DR.

ABSARUL HASAN KIDWAI

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE - 1
B.A.LL.B. (HONS) VIIIth SEMESTER

UNIT-III:

ARREST, DETENTION & COMPELLING AND PROCESS OF APPEARANCE

A. (a) Arrest by Police and Public (SS. 41-49)

Fair trial requires that the trial proceedings are conducted in the presence of the accused and that
he is given a fair chance to defend himself. Consequently, the provisions regarding the issue of
summons, or of a warrant of arrest or arrest without warrant are all aimed at ensuring the presence
of accused at his trial without unreasonably depriving him of his liberty.

Arrest means the apprehension of a person by legal authority resulting in deprivation of his liberty.
The Code contemplates two types of arrests:

1. Arrest made in pursuance of a warrant issued by a Magistrate; and

2. Arrest made without such warrant but made in accordance with some legal provision
permitting such arrest.

Cases in which arrest can be made without a warrant

Section 41 enumerates different categories of cases in which a police officer may arrest a person
without an order from a Magistrate and without a warrant. These include:

(a) who has been concerned in any cognizable offence or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of housebreaking; or
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(c) who has been proclaimed as an offender either under this Code or by order of the State
Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with
reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule, relating to notification of
residence or change of or absence from residence; or

(i) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the
offence or other causes for which the arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by the officer who issued the
requisition.

Arrest on refusal to give name and residence

If any person who is accused of committing a non-cognizable offence does not give his
name, residence or gives a name and residence which the police officer feels to be false,
he may be taken into custody. However, such person cannot be detained beyond 24 hours
if his true name and address cannot be ascertained or fails to execute a bond or furnish
sufficient sureties. In that event, he shall be forwarded to the nearest Magistrate having
jurisdiction. (Section 42)
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Arrest by a private person

A private person may arrest or cause to be arrested any person who in his presence commits
a non-bailable and cognizable offence or who is a proclaimed offender (Section 43). This
right of arrest arises under the Common Law which applies to India (Ramaswamy Aiyar
(1921) 44 Mad. 913).

Arrest by Magistrate

Under Section 44 clause (1), the Magistrate has been given the power to arrest a person
who has committed an offence in his presence and also commit him to custody. Under in
clause 2, the Magistrate has the power to arrest a person for which he is competent and has
also been authorized to issue a warrant. However, Section 45 protects members of Armed
Forces from the arrest where they do something in the discharge of their official duties.
They could be arrested only after obtaining the consent of the Central Government.

Arrest how made

Section 46 sets out the manner in which an arrest is to be made. The Section authorizes a
police officer or other person making an arrest to actually touch or confine the body of the
person to be arrested and such police officer or other people may use all necessary means
to effect the arrest if there is forcible resistance. The Section does not give a right to cause
the death of a person who is not accused of an offence punishable with death sentence or
life imprisonment.

Other important provisions

 Section 47 is an enabling provision and is to be used by the police officer with regard to
exigencies of a situation.

 Section 48 authorizes a police officer to pursue the offender into any place in India for the
purpose of effecting his arrest without warrant. Ordinarily, a police officer is not at liberty
to go outside India and to arrest an offender without a warrant, but if he can arrest an
offender without warrant who escapes into any place in India, he can be pursued and
arrested by him without a warrant.
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(b) Nature of Offence, Cognizable and Non-Cognizable [S. 2(c) and Schedule II
Cr.P.C.]

The Code of Criminal Procedure is the counterpart of its substantive legal enactment, the
Indian Penal Code, 1860. The Cr.P.C provides for trial of acts mentioned as offences under
the IPC. But, however, to ensure an expeditious and fair trial, there is a categorical
classification of offences under the Cr.P.C.

One principal object of criminal law is to protect society by punishing offenders. However,
justice and fair play require that no one is punished without a fair trial. Therefore, it
becomes absolutely necessary that every person accused of the crime is brought before the
court for trial and determination of his guilt or innocence. This duty is vested upon the
police officers. The police department is a functionary under the Code of Criminal
Procedure, 1973 responsible for all the pre-trial procedures including, arrest and production
of the accused of trial.

The Code, however, does not contemplate the use of the police in respect of an
investigation into each and every offence under the Indian Penal Code, 1860 or any other
law. Further, the force used by police “during and after arrest also depends upon the nature
of the offence committed”. Taking these into consideration, the Code has divided the
offences under IPC and all other penal laws into two classes comprising of two categories
each.

