(a)The law in regard to searches is contained in Chapter VII and sections 102 and 103, 165 and 166, Code of Criminal Procedure. These sections must be scrupulously followed. The officer conducting a search should 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, of any articles being taken out of the house while the search is in progress. Search should be made in the presence of the owner or some one on his behalf. The presence of search witnesses [vide clause (h) below] must not be looked upon merely as a formality, but they must actually be eye-witnesses to the whole search and must be able to see clearly where each article is found. They should then sign the search list (B.P. Form No. 44). If any search witness be illiterate, it should be read over to him and his left thumb impression should be taken on it. Where the witnesses do not know English, it should be written in the vernacular. The suspected person whose property is seized, should, if present at the search, also be asked to sign the list. Should he refuse, a note will be made to this effect and it should be certified to by the witnesses. The suspected person, or in his absence, the person in charge oi the house or place searched, should be given a copy of the search list. He will be given an opportunity of comparing it with the original and be asked to sign an acknowledgement for the copy of the original list. Should he refuse, a note to that effect should be made and should be certified to by witnesses. In cases where no property is seized the search list should be crossed vertically and signed by the search witnesses and the owner of the house.(b)Only searches for any specific article, which is known, or reasonably suspected to be in any particular place or in the possession of any particular person, can be made without warrants. General searches without warrants are illegal and the only search which can be made without warrant is under section 165, Code of Criminal Procedure. 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 property. The police officer must record in his diary (i) the ground of his belief and (ii) the thing he is looking for, and must as soon as practicable send a copy of such record to the nearest Magistrate empowered to take cognizance of the offence [section 165 (ii), Code of Criminal Procedure]. No place should be searched without a warrant merely because the occupier is a registered bad character or absconding offender. Such a search should be made only under the circumstances given in section 165, Code of Criminal Procedure, and when the police officer has reason to believe that the thing searched for will be found in the place to be searched. Provided that reasonable suspicion exists and a definite article (or articles) is (or are) searched for, the police are entitled to search the house of an absconding offender, whether he has been proclaimed or not. Police officers should note in their diaries the reasons for search, though they are not obliged to give the name of the person upon whose information they act. The name, father's name and residence, etc., of any person producing keys of any locked receptacles or claiming ownership of articles seized should always be noted in the case diary.(c)Under section 165(2) of the Code of Criminal Procedure, the officer-in-charge of the 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.(d)Before the commencement of the search the person of every police officer who is to conduct it, as also that of every witness and informer shall be examined before the witnesses and the owner of the house or his representative.(e)The law does not require a search under the Code of Criminal Procedure, to be made by daylight, except those under section 14 of the Opium Act, 1878, but there are 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.(f)When suspected property is found in a house all the property in the house is not to be seized. 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.(g)The number of witnesses required to attend a house-search depends on the circumstances of each particular case, and no hard-and-fast rule can be laid down. The witnesses selected should be residents of the same or adjoining villages. If necessary, such residents may be served with an order in writing to attend and witness the search.(h)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. Whenever possible, the presence of the Panchayat or headman of the village shall be obtained to witness a search. Under no circumstances should a spy or habitual drunkard or any one of doubtful character be called as a search witness. Reasons for rejecting any person as a witness to the search should be noted in the case diary.(i)Whenever it becomes necessary for a search to be made for arms illegally possessed, a warrant must invariably be obtained under section 25 of the Indian Arms Act, 1878 (XI of 1878) 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 authorized of his own motion to make a search for arms illegally possessed (vide section 30 of the Act).(j)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 under sections 103 and 165, Code of Criminal Procedure, shall prepare a list in triplicate in B. P. Form No. 44 of the property of which he has taken possession and shall forward it to the Court officer by the first available dak after the search together with a report regarding the search. One copy of this list will be sent to the Court officer together with copies of the records prescribed under section 165(5) of the Code. One copy of the list only shall be given to the householder or his representative and the third copy will remain with the investigating officer. On receipt in the Court office, this list shall be stamped with the date of receipt and the record put up before the Magistrate. Investigating officers are required to note carefully the instructions contained in the headings of the form and are enjoined to conduct searches under such conditions that there may be no room for suspicion on the part of the witnesses that articles have been surreptitiously introduced by them or their constables or chaukidars, or anyone whatever under their influence, with a view to their being included in the list of property actually discovered in the place under search. Witnesses should be allowed free access to the place being searched and be given every facility to see and to hear everything that transpires.All articles or weapons found at a house-search or on the person of a prisoner shall be carefully labelled and if a charge-sheet is submitted in the case, shall be sent to the Court officer. The labels shall be signed by the officer conducting the search.(k)If the warrant is issued in form No. 8 of Schedule V of the Code of Criminal Procedure, or if the search is made without a warrant or on a warrant issued under section 98 of the Code, the police are not authorized to take away anything except the specified thing for which the search was directed or made, but in all cases in which the Magistrate proceeds under paragraphs 3 and 4, sub-section (1) of section 96 of the Code of Criminal Procedure, 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 initialled piece by piece in situ. They should be collected and packed in bundles. These bundles or receptacles should be closed or locked, as the case may be, and must 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 should be collected, packed together and marked and initialled by the search witnesses. For example, it might be marked AA/1 Any other bundles, packages, papers or documents similarly packed up together might be sealed or marked AA/2, AA/3, etc., etc. All these packages may be packed for easy carriage in a large receptacle which should in this case be marked A and should contain all the AA bundles or packages. Subsequently these bulky boxes or packages should be very formally opened by the search witnesses who sealed or marked and signed them during the search, and their contents should be gone over piece by piece, examined, kept or rejected, but 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 will 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 he refuse to sign the contents of the bundle, the police officer should, if possible, invoke the help of an Honorary Magistrate or such other officers as may be available.
