Study Notes

Section 93 of the Code of Criminal Procedure (CrPC) lays down provisions regarding the issuance of a search-warrant. Here are some detailed notes :

• Circumstances under which a search-warrant may be issued:

1. Non-production of document or thing: If any court has reason to believe that a person to whom a summons order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, a search-warrant may be issued.
2. Unknown possession: If the document or thing is not known to the court to be in the possession of any person, a search-warrant may be issued.
3. General search or inspection: If the court considers that the purposes of any inquiry, trial, or other proceeding under the CrPC will be served by a general search or inspection, a search-warrant may be issued.

• Execution of the search-warrant:

1. The person to whom such warrant is directed may search or inspect in accordance with it and the provisions contained in it.
2. If the court thinks fit, it may specify in the warrant the particular place or part thereof to which only the search or inspection shall extend.
3. The person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

• Limitation on the power to grant a warrant:

1. Only a District Magistrate or Chief Judicial Magistrate may grant a warrant to search for a document, parcel, or other thing in the custody of the postal or telegraph authority.
2. No Magistrate other than a District Magistrate or Chief Judicial Magistrate can grant such a warrant.

Example: If a court has reason to believe that a person who has been summoned under section 91 of the CrPC will not produce the document or thing as required, or the document or thing is not known to be in the possession of any person, or a general search or inspection is required to serve the purposes of any inquiry, trial or proceeding under the CrPC, then a search-warrant may be issued by the court. The warrant may specify the particular place or part thereof to which the search or inspection shall extend, and the person charged with the execution of such warrant shall then search or inspect only the specified place or part. However, if the document, parcel or thing is in the custody of the postal or telegraph authority, only a District Magistrate or Chief Judicial Magistrate may grant a warrant to search for it.

• Section 465 of the Cr.P.C states that no sentence or order of a competent court shall be reversed on the ground of any irregularity (not amounting to illegality) in the warrant of search, unless a failure of justice has been occasioned thereby. This means that even if there is an irregularity in the warrant of search, it may not necessarily lead to the reversal of a sentence or order unless it has caused a failure of justice.

This section should be read along with:-:

Cr.P.C:

• s.47
• s.93
• s.100
• s.165
• s.451
• s.457
• s.465
  

I.P.C

• s.186

Study Notes

Section 94 of the Cr.P.C pertains to the search of places suspected of containing stolen property, forged documents, and other objectionable articles. The section contains the following provisions:

1. Authorization of search: A District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class, upon receiving information and after conducting necessary inquiry, may issue a warrant authorising any police officer above the rank of a constable to enter and search a place suspected of containing stolen property or objectionable articles.
2. Search procedure: The police officer may enter the place with necessary assistance and search it as specified in the warrant.
3. Seizure of property: The police officer may take possession of any property or article found in the place that he reasonably suspects to be stolen property or objectionable article to which this section applies.
4. Disposal of seized property: The police officer may convey the seized property before a Magistrate or guard it on the spot until the offender is taken before a Magistrate, or dispose of it in a place of safety.
5. Arrest of persons: The police officer may also take into custody and carry before a Magistrate every person found in such a place who appears to have been involved in the deposit, sale, or production of any stolen property or objectionable article.

The objectionable articles mentioned in the section include counterfeit coins, forged documents, false seals, obscene objects, and instruments or materials used for the production of such articles.

This section should be read along with:-:

Cr.P.C:

• s.451
• s.460(a)

I.P.C

• s.28
• s.230
• s.231
• s.292
• s.410
• s.413
• s.463
• s.464
• s.470

Study Notes

Section 95 of the Criminal Procedure Code deals with the power of the State Government to declare certain publications forfeited and to issue search-warrants for the same. The section can be understood as follows:

-Power of State Government to declare publications forfeited:

• The State Government has the power to declare every copy of an issue of a newspaper, book, or document to be forfeited to the government.
• This power can be exercised if the publication is found to contain any matter that is punishable under sections 124A, 153A, 153B, 292, 293, or 295A of the Indian Penal Code.
• The notification issued by the State Government must state the grounds of its opinion.

-Seizure of copies of publications:

• Any police officer may seize the copies of the publication wherever found in India.
• Any Magistrate may authorise any police officer not below the rank of sub-inspector to enter upon and search for the copies of the publication in any premises where they may be or may be reasonably suspected to be.

-Definitions:

• The terms “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867.
• The term “document” includes any painting, drawing, photograph, or other visible representation.
• Review of orders passed under section 95
• No order passed or action taken under this section can be called into question in any court except in accordance with the provisions of section 96.

Example:

If the State Government becomes aware of a book that contains seditious material punishable under section 124A of the Indian Penal Code, it can issue a notification declaring every copy of the book forfeited to the government. Any police officer can then seize the copies of the book wherever found in India, and any Magistrate can authorise a police officer not below the rank of sub-inspector to search for the copies of the book in any premises where they may be or may be reasonably suspected to be. The decision of the State Government to declare the book forfeited can only be challenged in court in accordance with the provisions of section 96.