Classes of Offences

1. Cognizable and non-cognizable Offences

The Criminal Procedure Code provides for two categories of offences – cognizable and
non-cognizable. Clauses (c) and (l) of Section 2 of the Code defines cognizable and non-
cognizable offences respectively as follows:

Section 2(c): “cognizable offence” means an offence for which, and “cognizable case”
means a case in which, a police officer may, in accordance with the First Schedule or under
any other law for the time being in force, arrest without warrant;
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Section 2(l): “no- cognizable offence” means an offence for which, and “non-cognizable
case” means a case in which, a police officer has no authority to arrest without a warrant.

As indicated by the above definition, cognizable offences are those where the police
can suo motu take action without the need for any authorized permission from the
Magistrate. These offences are serious in nature and the society cannot afford wasting time
on legal formalities and to allow the offender to conceal evidence or worse; abscond.

With respect to the meaning of cognizable offence under the Code, the Calcutta High Court
made certain observations in State of West Bengal v. Joginder Mallik [1979 Cri. L.J 539
(Cal)]. The court held that where the alleged offence is not cognizable according to the
First Schedule to the Code or if it has not been made cognizable by the Act creating the
offence, it will not be considered as cognizable simply because the police was empowered
to arrest the person for commission of offence without a warrant.

On the contrary, in case of a non-cognizable offence, the police do not have the power or
the authority to arrest a person without a warrant nor can the police officer initiate the
investigation without a specific order of the Magistrate.

In all cases of non-cognizable offence, the person reporting the offence is referred to the
Magistrate and a complaint has to be filed before the Magistrate under Section 190 of the
Cr.P.C. Besides certain exceptions, “the non-cognizable offences are considered more in
the nature of private wrongs and therefore, the collection of evidence and the prosecution
of the offender are initially left to the initiatives and efforts of private citizens”. However,
if a Judicial Magistrate “considers it desirable that a non-cognizable case should be
investigated by the police, he can order the police to do so”

2. Bailable and Non-bailable Offences

The Code has further classified all offences under the IPC as bailable and non-bailable
offences. According to Section 2(a) of the Cr.P.C:

Section 2(a): “bailable offence” means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force; and “non-
bailable offence” means any other offence.
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The definition of bailable offence and the non-bailable offence does not say a lot about its
meaning or nature. The code has not provided any parameters to determine which offence
should be bailable and which should not be. However, it has been classified in the Frist
Schedule to the Cr.P.C and it has to be followed without any discretion or fail. If an act is
made an offence in some other law and it has not been classified as bailable or non-bailable,
usually the graveness of the offence is looked into.

In general scenario, an offence which is punishable with an incarceration period of three

years or less is considered to be less heinous and hence, bailable while contrary to it, an
offence where the offender can be incarcerated for more than three years is usually non-
bailable.

However, the Supreme Court criticized this rule in Talab Haji Hussain v. Madhukar
Purshottam[AIR 1958 SC 376]. The court observed that if the above rule had been true, it
may not be easy to explain why offences under Sections 477, 477A, 475 and 506 of the
IPC should be made bailable while offence under Section 379 should be non-bailable. It
may be noted that offences under Sections 475, 477 and 477A are all punishable with an
incarceration period which may extend to seven years but, however, they are made bailable
under the First Schedule.
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B. Rights of Arrested Person (S. 50)

The powers given to police to facilitate the making of arrest are not absolute. These powers
are subject to certain restraints. These restraints are the rights of an arrested person. Thus,
Rights of an arrested person are-
1. Right to know the grounds of Arrest
2. Information regarding the Right to be released on Bail
3. Right to be taken before a Magistrate without Delay
4. Right to a Fair Trial
5. Right to Consult a Legal Practitioner
6. Right to be examined by a Medical Practitioner
7. Right to Silence
8. Right to know the grounds of Arrest

