City Law College

LL.B.(3 years.) IIIrd SEMESTER

Subject – THE BHARATIYA NAGARIK SURAKSHA SANHITA
UNIT- II
UNIT – II
Arrest of person ( section 35 – 62)
Processes to compel appearance through summon
Warrant of arrest and proclamation and attachment (section 63 – 93)
Processes to compel the production of things through summons
Search Warrants and Miscellaneous including seizure
Attachment and Forfeiture of property (Section 94-124)
Information to the Police and their Powers to Investigate (Section 173-196)

Question 1- What do you understand by arrest? Under what circumstances police can arrest a person
without warrant? (2014, 2016)

Answer – Arrest means the restraining of the liberty of person in order to compel obedience to the

order of a court of justice or to prevent the commission of crime or to ensure that a person charged or

suspected of a crime may be forth coming to answer it.

In this sanhita there are two types of arrest

A- Arrest with warrant.

B- Arrest without warrant.
A- Arrest with warrant – section 35, 39, 142(6), 170, 473(3), 40, 41 of BNSS 2023 is related to arrest
Without warrant

➢ Arrest under section 35 – according to section 35(1) Any police officer may, without an order
from a Magistrate and without a warrant, arrest any person-
a- Who commits in the presence of a police officer a cognizable offence; or
b- Against whom a reasonable complaint has been made, or credible information has been
Received or a reasonable suspicion exists that he has committed a cognizable offence punishable
With imprisonment for a term which may be up to 7 years if the any of the conditions is
satisfied-
i- The police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence.
ii- the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or
tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the
Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required
cannot be ensured, and the police officer shall record while making such arrest,
 his reasons in writing: Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of this sub-section, record
the reasons in writing for not making the arrest; or

c- against whom credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than seven
years whether with or without fine or with death sentence and the police officer has reason
to believe on the basis of that information that such person has committed the said
offence; or
d- who has been proclaimed as an offender either under this Sanhita or by order of the State
Government; or
e- in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with
reference to such thing; or
f- who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
g- who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
h- who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or
i- who, being a released convict, commits a breach of any rule made under sub-section (5) of
section 394; or
j- for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the
offence or other cause for which the arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by the officer who issued the
requisition.

Arrest under section 39 - Any person who, in the presence of a police officer, has committed or has
been accused of committing a non-cognizable offence, refuses on demand of such officer to give his
name and residence, can be arrested.

Arrest by private person (Sec-40) – Any private person may arrest or cause to be arrested -

a- Any person committing a non-bailable and cognizable offence in his presence; or

b- Any proclaimed offender.
And, without unnecessary delay, but within six hours from such arrest, shall make over or cause
to be made over any person so arrested to a police officer, or, in the absence of a police officer,
take such person or cause him to be taken in custody to the nearest police station

Arrest by magistrate-(Sec-44)- When any offence is committed in the presence of a Magistrate, whether
Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the
offender

Besides the above provision a police officer may arrest without warrant under section 142(6), 170, and
473(3).
 LL.B.(3 years.) IIIrd SEMESTER
Subject – THE BHARATIYA NAGARIK SURAKSHA SANHITA
UNIT- II
QUESTION: 2:- What are the constitutional and legal rights of arrested persons?

