The people are the focal point for the State in a democracy. The rights and welfare of the people need to be constantly kept in view by the legislature while making the laws and by the executive while implementing them. Any police action, which may adversely affect the rights of the people, especially the right to life, liberty and dignity, should be taken only after due consideration of the larger interests of the society or the unity and integrity of the nation.

Therefore, the State authorities, including the police have to be kept alert and vigilant to ensure that the rights of the people are not unreasonably interfered with while making search of place entered by person sought to be arrested. This Section 47 of Code of Criminal Procedure, 1973 is not intended to restrict the powers of the police to enter the place to be searched. But on the contrary, it is a provision compelling house-holders to afford the police facilities in carrying out their duties

For the convenience and facility of reference, Section 47 in The Code Of Criminal Procedure, 1973 is reproduced as under:

47. Search of place entered by person sought to be arrested.

1. If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
    
2. If ingress to such place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance:
   Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.
    
3. Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

Section 47 makes it lawful for policemen to break and enter into the residence of any person, in pursuit of an offender, when they have reasonable belief that the person they wish to arrest, has entered or is within the confines of such a place. However, the proviso to Section 47 of Code of Criminal Procedure, 1973 requires that if an apartment enclosure to be searched by the police is in the occupancy of a woman who according to custom does not appear in public, then the police ought to serve her a notice to withdraw and must afford her with every reasonable facility for withdrawing before breaking and entering such an apartment.

Analogous Law

Section 80 of the Information Technology Act, 2000 provides for such analogous provisions in the said Act, which reads as under:

Section 80 (1) in The Information Technology Act, 2000

1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act.
   Explanation.- For the purposes of this sub-section, the expression public place includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public.
    
2. Where any person is arrested under sub-section (1) by an Officer other than a Police Officer, such Officer shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or before the Officer-in-charge of a police station.
    
3. The provisions of Code of Criminal Procedure, 1973 (2 of 1974) shall, subject to the provisions of this section, so far as they may be, in relation to any entry, search or arrest, made under this section.

This section has also been replicated as Regulation 8 (1) in Chapter III of the Securities and Exchange Board of India (Procedure for Search and Seizure) Regulations, 2014.
Interestingly, neither the Code of Criminal Procedure, 1973 nor the Securities and Exchange Board of India (Procedure for Search and Seizure) Regulations, 2014 enlists these customs or religions which prohibit their women from appearing in public. It is understandable that providing an exhaustive list of such customs is neither feasible nor possible in India.

However, there is absolutely no legal compass to guide the police/other investigative agencies in determining which women can benefit from the protection granted under this proviso and which shall be excluded from it. The absence of clear guidelines leads to several conundrums which policemen often find themselves in, while carrying out a search.

For instance, are police officers expected to ask women if they are permitted by custom to appear in public, each time they wish to enter a house? Are they supposed to verify any such response given by the woman before entering? If a woman is not prevented by custom to appear in public, does it make it justifiable for a policeman to enter without giving her any notice?
A plain reading of the proviso seems to suggest that it was only meant to protect the privacy of a small fragment of the female population which is prevented by custom from appearing in public.

The vague language of this clause leaves with two pivotal questions:

1. Firstly, although, the need to safeguard women's cultural preferences is crucial, why does it have to come at the cost of denying other women, who may not be bound by certain customary practices, the protection from unsolicited intrusion into their private space? and;
    
2. Secondly, what does it mean to withdraw and to provide every reasonable facility for withdrawing in the context of this section?
    

In order to arrive at an answer to the first question, it is important to understand the intent of the legislature behind framing this proviso.

Intention, Object & Scope Of Provisions of Section 47 Cr. P. C

Section 47 of the Code of Criminal Procedure, 1973 is not intended to restrict the powers of the police to enter the place to be searched. On the contrary, it is a provision compelling householders to afford the police the facilities in carrying out their duties, and sub-section (2) provides that if difficulties are placed in the way of a Police Officer he may use force to obtain ingress. [Ramesh Chandra Banerjee Vs Emperor, AIR 1914 Cal. 456].

For the applicability of this section, it is necessary that a Police Officer should be acting under a warrant. It is enough, if such officer has authority to arrest, e. g under Section 41 (1) Clause I of the Code of Criminal Procedure, 1973.

The provisions of sub-section (2) of Section 47 of Code of Criminal Procedure, 1973 are very wide and important. Sub-section (2) of Section 47 makes it obligatory on the part of the Officer who executes the warrant of arrest or makes an attempt to notify his authority and purpose and demands admittance into the house or in that place in which search is to be made for the purpose of effecting the arrest.

The proviso given below sub-section (2) of Section 47 makes it clear that if the apartment is in the actual occupancy of a female, who according to custom, does not appear in public, such person or police officer , shall before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

Sub-section (2) of Section 47 of the Code of Criminal Procedure, 1973 thus requires four things:

1. That the Officer intending to arrest will notify his authority;
2. That such person or Officer will notify his purpose;
3. That such person or Officer will demand admittance in accordance with sub-section (1);
4. If the house is inhibited by female other than one, who is to be arrested, such person or Officer shall before entering such apartment give notice to such female that she is at liberty to withdraw and it is further obligatory to afford her any reasonable opportunity of withdrawing.