1. Right to know the grounds of Arrest

1.1) As per Section 50(1) of Cr.PC., every person who is being arrested by any police
officer, without any warrant, is entitled to know the full particulars of offence for which he
is being arrested, and that the police officer is duty bound to tell the accused such
particulars and cannot deny it.
1.2) As per Section 55 of Cr.PC., when any person is being arrested by any police officer,
who is deputed by a senior police officer, then such subordinate officer shall before making
such arrest, notify the person to be arrested the substance of the written order given by the
senior police officer specifying the offence or other cause for which the arrest is to be made.
If this provision is not complied with, then the arrest would be rendered illegal.
1.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.PC, any
person who is executing such warrant must notify the person to be arrested, the particulars
of such warrant, or even show such warrant if needed. If the substance of the warrant is not
notified, the arrest would be unlawful.
1.4) the Constitution of India also confers this right as one of the fundamental rights. Article
22(2) of the constitution provides that “no person who is arrested shall be detained in
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custody without being informed as soon as may be, of the grounds for such arrest nor shall
he be denied the right to consult, and to be defended by a legal practitioner of his choice.”
2. Information regarding the Right to be released on Bail
Any person who is to be arrested without a warrant and is not accused of a non-bailable
offense has to be informed by the police officer that he is entitled to be released on bail on
payment of the surety amount. This helps persons who are arrested for bailable offenses
and are not aware of their right to be released on bail.
3. Right to be taken before a Magistrate without Delay
Irrespective of the fact, that whether the arrest was made with or without a warrant, the
person who is making such arrest has to bring the arrested person before a judicial officer
without any unnecessary delay. Further, the arrested person has to be confined in police
station only and nowhere else, before taking him to the Magistrate. These matters have
been provided in Cr.P.C. under sections 56 and 76 which are as given below:
Section 56 of Cr.PC. states that “Person arrested to be taken before Magistrate or officer
in charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send
the person arrested before a Magistrate having jurisdiction in the case, or before the officer
in charge of a police station”.
Section 76 of Cr.PC. states that “Person arrested to be brought before Court without delay-
The police officer or other person executing a warrant of arrest shall (subject to the
provisions of section 71 as to security) without unnecessary delay bring the person arrested
before the Court before which he is required by law to produce such person”.
Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed
24 hours in any case. While calculating the time period of 24 hours, the time necessary for
the journey is to be excluded. The same has been enumerated in the Constitution as a
Fundamental Right under Article 22(2). This right has been created with a view to
eliminating the possibility of police officials from extracting confessions or compelling a
person to give information.
If the police officials fail to produce an arrested person before a magistrate within 24 hours
of the arrest, the police officials shall be held guilty of wrongful detention.
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4. Rights at Trial
4.1) Right to a Fair Trial
The Constitution under Article 14 guarantees the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.
This provision is designed to ensure that convictions are not obtained in secret. In some
exceptional cases, the trial may be held in camera.
4.2) Right to a Speedy Trial by the Constitution of India
Though this right has not been specifically mentioned in the Constitution, however, the SC
in the Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 has made it mandatory that
the investigation in the trial must be conducted “as expeditiously as possible.”
In cases, wherein the maximum punishment that can be imposed is 2 years, once the
accused is arrested, the investigation for the trial has to be completed within the period of
six months or stopped on receiving an order from the Magistrate, unless the Magistrate
receives and accepts, with his reasons in writing, that there is cause to extend the
investigation.
5. Right to Consult a Legal Practitioner
Every person who is arrested has a right to consult a legal practitioner of his own choice.
This has been enshrined as a fundamental right in Article 22(1) of the Constitution of India,
which cannot be denied in any case. Section 50(3) of the Code also lays down that the
person against whom proceedings are initiated has a right to be defended by a pleader of
his choice. This starts begins as soon as the person is arrested. The consultation with the
lawyer may be in the presence of police officer but not within his hearing.
6. Rights of Free Legal Aid
The Supreme Court in the case of in Khatri v. State of Bihar (1981) 1 SCC 627 has held
that the state is under a constitutional obligation (implicit in Article 21) to provide free
legal aid to an indigent accused person as is implicit in Article 21 of the Constitution. This
right does not come into picture only at the time of trial but exists at the time when the
accused is produced the first time before the magistrate, as also when remanded from time
to time. The Supreme Court further states that failure on the part of the state to inform the
accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on
all magistrates and courts to inform the indigent accused of his right to get free legal aid.
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7. Right to be examined by a Medical Practitioner

