CONSTABULARY COMPETENCY, IN SEARCH AND SEIZURE IN CONTEXT WITH CRIMINAL LAW IN INDIA

The complete strategy enumerated in the Code of criminal procedure, 1973 is in accordance with the concept of justice and fairness. One of the central important provisions of legal jurisprudence is that a person accused of any misdemeanor should be given equivalent anticipation to be heard and to fortify himself. It is in conformity and in accordance with this theory only that there are provisions in Code of Criminal Procedure, 1973 of Cr.PC related to concern of process, provisions in section 161 (3), provision in section 162 of the code that any statement taken during the trajectory of investigation, shall not be signed by the person making the statement, has been specified.

Likewise, while vindicating the identical hypothesis, the protection against self incrimination has been mentioned as a special fundamental right under Part III of the Constitution of India.

In the view of the Article 20(3), it specifies that no person who is accused of any offence shall be compelled to be a witness against himself.

SPECIFIC PROVISIONS PERTAINING WITH THE SEARCH AND SEIZURE

• Section 91, which apprehend the Process to Compel Production of Things of the Code of Criminal Procedure, 1973

• As well as section 93, When the concept of search warrant may be taken into the consideration

These provisions implies that an officer in charge of a police station can emancipate a notice or a Court can issue a summon under section 91(1) to any person within whose possession the officer in charge or court thinks, is the document or a thing necessary for the purpose of investigation. But if the court or officer commence that the person to whom the summons or notice is issued, will not present the documentations or things, the court can issue a warrant in regards of search to the officer, under section 93 clause (1) sub-clause (a).

From time to time the constitutional adherences of the issuance of the warrant under the Section 93(1) (a), in regards of Article 20(3) have been raised. The disagreements were uplifted in context with that the term “any person” in section 91(1) not only includes witnesses and other persons, but also is inclusive of the accused. Therefore if the accused person do not obeys to the contemplations of the summons, that person, will have to face a compelled search strictly in his house, and this itself shows the compulsion put on the accused.

Further, the compelled search conducted will be an obstruction into the privacy. Also there will be arrest for the offence made which has been specified under section 174 of the Indian Penal Code, 1860. Therefore in the light of all the summons issued is a compulsion on the accused person to present self incriminating evidences, thereby wholly contradicting and by discriminating his fundamental right guaranteed under article 20 (3).

With regard to the first proposition about the process of issue of search warrant under section 93(1) (a), the Honorable Supreme Court in the leading case of M.P Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others, through Jaghandadas J. stated that-Which enunciates that the search made by the police officer or any of the investigating officer will be considered valid only if, it has been operated without any help from the person, just only when, there is any  formal accusation been leveled against the person.

However with regard to intrusion into the privacy is concerned, it has been settled that the right to privacy is not an absolute right and it is subjected to the reasonable restriction whenever there are legitimize scrutiny, which entails though much prominent and important than the right to privacy of a person, for the sake of justice.

ABOUT THE AUTHOR:

Shikhar Shrivastava, currently pursuing 3rd Year Law Course [B.A.LL.B (Hons.)] from Indore Institute of Law, Indore (Madhya Pradesh). The areas of interest for him are Constitutional Law, Criminal Law, Environmental Law, Human Rights Law.