Legal provisions regarding when search-warrant may be issued under section 93 of the Code of Criminal Procedure, 1973.
(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
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(b) Where such document or thing is not known to the Court to be in the possession of any person; or
(c) When 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. A search-warrant under Section 93 can be issued only in three cases:
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(i) Where the Court has reason to believe that the person summoned to produce a document or thing will not produce it;
(ii) Where the document or thing is not known to be in the possession of any person;
(iii) Where a general inspection or search is necessary.
Search-warrant should be issued on petition using the Form No. 10 in Schedule II of the Code. The Magistrate may amend the warrant dispensing with the production of the articles before him. The warrant must:
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(a) Be in writing, and
(b) Contain all the matters that the law requires it to be stated therein.
The Court issuing the search warrant under Section 93(1)(a) must have reason to believe that the person against whom the search warrant is issued is not likely to produce the document or thing in his possession in pursuance of a mere summons or order under Section 91 or a requisition under Section 92(1). The Magistrate should give reasons for exercising his discretion in granting the issue of search-warrant.
The search under Section 93 must be for some specific article or thing or document and not for stolen property. The law does not authorize for search of anything but specified articles which have been or can be made the subject of summons or warrant to produce. A general search-warrant can only be issued if the Court considers that the purpose of any enquiry, trial or other proceeding of the Code would be served by such search. General search warrant cannot be issued when the person, in whose possession a thing lay, is known and the place where the things lay is also known.
Magistrate should not issue search-warrant on mere asking of a party. Instead, he must conduct necessary enquiry, apply his judicial mind and satisfy himself objectively about its necessity and record reasons in support of his satisfaction.
A search warrant issued under section 93 should ordinarily be directed to one or more police officers. The Court may also issue search-warrant under section 93 to any other person if its immediate execution is necessary if no police officer is immediately available.
The power of search given by this Section includes also the power to take possession of the document or thing. When documents or things seized by virtue of a search-warrant are brought before the magistrate, he would have power to allow the parties inspection thereof in Court.
Where the person against whom a search warrant is issued prays for the stay thereof and offers to produce the document or thing before the court whenever required, the magistrate has jurisdiction to stay execution of the warrant conditionally on the execution of a bond.
A search in contravention with the provisions of section 93 is clearly illegal. A petition under Article 226 of the Constitution would lie for quashing an illegal search-warrant and for returning seized document or thing.
A revision also lies against an order of illegal search-warrant. A person aggrieved by an illegal search has also remedy in a civil court for an actionable trespass. A suit for damage in such circumstance lies against those who have executed an illegal search-warrant.
An issuance of search-warrant is a serious matter and it would be advisable not to dispose of an application for search-warrant in a mechanical way. A clear application of mind by the Magistrate must be discernible in the order granting the search-warrant.
