SEARCH WITHOUT WARRANT

Pranjal Sharma | Symbiosis Law School, Hyderabad

The constitution of India secures its citizens with the Right to Freedom under Article 19 and Protects them from Self Incrimination under the Article 20(3) which guarantees that no person shall be compelled to testify against himself. such protection also includes protecting the citizens from unreasonable searches. This Protection is Guaranteed by the enforcement of obtaining mandatory Search Warrant under Section 93 of CrPC.

When magistrate, Judge or Court issues an order that acts an authorization for the law enforcers to conduct a search of a person, location or vehicle for evidence of a crime including the confiscation of illegal items or evidence of a crime, if found. The Procedure for a Police Officer to get a search Warrant includes convincing a judge that there is evidence of a crime at that place intended to search and if the judge is convinced, he shall issue a specific warrant including the place of search, date and time.

But this does not mean that the Law Enforcers cannot Search a place without a Search Warrant. This as an exception to the general law has been provided under Section 165 of the CrPC, by the lawmakers as they realize the need of conducting prompt searches in certain exceptional emergencies where no time can be spent in applying for Search Warrants.

The police officers can make such searches only under special circumstances, the grounds for a police officer to make a search without a warrant under Section 165 of the Crpc are –

1. When a police officer who is in charge of a particular investigation has reasonable grounds for believing that any evidence that is necessary for the purpose of the investigation might be found in a certain place within the jurisdiction of the Police Station to with the officer is In-Charge and that such thing cannot in his opinion be otherwise obtained without undue delay, then such an officer may, after in writing record the grounds of his belief and specifying as far as possible the thing for with the search is being made, search or cause such search to be made for any such thing but only within the limits of such station. 
2. The police officer shall if practicable, conduct the search in person.
3. (or) if he is unable to conduct such search in person 
4. (And) if no other person competent to make such search is present at that time, then the officer Incharge after recording the reasons may provide in writing an order to a subordinate officer to conduct such a search.
5. The officer making such search needs to follow all the rules of Section 100 of CrPc.
6. The copies of any record made under such search shall be furnished to the nearest Magistrate who is empowered to take cognizance of such Offence and the owner or the occupier of the place searched can on an application can get a copy of the same from the Magistrate. 

As an explanation to rigid provisions under Section 165 the Hon’ble Supreme Court in State v. Rehman, (AIR 1960 SC 210), laid down that, “as search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power”.  The court stated that Provision of Section 165 CrPC is enacted to enable police to take a search when there is urgency and when it is not permissible to follow a lengthy process, securing search warrant from Magistrate.

Such search is not only restricted to what is stolen or believed to be stolen but also for anything necessary for the purpose of investigating into any offence.

Understandably, the police officers have the provision to take search of the house for investigation, but it should be noted that the first step before entering the house is to record the reasons for doing so.