How Pune police violated the law on seizure and raid on activists across India: CJP explainer-Part 2

 

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Sudha Bharadwaj

Analysis of procedural lapses during nationwide raids on activists on August 28, 2018 by Citizens for Justice and Peace:

In law, the search warrant, and raid, is an extreme step warranted only and if only when non-cooperation is seen or observed and the correct and proper course of action would have been for the agencies to search. To search and raid a premise is to humiliate and ostracise the victim and that is what the police are doing.

During financial crimes, except under the present regime, when raids against political opponents have made the headlines, there has been traditionally a secrecy and confidentiality maintained during income tax raids. However as we experienced in 2015 when the CBI was let loose on us, selective assigning of criminality is the way of this regime.

Search and Seizures under the Law:

In two crucial judgements, Queen v. Syed Hossain Ali Chowdhury 8 WR 74 and Prankhang v Emperor (13 Cr LJ 764) Judges have held inter alia that the intention of the legislature is not to make harassing domiciliary visits to inquire minutely into the private concerns of individuals on the bare chance that something might therein be found tending to the conviction of any accused parties. Then again, in AIR 1968 SC 59, Comm of Commeriial Taxes v Ramkishan Srikishan Jhaveri, a decision of the Supreme Court where the inf infirmities in the search warrant have been taken seriously.

Criminal Procedure Code:

  1. Summons to produce document or other thing.

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers’ Books Evidence Act, 1891 (13 of 1891 ) or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

  1. When search warrant may be issued.

(1) (a) where any court has reason to believe that a person to whom a summons or 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, or

(b) where such document or thing is not known to the Court to be in the possession of any person, or

(c) where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection,

it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.

(2) The court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorize any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.

That, under Section 93 of the CRPC, a Search Warrant is is primarily meant to succeed a S91 process which is or is likely to be unheeded. This was not the case in this case. The Applicants were never asked to produce anything so what was the need of the Search?

Secondly, the pertinent nexus between what is sought, the search and the criminal proceeding that is mandated by S.93 needs to be noted by the Ld Court…

Click HERE to read CJP’s first part of the explainer


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