Section 54 of Cr.PC. enumerates this right. It states that: “Examination of arrested person
by medical practitioner at the request of the arrested person- When a person who is arrested,
whether on a charge or otherwise, alleges, at the time when he is produced before a
Magistrate or at any time during the period of his detention in custody that the examination
of his body will afford evidence which will disprove the commission by him of any offence
or which will establish the commission by any other person of any offence against his body,
the Magistrate shall, if requested by the arrested person so to do direct the examination of
the body of such person by a registered medical practitioner unless the Magistrate considers
that the request is made for the purpose of vexation or delay or for defeating the ends of
justice.”
8. Right to Silence
The ‘right to silence’ has been derived from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct merely
because he has not responded to questions which were asked by the police or by the
court. The breaking of silence by the accused can be before a magistrate but should be
voluntary and without any duress or inducement.
As per Article 20(3) of Constitution of India guarantees every person has been given a right
against self-incrimination, it states that any person who has been accused of any offense,
shall not be compelled to be a witness against himself. The same was again reiterated by a
decision of Supreme Court in the case of Nandini Sathpathy v. P.L. Dani (1978) 2 SCC
424; wherein it was held that no one can forcibly extract statements from the accused and
that the accused has the right to keep silent during the course of interrogation
(investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain
mapping, and lie detector test are in violation of Article 20(3) of the Constitution of India.
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C. Process of compelling of person or things before courts

(a) Process of summon and warrant (SS. 61-89)
The general processes to compel appearance are:
(1) Summons (Section 61)
(2) Warrants (Section 70)

SUMMONS
A summon is issued either for appearance or for producing a document or thing which
may be issued to an accused person or witness. Every summons issued by the Court
shall be in writing, in duplicate, signed by the Presiding Officer of such Court or by
such officer as is authorised by the High Court and shall bear the seal of the Court
(Section 61). The summons should be clear and specific in its terms as to the title of
the Court, the place at which, the day and time of the day when, the attendance of the
person summoned is required.

Service of summons

The summons shall be served by a police officer or by an officer of the Court or other
public servant (Section 62).

In case the service cannot be effected by the exercise of due diligence, the serving
officer can perform substituted service by affixing one of the duplicates of the summons
to some conspicuous part of the house or homestead in which person summoned
ordinarily resides, and thereupon the Court, after making such enquiries as it thinks fit
may either declare that the summons has been duly served or order fresh service, as it
considers proper (Section 65).

The service of summons on corporate bodies, and societies

The service of summons on a corporation may be effected by serving it on the secretary,

local manager or other principal officer of the corporation, or by letter sent by registered
post, addressed to the Chief Officer of the corporation in India, in which case the
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service shall be deemed to have been effected when the letter would arrive in ordinary
course of post.

The word “corporation” in this Section means an incorporated company or other body
corporate and includes a society registered under the Societies Registration Act, 1860.
Thus, the societies may not be formally incorporated, yet they fall within the purview
of this section. (Section 63)

When personal service of summons cannot be affected under Section 62, the extended
service under Section 64 can be secured by leaving one of the duplicates with some
adult male member of his family residing with him who may also be asked to sign the
receipt for that. A servant is not a member of the family within the meaning of Section
64.

In the case of a Government Servant, the duplicate copy of the summons shall be sent
to the head of the office by the Court and such head shall thereupon cause the summons
to be served in the manner provided by Section 62 and shall return it to the Court under
his signature with the endorsement required by Section 62. Such signature shall be
evidence of due service. (Section 66)

WARRANT OF ARREST

Every warrant of arrest issued by a Court under this Code shall be in writing, signed by
the presiding officer of such Court, and shall bear the seal of the Court. Such warrant
shall remain in force until it is cancelled by the Court which issued it, or until it is
executed. (Section 70) The form of warrant of arrest is Form No. 2 of the Second
Schedule. The requisites of a warrant are as follows:

 It must be in writing.
 It must bear the name and designation of the person who is to execute it;
 It must give full name and description of the person to be arrested;
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 It must state the offence charged;

 It must be signed by the presiding officer; and
 It must be sealed.
 Such warrant is only for protection of a person before the concerned Court and
not before the police officer.

Under Section 76 the police officer or other person executing the warrant of arrest shall
(subject to the provisions of Section 71 as to security) bring the person arrested before
the Court without unnecessary delay provided that such delay shall not in any case
exceed 24 hours exclusive of the time necessary for the journey from the place of arrest
to the Magistrate’s Court.

PROCLAMATION AND ATTACHMENT

Where a warrant remains unexecuted, the Code provides for two remedies:
(1) issuing a proclamation (Section 82); and
(2) attachment and sale of property (Section 83).