Answer-

1- Right to meet an advocate of his choice during interrogation (section 38) - When any person is
arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice
during interrogation, though not throughout interrogation.
2- Right to be informed of the grounds for arrest [sec.47(1)]- In every case of arrest with or
without a warrant the person arresting shall communicate to the arrested person, without
delay, the grounds for his arrest. This is a precious right of the arrested person and has been
recognized by the Constitution as one of the fundamental right Article[22(1)]. Timely
information of the grounds of arrest serves the arrested person in many ways. It gives him an
opportunity to remove any mistake, misapprehension or misunderstanding, if any, in the mind
of the arresting authority; it also enables him to apply for bail, or for a writ of Habeas Corpus, or
to make other expeditious arrangements for his defence. The rules emerging from decisions
such as Joginder Singh Vs. State of U.P., and D.K. Basu Vs. State of West Bengal, have been
enacted in Sec. 48 making it obligatory on the part of the police officer not only to inform the
friend or relative of the arrested person about his arrest etc. but also to make an entry in a
register maintained by the police. The magistrate is also under an obligation to satisfy himself
about the compliance of the law by the police in this regard.
3- Right to be informed of release on bail [sec. 47(2)]- Every police officer arresting without a
warrant any person other than a person accused of a non-bailable offence, is required to inform
the person arrested that he is entitled to be released on bail and that he may arrange for
sureties on his behalf.
4- Right to be produced before a magistrate without delay (sec. 57)- In case of every arrest,
whether the arrest has been made with or without a warrant, the person arresting is required,
without unnecessary delay and subject to the provisions regarding bail, to produce the arrested
person before the magistrate or court having jurisdiction in the case.
5- Right to not detained more than twenty four hours (sec. 58) - In case of every arrest, the
person making the arrest is required to produce the arrested person without unnecessary delay
before the magistrate; and it has been categorically provided that such a delay in no case shall
exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the
magistrate’s court. If it is not complied with, the detention shall be unlawful. When the arrested
person is produced before the magistrate it is his duty either to release him on bail or to remand
him.
6- Right to defended by an advocate of his choice (sec. 340) - Both the Constitution[ Article 22(1)]
and the provisions of the BNSS 2023 recognize the right of every arrested person to consult a
legal practitioner of his choice.
7- Right to free legal aid (sec. 341) - Where, in a trial or appeal before a Court, the accused is not
represented byan advocate, and where it appears to the Court that the accused has not
sufficient means to engage an advocate, the Court shall assign an advocate for his defence at
the expense of the State. In Khatri (II) Vs. State of Bihar, the Supreme Court has held that the
State is under a constitutional mandate (implicit in Article 21) to provide free legal aid to an
indigent accused person, and that this constitutional obligation to provide legal aid does not
arise only when the trial commences but also when the accused is for the first time produced
before the magistrate as also when he is remanded from time to time.
 LL.B.(3 years.) IIIrd SEMESTER
Subject – THE BHARATIYA NAGARIK SURAKSHA SANHITA
UNIT- II
Question 3-What are the Processes to compel the appearance of the accused before the court
Under BNSS 2023 Explain the provisions related to summons.(2019,2021, ,2022)
Answer- Bhartiya nagrik suraksha sanhita 2023 provides following ways to compel a person to
appear in court.-
a- Summons (sec. 63 – 71)
b- Warrant of arrest (sec. 72 – 83)
c- Proclamation and attachment ( sec.84 – 89)
d- Other rules regarding processes (sec. 90 – 93)

Provisions related to summons in BNSS 2023-

Definition of summons – summons refers to the order of court in which a person is ordered to
appear on a specific date, time and place, that it is a process by which a person is expected to
appear in court.
Form of summons –Form no. 2 of second schedule is related to form of summons. Section 63 to
section 71 is related to summons. section 63 provides that Every summons issued by a Court
under this Sanhita shall be,—
(i)- in writing, in duplicate, signed by the presiding officer of such Court or by such other officer
as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court; or
(ii)- in an encrypted or any other form of electronic communication and shall bear the image of
the seal of the Court or digital signature.

Summons how served (64)- according to section 64 of BNSS 2023-

1- Every summons shall be served by a police officer, or subject to such rules as the State
Government may make in this behalf, by an officer of the Court issuing it or other public
servant.
2- The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons
3- Every person on whom a summons is so served personally shall, if so required by the
serving officer, sign a receipt therefor on the back of the other duplicate.

Service of summons on corporate bodies, firms, and societies (65)- according to section 65 of
BNSS 2023-

1- Service of a summons on a company or corporation may be effected by serving it on the

Director, Manager, Secretary or other officer of the company or corporation, or by letter
sent by registered post addressed to the Director, Manager, Secretary or other officer of the
company or corporation in India, in which case the service shall be deemed to have been
effected when the letter would arrive in ordinary course of post.
2- Service of a summons on a firm or other association of individuals may be effected by
serving it on any partner of such firm or association, or by letter sent by registered post
addressed to such partner, in which case the service shall be deemed to have been effected
when the letter would arrive in ordinary course of post.

