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Part C- GENERAL PROVISIONS RELATING TO SEARCHES, CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105)

SECTION 99: DIRECTION, etc. OF SEARCH – WARRANTS

• The provisions of:
  • Section 38: Aid to person, other than police officer, executing warrant.
  • Section 70: Form of warrant of arrest and duration.
  • Section 72: Warrants to whom directed.
  • Section 74: Warrant directed to police officer.
  • Section 77: Where warrant may be executed.
  • Section 78: Warrant forwarded for execution outside jurisdiction, and
  • Section 79: Warrant directed to police officer for execution outside jurisdiction.
• shall be, so far as may applicable to all the search warrants issued under section, namely:
  • Section 93: When search warrant may be issued,
  • Section 94: Search of place to contain stolen property, forged document, etc, or
  • Section 95: Power to declare certain publications forfeited and to issue search warrants for the same, or
  • Section 97: Search for persons wrongfully confined.

SECTION 100: PERSONS IN CHARGE OF CLOSED PLACE TO ALLOW SEARCH

(1)Execution of warrant, when the place to be searched is closed.

SITUATION: Any place liable to search or inspection under this chapter is closed.

CONSEQUENCE:

• On demand of the officer, or other person executing the warrant,
• any person residing in, or being in charge of such place, shall:
  • allow him free ingress thereto, and
  • afford all reasonable facilities from a search therein.

(2)Ingress into such not obtained.

SITUATION: If ingress into such place cannot be so obtained.

CONSEQUENCE: The officer or other person executing the warrant may proceed in the manner provided by section 47(2).

(3)Person suspected of concealing any article.

SITUATION:

Where any person in or about such place is reasonable suspected of concealing about his person any article for which search should be made.

CONSEQUENCE: Such person may be searched.

(If such person is a woman:

• the search shall be made by another woman,
• with strict regard to decency.)

(4) Pre-requisites of search

• Before making a search under this chapter the officer or other person, about to make the search:
• shall, call upon 2 or more independent and respectable, inhabitants of:
  • locality, in which the place to be search is situated, or
  • any other locality (if not such inhabitant of the said locality is available or is willing to be a witness to the search)
• may, issue an order in writing to them or any of them so to do.

(5) List of things seized and relaxation to witness of the search.

• A list of all things seized in the course of such search and of the places is which they are respectively found,
  • shall be prepared by such officer or other person and signed by such witness.
• The search shall be made in the presence of person mentioned under section 100(4),
  • but no person witnessing a search under this section, shall be required to attend the court as a witness of the search,
  • unless specially summoned by it.

(6) Obligation towards the occupant of the place searched.

• In every instance, the occupant of the place searched, or some person in his behalf, shall be:
  • permitted to attend during the search, and
  • delivered, a copy of the list prepared under this section, signed by the said witnesses.

(7) Obligations under section 100(3):

• Any person searched under section 100(3), shall be,
  • delivered with, a copy of prepared a list of all things taken possession of.

(8) Repercussions of refusing or neglecting to attend and witness a search.

• Any person who, without reasonable cause, refuses to neglects to attend and witness a search under this section, when called upon to close to dos o by an order in written delivered or tendered to him,
  • shall be deemed to have committed an offence under section 187, Indian Penal Code, 1860 (45 of 1860).
    

SECTION 101: DISPOSAL OF THINGS FOND IN SEARCH BEYOND JURISDICTION

SITUATION:

• When, in the execution of a search warrant,
• at any place beyond the local jurisdiction of the court, which issued the same,
• any of the things for which search is made,
• are found.

CONSEQUENCE:

• Things found shall be,
• immediately taken before the court , issuing the warrant,
• unless, such place is nearer to the Magistrate having jurisdiction therein then to such Court.

(in case: the list and things shall be immediately taken before such magistrate,

• unless there be good cause to the contrary,
• such magistrate shall make an order authorizing them to be taken to such court.)

THIS (THIRD) PART OF THE SERIES CONSISTS OF GENERAL PROVISION RELATING TO SEARCH, WHICH IS PART-C OF CHAPTER-VII OF CODE. SECOND PART CONSISTS OF SEARCH WARRANTS, WHICH IS THE PART B OF CODE IN CHAPTER: VII. FIRST PART OF THE SERIES CONSISTS OF A- SUMMONS TO PRODUCE, WHICH IS PART A IN THE CODE EVEN. THIRD PART CONSISTS OF PART C OF THE CODE.

