Section 93 empowers the Court to issue a search warrant in the following three cases:
(a) Where the Court has reason to believe that the person to whom a summons or order or requisition is addressed will not produce such document or things; or
(b) Where such document or thing is not known to the Court to be in the possession of any particular person; or
ADVERTISEMENTS:
(c) Where the Court considers that the purpose of any inquiry, trial or other proceedings would be served by a general search or inspection.
It will be seen that this section provides for two kinds of searches: clauses (a) and (b) provide for a particular search, whereas clause (c) relates to a general search. The section applies not only when there is a pending inquiry, but also when an inquiry is about to be made.
The Calcutta High Court has rightly cautioned that mere suspicion is no ground by itself for the issue of a search warrant. Very great particularity is required by law, even in cases where such warrants are authorised, before the privacy of a man’s premises is allowed to be invaded by an officer of the law. (Walvekar,—53 Cal. 718)
Image Source: wfiles.brothersoft.com
ADVERTISEMENTS:
Moreover, under clauses (a) and (b), such a search must be for a specific article or thing, and not, for instance, for stolen property generally. (Bissar Misser,—41 Cal. 261) In other words, there cannot be a general fishing inquiry. Thus, in one case, where a Magistrate issued a search warrant for the search and seizure of all letter-books, letters, bills and books of account in a man’s house for the purpose of inquiry as to whether he had used or sold articles with the counterfeit mark, it was held that the issue of such a search warrant was a gross perversion of the law. (Moideen Bros.,—9 LR 45)
However, even if a search warrant is illegal, there is no scope for an argument that, therefore, what is found as a result of that search cannot be put in evidence in a criminal case. Even if the search itself is illegal, the seizure of the incriminating article is not violated. In such cases, a doubt may be cast as to whether the thing which is said to have been found was in fact found in the possession of the accused, but it certainly cannot be said that merely because the search was faulty, the thing itself cannot be used in evidence. (M. I. Mamsa—38 Cr. L.J. 938)
S. 93 is not violative of Art. 20(3) of the Constitution, which provides protection against testimonial compulsion. (M.P. Sharma, —AIR 1954 S.C. 300). This view was once again reiterated by the Supreme Court in V. S. Kuttan Pillai v. Ramakrishnan and Another (1980 Cri. L.J. 106).
Likewise, a search by itself is not a restriction on the right to hold and enjoy property; it is only a temporary interference with the right to hold the premises searched and the article seized. Hence, this provision does not violate Art. 19(1) (f) of the Constitution. (M.P. Sharma,—AIR 1954 S.C. 300)
ADVERTISEMENTS:
S. 93 would not apply to a case where a warrant is issued on the complaint of a husband for the production of his wife who has gone away to her father’s house with some property of the husband. (Bisu,—11 C.W.N. 836)
Likewise, the breach of a hire-purchase agreement is not a criminal matter at all, and the parties to the agreement have their respective rights which are enforceable in a Civil Court. It was, therefore, held that this section of the Code could not be invoked to obtain possession of a bus, which was a purely civil right. (Hrishikesh,—67 Cr. L.J. 569)
The Supreme Court has also observed that in the case of an issue of a search warrant, the Magistrate must apply his mind and give reasons which reflect application of the mind. (V. S. Kuttan Pillai v. Ramkrishna, (1980) 1 S.C.C. 264)
Remedies:
The following are the three remedies available to an aggrieved person against whom a search warrant has been issued:
(a) A Writ Petition under Art. 226 of the Constitution would lie for quashing an illegal search warrant and for the return of the seized thing or document.
(b) An order passed under S. 93 can be set aside under S. 401 of the Code in revision, if it can be shown that the Magistrate had pot applied his mind judicially to the requirements of law, and that he had granted the search warrant in an arbitrary fashion.
(c) A search which is carried out in contravention of law constitutes an actionable trespass, and a suit for damages can be filed against the person executing the illegal warrant.
Specimen Form of Warrant to Search after Information of a Particular Offence:
To
(Name and address of the Police Officer or other person (or persons) who is (or are) to execute the warrant)
WHEREAS information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of (mention the offence concisely), and it has been made to appear to me that the production of (specify the thing clearly) is essential to the inquiry now being made (or about to be made) into the said offence (or suspected offence);
This is to authorise and require you to search for the said (specify the thing) in the (describe the house or place or part thereof to which the search is to be confined), and if found, to produce the same forthwith before this Court, returning this warrant, with an endorsement certifying what you have done under it, immediately upon its execution.
Dated this 1st day of April, 20
(Seal of the Court)
(Signature)
S. 94 then provides that if a District Magistrate, upon information and after necessary inquiry, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable articles (as listed below), he may issue a warrant authorising any Police Officer above the rank of a Constable,—
(a) To enter such place with such assistance as may be required;
(b) To take possession of any property or article found therein, which he reasonably suspects to be stolen property or any objectionable article (as listed below);
(c) To search the same in the manner specified in the warrant;
(d) To convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some safe place;
(e) To take into custody and produce before a Magistrate, every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article, knowing or having reasonable cause to suspect it to be stolen property, or as the case may be, an objectionable article.
The list of objectionable articles referred to above is the following:
(a) Counterfeit coins;
(b) pieces of metal made in contravention of the Metal Tokens Act, 1889, or brought into India in contravention of any Notification for the time being in force under Section 11 of the Customs Act, 1962;
(c) Counterfeit currency notes and counterfeit stamps;
(d) Forged documents;
(e) False seals;
(f) Obscene objects referred to in S. 292 of the Indian Penal Code, 1860;
(g) Instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).