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A Study Of Constitutional Validity Of Search And Seizure In The Indian Criminal Justice System

The subject matter of this study is "a constitutional aspect of search and seizure in the Indian criminal justice system". It observes search and seizure from a constitutional aspect in the Indian criminal justice system. The entire procedure mentioned in the criminal procedure code, of 1972 is entirely based on the principle of justice and fairness, which means equals should be treated equally and all unequals should be treated unequally.

This code is concerned with public peace and state security, not with individual liberty. An important part of the criminal investigation is to obtain evidence through the search of persons and places and seizing things. A police officer or any authorized person, who is carrying out a search or seizure is supposed to know the rules and acts related to it.

The constitution identifies those authorities should not be allowed to access any things or documents and seize items from any individuals untrammeled. Because this may intrude an individual's privacy by the agents of the state. Otherwise, state actions could severely affect individual privacy and fundamental rights that are intended to be a predominant one, which our constitution guarantees.

This study focuses on the powers granted to police officers to conduct searches and seizures and will examine the extent of those powers in the light of constraints imposed by the constitution. If the fundamental rights in the Indian constitution are not guaranteed by its citizen, they would not be safe against the authoritarianism of the government actions.

The question of whether a balance can be achieved between protecting an individual's fundamental rights and the conflict interest of the state in crime control. However, before the analysis can be made, it is essential to consider the concepts of search and seizure.

Search And Seizure: Concept

The term �search' means an action taken by the government to go through or look after or examine a place, person, object, area, etc. in order to find any concealed evidence or for the purpose of finding evidence of the crime. The search of a person or place should be carried out under the valid authority of law and there should be a nexus between the crime and search, it cannot be a random search.

A search warrant is a written authority, which is issued by a judge or magistrate to a police officer or any authorized person to conduct a search of a person, place and vehicle, etc. The police officers are cautioned to use search warrant with little care and not abuse their power. Section 165 of CrPC provides the circumstances and the way in which a search is carried out by a police officer. When may the search warrant be issued?

Where any court has to believe, means cause to believe the magistrate or the court satisfied that there is a necessity for the search warrant to be issued under section 91 or requisition has been made or will be made would not produce the document or thing as required by such summons or requisition.

Secondly, where the court is unaware as to in whose possession the document or thing is, can issue a search warrant.

Thirdly, where the court considers that a general search or inspection would be required for the purpose of inquiry, trial or any other proceedings. In the above cases, only a district magistrate or judicial magistrate of first class is authorized to grant a search warrant. The search under section 93 must be for some specific things or thing or document and not for the stolen property. The power of the search given under this section included the power to take possession of the document or things.

Where the person against whom a search warrant is issued prays for the stay and offers to produce a document, in such case the magistrate has the jurisdiction to stay execution of the warrant conditionally on the execution of a bond. A search warrant cannot be issued against an accused person in respect of documents or property which is known to be in his possession, but a general search or in such a situation is permissible of section 93(1)(C). search warrant against an accused cannot be issued as it will be against the principle embodied under article 20(3) of the constitution of India 3.

An accused cannot be compelled to disclose documents which are incriminated and based on his knowledge. The police officer authorised to search must be above the rank of constable and the magistrate has to make sure that he has sufficient reason to believe that place is used for the sale of the stolen property etc. Section 95 provides the power to declare certain publication forfeited and also gives the power to issue warrants for the same.

The government can order forfeiture of any material printed in a newspaper or any other document punishable under sections 124-A, 153-A,153-B, 292, 293 and 295-A of the Indian penal code,1860, by stating the grounds for such forfeiture. It is not mandated that the government should issue a notice to any person or should afford a reasonable opportunity of being heard. In case, the person is aggrieved by such an order of forfeiture, he has been given a remedy under section 96 of CrPC4.

The application under section 98 of CrPC can only be made if an order of forfeiture has been made under section 95 of CrPC by the state government stating the opinion that the concerned document or newspaper contains matter publication of which is punishable under the Indian penal code,1860. Section 97 deals with a search warrant for the wrongfully confined person, where the search warrant is issued by the district magistrate or sub-divisional magistrate to rescue the wrongfully confined person. Further, if a woman or female child unlawfully abducted, the magistrate shall make immediate order for restoration of that female.

The act of seizing is known as a seizure, an action done with force in order to grab or remove an object or person. Search and seizure is also an important stage in the process of investigation.

There are 2 methods by which police can effect search and seizure:
  1. By issuing the warrant, which is dealt under sections 93,94,95, and 97 of CrPC.
  2. Without a warrant, which is dealt under sections 103,165 and 166 of CrPC.

The basic provisions as to search and seizure are laid in section 100 of CrPC. The procedure set out 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 situations of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102 provides the power of police officers to seize certain property.

They may have to effect seizure and search in one or more places. The procedure to be followed at the time of seizure is that is to be followed in the case of search also under section 100 of the code. Section 102 gives power to the police officers to seize certain property which is alleged suspected to have been stolen. Any police officer may seize any property suspected to have been stolen or found under circumstances which create suspicion of the commission.

The provisions of this section are useful for a general search. This section has a wide sweep and covers the recoveries and seizures made during the searches. The power given under this section to a police officer to seize the property should be availed only in those cases where he has the power to investigate offences conferred by the code or by any other law in force.