B- Search Warrants (Section 93-98), CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS (Section 91-105)

SEARCH WARRANTS

Search warrants are issued-

• for production of a document or thing, (section 93)
• for search of a house suspected to contain stolen property, forged documents, etc, (section 94)
• for seizing any forfeited publications, (section 95 and 96) and
• for discovery of persons wrongfully confined(section 97).

SECTION 93: WHEN SEARCH WARRANT MAY BE ISSUED

SITUATION: Where,

(a)Any Court has reason to believe that the person would not produce the document or thing, as required by such summons or requisition.

(A person, to whom:

• a summons order (under section 91), or
• a requisition has been or might be addressed (under section 92(1))

(b) the court does not know in whose possession such a document or thing is,

(c) the court’s purposes of any inquiry, trials, or other proceeding under this Code, will be served by a general search or inspection.

CONSEQUENCES:

• The Court may-
  • issue a search warrant, and
  • search or inspect:
    • by the person, to whom such warrant is directed and
    • in accordance therewith and the provision thereinafter contained.

(2)Relevance of specifications in the warrant.

• The court may (if it thinks fit):
  • the particular pace or part thereof.
• Then, the person charged with the execution of such warrant shall then:
  • search or inspect,
  • the place or part only (so specified).

(3)This section shall authorize any Magistrate (except District magistrate and Chief Judicial Magistrate),

• to grant a warrant to search,
• for a document, parcel, or other thing, in the custody of postal or telegraph authority.

CASE: V.S. Kuttan Pillai V Ramakrishnan AIR 1980 SC 185

• Issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order.
• Issue of a search warrant being in the discretion of the magistrate:
  • it would be reasonable to expect of the magistrate to give reasons which swayed his discretion in favor of granting the request.  
  • a clear application of mind by the magistrate must be discernible in the order granting the search warrant.

SECTION 94: SEARCH OF PLACE SUSPECTED TO CONTAIN STOLEN PROPERTY, FORGED DOCUMENTS, etc.

SITUATION: If,

• a District Magistrate, sub-divisional Magistrate, or Magistrate of the first class,
• has reason to believe (upon information and after such inquiry as he thinks necessary) that:
  • any place is used for:
    • the deposit and sale of stolen property, or
    • the deposit, sale, or production of an objectionable article (to which this section applies),
  • any such objectionable article is deposited in any place.

CONSEQUENCE:

• Such District magistrate, Sub-divisions magistrate, or Magistrate of first class,
• may by warrant authorize,
• any police officer above the rank of a constable-
  • to enter such place, with such assistance (as may be required),
  • to search such place, in the manner specified in the warrant,
  • to take possession of any property or article:
    • found therein, and
    • he suspects to be stolen property or objectionable article,
  • to convey, such property or article before a Magistrate, or
    • to guard, such property or article on the spot until:
      • the offender is taken before a Magistrate,
      • otherwise (article) to deposit it in some place of safety,
  • to take into custody and carry before a Magistrate;
    • every person:
      • found in such place, and
      • who appears to have been privy to the deposit, sale, or production of any such property, or
    • every article:
      • knowing or having reasonable cause to suspect it to be stolen property, or
      • objectionable article, to which this section applies.

(2)The objectionable articles to which this section applies are-

(a) counterfeit coin,

(b) pieces of metal made in contravention of the Metal Token Act, 1889 (1 of 1889), or

• brought into India in contravention of any notification for the time being un force under section 11 of the Customs Act, 1962 (52 of 1962),

(c)counterfeit current note, counterfeit stamps,

(d) forged documents,

(e) false seals,

(f) obscene objects referred to in section 292 of the India Penal Code (45 of 1860),

(g) instruments or material used for the production of any the articles mentioned in clauses (a) to (f).

SECTION 95: POWER TO DECLARE CERTAIN PUBLICATIONS FORFEITED AND TO ISSUE SEARCH WARRANTS FOR THE SAME

(1)SITUATION:

• Where,
  • any newspaper, or book, or
  • any document,
• wherever printed,
• appears to the State Government, to contain any matter the publication of which is punishable under the following sections of Indian Penal Code, 1860:
  • Section 124A: Sedition
  • Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence.
  • Section 153B: imputation, assertions prejudicial to national integration.
  • Section 292: Sale, etc. of obscene books, etc.
  • Section 293: Sale, etc. of obscene objects to young person.
  • Section 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

CONSEQUENCE:

• The State Government may,
  • by notification stating the grounds of its opinion,
  • declare certain publications to be forfeited to government.
  • (Certain publications, include-
    • every copy of the issue of the newspaper containing such matter, and
    • every copy of such book or other document.)
  • thereupon, police officer may seize the same wherever found in India, and
• 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, or any such book or other document may be reasonable suspected to be.