Service when persons summoned cannot be found- Section 66 of the BNSS 2023 provides that
Where the person summoned cannot, by the exercise of due diligence, be found, the summons
may be served by leaving one of the duplicates for him with some adult member of his family
residing with him, and the person with whom the summons is so left shall, if so required by the
serving officer, sign a receipt therefor on the back of the other duplicate.
According to Explanation of section 66 A servant is not a member of the family.
Procedure when service cannot be effected as before provided (sec. 67)- If service cannot by the
exercise of due diligence be effected as provided in section 64, section 65 or section 66, the serving
officer shall affix one of the duplicates of the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily resides; and thereupon the Court, after making
such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh
service in such manner as it considers proper.

Service on Government servant (sec.68) -if a summons is to be served on a Government servant, then,
ordinarily in such a situation, the summons is to be sent to the head of the office in which such person is
employed. The head has, inturn, to serve it on the person concerned, and return to it to the Court with
the proper signature and endorsements. The signature and endorsement are the evidence of service of
the summons.The Head of Office, if does not serve the summons, will be liable for the contempt of
Court.(Brajballabh vs. A.R. Khan AIR 1958 Raj 293)

Service of summons outside local limits (sec. 69) - When a Court desires that a summons issued by it
shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in
duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there
Served.
Service of summons on witness (sec. 71)-Court issuing a summons to a witness may, in addition to and
simultaneously with the issue of such summons, direct a copy of the summons to be served by
electronic communication or by registered post addressed to the witness at the place where he
ordinarily resides or carries on business or personally works for gain.
 LL.B.(3 years.) IIIrd SEMESTER
Subject – THE BHARATIYA NAGARIK SURAKSHA SANHITA
UNIT- II
Question 4 - Explain the provisions related to summons

Answer- the definition of warrant has not given under the BNSSS 2023 but a general definition of
warrant can be given as follows –

It is a written order issued and signed by a magistrate usually directing a police officer to arrest and
Produce before the court the person whose name is mentioned in the warrant.

Form of the warrant – form no. 3 of schedule second section 72 of the BNSS 2023 is related to form of
warrant. Section 72 of the Sanhita gives the essentials of a warrant of arrest. It lays down that Court will
issue warrant of arrest which shall be in writing, signed by the presiding officer of such Court and shall
bear the seal of the Court.

In order to be a valid warrant, it must fulfill the following requisites –

➢ It must be writing.
➢ It must be signed by the presiding officer
➢ Every warrant must be bear the seal of the court.
➢ It must bear the name and designation of the police officer or other person who is to execute it.
➢ The warrant must give full particulars of the person to be arrested so as to identify him clearly.
➢ It must clearly specify the offences charged; and
Every warrant shall remain in force until it is cancelled by the Court which issued it or until it is
executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return
of the warrant.

Section 75 provided that The Chief Judicial Magistrate or a Magistrate of First Class may direct a
warrant to any person within his local jurisdiction for arrest of any escaped convict, offender or
person accused of a non-bailable offence, or a proclaimed offender evading arrest who is
accused of a non-bailable offence. Such person shall acknowledge the receipt of warrant in
writing. After that such person shall execute a warrant against whom it was issued if he enters
any land or other property under his charge. After the arrest had been made, arrested person
shall be made over with the warrant to the nearest Police Officer who shall present him before a
Magistrate having jurisdiction in that case unless security has been taken under Section 73.

Section 76 provided that states a warrant can be executed by a Police Officer to whom it has
been directed or may also be executed by any other police officer whose name is endorsed
upon the warrant by the officer to whom warrant was directed or endorsed.

Section 77 deals with notification of the substance of the warrant and mandates every police
officer (or any other officer) to notify the substance of the warrant to the person whom he or
she is arresting. Failure on the officer’s part would give the person sought to be arrested, the
right of private defence and consequently any resistance offered by such person will not be
punishable.

Section 78 stipulates that the person arrested must be brought before the Court (subject to
provisions of Section 73 as to security) without unnecessary delay. As per proviso it is absolutely
clear that the delay, cannot be more than twenty-four hours from the place of arrest to the
Magistrate’s Court.

Section 79 provides that a warrant of arrest may be executed at any place in India.
Warrant forwarded for execution outside jurisdiction- section 80 of BNSSS 2023 provided that-
1- When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such
Court may, instead of directing the warrant to a police officer within its jurisdiction, forward
it by post or otherwise to any Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and
the Executive Magistrate or District Superintendent or Commissioner shall endorse his name
thereon, and if practicable, cause it to be executed in the manner hereinbefore provided
2- The Court issuing a warrant shall forward, along with the warrant, the substance of the
information against the person to be arrested together with such documents, if any, as may
be sufficient to enable the Court acting under section 83 to decide whether bail should or
should not be granted to the person.

