SEARCH SECTION 100
GENERAL PRINCIPLES OF SEARCH—SECTION 100:-
This Section 100 deals with the procedure to be followed by the person conducting search.
This procedure of conducting search is equally applicable to the search with warrant and to also the search without warrant.
THIS PROCEDURE HAS TO BE READ ALONG WITH THE GUIDELINES LAID DOWN BY THE SUPREME COURT IN VARIOUS CASES— Under Section 100
- Occupier of the place must allow free- ingress to the officer conducting search.
- Occupier of the place has to accord reasonable facilities to the officer conducting search.
- If free- ingress is not allowed, the Police-Officer conducting the Search can break open the doors or the windows to make his entry into the place possible.
- Search has to be conducted always in the presence of the respectable residents of that locality where Search is intended to be conducted.
- Those two persons are known as Panchas or search witnesses.
- If there is a Parda-nashin woman- where search is to conducted, she must be asked respectably to go out of that place and then only search has to be conducted.
- Before, the search is commenced occupier of the place will have to Search the Police-Officer and the witnesses. This is to be done so as to avoid any planting of items brought from outside.
- Search witnesses should not be asked to stay outside the place where search is conducting instead they should be allowed to be present in the place where search is conducted.
- Occupier or his nominee should be allowed to be present in the place of search.
10.If possible search has to be conducted only during the day-time.
- If possible search has to be conducted with Warrant.
- After the completion of the Search a list has to be prepared by the officer concerned giving all the particulars of the items found during the time of Search.
- A copy of that list has to be given to the occupier of the place and he will have to acknowledge the receipt.
- Another copy of the list has to be sent to the nearest Magistrate.
- Another copy of the list has to be retained by the Police-Officer concerned.
SEIZURE – SECTION 102:-
The items so identified during the time of search are to be seized by the Police Officer concerned as per Section.102 of Criminal Procedure Code.
When the search is conducted by the Police-Officer without following the procedure and the guidelines enumerated above and if such a search cause grave pre-judice to the accused then it is considered invalid.
If search conducted so doesn’t cause any injustice to the accused, it is considered as a curable-irregularity.
- 91 doesn’t include an accused person on trial as he got right against self-incrimation or testimonial compulsion.
STATE OF GUJRAT v. SHYAM LAL, AIR (1965) SC 1251.
- The word document or thing covers a postal or money order also.
KAILASH CHANDRA v. SUPERINTENDENT OF POST OFFICES. AIR (1960) PUNJAB 412.
- The search of the premises occupied by the accused without the accused being compelled is not against Article 20(3) of the Indian Constitution.
V.S. KUTTAN PILLAI v. RAMA KRISHNAN (1980) CRLJ 196 SC.
- Section 95. Is not against Article 14, 21 and 19(1) (G) and it is constitutional valid.
BAJENDRA SINGH v. STATE OF PUNJAB (1993) CRLJ 2040 (P&H).
5.Section 93. Empowers the court to search warrant under this Section only the court has to issue the Search warrant but not the executive magistrate.
CLARKE v. BRAJENDRA KUMAR ROY CHOUDHRY (1912) 39 IA 163.
- Before searching any place, it is necessary that the officer conducting the search and the witnesses must give search of their person to the accused or to the occupant of the place.
STATE OF BIHAR v. KAPIL SINGH. AIR (1969) SC 53.