in evidence being concealed or destroyed, the house should be sealed
and guarded and if that is not possible, search should be conducted during the night itself.

6. Before entering the premises to be searched, the exterior of the place shall be inspected to
see whether facilities for introducing property from outside exist. Before commencing search
the investigating and the panch witnesses should ensure that mutual search of each other is
done. Search and seizure must be systematic and thorough.

9. Women should be allowed to withdraw while effecting search and seizure. Indiscriminate
search and damage to property should be avoided.

10. The occupant of the place of search, or his nominee, shall in every case be permitted to
attend during the search. Denial of such permission may cause suspicion as to the reliability
of the discoveries made out. However, where the securing of the presence of the occupier or
his nominee might cause such delay as to frustrate the purpose of the search, it may be
permissible to dispense with his presence.
11. List of all things seized in the course of the search and of the places in which they are
respectively found shall be prepared by the police officer or other person making the search
and shall be signed by the panch witnesses. The signature of the accused on the search is not
required under law.

13. A search list shall be prepared in quadruplicate, all the copies being signed by the police
officer making the search and the witnesses to the search. One copy will be handed over to
the owner or occupant of the house, the second copy should be sent to the Magistrate and the
third copy should be sent with the case diary to the superior officer to whom case diaries are
sent. The fourth copy will form the station record.

CONCLUSION

Search and seizure is a significant step in the process of effective investigation. S.165 CrPC
empowers the investigating police to search any place for the purpose of investigation within
their police station limits without prior search warrant from the court and by making record of
reasons. Section 166 CrPC empowers the investigating police search or cause to be searched
a place in other police station limits. The investigating police while effecting search and
seizure have to follow certain procedures laid down u/s100 of CrPC. The investigating police
officer conducting the search is empowered to enter the place and in order to effect an
entrance into such a place can break open an outer or inner door or window of any house or
place if after notification of his authority and purpose, and demand of admittance duly made,
he could not otherwise obtain admittance. In order to obviate the chance of any person
stealthily taking away on his person any article or thing for which the search of a place is to
be made, sub-section (3) of S.100 provides for the search of such a person. If the person to be
searched is a woman, then, in order to protect her modesty the search shall be made by
another woman with strict regard to decency. The search is to be made in the presence of at
least two independent and respectable inhabitants of the locality in which the place to be
searched is situated. Before commencing searches the investigating and the panch witnesses
should ensure that mutual search of each other is done. Women should be allowed to
withdraw while effecting search and seizure. Indiscriminate search and damage to property
should be avoided. A list of all things seized in the course of the search and of the places in
which they are respectively found shall be prepared by the investigating police and shall be
signed by the panch witnesses. A search list shall be prepared in quadruplicate, all the copies
being signed by the police officer making the search and the witnesses to the search.
 ANSWER-5
INTRODUCTION
The concept of bail can be traced back to 399 B.C, when Plato tried to create a bond for release
of Socrates. The modern system of bail evolved from England. ‘Bail’ is derived from the old
French verb ‘baillier’ meaning to ‘give or deliver’. The term bail has not been defined in the
Criminal Procedure Code (herein after referred to as the CrPc), nevertheless, the word ‘Bail’ has
been used in the Cr.P.C. several times and remains one of the vital concepts of criminal justice
system in consonance with the fundamental principles enshrined in Parts III and IV of the
Constitution along with the protection of human rights as prescribed under International treaties/
covenants. The effect of granting bail is not to set the defendant (accused) free, but to release
him from the custody of law and to entrust him to the custody of his sureties who are bound to
produce him to appear at his trial at a specified time and place. The sureties may seize their
principal at any time and may discharge themselves by handing him over to the custody of the
law and he will then be imprisoned. The literal meaning of the word “bail” is surety. Bail,
therefore, refers to release from custody, either on personal bond or with sureties. Bail relies on
release subject to monetary assurance either one’s own assurance (also called personal bond /
recognizance) or through third party sureties.
Types of Bail in India
There are commonly 3 types of bail in India which a person can apply depending upon the stage
of the criminal matter:

1. Regular Bail: A regular bail can be granted to a person who has already been arrested
and kept in police custody. A person can file a bail application for regular bail under
Section 437 and 439 of the CrPC.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is
granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
3. Anticipatory Bail: A person who discerns that he may be arrested by the police for a
non-bailable offence, can file an application for anticipatory bail. It is like an advance
bail obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before
arrest and a person cannot be arrested by the police if the anticipatory bail has been
granted by the court.

