When Police May Search Without Warrant (Section 165 BNSS)

Section 165 of the BNSS outlines the circumstances under which a police officer can conduct a search without a warrant. This power is a crucial investigative tool but is strictly regulated to prevent abuse.

Procedure for Search without Warrant

• Reasonable Belief: If a police officer investigating an offence has a reasonable belief that it is necessary for the purpose of investigation to conduct a search for any document, electronic record, place, or property, and that such document, electronic record, place or property is not available or cannot be obtained by other means, and that delaying the search by obtaining a warrant could lead to the item being concealed or destroyed, then such officer may, after recording the grounds for his belief, conduct a search.

• Grounds to be Recorded: The police officer must record the grounds of his belief in writing. This is a mandatory condition to justify a warrantless search.

• Reporting to Superior: The officer must report the details of the search to his superior officer and, if possible, obtain a warrant. If a warrant cannot be obtained, the search can proceed, but it must be reported.

• Search of Premises: The officer can search any place for the purpose of investigation, but the search must be conducted in accordance with the general principles of search, including the presence of witnesses and videography.

This provision balances the need for effective investigation with the protection against arbitrary searches, ensuring that warrantless searches are justified and documented.

When Search Warrant May Be Issued

When a warrantless search is not permissible or advisable, the police can obtain a warrant from a Magistrate to conduct a search.

Magistrate's Power to Issue Search Warrants (Section 166 BNSS)

• Conditions for Issuance: If a Magistrate has reason to believe that by a search warrant anything necessary for the purposes of investigation into an offence concerning which a police officer has been investigating or has made a report, is not produced before him or before a court, or is not available or cannot be obtained by other means, or that the discovery of any such thing is necessary for the purpose of justice, he may issue a warrant.

• Content of Warrant: The warrant shall direct the search being made by such Police Officer, or by such other person as he thinks fit, for the purpose of discovering and bringing before him any such document, electronic record, place or property.

• Execution of Warrant: The warrant must specify the place or premises to be searched and often the items to be seized. It should be executed in accordance with the procedures laid down in BNSS.

• Scope: This power allows the Magistrate to judicially authorize searches when the police believe that evidence is being hidden, destroyed, or is otherwise unavailable, thus ensuring judicial oversight over intrusive investigative powers.

General Principles of Search

The BNSS, in line with established legal principles, prescribes certain general guidelines for conducting searches to ensure fairness and prevent abuse of power.

Searches to be conducted in the presence of independent witnesses

• Mandatory Requirement: Section 47(5) BNSS explicitly states that search shall be conducted by the police officer in the presence of two independent witnesses.

• Purpose: The presence of independent witnesses is a crucial safeguard to ensure that the search is conducted properly, that nothing is planted, and that the process is transparent. These witnesses should be respectable members of the locality where the search is conducted.

• Seizure List: The witnesses are required to attest the list of articles seized during the search (Section 47(5) BNSS mandates that the witnesses shall be shown the list of things seized and shall be asked to sign it).

Videography of Search and Seizure

• Mandatory Provision: Section 47(5) BNSS also mandates that the process of search and seizure shall be videographed.

• Purpose: This technological measure further enhances transparency and provides an objective record of the search proceedings, helping to prevent allegations of misconduct or impropriety by the police.

• Evidence: The videography can serve as crucial evidence if the legality or conduct of the search is challenged.

Search of Persons Arrested (Section 47 BNSS)

Section 47 of the BNSS specifically deals with the search of a person who has been lawfully arrested.

• Power to Search: Whenever a police officer arrests any person under Sections 41, 42, or 43 BNSS, he may search the arrested person.

• Seizure of Articles: He may place in safe custody any article found upon him which he has reason to believe to be necessary for the purpose of investigation or may be connected with the offence. This includes evidence related to the crime.

• Conduct of Search: The search must be conducted with due regard to decency, particularly when searching a female, as per the implied principles and Section 51 BNSS, which pertains to the search of arrested persons generally.

This power allows the police to secure potential evidence immediately upon arrest.

Search of Dwelling Place

Searching a dwelling place, which is considered a private space, requires specific legal authorization due to its sanctity.

• Warrant Requirement: Generally, a police officer cannot search a dwelling place (house, tent, or vessel) without a warrant issued by a Magistrate under Section 166 BNSS, especially if the person residing therein objects to the search. This is to prevent arbitrary intrusion into private residences.

