96. Searches. (Section 3, Bengal Act II of 1866) (Section 9, Bengal Act IV of 1866). - (a) It is the duty of police officers conducting searches to be fully acquainted with the law in regard to searches and to follow them in particular sections 96, 98, 102, 103 and 165 of the Code of Criminal Procedure, 1898 (Act V of 1898), sections 10A(j), 60, 79, 80, 80A, 80B, 8CC and 81 of the Calcutta Police Act, 1866 (Bengal Act IV of 1866) and sections 4A(j), 37, 47B and 47C of the Calcutta Suburban Police Act, 1866 (Bengal Act II of 1866).
(b)Searches without warrant. - Searches without warrants are illegal. The only search which can be made without warrants is under section 165, Code of Criminal Procedure, 1898, and under section 80 of the Calcutta Police Act, 1866. There must be some specific thing necessary for purposes of investigation and there must be reasonable ground for believing that it is in a particular place and that delay in search is likely to interfere with the recovery of the property. The police officer must record in his diary (i) the ground of his belief on these two points (though he is not bound to give the name of the person on whose information he acts) and (ii) the thing he is looking for, and must as soon as practicable send a copy of such record to the nearest Magistrate.(c)If a search is made without warrant or on a warrant issued under section 98 of the Code of Criminal Procedure, 1898, or on a warrant issued in Form VIII of Schedule V to the Code of Criminal Procedure, 1898, or under sections 60 and 79 of the Calcutta Police Act, 1866, or section 37 of the Calcutta Suburban Police Act, 1866, the police are not authorised to take away anything except the specified article for which the search was directed or made.Indiscriminate seizure illegal. - It is illegal to seize all property in a house merely because suspected property has been found in the house. Property seized must be either alleged or suspected to have been stolen or found under circumstances which create a suspicion of the commission of an offence, and nothing can justify the seizure of the whole of a man's property because he is suspected of having stolen some particular article or articles.(d)General Searches. - In the town of Calcutta, no general searches can be made. In the Suburbs such a search can only be made under a warrant issued by a Magistrate proceeding under paragraphs 2 and 3 of sub-section (1) of section 96 of the Code of Criminal Procedure, 1898 (Act V of 1898).(e)Under section 165(2) of the Code of Criminal Procedure, 1898, the Officer-in-charge of a police station or the Investigating Officer who must not be below the rank of Sub-Inspector must, if practicable, perform the actual search in person. Only when he is incapacitated, from so doing can he depute another officer to make the search and when he does so depute another officer he must first of all record his reasons for doing so and then give written orders to the officer deputed specifying what the search is for and where it is to be made. A verbal order given on the spot will not fulfil the requirements of the section.(f)Search for Arms. - Whenever it becomes necessary for a search to be made for arms illegally possessed, a warrant must invariably be obtained under section 22 of the Arms Act, 1959 (No. 54 of 1959), from a Magistrate. Such searches can only be conducted by, or in the presence of an officer of or above the rank of Sub-Inspector. No police officer is authorised of his own motion to make a search for arms illegally possessed.Note. - These instructions do not mean that in conducting search under any other provision, if arms are found, the searching officer must not take charge of such arms.(g)Night Searches. - The law does not require a search under the Code of Criminal Procedure, 1898 (Act V of 1898) to be made by daylight, except those under section 14 of the Opium Act, 1878, (I of 1878), but there are very distinct advantages in searching by daylight, and a searching officer should consider whether a house search should proceed by night or whether daylight should be awaited. Matters must be so arranged as to cause as little inconvenience as possible to the inmates and especially the women.Under section 79 of the Calcutta Police Act, 1866 (Bengal Act V of 1866), a night search cannot be carried out by an officer below the rank of Sub-Inspector, specially empowered for the purpose.(h)Search witness. - The number of witnesses required to attend a house-search depends on the circumstances of each particular case, but under section 103 of the Code of Criminal Procedure, 1898, the number cannot be less than two. The witnesses selected should be residents of the same or adjoining mohallas, If necessary, such residents may be served with an order in writing to attend and witness the search, their attention being drawn to the provisions of sub-section (5) of section 103 of the Code of Criminal Procedure, 1898, according to which any person, who refuses or neglects, without any reasonable cause, to attend and witness a search when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence, punishable under section 187 of the Indian Penal Code (Act XLV of 1860). Care should be taken that the witnesses are, so far as possible, unconnected with any of the parties concerned or with the police, so that they may be regarded as quite independent. Under no circumstances should a spy or habitual drunkard or any one of doubtful character, be called as a search witness. The reason for rejecting any person as a witness to the search should be noted in the special diary. The presence of search witnesses must not be looked upon as a mere formality, but they must actually be eye-witnesses to the whole search and must be able to see clearly whom each article is found. They must sign the search list (West Bengal Form No. 5276).