In Vaman Narain Ghiya v. State of Rajastan, 2008 SC it was observed that Bail may be
regarded as a mechanism whereby the State devolutes upon the community the function of
securing the presence of the prisoners, and at the same time involves participation of the
community in administration of justice. The law of bail, like any other branch of law, has its
own philosophy, and occupies an important place in the administration of justice and the
concept of bail emerges from the conflict between the police power to restrict liberty of a man
who is alleged to have committed a crime, and presumption of innocence in favour of the
alleged criminal. An accused is not detained in custody with the object of punishing him on the
assumption of his guilt.
The bail, in lay man’s term, means a guarantee or assurance given by a person arrested to
appear before a competent court at a specified time at a specified place. The provisions of law
which govern the bail are provided under Chapter XXXIII of CrPC, which is the premier statute
laying down criminal procedure in India. The concept of the bail involves two conflicting
concerns- an individual’s right to liberty and his right to be presumed innocent until proven
guilty against the society’s interest in maintaining law, order and security. The custody of a
person pending the completion of trial may cause great hardships to that person which may
include loss of liberty, livelihood during that period. The object of keeping an accused person in
detention prior to or during the trial is not punishment but (1) to prevent repetition of offence
with who is charged (2) to seek the presence of the accused during the trial and (3) to prevent
destruction of evidence.
In Govind Prasad v. State of West Bengal, 1975 Calcutta HC Bail has been defined as
security for the appearance of the accused person on giving which he is released pending trial or
investigation.
In Babu Singh v. State of U.P., 1978 SC it has been observed that Bail is a rule and Jail is an
exception. It was further observed that heavy bail from poor men is obviously wrong. Poverty is
society's malady and sympathy, not sternness, is the judicial response.
In Moti Ram v. State of M.P., 1978 SC it was observed that the defendant with sufficient
means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot
pay the price. He languishes in jail weeks, months and perhaps even years before trial only
because he is poor and cannot afford to pay bail.
Schedule 1 to the CrPC 1973 contains a list of bailable and non-bailable offences. In the former
category of offences bail is matter of right while in the latter category of offences granting bail
is discretion of the court.
In Imtiyaz Ahmed v. State of U.P., 2012 SC it has been observed that long delay in delivery of
Justice has the effect of violating the rule of law. It has an adverse effect on the access to Justice
which is a Fundamental Right.
Section 436, CrPC provides for Bail in Bailable offences. It is equivalent to a mandatory
release. It is a matter of right. However, S/436(2) provides that in bailable offences also, bail
can be denied if the accused fails to comply with the Bail conditions.
In State of Rajastan v. Balchand, 1997 SC it was observed that basic rule may perhaps be
tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from
justice or thwarting the course of justice or creating other troubles in the shape of repeating
offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail
from the Court. We do not intend to be exhaustive but only illustrative.
In Hussainara Khatoon-1, 1979 SC it has been observed that right to speedy trial is a
Fundamental Right and it is implicit in Article 21 of the Constitution. Speedy Trial is the
essence of criminal justice. Also, in Hussainara Khatoon-2, 1980 SC it was observed that the
state cannot be permitted to deny the constitutional right to speedy trial to the accused on the
ground that the state has no adequate financial resources to incur necessary expenditure for
improving the procedure of speedy trial.
UNDERTRIALS AND SECTION 436A, CRPC
Section 436A provides for the maximum time period for which an undertrial prisoner can be
detained. It provides that where a person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for which the punishment of
death has been specified as one of the punishments under that law) undergone detention for a
period extending up to one-half of the maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court on his personal bond with or without
sureties. The Proviso states that the Court may, after hearing the Public Prosecutor and for
reasons to be recorded by it in writing, order the continued detention of such person for a period
longer than one- half of the said period or release him on bail instead of the personal bond with
or without sureties. It is further provided that no such person shall in any case be detained
during the period of investigation, inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that law. The explanation states that in
computing the period of detention under this section for granting bail, the period of detention
passed due to delay in proceeding caused by the accused shall be excluded. This section is
intended to protect the rights of undertrials and to reduce the burden of State.
Undertrial prisoners are persons who have not been convicted of charge(s) for which they have
been detained, and are presumed innocent in law. The 78th Report of Law Commission also
includes a person within the definition of an “undertrial” who is in judicial custody or on
remand during the investigation. All the accused of an offence are kept in jails. Those kept in
jails under the broad categorisation of “criminal prisoners” would also include undertrials,
convicts, and those preventively detained. Undertrials would also include the following further
categories:
1. Those who have been refused bail and are awaiting trial;
2. Those granted bail, but unable to furnish bail bonds or sureties;
3. Those whose applications for bail have not been considered by the court for a variety of
reasons, including the fact that they have not been produced in court on the appointed
date, or that they have no lawyers to represent them or that the prosecution is yet to file a
charge-sheet on the completion of the investigation.