Section 81 says that When a warrant directed to a police officer is to be executed beyond
the local jurisdiction of the Court issuing the same, he shall ordinarily take it for
endorsement either to an Executive Magistrate or to a police officer not below the rank of
an officer in charge of a police station, within the local limits of whose jurisdiction the
warrant is to be executed.

Section 82 states that the person shall be arrested and shall be taken to the Court who
issued the warrant if the Court is within thirty kilometers of the place of arrest. Otherwise,
the person shall be taken to the Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction the arrest was done or
unless security has been taken, then he has to be taken before such Magistrate or District
Superintendent or Commissioner.

Section 83 states that The Executive Magistrate or District Superintendent of Police or

Commissioner of Police shall, if the person arrested appears to be the person intended by
the Court who issued the warrant, direct his removal in custody to such Court.
It also states that , if the offence is bailable, and such person is ready and willing to give bail
bond to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a
direction has been endorsed under section 73 on the warrant and such person is ready and
willing to give the security required by such direction, the Magistrate, District
Superintendent or Commissioner shall take such bail bond or security, as the case may be,
and forward the bond, to the Court which issued the warrant

if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate
(subject to the provisions of section 480), or the Sessions Judge, of the district in which the
arrest is made on consideration of the information and the documents referred to in sub-
section (2) of section 80, to release such person on bail.
 LL.B.(3 years.) IIIrd SEMESTER
Subject – THE BHARATIYA NAGARIK SURAKSHA SANHITA
UNIT- II
Question 5-Explain the provisions related to proclamation and attachment of property of absconded
person with suitable illustrations? (2022, 2023)
ANSWER: Proclamation- Section 84 is related to proclamation of an absconder according to
section 84-
➢ If any Court has the reason to believe (whether after taking evidence or not) that any person
against whom a warrant has been duly issued by the court and he has absconded or is
concealing himself so that such warrant cannot be executed, such Court may issue a written
proclamation requiring him to appear at a specified place and at a specified time not less than
thirty days from the date of publishing of such proclamation.
➢ The proclamation shall be published likewise: –
a- Shall be publicly read in some conspicuous place of the town or village in which such person
ordinarily resides
b- Shall be affixed to some conspicuous part of the house or homestead in which such person
ordinarily resides or to some conspicuous place of such town or village;
c- A copy of it thereof shall be affixed to some conspicuous part of the Court-house.
d- The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily
newspaper circulating in that place the person ordinarily resides
➢ Where a proclamation published under Sub-Section (1) is in respect of a person accused of an
offence punishable under with imprisonment of ten years or more, or Imprisonment for life or
with death under the Bharatiya Nyaya Sanhita, 2023 or under any Other law for the time being
in force, and such person fails to appear at the specified place And time required by the
proclamation, the Court may, after making such inquiry as it thinks Fit, pronounce him
proclaimed offender and make a declaration to that effect. [sec 84(4)]

Section 85 of the code of criminal procedure provides for the Attachment of property of person absconding.
(1) The Court issuing a proclamation under section 84 may, for reasons to be recorded in writing, at any
time after the issue of the proclamation, order the attachment of any property, movable or immovable, or
both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation
the Court is satisfied, by affidavit or otherwise that the person in relation to whom the proclamation is to
be issued, -
(a) Is about to dispose of the whole or any part of his property, or
(b) Is about to remove the whole or any part of his property from the local jurisdiction of the Court, it
may order the attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorize the attachment of any property belonging to such person within the district
in which it is made, and it shall authorize the attachment of any property belonging to such person without
such district when endorsed by the District Magistrate within whose district such property is situated.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this
section shall be made, (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in writing
prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or (d) by all
or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case
of land paying revenue to the State Government, be made through the Collector of the district in which the
land is situated, and in all other cases- (a) by taking possession; or (b) by the appointment of a receiver;
or (c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed
person or to anyone on his behalf; or (d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may,
if it thinks it expedient, order immediate sale thereof, and in such case, the proceeds of the sale shall abide
the order of the Court.
The Hon’ble Supreme Court in the case of Vimlaben Ajitbhai Patel v. Vaishlaben Ashokbhai Patel (AIR
2008 SC 2675) has observed that the attachment of property of an absconder does not affect the rights of
the tenant of that property.
The object of Section 85 was clarified in the case of Dayanand Kalu v. State of Haryana (AIR 1976 Punj
190). The court observed that the object of this section is not to punish the absconder but to compel his
appearance. So, if the property has not been confiscated or disposed of, the title continues to vest in the
owner and therefore, in his/her heirs.
Also, if there is an absence of the material on record to show that the accused has absconded, then the order
of attachment is illegal (Ratish Roy v. Mohesh Singh, 1985 Cr LJ 94 Gau).