If a Court has reason to believe that any person against whom a warrant has been issued
by it has absconded or is concealing himself so that such warrant cannot be executed,
the Court may publish a written proclamation requiring him to appear at a specified
place and at a specified time not less than 30 days from the date of publishing such
proclamation. (Section 82)

While issuing proclamation, the Magistrate must record to his satisfaction that the
accused has absconded or is concealing himself. The object of attaching property is not
to punish him but to compel his appearance.
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(b) Search & Seizure

A trial is a stage when the court examines documents and witnesses to determine the guilt
of the person accused of an offence. Thus, anything that assists in the commencement of
trial is called a pre-trial procedure. As already said, during the trial, the court examines
documents and witnesses including the accused itself.

Therefore, to ensure the presence of such persons and production of such documents before
the court, several powers have been conferred upon the police officers and procedure
established to be followed while exercising these powers. The power to search a place can
be exercised either under a valid warrant issued by the Magistrate or without a warrant as
required by the law.

Section 93 of the Code of Criminal Procedure provides that a court may issue a search
warrant if (i) it believes that “a person required to produce a document in the court will fail
to do so”, (ii) if the document is “not known to the court to be in the possession of any
person” and (iii) the court believes that “a general search of a place will serve the purpose
of the trial”. On the other hand, Section 103 of the Code allows a Magistrate to conduct a
search in his presence without the need of a warrant. Thus, a search may be conducted with
and without a warrant.

What is a Search Warrant

A search warrant is “a written authority given to a police officer or other person by a

competent Magistrate or a court for the search of any place either generally or for specified
things or documents or persons wrongfully detained”.

A search is “a coercive method” and involves invasion of a person’s privacy and sanctity
of his home. Therefore, the courts have repeatedly held that “the power to issue search
warrant must be exercised with ‘all the care and circumspection’”

A warrant of search can be issued under six circumstances:

1. When the courts have sufficient belief that a vital document is in the possession of a person
who, in all probability, will not produce it by the issuance of summoning,
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2. There can be circumstances where the investigating agency is not aware if certain is in
possession of a person or not. In such cases, the warrant can be issued to search any
suspected place,

3. Where some evidence is still missing but no specific search is required because the nature
of the evidence is not known. In such cases, a general search may be conducted under
warrant,

4. Where information is received or self-acknowledged that a place is used for certain illegal
purposes which are not allowed by the IPC or any other law, such places can be searched
under warrant (e.g. Narcotic substances),

5. When the case relates to confinement of a human being in a manner not allowed by the law
and in a place not consented by that person (e.g. wrongful confinement or abduction or
kidnapping) and

6. Where “a District Magistrate, Sub-divisional Magistrate or Magistrate of First Class”

receives a complaint on oath about the abduction of any female below the age of 18 years
for any unlawful purposes.

Mandatory Search & Seizure Procedures

Whether a search is made with or without a warrant, the provisions of Sections 100 and 165 of
the Cr.P.C have been made applicable. According to these provisions, the relevant procedure
are:

 The police officer must conduct the search in person and if he is not available, he can
delegate the search to a sub-ordinate officer but after recording his reasons for doing
so.
 The warrant must be issued by “a competent Magistrate or Court”, as the case may be.
 The police officer should call upon two independent and respectable persons from the
nearby locality (called the “panchas”) and the search must be conducted in their
presence.
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 The police must prepare a record or memorandum of all things or documents recovered
during the search and the document must be signed by the
 The copy of the memorandum must be provided to the person whose place is being
searched.

Consequences of Non-Compliance with the said Procedure

The aforementioned provisions apply generally to all types of searches made by a police officer.
As already stated before, the search is a coercive method and violates several fundamental and
legal right of the person whose house is searched. However, the constitutional validity of the search
warrant has been upheld by the Supreme Court considering the interest of the public at large kept
juxtaposing to the rights of an individual. Thus, the question arises is as to the impact of non-
adherence to these procedures. Whether a non-compliance of procedure of search and seizure
vitiate the trial or whether it loses its evidentiary value.

It has been reiterated by the apex court that “if the discovery of a fact is otherwise reliable, its
evidentiary value is not diminished by reason of non-compliance of Section 100 (4) and 100 (5)”.
Besides the general impact on the evidentiary value of the seized things or documents, the
following consequences arise due to disobedience of the following procedures:

1. Magistrate not empowered to issue a search warrant

The Code ordains that in certain circumstances the warrant can be issued by any specific
Magistrate for instance, in case of the kidnap of a girl, the warrant can be issued by District
Magistrate, Executive Magistrate or Sub-Divisional Magistrate. If, however, such a warrant is
issued by any other Magistrate erroneously and in good faith, the validity of the warrant will not
be affected.