(2) In this section and in section 96-

(a) “newspaper” and  “book” have the same meaning as in the Press and registration of Books  Act, 1867 (25 of 1867),

(b) “document” included any painting, drawing or photograph, or other visible representation.

(3)Any order passed or action taken under this section.

• shall not be called in question in any Court,
• otherwise than in accordance with the provision of section 96.

CASE: Smt. P. Hemalatha V State of West Bengal AIR 1976 Andhra Pradesh 375

• The grounds of opinion for coming to the conclusion that:
  • the publication of the matter contained in the journal sought to be forfeited by an order under section 95, is punishable under section 124A, IPC, is an integral part of section 95, and
  • compliance with its requirements is a sine qua non of the validity of the notification.

It is not enough merely to reproduce the language of section 124A, IPC without specifying as to how or in what manner there has been contravention of the provisions of that section.

SECTION 96: APPLICATION TO HIGH COURT TO SET ASIDE DECLARATION OF FORFEITURE

(1)In respect of which a declaration of forfeiture has been made under section 95,

• any person, having any interest in any newspaper, book, or other document in respect of which a declaration of forfeiture has been made under section 95,
• within 2 months from the date of publication in the official gazette of such declaration,
• may, apply to the High Court, to set aside declaration, on the ground that:
  • the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter, as referred under section 95(1).

(2) Number of judges, required to hear the application.

Case1: Where, the High Court consists of 3 or more Judges.

• ever such application shall be heard and determined by a special bench of the High Court, composed of 3 Judges, and

Case 2: Where, the High Court consists of less than 3 Judges.

• ever such application shall be heard and determined by a Special bench of the high Court of all the judges of that High Court.

(3) Evidence in aid of the proof of forfeiture.

SITUATION: On the hearing of any such application with reference to any newspaper, in respect of which the declaration of forfeiture was made.

CONSEQUENCE: Any copy of such newspaper may be given:

• in evidence as aid of proof,
• of the nature or tendency of the words, signs, or visible representations contained in such newspaper.

(4) Setting aside the declaration of forfeiture.

SITUATION: If High Court is not satisfied that:

• the issue of the newspaper, on the book more other document, in respect of which the application has been made,
• contained any such matter as is referred to section 95(1).

CONSEQUENCES: the High Court shall, set aside the declaration of forfeiture.

(5)Decision, when difference of opinion among judges.

SITUATION: Where there is difference of opinion among the Judges forming the Special Bench.

CONSEQUENCE: The decision shall be in accordance with the opinion of the majority of those Judges.

CASE: The Trustee of Safdar Hashmi Memorial trust V Government of N.C.T. of Delhi, 2000 Cri.L.J. 3689

• A notification in order to be legal and effective must comply with requirements. The compliance is a sine qua non for the validity of the notification.
• To state the grounds of its opinion without stating the fact does not amount to statement by the grounds of its opinion.
• Mere mention of an article or apart thereof in the notification would not constitute ground contemplated by section 95 of the Code. There is a distinction between facts which form the grounds for formation of opinion and opinion itself.

SECTION 97: SEARCH FOR PERSONS WRONGFULLY CONFINED

SITUATION:

• Any District magistrate, Sub-divisional Magistrate, or Magistrate of the first class,
• has reason to believe that any person is confined,
• the confinement is under such circumstances that it amounts to an offence.

CONSEQUENCE:

• He may issue a search warrant,
  • to the person whom such warrant is directed may search for the person so confined.
• Such search shall be,
  • made in accordance therewith.
• The person if found, shall be immediately taken before a magistrate,
  • Magistrate, who shall make such order as in the circumstances of the case, seems proper.

SECTION 98: POWER TO COMPEL RESTORATION OF ABDUCTED FEMALES

SITUATION:

• Upon complaint made on oath of abduction or unlawful detention,
• of a woman or a female child, under the age of 18 years,
• for any unlawful purpose.

CONSEQUENCE:

• A District magistrate, Sub-division Magistrate or Magistrate of the first class, may:
  • make an order for the immediate restoration,
    • of such woman to her liberty, or
    • female child to her husband, parent, guardian or other person, having the lawful charge of such child, and
  • compel compliance with such order, using such force as may be necessary.

THIS (SECOND) CONSISTS OF SEARCH WARRANTS, WHICH IS THE PART B OF CODE IN CHAPTER: VII. FIRST PART OF THE SERIES CONSISTS OF A- SUMMONS TO PRODUCE, WHICH IS PART A IN THE CODE EVEN. THIRD PART CONSISTS OF PART C OF THE CODE.