Section 87 – Claim & Objections to attachment

This section provides that a claim and/or objection can be filed by a 3rd party regarding the property that
has been ordered to be attached under Section 85. Such claim and/or objection must be based on the ground
that the claimant and/or objector have an interest in the party that is being attached. So, this section protects
the interests of 3rd parties who might get aggrieved by the orders of attachment.

Section 88 – Release, sale, and restoration of attached property

The court must release the property from attachment if the proclaimed absconder appears at the place
specified in the proclamation at the specified time. Otherwise, if the person does not appear, then the
property will be at the disposal of the State Government. It can be sold after 6 months of the date of
attachment, once all the claims& objections on such property have been resolved.
If within two years from the date of attachment, the proclaimed person appears voluntarily or is arrested
and brought before the court that ordered the attachment of his property. Then, upon satisfaction that such
person had reasonable cause for not appearing at the place & time specified in the proclamation, the court
must declare that the net proceeds of the sale of his property shall be given to him.

Section 89
This section provides that an appeal can be made against an order of the court rejecting the application for
restoration of attached property.

LL.B.(3 years.) IIIrd SEMESTER

 Subject – THE BHARATIYA NAGARIK SURAKSHA SANHITA
UNIT- II

Question 6- explain the law related Processes to compel the production of things through summons
under BNSS?

Answer - Section 94 related to summons to produce document or other thing.

Scope & Application - It enables the Court or the Police Officer in charge of the Police Station to issue
summons to produce a document or a thing for assistance in a trial, investigation or trial.

➢ The sine qua non of issuing a summons under section 94 is the necessity to obtain such
documents or things in the larger interest of Society.
➢ Power of the Court under section 94 for summoning and production of documents is one of the
absolute discretion.
➢ The only condition for exercising the discretion under section 91 is that the Court must be of the
opinion that production of document is necessary or desirable.
➢ ‘Reason to believe’
➢ The Court must have a reason to believe the production of documents is necessary in the
interest of justice.
➢ The application for summoning production of documents can only be rejected by assigning some
justified reasons to it.
➢ The wording of SECTION 94 gives vide powers to the Court to summon documents and things’
➢ The word thing refers to a physical object or a material thing and does not refer to an abstract
thing.
➢ On such documents can be summoned which would have some bearing upon the facts and
circumstances of the case.
➢ Therefore, the Officer or the Court summoning the documents must ensure whether there is a
prime facie case for supposing that the documents are relevant.

Whether Summon of Production can be issued to an Accused Person –

➢ The language of SECTION 94 is wide enough to include an accused within those to whom a
summon can be issued for producing documents in his control.
➢ However, such practice would not be conformity with the constitutional mandate in this regard
which is governed by Article 20(3).
➢ Such production of documents at the instance of the accused would amount to self-
incrimination and it would make the investigation unfair qua the accused.
➢ The Court in plethora of cases have taken the view that on a close consideration of section 91, it
Becomes clear that it should not be used against the accused as it would amount to self-
incrimination and unnecessary hardship to the accused. Such act would amount to testimonial
compulsion.

