Police Powers of Search and Seizures in India

Police officers are law enforcement officers. The basic goals of most police agencies are to enforce laws and preserve the peace, prevent crimes, protect civil rights and liberties and provide services. They are never ‘off-duty’. In India, police officers have wide and discretionary powers. But can the police completely take away your rights in the name of search and seizure? You may have questions like this in your mind. Here are answers to some common questions that you may have relating to police stops, search and seizures.

Can the police stop and question you?

Yes. If the police officer has reason to believe that you committed an offence, he has the authority to stop and question you. If you refuse to provide the details, the police also have the power to arrest you without a warrant. The key to make the police officer believe you is to tell the truth. Don’t panic and get into an unwanted situation.

For example, consider that you are returning home after a late night movie in a two-wheeler. The police may suspect you for drunken driving, which is an offence. He will stop you and ask you questions. He may also ask you to take the breath test. In this situation, even if you are not drunk, answer the questions and take the test and prove them wrong. Never question the police officer’s authority. He definitely has the authority if he shows reasonable cause for the suspicion.

Can the police search you?

Yes. The police can search you with or without a warrant.

Do the police always need the warrant to conduct a search?

No. The Criminal Procedure Code, 1973 provides the circumstances when the police require a warrant and when they don’t. The police can search without a warrant when there is no time to obtain a warrant and immediate search is necessary. However, only a police officer in charge of a police station can exercise this power. In some circumstances, he may authorize a subordinate person to search. This search is restricted to particular things or documents. If the police officer suspects you of hiding or concealing that thing, he may search your person (i.e., body).

When a police investigation is considered a search?

As soon as the police investigation invades your privacy, it becomes a search.

What is a search warrant and what does it take to get one?

A search warrant is a written authority given to a police officer or other person by a competent Magistrate or court for the search of any place for things or documents (or for wrongful detention of persons). It is the duty of the police to convince the judge to issue a search warrant. A search warrant is issued for the following reasons. (stated in Section 93 of the Criminal Procedure Code, 1973)

  • To ensure production of a thing or document before a Court when the Court has reason to believe that the person having it will not produce it.
  • Where such document or thing is not known to the Court to be in the possession of any person.
  • The Court considers that for the purposes of any inquiry, trial or other proceedings, a General search or inspection is necessary.

What are the police allowed to do after they obtain a search warrant?

  • The police must have at least two local independent witnesses with him.
  • The search must be made in the presence of the owner of the premises.
  • The owner has the right to stay in the premises. The police cannot ask him to leave.
  • The police must list the seizure of items.
  • The police, witnesses and the owner have to sign and verify the seized items.
  • The police should give a copy of it to the owner.
  • If pardanashin women are residing in the premises, a woman police officer must be part of the search party. The police must conduct the search with decency.

How private is your house or other dwellings?

Your house or dwelling is private unless the police have reason to believe that something illegal is going on. Otherwise, the police can enter your house only with your permission or with a warrant.

Can the police enter and search your home without a warrant?

No. Generally, the police cannot do that. But, if the situation demands such search and seizure, the police may enter and search your home without a warrant. For example, if the police suspect you of hiding a wanted criminal, he may enter your home without a warrant to ensure that the criminal does not escape.

Here again, if you have nothing to hide, let the police officer search your home. Do not restrict them from doing their job. They have the legal power to use force on you and justify it later. They can also arrest you for obstruction of a police officer, which is an offence.

Can my roommate or my landlord give the police permission to search my apartment?

No. Both your roommate or landlord cannot authorize a police a search. But if you and your roommate share certain common areas like kitchen, halls, etc., the roommate can authorize the search of those areas alone. The roommate cannot authorize search of your private areas like bedrooms, cupboards, etc.

If my car is towed and impounded, can the police search it?

Yes. The police can search it. But the sole purpose of towing and impounding the vehicle should not be for search.

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