Search Without a Search Warrant is Infringement of Privacy

Kritika Pandey | Maharaja Sayajirao University of Baroda | 4th January 2020

Dnyaneshwar s/o Kachru Todmal ​Vs.​ The State of Maharashtra & Ors., Criminal Writ Petition No.25 of 2019

Facts:

1. The incident took place at about 2:00 a.m. The search of the petitioner’s house was taken by Newasa Police, District Ahmednagar. According to the petitioner, police had not obtained a search warrant. And ultimately nothing objectionable was found. During the search, one Constable had tried to plant a country made pistol. But due to the alertness of the petitioner he was not successful. The police also threatened to implicate him in a false crime.
2. The petitioner filed a complaint to the concerned Tahsildar about the aforesaid illegal act of police but no action was taken. He later filed a complaint with the District Superintendent of Police, Ahmednagar (hereafter DSP) and a copy was sent to State Human Rights Commission. But no action has been taken against the respondents. He approached this Court by filing a Writ Petition.
3. The letter to the DSP was shown to the Court. In effect, the Sub Divisional Police Officer was appointed for inquiry. In view of the steps taken by the superior police officers, Writ Petition was disposed by this Court.

Petitioner Contention :

1. The police ought to have obtained a search warrant before undertaking search of the petitioner’s house. And as no such warrant was obtained, the search was illegal.
2. In the case of State Vs. Rehman (AIR 1960 SC 210) the Apex Court has laid down that as per the provision of section 165(1) of the Cr.P.C. it is mandatory to obtain a search warrant before searching a house. The investigating officer has to specify in writing the things to be searched with the ground of his belief that such things would be found.
3. By seeing to the provision it can be said that it permits the police officer to make search for anything necessary for the purposes of investigation into any offence. On one hand the provision enables police to search for investigation of a crime, on the other, it mandates the police to record reasons before searching.
4. The provision of section 165 of the Cr.P.C. are applicable to searches when offence is committed under general Acts like Indian Penal Code, special Acts or local Acts provided that the conditions specified are satisfied.
5. Searching a house without a warrant, itself amounts to infringement of privacy and such act is a breach of the fundamental rights given under Article 21 of the Constitution of India.
6. Learned counsel drew the attention of this Court to the provision of section 147 of the Maharashtra Police Act 1951 which is as under:Any Police Officer who
   (a) without lawful authority or reasonable cause enters or searches, or causes to be entered or searched, any building, vessel, tent or place; (b) vexatiously and unnecessarily seizes the property of any person; (c) vexatiously and unnecessarily detains, searches or arrests any person; (d) offers any unnecessary personal violence to any person in his custody, or (e) holds out any threat or promise not warranted by law, shall for every such offence, on conviction, be punished with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both.

Respondent Contention :

1. The Superintendent of Police, Ahmednagar has contended that in the year 2018 at least 16 crimes were registered against other persons of that area. Illegal firearms were found in their possession. Due to these circumstances there was a possibility that the petitioner was having firearms and was involved in illegal activities. So action was taken by police on the basis of secret information.
2. The petitioner is driver by occupation. Some crimes were registered against him prior to the day of action under sections 304-A and 279 of the Indian Penal Code between the year 2011 and 2015.
3. It cannot be claimed that the petitioner had no criminal background. Thus, the action was taken in good faith by the police.

Held

1. As per the provisions of the Arms Act 1959, there is nothing that enables police to take search by ignoring the provision of section 165 of the Cr.P.C.
2. Also the provisions of the Maharashtra Police Act which ascertains the powers of police officer, does not show that police can bypass the provision of section 165 of the Cr.P.C.
3. This Court held that the State is liable to compensate the petitioner for such illegal action. The action of the police was in infringement of privacy of the petitioner. Moreover, it defamed his entire family.
4. Though in the past, some crimes were registered against the petitioner for offence of negligence and rash driving, it cannot be considered to claim that the petitioner had criminal background given that his occupation was driving.
5. This Court held that the respondents need to pay at least Rs.25,000/- as compensation to the petitioner. The petition was partly allowed. The search was declared illegal.