In a detailed Judgment titled [Chaman Lal Vs Datar Singh, 1998 Cri. L. J 267], the Rajasthan High Court while explaining the scope and ambit of sub-section (2) of Section 47 of the Code of Criminal Procedure, 1973 held as under:
16. Above four things must be observed before any force is used by the person or Officer desiring to make arrest of a person, who has entered in a house or apartment or is residing therein. The object of Section 47 of Cr. P. C being to protect the lives, liberties, dignity of all the people of the country, it is necessary that persons and officers, whose authority to effect arrest is limited and subject to the conditions imposed by law, must strictly abide by the safeguards enumerated in Section 47 of Code of Criminal Procedure, 1973.

If these safeguards are violated, may be, the search conducted by them or the arrest made by them may not be called illegal, but if for non-compliance of the provisions of Section 47 of the Criminal Procedure Code, 1973 any resistance is offered or those whose lives, liberties and privacy is disturbed by the action of the person or officer by entering the house, then in each case, the Court will have to consider whether the resistance offered and the action taken by the inmates of the house was or was not in accordance with law and whether the action of the Police Officer was or was not justified in view of the non-compliance of Section 47 of the Code of Criminal Procedure, 1973.

In the instant case for want of sufficient material, it is difficult to say whether the non-petitioners have complied with the provisions of Section 47 of the Criminal Procedure Code or they did not comply with the same. It will be open to parties to lead such evidence as may be available to them before the Court at appropriate stage.

A person causing hurt to a Police Officer making search under this sub-section will be guilty of an offence under Section 332 of Indian Panel Code.

Indian Courts have on multiple occasions, observed that the objective of Section 47 is to protect the lives, liberty and dignity of all people, especially women in the country. And since people's homes are not public property, they must be protected from the trespass which may be committed by investigating agencies.

This desire to protect the privacy of women is also reflected in other, more recent legislations such as the NDPS Act which require a police officer, searching a house or any other enclosed space to record reasons for not obtaining a warrant, if such search is conducted after sunset or before sunrise, and such reasons have to be sent to their immediate senior.

A failure to do so results in the vitiation of the proceedings. [Chiman Lal Vs. Datar Singh, 1997 SCC Online Raj 355]. Infact, the right to privacy for each citizen (including all women), has been recognized as a constitutional entitlement by the Supreme Court in [K. S. Puttaswamy & Anr. Vs. Union of India, 2017 (10) SCC 1].

On a perusal of several Judgments including [Badru Ram & Ors. v/s. State of Rajasthan, 2006 SCC OnLine Raj 764] revolving around the power to search as prescribed under S. 47, it is has become evident that even in practice, the police and other investigating agencies have tried to follow these rules with respect to all women, regardless of the customary obligations on them. Surprisingly, proving whether a certain woman was barred by custom to appear in public or not, has not been a contentious issue before the criminal courts so far and there is no record to suggest that arguments may have been advanced on this aspect in any matter till date.

Thus, it is quite clear that the aim of the proviso to Section 47 of Code of Criminal Procedure, 1973 has always been to protect the private space of all women in the country. However, the language of the proviso clause does not truly reflect this objective as it creates a distinction between women who have been prohibited by custom to appear in public and all women in general.

Furthermore, this distinction seems to be in contradiction to the very scheme of the Cr. P. C which grants procedural safeguards to all women across the country, irrespective of the customs they adhere to. This classification of women who have been prohibited by custom to appear in public as a separate group is arbitrary for the purposes of this particular section and is also violative of Article 14 of the Constitution of India.

Coming to the second question, as per the Webster's dictionary of English, the term withdraw inter alia means to take back, to remove oneself from participation or to move back or retire. But what connotation does this term have in the context of Section 47 of the Cr. P. C? Does it mean that women have to be allowed an opportunity to leave the premises about to be searched?

Or that they may retreat into any room or space where they feel comfortable while the house is being searched? Or simply that they should be given time to dress decently or to do whatever it is they may wish to do, to feel comfortable, before allowing the investigating officers into their homes? Also, to what extent are officers supposed to facilitate this withdrawal? These are again, questions which do not have any clear answers.

When and When No Notice To The Occupant Of Place To Be Searched Necessary

When the door of the house to be searched is open, the Police Officer is not required to wait and make the formal demand for entry from head of the family. [Daitari Das & Ors. Vs State, AIR 1956 Ori. 97].

Conclusion
The Police is a component of criminal justice administration which is a wing of State. The law has assigned certain tasks to the police and prescribed procedures to be followed by it to accomplish them. The police, being the law enforcement agency, is supposed to enforce the Rule of Law, which is the basis of the democracy. The police will not succeed in this endavour merely by making others to follow the law unless the police personnel themselves follow the law in letter and spirit.

Though Section 47 of Code of Criminal Procedure, 1973 is used quite routinely by investigating agencies, the implications of the manner in which the proviso to this section has been worded, have never been delved into.

One of the major issues with our current legal system is that laws once laid down are not reviewed periodically to examine whether they are adequately serving the purpose for which they were created or whether they have become redundant in any way.

The difficulty that such provisions pose is that they are very vague and inept at laying down the correct procedure to be followed. In addition, they are also misleading and reflect a stark disconnect between what the legislature intended and what the provision actually says, which allows investigating units a lot of discretion with respect to the procedure to be followed.

And though these particular aspects pertaining to Section 47 of the Code of Criminal Procedure, 1973 have not come up as contentious issues before the Courts yet, this does not guarantee, that in the future, there can never be instances where investigating violate the privacy of some women while conducting searches, under the garb of the current proviso to Section 47 of the Code of Criminal Procedure, 1973. Therefore, it is high time that this archaic proviso be amended to include all women and to fix the existing loopholes to make this clause more citizen friendly.

Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]