Compliance & Non – Compliance-

➢ Any person who is required to produce a document or a thing shall be deemed to have
complied with such summons if:
➢ He brings them to the Court; or
➢ Sends them through somebody instead of attending the Court personally.
➢ If a person fails to comply with the summons without any reasonable excuse he will expose
himself to penal consequences contemplated by Sec. 388 of the Sanhita.
➢ Summoning records in possession of the Prosecution
➢ To claim such documents in possession of the prosecution is within the rights of the
accused.
➢ As contemplated by a joint reading of SECTION94,230 , 266 and 193.
QUESTION: 7:- Define search. Discuss law relating to search and seizure prescribed under
The Bharatiya Nagrik Suraksha Sanhita? (2015, 2016)
ANSWER: The main processes for compelling production of things and documents are as follows:
(a) Search and seizure warrant
(b) Search without a warrant.
1. Search with a warrant [Sec-96]:- The circumstances in which the search warrant may be issued under
Sec-96 are as follows:
(1) Where any court has reason to believe that a person to whom a summons order under section 94 or
requisition under section 95(1) has been (or might be) addressed will not (or would not) produce the
document or thing as required by such summons or requisition or
(2) Where such document or thing is not known to the court to be in possession of any person; or
(3) Where the court considers that the purpose of any inquiry, trial or other proceeding will be served by
a general search of inspection. Under this clause, the search of the premises occupied by the accused
without the accused being compelled to be party to such search would not be the violative of the
constitutional guarantee (against self-incrimination) enshrined in Article 20(3). A general search
means a search not in respect of any specific documents or things, but a roving inquiry for the purpose
of discovering documents or things which might involve a person with criminal liability.
2. General provisions relating to searches [Sec-103]:-Except in the case of a search for false weights and
measures, the following provisions would apply in the case of every search whether it is with or
without a warrant:
(1) Whenever any place liable to search or inspection is closed, any person in occupation of such place
shall, on the demand of the person making the search, allow free ingress thereto, and afford all
reasonable facilities for a search therein.
(2) If such ingress cannot be obtained, the person conducting the search can enter the place; and in order
to effect an entrance into such place can break open any outer or inner door or window if after
notification of his authority and purpose, and demand of admittance duly made, he could not
otherwise obtain admittance.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any
article for which search should be made, such person may be searched. If the person to be searched
is a woman, the search shall be made by another woman with strict regard to decency.
(4) The search is to be made in the presence of at last two independent and respectable inhabitants of
the locality in which the place to be searched is situated. The police officer or other person making
the search, has power to call such inhabitants to attend and witness the search; and he may for this
purpose issue a written order to them. If a person so ordered to be a witness neglects or refuses
without reasonable cause to attend and witness a search, he shall be deemed to have committed an
offence under Section 187 of the IPC. The search- witnesses should actually accompany the police
officer or other person making the search and should be the actual witnesses to the fact of the finding
of the property. It is not sufficient that the witnesses are summoned and they are present outside the
building while the search is being carried on inside the building.
(5) The occupant of the place of the search, or his nominee, shall in every case be permitted to attend
during the search.
(6) A list of all things seized in the course of the search and of the places in which they are respectively
found shall be prepared by the person making the search and shall be signed by the witnesses.
Similarly, when any person is searched as mentioned in (iii) above, a list of all things taken in
possession shall be prepared. This procedure will not be applicable to a person’s search incidental to
his arrest. The police’s failure to take out a recovery memo in such a case was held not vitiating the
trial. [Mahadeo v. State, 1990, All.]
(1) Consequences of irregularities or illegalities in a search:- It has been specially provided by Section 93
(3) that no magistrate other than a District Magistrate or Chief Judicial Magistrate shall issue a warrant
to search for a document, parcel or other thing in the custody of the postal or telegraph authority. If
any magistrate not so specified, issues such a search warrant the search proceedings shall be void.
(2) The non-compliance with the search-procedure would make the entry into the place of a search as
one without lawful authority. The person making such an entry is liable to be sued in a civil court for
trespass. He can also be subjected to such force by the occupant of the place as is legally justifiable in
defence of property and person.
QUESTION-8: What do you mean by FIR? What is procedure for the registration of FIR
in case the police has refused to register FIR? Discuss the evidentiary value of FIR? (2015,
2022, 2023)

ANSWER: Information to the police in respect of cognizable offences F.I.R:-Any person