In State of U.P. v Tribhhuwan, 2017 SC it was observed that the period already undergone by
a convict while he was under detention (as undertrial/convict) can be treated as Jail sentence
awarded to him. Its benefit by way of set off can be given to him under section 428, CrPC.
In Bhim Singh v. Union of India, 2014 SC the law with regard to the application of Section
436A CrPC to the current scenario has been discussed.
In Ambika Prasad v. State Delhi Administration, 2000 SC it was noted that the preliminary
object of criminal trial must be to ensure fair trail which is guaranteed under Article 21. Public
Justice is to be rendered by punishing the criminals, but trail should be conducted expeditiously.
In Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 SC the Court observed
that Personal liberty is a very precious fundamental right and it should be curtailed only when it
becomes imperative according to the peculiar facts and circumstances of the case.
In Sunil Batra 1980 SC, it has been observed that practice of keeping undertrials with convicts
in jails offends the test of reasonableness under Articles 19 and 21 of the Constitution of India.
In Wasim Ahmed v. State of West Bengal, 2019 SC the question before the court was,
whether a person can be compelled to remain in jail indefinitely if he is not able to produce/
furnish surety. It was held that he cannot be compelled to be so when there are reasons beyond
his control. He can approach the High Court and such bail conditions can be subjected to
modification.
In Hussain v. Union of India, 2017 SC the Supreme Court issued guidelines to all the courts in
india in order to resolve the menace of pending trials causing hardships to the undertrial
prisoners. It was further observed that the courts must follow the rule, i.e. bail is a rule and jail
is an exception.
In Jasbir Singh v. State of Punjab, 2014 SC the court noted that Article 21 effectively covers
conjugal visits for jail inmates which are however to be regulated by procedure established by
law.
In R.D.Upadhyaya v. State of A.P, 2006 SC the Supreme Court held that if undertrial
prisoners are unable to provide sureties, the trail court may consider releasing them on bail by
obtaining personal bonds. It is not necessary for undetrials to move applications for bail and the
lower courts may, on the authority of the Supreme Court grant them bail.
Provisions as To Bail and Bonds under the CrPC
The following are the provisions under the CrPC which deal with concept of Bail:-
Sec. 436 : In What Cases Bail To Be Taken
Sec. 436A :Maximum Period For Which An Undertrial Prisoner Can Be Detained
Sec. 437 :When Bail May Taken In Case Of Non-bailable Offence
Sec. 437A :bail Ta Require Accused To Appear Before The Next Appellate Court
Sec. 438 :Directions For Grant Of Bail To Person Apprehending Bail
Sec. 439 :Special Powers Or High Court And Court Of Session Regarding Bail
Sec. 440 :Amount Of Bond And Reduction Thereof Sec.441 :Bond Of Accused And Sureties
Sec. 441A :declaration By Sureties
Sec. 442 :Discharge From Custody
Sec. 443 :power to order sufficient bail when that first taken is insufficient.
Sec. 444 :discharge of sureties
Sec. 445 :Deposit instead of recognizance
Sec. 446 :Procedure when bond has been forfeited
Sec. 446A :Cancellation of bail and bail bond
Sec. 447 :Procedure in case of insolvency or death of surety or when a bond is forfeited
Sec. 448 :Bond required from minor
Sec. 449 :Appeal from orders under section 446
Sec. 450 :Power to direct levy of amount due on certain recognizance
Some Important Decisions
In Gudikanti Narasimhulu v. Public Prosecutor, 1978 SC V.R. Krishna Iyer, J., sitting as
Chamber Judge, enunciated the principles of bail thus: What, then, is "judicial discretion" in
this bail context In the elegant words of Benjamin Cardozo: The Judge, even when he is free, is
still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will
in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "the primordial necessity of order in the social life".
Wide enough in all conscience is the field of discretion that remains.
The concept, object, purpose and scope of Bail has also been discussed in Sanjay Chandra v.
CBI, 2012 SC.
In Raees v. State of U.P., 2014 SC it was observed that the High Court should not ordinarily
order lower courts to consider bail same day; using its power under section 482 of CrPC. Such
an act amounts to interference into the judicial discretion of the lower courts.
In Sushil Agarwal v. State NCT, Delhi 2020 SC the law with regard to the concept of
“Anticipatory Bail” has been discussed. It has been observed that anticipatory bail under section
438 should not invariably be limited to a fixed period. But if sufficient reasons exist, court may
limit the same. It was further observed that the anticipatory bail can continue even in trial and
during the stage of framing of charges. The ruling in Gurbaksh Singh Sibbia, 1980 SC was
reiterated. The Court partly overruled the views expressed by it formerly in Salauddin
Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal Singh, Adri Dharan Das,
HDFC Bank, J.J. Manan, Naresh Kumar Yadav and Mhetre about the Court of Sessions,
or the High Court, being obliged to grant anticipatory bail, for a limited duration, or to await the
course of investigation, so as the “normal court” not being “bye passed” or that in certain kinds
of serious offences, anticipatory bail should not be granted normally- including in economic
offences, etc are not good law.
In Kamlesh v. State of Rajasthan, Rajasthan HC 2020 it has been observed that an
application under section 438 cannot be rejected merely because a petition under section 482 of
the CrPC for quashing of FIR has been rejected.
In Sanjeev Sharma v. State of Haryana, 2019 the P&H High Court held that the right to
seek anticipatory bail is not a Fundamental Right but only a statutory right.