Legal Provisions of Section 93 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
When search-warrant may be issued:
A search warrant is a written order issued by a competent Magistrate or a Court directing a police officer or other person to take search of any place either generally or for specified documents or things or for persons wrongfully detained. Since a search involves invasion of the sanctity and privacy of individuals, the Court or the Magistrate should exercise utmost care and caution while using their power to issue a search warrant. The Magistrate is required to record reasons before issue of a search warrant. An illegal order of search and seizure shall vitiate the seizure of the articles.
Image Source: s-media-cache-ak0.pinimg.com
ADVERTISEMENTS:
Section 93 (1) (c) of Cr P. C. comprehends a situation where the Court may issue a search warrant before proceedings of any kind are initiated and, in view of an enquiry about to be made, when the Magistrate considers that the purpose of an inquiry, trial or other proceeding under the Code will be served by a general search or inspection to search, seize and produce the documents mentioned in the list.
When such a general search warrant is issued, in execution of it the premises even in possession of the accused can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statement made by the accused upon his personal knowledge and when proved may have any tendency to incriminate the accused, though it may not have even the remotest tendency to compel the accused to incriminate himself.
Clause (b) of Section 93 (1) refers to a specific situation when there is a definite allegation to recover certain document or thing from a particular place or premises but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person.
ADVERTISEMENTS:
The Supreme Court in V. S. Kuttan Pillai v. Ramkrishnan and another, made it abundantly clear that the constitutional immunity against self-incrimination extends to any incriminatory evidence which the accused may be compelled to give, but it does not extend to cover such situation as where evidence which may have tendency to incriminate the accused is being collected without in any manner compelling him or asking him to be a party to the collection of evidence.
Search of the premises occupied by the accused without the accused being compelled to be a party to such search would not be violative of constitutional guarantee enshrined in Article 20 (3) of the Constitution. The Court in its concluding remarks held that there is no doubt that issuance of a search warrant is a serious matter and Court should not dispose it of in a mechanical way.
The Code provides six circumstances under which a search warrant may be issued and three of them are mentioned in sub-sections (1) (a), (b) and (c) of this section.
The issue of a search warrant whether general or special under Section 93 is an integral step in the investigation, of a case. The search and seizure being only a temporary interference with the right of a person to hold the premises searched, it is a reasonable restriction and, therefore, it is not per se considered unconstitutional under Article 20 (3) of the Constitution.
ADVERTISEMENTS:
The Supreme Court in M.P. Sharma v. State observed that a search by itself is not a restriction on the right to hold and enjoy property as it is only a temporary interference with the right to hold in premises searched and the articles seized. Therefore, it cannot be said that it is violative of Article 19 (1) (f) of the Constitution.
Sub-section (2) does not make it mandatory to specify the place to be searched in the warrant. A direction to search any house which the officer thinks necessary will not render the warrant illegal merely for this reason.
The final order of disposal of documents seized in execution of a search warrant is to be made by the Court. Therefore, an application for this purpose should be made to the concerned Court.
A person aggrieved by a search warrant issued against him may seek recourse to any of the remedies stated below:
(1) He may file a writ petition under Article 226 of the Constitution for quashing of the illegal search warrant and for the restoration of the articles or documents seized during the search.
(2) He may file a revision petition under Section 401, Cr. P.C. if it can be shown that the Magistrate did not apply his mind judicially and issued search warrant in a routine manner and arbitrary fashion.
(3) He can sue the person who had executed the illegal search warrant for actionable trespass and claim damages against him.