Bom HC | Illegal search is violation of fundamental right to privacy, State directed to pay compensation; law on Ss. 165 & 166 CrPC explained

Bombay High Court: A Division Bench comprising of T.V. Nalawade and S.M. Gavhane, JJ., partly allowed the present petition while explaining the significance of few provisions of the Criminal Code of Procedure, 1973.

In the present case, the act of respondents, police officers, of taking search of the house of the petitioner was illegal and that was interference in the privacy of the petitioner and his family. Relief is claimed of compensation of Rs 10 lakhs for infringement of a fundamental right, “Right of Privacy”.

Petitioner contends that during the said search, one Constable had tried to plant a pistol in his house but due to alertness of the petitioner he could not plant such arm. He further adds that while leaving the house threats were given by the police that they would implicate the petitioner in a false crime. Further, he states that, act of the police was infringement into his privacy, violation of his fundamental rights guaranteed under Article 21 of the Constitution of India.

In the earlier order of this Court, Sub-Divisional Police Officer was appointed to make inquiry. Petitioner contends that, Sub-Divisional Officer noticed illegality but did not propose action against the police officers involved in the illegal search. Adding to his contentions, petitioner states that the respondents have nothing to show that they had any information against the petitioner on that night or the prior one.

Counsel for the petitioner mainly submitted that police ought to have obtained search warrant first for taking search of the house of the petitioner and as such warrant was not obtained, the house search was illegal.

In the present matter respondent’s case is that on the basis of some secret information, petitioner was in possession of a firearm illegally and thus the search was taken.

Court’s Analysis and Conclusion [Explained: Provisions of Sections 165 and 166 CrPC]

Court holds that provisions of Sections 165 and 166 CrPC are applicable in a case like the present one.

In Supreme Court’s decision in State v. Rehman, AIR 1960 SC 210, Apex Court laid down that,

“as search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power”

 Provision of Section 165 CrPC is enacted to enable police to take search when there is urgency and when it is not permissible to follow lengthy process, securing search warrant from Magistrate.

 The provision is not restricted to search of what is stolen or believed to be stolen and it permits the police officer to make search for anything necessary for the purposes of investigation into any offence.

It is further noted that, on one hand the provision enables police to take search of the house for investigation of any crime, on the other, it becomes mandatory for police to record reasons as the first step before entering the house.

In respect to the Arms Act, Court stated that it has gone through the provisions of the Arms Act, 1959 as the respondents had submitted that there was specific information that the petitioner was in possession of firearm illegally, for which the Court further stated that nothing in the Arms Act and Rules framed under the Act enable police to take such search by ignoring the provision of Section 165 CrPC.

 Court, adding to its analysis, stated that, while going through the provisions of Maharashtra Police Act also in order to ascertain the powers of police officer nowhere the Act shows that police can bypass the provision of Section 165 CrPC.

Intrusion of Privacy

Court held that as the police officers had entered the house that too in the night time when his family was sleeping which included two ladies and the issues, it would amount to the intrusion into their privacy.

Further, in the present case, respondents were given an opportunity by the Court to show that there was secret information received by police on that night.

“When police officers leave for action, they need to make an entry about their movements in the station diary.”

 Court on noting the circumstances in the present case stated that, record by the petitioner shows that most of the respondents were assigned different duties at different places on that night. All of them came together on that night for this action but no writing is there in respect of secret information and also about the compliance of provision of Section 165 CrPC. Thus Court held that action of the police officers was illegal.

State is liable to pay compensation for the above-stated illegal action. Action of police was not only the infringement into privacy but defamed the entire family.

High Court further came down the relief in respect to the prosecution of police officers which is not possible in the present matter for the following reasons:

Court referred to the provisions of Sections 165 and 166 CrPC. In view of the CrPC provisions, it can be said that search of the house premises was a part of official duty.

Placing reliance on the Supreme Court decision in Anjani Kumar v. State of Bihar, (2008) 5 SCC 248, wherein it was held that, if there is reasonable connection between the act and the discharge of duty by public servant, the act would be ‘official’ to which section 197 of the Cr.P.C. would be applicable.

For prosecution, there is a necessity of sanction under Section 197 CrPC and in view of the facts of the present matter, no further action like direction for the prosecution of the police officers is warranted.

Thus, in view of the above observations of the Court, appeal was partly allowed declaring the search to be illegal. [Dnyaneshwar v. State of Maharashtra, 2019 SCC OnLine Bom 4949, decided on 29-11-2019]

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