aware of the commission of any cognizable offence may give information to the police and may,
thereby set the criminal law in motion. The information so received shall be recorded in such a
form and manner as is provided in Section 173. That section is intended to insure the making of
an accurate record of the information given to police. According to that section-
➢ Any information given to the police officer in charge of the police station in the case of a
Cognizable Offence, irrespective of the area where the offence is committed may be given
orally or by electronic Communications is written by him or under his direction in the FIR
Register. The information given can be oral or written or electronic form, and in case of
electronic communication, it shall be taken on record by him on being Signed within three
days by the person giving it, shall be signed by the person giving it. A copy of that
information is given to the informant free of cost.
➢ This information can be given to any police station under new BNSS It’s not necessary that
we can only give this information to the police station under which the crime has been
committed.
➢ The section also provides that if the crime has been committed against a woman then such
information shall be recorded by a woman police officer or any woman officer. And if the
victim is temporarily or permanently mentally or physically disabled then the information
shall be recorded by the police officer at a convenient place for the victim as their choice. An
interpreter or a special educator is also present.
➢ A new Provision [ sec.173(3)] has been added that Without prejudice to the provisions
contained in section 175, on receipt of Information relating to the commission of any
cognizable offence, which is made punishable For three years or more but less than seven
years, the officer in-charge of the police station May with the prior permission from an
officer not below the rank of Deputy Superintendent Of Police, considering the nature and
gravity of the offence,-
Proceed to conduct preliminary enquiry to ascertain whether there exists a Prima facie case
for proceeding in the matter within a period of fourteen days; or proceed with investigation
when there exists a prima facie case.
➢ Any person aggrieved by a refusal on the part of an officer in charge of a police station to
record the information referred to in sub-section (1), may send the substance of such
information, in writing and by post, to the Superintendent of Police concerned who, if
satisfied that such information discloses the commission of a cognizable offence, shall
either investigate the case himself or direct an investigation to be made by any police
officer subordinate to him, in the manner provided by this Sanhita, and such officer shall
have all the powers of an officer in charge of the police station in relation to that offence
failing which such aggrieved person may make an application to the Magistrate. [sec.
173(4)]

The information as recorded under Section 173 is usually known and referred to as the first
information report or simply as the FIR which is the abbreviated from of first information report.
As will be seen later, the evidentiary value of the FIR is far greater than that of any other statement
recorded by the police during the course of the investigation. Sometimes, it may happen that more
than one person go at or about the same time and make statement to the police about the same
cognizable offence. In such a situation the police officer has to use common sense and record one
of the statements as the FIR.
 It has been ruled by the Supreme Court that since the word ‘information’ in Section 173 is not
qualified as ‘reasonable’ it is the duty of the police to register the information under Section 154.
State of Haryana v. Bhajan lal, 1992, S.C.

Evidentiary value of FIR:-Though the first information report (FIR) is not substantive evidence,
it can be used to corroborate the informant under Section 160 of the Bharatiya sakkshya adhiniyam
2023, or to contradict him under Section 148 of that Adhiniyam , if the informant is called as a
witness at the time of trial. Obviously, the FIR cannot be used for the purposes of corroborating or
contradicting any witness other than the one lodging the FIR.

Undue or unreasonable delay in lodging the FIR therefore, inevitably gives rise to suspicion
which puts the court on guard to look for the possible motive and the explanation and consider its
effect on the trustworthiness or otherwise of the prosecution version.
If the FIR is given to the police by the accused himself, it cannot possibly be used either for
corroboration or contradiction because the accused cannot be a prosecution witness, and he would
very rarely offer himself to be a defence witness under section 353 of the Code. Moreover, if the
FIR is of a confessional nature it cannot be proved against the accused-informant, because
according to Section 23 of the Bharatiya sakshya adhiniyam 2023, no confession made to a police
officer can be proved as against a person accused of any offence. But it might become relevant
under Section 6 of the Bharatiya sakshya adhiniyam 2023 as to his conduct. If the FIR given by
the accused person is non-confessional, it may be admissible in evidence against the accused as an
admission under Section 19 of the Bharatiya sakshya adhiniyam 2023, or again, as showing his
conduct under Section 6 of the Bharatiya sakshya adhiniyam 2023.
QUESTION-9: What do you understand by Investigation of a crime? How does a police
officer investigate an offence? Discuss in the light of relevant provisions of Cr.P.C? (2017)
ANSWER: The investigation of an offence consists of-
(1) Proceeding to the place of offence;
(2) Ascertainment of the facts and circumstances of the case;
(3) Discovery and arrest of the suspected offender;
(4) Collection of evidence relating to the commission of the offence which may consists of-
(a) The examination of various person (including the accused)
(b) The search of place or seizure of things.
(5) Formation of the opinion as to whether on the materials collected there is a case to place the accused
before a Magistrate for trial, and if so, taking the necessary steps for the same by the filing of a
chargesheet (challan) under Section 193.