Search And Seizure: Other Affected Constitutional Rights

The code of criminal procedure is based on the principle of justice and fairness, which means equals should be treated equally and unequal should be treated unequally. One of the very principles of natural justice, even an accused should be given an equal chance to be heard and given chance or arrange a prosecutor to defend himself in the court of law.

Supporting this, there are some provisions in section 161(3) and provision in section 162 of the code converse that any statement recorded during the course of an investigation shall not be signed by the person making the statement has been specified. Likewise, the protection against self-incrimination has been provided as a special fundamental right under part III of the Indian constitution.

Article 20(3) states that:
No person accused of any offence shall be compelled to be a witness against himself.

This means an accused person should not be compelled to be a witness against him. The constitutional validity of section 93(1)(a) in the context of article 20(3) has been raised. The contentions raised that "any person" in section 91(1) not only witnesses and other persons it also includes the accused.

So, if the accused person does not obey the court he will face the compelled search in his house and this compelled search itself shows the accused compelled to allow a search in his house, this will be considered an intrusion into the privacy of the person. Further, there will be a prosecution for the offence committed under section 174 of IPC. Therefore, in the light of all this, the summons issued is a compulsion on the accused person to produce self-incriminating evidence, violating his fundamental rights guaranteed under article 20(3).

With regard to this, the hon'ble supreme court in the leading case M.P Sharma and others v. Satish Chandra stated that:
It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in procedure Code of 1882 and even there the issue of general warrants is not based on non compliance with a previous summons for production.

It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his productions in compliance therewith constitute a testimonial act by him within the meaning as explained above.

But search warrant is addressed to an officer of the government, generally a police officer. Neither the search nor the seizures are 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."

This means "to be a witness" means to become a witness but not to appear as a witness, thus the protection of self-incrimination not only extends to compelled testimony but also to the investigation and interrogation. Further stated that the search conducted by police officers is only valid if it has been conducted without anyone's help.

A similar interpretation had also been made in the case of Shyam Lal Mohan Choksi v. State of Gujarat and State of Bombay v. Kathi Kalu Oghad. Even in the Kalu oghad case, the majority stated that "to be witness" means providing knowledge in respect of relevant facts, by means of oral statements in writing, by the person who has personal knowledge of the facts. In the event that a person has been accused of any offence and he has any document that has the tendency to expose his guilt or even something that will necessarily confirm the criminal charges against him, he can be summoned by a competent court or police authority to produce it.

The best requirement is that the content material of the file ought to now no longer screen any records primarily based totally on the private know-how of the accused. This interpretation is criticized with the aid of using numerous jurists and students and stated that "such acts will quantity to self-incrimination". For example, if an accused character has in his ownership a letter, to be written with the aid of using someone imagined being his co-conspirator having a connection with their not unusual place aim for committing an offence.

Article 20(3) states that "No one may be accused of being a witness against himself". The defence against self-incrimination under the Indian Constitution is based on the principle of "nemo tenetur prodere or nemo tenetur scripsum slander", which means that the accused cannot be forced to testify against himself.

The state is obliged to prove the guilt of the accused beyond a reasonable doubt. The simple principle is based on giving the accused an equal opportunity to know what he is accused of and based on that he will prepare an appropriate defence for him. At times, the constitutional effect of section 93(1) order has been elevated in the context of section 20(3) of the Constitution.

Many jurists and academics have stated that:
"Everyone" in section 91(1) also includes the defendant along with other witnesses. For these, they will be prosecuted for crimes under article 174 of the Penal Code. Even, The Supreme Court in the State of Shyamlal Mohanlal Choksi v Gujrat held that the term "any person" in Section 91 of the CrPC did not include the accused and could not give an opinion on the accused. However, the ruling in the Shyamlal case did not limit the defendants completely.

The deciding score of the court decision in Bombay State v Kathi Kalu Oghad leaves open the possibility of flexibility. In the above case, one of the most ridiculous decisions was made by the Supreme Court with a narrow interpretation of the term "witness" as set out in Article 20 (3). But in a decision after the Gujarat v. Shyamlal Mohan Choksi case. The Supreme Court ruled that the term "person" under Article 91 (1) does not include the accused.

However, following the decision on the proportion of the judgment, the court found that Article 91 (1) implicitly stated that the defendant was not required to prepare a document of self-incrimination. Is that person accused of any offence completely excluded from the application of power under section 91(1)? The Supreme Court's decision should be considered in light of the court's decision in Kalu Oghad.

Therefore, from the combination of these two judgments, it is very clear that the defendant respects the right to self-guilt and is completely exempt from producing documents that are summoned and convicted. Knowledge is based. Thus, Authorities first call the accused with the document and then are told if the document is guilty

It has long been said that the right not to accuse oneself is in fact a prerogative of the accused and a major factor in the failure of justice. This is not the first time such an attempt has been made to change the nature of what is stated in Article 20(3). The Malimath Commission report titled "Criminal Justice System Reform" even argues that although the defendant has the right to remain silent, an inference can be drawn from the defendant's silence, which is also against the principle of the right to silence. accused.

Following the promulgation of the constitution of India in 1950, India. this human right of the accused, the right to resist self-incrimination has been included in Article 20 of the Constitution of India, not to offend the defendant's right in this way as has been done by interpreting it narrow. So, the legislators of the country are asked to respect this right just as other fundamental rights are respected.

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