Study Notes

Section 96 of the Indian Penal Code outlines the process for individuals to apply to the High Court to set aside a declaration of forfeiture made under Section 95. Here are some detailed notes on the section:

-Grounds for application: Any person with an interest in a newspaper, book or other document that has been declared forfeited under Section 95 may apply to the High Court to set aside the declaration of forfeiture. This application must be made within two months from the date of publication in the Official Gazette of the declaration.

Example: A publisher who has had a book declared forfeited under Section 95 may make an application to the High Court to set aside the declaration.

-Composition of Special Bench: If the High Court consists of three or more judges, a Special Bench of three judges will be formed to hear and determine the application. If the High Court consists of fewer than three judges, the Special Bench will be composed of all the judges of the High Court.

Example: If the High Court in a particular state has six judges, a Special Bench of three judges will be formed to hear and determine the application. If the High Court has only two judges, the Special Bench will be composed of both judges.

-Evidence: During the hearing of the application, any copy of the newspaper in question may be presented as evidence to aid in the proof of the nature or tendency of the words, signs or visible representations contained in the newspaper that led to the declaration of forfeiture under Section 95.

Example: In the case of a newspaper containing allegedly seditious material that has been declared forfeited, a copy of the newspaper may be presented as evidence during the hearing of the application to set aside the declaration.

-Decision: If the High Court is not satisfied that the newspaper, book or other document in question contained the matter referred to in Section 95, the declaration of forfeiture will be set aside.

Example: If a book was declared forfeited under Section 95 due to allegedly objectionable content, but the High Court determines that the book did not contain any such content, the declaration of forfeiture will be set aside.

-Difference of opinion: In cases where there is a difference of opinion among the judges forming the Special Bench, the decision will be made in accordance with the opinion of the majority of those judges.

Example: If a Special Bench of three judges is formed to hear an application to set aside a declaration of forfeiture, and two judges are of the opinion that the declaration should be set aside while one judge is of the opinion that it should not, the decision will be made in accordance with the majority opinion.

Study Notes

Detailed notes for section 97 are as follow:

-Search Warrant for Wrongful Confinement:

• Any District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class may issue a search warrant if they have reason to believe that a person is wrongfully confined.
• The person to whom the warrant is directed may search for the confined person in accordance with the warrant.
• If the person is found, they must be immediately taken before a Magistrate who will 
• make the appropriate order.

-Jurisdiction:

• The Magistrate has jurisdiction to issue a search warrant to search for a person wrongfully confined beyond the local limits of their jurisdiction.

-Power to Issue Warrant:

• Whenever a Magistrate receives a complaint that a person has been arrested within their jurisdiction but has not been produced before them within 24 hours of their arrest, and is being detained beyond 24 hours of arrest, they can issue a search warrant under Section 97 of the CrPC.
• This power is independent of and distinct from power flowing from clauses (1) and (2) of Article 22 of the Constitution.

-Procedure:

• To make the warrant effective, the procedure prescribed in Section 78 or 79 of the Code must be followed.

-Implied Proviso:

• An order made in exercise of the Magistrate’s discretion is subject to an implied proviso that the order should be otherwise legal.
• Therefore, if a person who has neither committed nor is likely to commit an offence is produced before the Magistrate, they cannot order their detention.

-Rescue of Wrongfully Confined Person:

• The warrant under this section can be issued for rescuing a person wrongfully confined by intervention of police by an order of a District Magistrate, Sub-Divisional Magistrate, or Magistrate of the first class.
• The warrant is in the nature of a writ of habeas corpus.
• Before ordering the warrant, the Magistrate must be satisfied that a person has been wrongfully detained.
• However, the section does not require the Magistrate to hold a detailed inquiry before ordering a warrant under this section for rescue of a person by searching a place, as it will defeat the very purpose of this section.
• If the confined person is found, they shall be taken before a Magistrate who shall make a proper order for their restoration.

Study Notes

Section 98 of the Code of Criminal Procedure (CrPC) provides the power to the District Magistrate, Sub-divisional Magistrate, or Magistrate of the first class to order the immediate restoration of a woman or a female child under the age of eighteen years who has been abducted or unlawfully detained for any unlawful purpose. The Magistrate can use necessary force to compel compliance with the order.

Details:

• Complaint on oath: The order can be made upon a complaint made on oath of the abduction or unlawful detention of a woman or a female child under the age of eighteen years for any unlawful purpose.
• Immediate restoration: The Magistrate can order for the immediate restoration of such woman to her liberty or such female child to her husband, parent, guardian or other person having the lawful charge of such child.
• Compelling compliance: The Magistrate can compel compliance with such order by using such force as may be necessary.
• Unlawful detention and purpose: Both the detention and the purpose must be unlawful for the Magistrate to exercise this power.

Example:

If a woman is abducted and detained by someone for the purpose of forcing her to marry against her will, her family can file a complaint on oath with the District Magistrate. The Magistrate can then order the immediate restoration of the woman to her liberty and compel compliance with the order using necessary force.