(i)Precautions to be taken. - The officer conducting a search shall take precautions to prevent the possibility, on the one hand, of any article being introduced into the house without the knowledge of the inmates, and on the other hand, of any articles being taken out of the house while the search is in progress. Before the search is started the person of every police officer as also of every witness and informer shall be examined in the presence of the witnesses and of the occupant of the place to be searched or of someone on his behalf. The search shall be made in the presence of the occupant or his representative.(j)Occupant to be present. Search lists. - In order to satisfy the Court as to the identity of articles alleged to have been discovered at a house-search and to prevent irregularities the officer conducting a search shall prepare a list in West Bengal Form No. 5276, in triplicate, by the carbon process, of the property of which he has taken possession. The exact location of the articles found shall be noted in the list. In many cases it is not sufficient to note only the room or place wherefrom such articles are recovered. If any article is found inside a box or other receptacle this fact must be mentioned in the list. The name, father's name and residence of any person producing keys of any locked receptacles or claiming ownership of any articles seized shall be noted on the search list. The following may be treated as specimen entries, namely :-(i)"South East Room. Inside a locked wooden cheat stated by .....................to belong to..............................the key of which was produced by............................."(ii)"North Room. In a locked tin cashbox claimed by...................... who produced the key and claimed the articles as his"The search witnesses shall sign the search list. If the witnesses do not know English it shall be written in the language of witnesses, and if any witness is illiterate it shall he read over to him and his thumb impression shall be taken on the search list. The occupant of the place searched, or in his absence some person on his behalf, shall be given a copy of the search list, and given an opportunity of comparing it with the original and shall be asked to sign the list together with acknowledgement for the copy of the original list. If he refused to take a copy or to sign the list, a note to that effect shall be made on the list and certified to by the witnesses.(k)Blank Search list. - When no property is seized a blank search list crossed vertically shall invariably be drawn up and the same procedure as mentioned in clause (j) shall be followed.(l)If the search has been made without a warrant the original copy of the search list shall be kept with the special diaries and shall be sent with the special diaries to the Court Inspector if the case is sent up. If the search has been made under a warrant the original copy of the search list shall be immediately put up to the Magistrate who shall be requested to initial it, stamp it with the date of receipt and return it. The carbon copy which is not made over to the house owner or suspect shall be sent immediately after the search to the Deputy Commissioner of the Division, Detective Department or Special Branch, as the case may he, who shall initial it and stamp it with the date of receipt and keep it under lock and key. If the case is sent up this copy shall, after the disposal of the case be sent to the police station to be filled with the original copy of the Special Diary.(m)Labels. - All articles or weapons found at a house-search or the person of a prisoner shall be carefully labelled. The labels shall be signed by the officer conducting the search and by the search witnesses.(n)General search followed by detailed inspection. - When a Magistrate proceeds under paragraphs 3 and 4 of sub-section (1) of section 96 of the Code of Criminal Procedure, 1898 (Act V of 1898), and directs in his warrant that there should be a general search followed by a more careful inspection at the police station or some other convenient place, papers and documents and other articles need not be examined and initiated piece by piece in site. They shall be collected and packed in bundles, boxes or other receptacles which shall be closed or locked, as the case may be, and shall in all cases be sealed or marked by the search witnesses and entered in the search lists. For instance, the contents of a desk, drawer shall be collected, packed together and the bundle, box or other receptacle, shall be marked and initiated by the search witnesses. Subsequently these bundles, boxes or other receptacles shall be very formally opened in the presence of a Deputy Commissioner by the search witnesses who sealed or marked and signed them during the search, and their contents shall be gone over piece by piece, examined, kept or rejected, but shall be in every instance initialled and dated by the search witnesses and the police officer in question. Each of these pieces must bear the initial letters and the serial of its original bundle plus its own serial number in that bundle. Should any difficulty be experienced in getting a search witness to examine the documents at the police station, it shall be open to any police officer to call in the assistance of the Court to compel the attendance of such search witnesses at the Court to open the bundles, boxes, etc. should a witness refuse to sign the constants of the bundles, the police officer shall, if possible, invoke the help of an Honorary Magistrate or such other officers as may be available.