The warrant continues to be effective and the subsequent procedure is that if anything is recovered
from such search, it must be handed over to the appropriate authority having jurisdiction. This is
provided specifically under Section 460 (a) of the Cr.P.C.

Under Section 93 (3) only “a District Magistrate or Chief Judicial Magistrate” can issue a warrant
for a search of a document or thing “in the custody of the postal or telegraph office”. If the warrant
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is issued by any other Magistrate, in this case, the warrant shall be ineffective and any proceeding
that has commenced shall vitiate.

Further, if the warrant is not issued by a District Magistrate, Sub-divisional Magistrate or First
Class Magistrate under Section 97 for unlawful detention, the warrant shall “be illegal and any
entry into the place in consequence of such illegal warrant would be without any legal authority”.

2. Search without warrant by unauthorised police officers

Under certain circumstances, the Code allows a police officer to conduct the search without a
warrant. This can be seen in Sections 153, 165 and 166 of the Code where the police officers are
allowed to search and seize without a warrant to avoid delay in the investigation or prevent
escapism of the suspects, etc. This power can be exercised by a police officer of a certain rank or
by one who is specifically authorised by the law. If the search is conducted by any officer other
than the one prescribed by law, the search shall be illegal and the entry into such a place will be
unauthorised.

Further, under these provisions, a police officer may search a place only within the jurisdiction of
his police station. To conduct a search of a suspicious place not in his jurisdiction, the officer “shall
request the officer in charge of the police station in whose jurisdiction the place lies”. Further, the
code entails that “a search by a police officer outside the limits of his police station and in the
circumstances in which he is not authorised to do so under Section 166 (3), is without legal
authority and hence, illegal”.

3. Effect of Non-adherence of Search Procedure

The code abounds with several kinds of searches to be conducted by the police officers. For
instance, search of the accused after the arrest, search of the crime scene after receiving
information, a search of a place suspected to contain evidence, etc. Some of these searches are
with the warrant and some are without a warrant.

The code renders a standard procedure to be followed in every case of search under Section
100 whereas Sections 165 and 166 deal with procedure with respect to search to be conducted
without a warrant. The Allahabad High Court in Sharda Singh v. the State of U.P., [1999 Cri.
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L.J 1880 (All)] observed that these procedures are mandatory in nature and any contravention
will render the search illegal or at least irregular.

In Musheer Singh v. State of Madhya Pradesh [AIR 2010 SC 762], the apex court observed that
certain facts discovered out of illegal or irregular search can be admissible if they are reliable. It
can be inferred from this pronouncement that contravention of search procedures is not prima facie
illegal and does not vitiate the trial in its entirety. As in Radha Kishan v. the State of U.P. [AIR
1963 SC 822] it was held that the effect of any procedural irregularity under the code has to be
tested on the touchstone of it prejudicing the accused person in his defence. It means that if the
irregularity in search procedure does not allow the accused to defend himself completely, such
irregularity may vitiate the trial.

For instance, the panchas brought as a witness to search procedure is not independent but the
complainant itself, such procedure will not allow the accused to defend himself because the
prosecution is the witness to the procedure which was supposed to be fair.

According to Section 465 of Cr.P.C, “no finding, sentence or order passed by a court of competent
jurisdiction shall be reversed or altered by the same court or by a higher court only because of an
error, omission or irregularity in the issue of warrant unless it has occasioned a failure of justice
against the accused”. The test to determine the failure of justice has been provided in Section 465
(2) where the Code states that if an objection could and should have been raised by the accused at
an earlier stage of the proceeding and he failed to do so, this fact shall be regarded while
considering the failure of justice.

The Supreme Court in Shyam Lal Sharma v. State of Madhya Pradesh [(1972) 1 SCC
764] observed that “this court has not finally decided whether a search already made in
contravention of the provisions of Cr.P.C makes it illegal or void or merely provides a justification
for an obstruction to the search when it is intended or in the process of being conducted”. On the
finding of the case in hand, the apex court refused to resolve this doubt and the question still
remains unanswered even today.
DR. ABSARUL HASAN KIDWAI

4. Search with Consent of the Occupant

“If the entry into the place of search and the subsequent search is with the consent of the occupant
of such place, the search and recovery will not be affected on the ground that the search procedure
under Sections 100 and 165 were not followed”.

In Malak Khan v. Emperor [AIR 1946 PC 16], where it was alleged and proved that the articles
were produced by the accused person himself, the Privy Council held that Section 165 does not
apply.