• Exceptions: However, if the police officer has reasonable grounds to believe that a warrant cannot be obtained without affording the offender an opportunity to escape or to conceal evidence, and that delay would defeat the ends of justice, they may search the premises after recording the grounds for their belief (Section 165 BNSS).

• Procedure: Even when searching a dwelling place, the police must follow the general principles of search, including the presence of witnesses and videography.

• Notice: Before entering the premises, the officer executing the warrant or conducting the search must typically notify the occupant and produce the warrant.

Police Officer's Power to Seize Certain Property

Police officers are empowered to seize certain types of property during an investigation, which are either proceeds of crime, instruments of crime, or evidence.

Seizure of stolen property

• Section 47 BNSS: Allows police to search an arrested person and seize any article found upon them which they have reason to believe to be necessary for the purpose of investigation or may be connected with the offence. This includes stolen property.

• Section 102 BNSS: "Power of Police Officer to seize certain property" states that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

• Purpose: Seizing stolen property helps in returning it to the rightful owner and also serves as evidence against the accused.

Seizure of counterfeit coin or counterfeit currency notes

• Section 102 BNSS: Explicitly includes the seizure of counterfeit coin or currency notes or documents relating to such forgery.

• Indian Penal Code: Offences relating to counterfeit currency are defined under the Indian Penal Code (now Bharatiya Nyaya Sanhita). The BNSS provides the procedural mechanism for seizing such items during investigation.

• Purpose: Seizing counterfeit currency is crucial to prevent further circulation of fake money and to gather evidence against those involved in such activities.

The police officer seizing property must immediately report the seizure to their superior officer and follow the procedure for preparing a seizure list.

Procedure on Seizure

The BNSS lays down a specific procedure for seizures to ensure accountability and proper handling of seized items, which are crucial for evidence.

Necessity of seizure list

• Section 47(5) BNSS: Mandates that when a search is made, the police officer shall prepare a list of all things seized in the presence of witnesses. These witnesses must be shown the seized articles and asked to sign the list.

• Section 102(2) BNSS: Similarly, requires that the police officer seizing any property under this section shall immediately report the seizure to his superior officer, and if he has not been empowered to make an arrest, he shall forthwith forward to the Magistrate the list of all property seized, with the report of all circumstances which led to the seizure.

• Purpose of Seizure List: The seizure list serves as a vital record of what was seized, when, where, and by whom, along with the witnesses. It is essential for:

  • Establishing the chain of custody of evidence.

  • Preventing claims of tampering or planting of evidence.

  • Facilitating the return of property to its rightful owner if it is not required for trial.

Producing seized property before Magistrate

• Section 102(2) BNSS: Requires the police officer to forthwith forward to the Magistrate the list of all property seized, along with the report of the circumstances that led to the seizure. This ensures that the seizure is brought to the notice of the Magistrate for oversight.

• Custody of Property: The seized property is then produced before the Magistrate or kept in police custody as directed by the Magistrate, depending on the nature of the property and the stage of the investigation.

• Disposal: The final disposal of the seized property (e.g., return to owner, destruction, confiscation) is decided by the court at the conclusion of the trial.

Magistrate's power to compel Restoration of Property (Section 102 BNSS)

Section 102 BNSS not only empowers police to seize property but also outlines the Magistrate's role in its custody and potential restoration.

• Reporting to Magistrate: As mentioned above, seized property must be reported to the Magistrate, along with the seizure list and circumstances. This places the property under the Magistrate's general supervision.

• Magistrate's Direction: The Magistrate, upon receiving the report, may issue orders regarding the custody or production of the seized property. If the property is produced before him, he may make such orders as he thinks fit respecting its custody pending the conclusion of the inquiry or trial.

• Compelling Restoration: While BNSS does not have a specific section titled "compelling restoration," the Magistrate's overall powers to manage seized property and ensure justice implicitly include the power to order the restoration of property to its rightful owner if it is found not to be stolen property or not required for the purpose of investigation or trial.

• Disposal of Property: Section 105 BNSS deals with the disposal of property seized upon termination of proceedings, where the Magistrate decides on the disposal of the property according to the rights of the persons claiming it.

The entire process ensures that seized property is handled in a transparent and lawful manner, with judicial oversight to protect the rights of owners and the integrity of evidence.