The provisions of Section 100 are applicable to both kinds of searches, namely, search under a warrant issued under any of the provision of Sections 93, 94, 95 and 97 or search conducted without a warrant under any of the provisions of Sections 103, 165 and 166. Not only this, the Supreme.
Court in Naga People’s Movement of Human Rights v. Union of India has held that the principles underlying the provisions governing search will be applicable even in cases where the Code of Criminal Procedure is not applicable.
The object of the section is threefold,—
(1) The occupant of the place to be searched extends all reasonable facilities to the persons authorised to conduct a search;
(2) The police and others authorised to make search are given necessary powers for the effective conduct of the search; and
(3) Reliable evidence is obtained by making a search and possibilities of concoction, malpractice such as planting of articles or fabrication of any false evidences are completely eliminated.
In order to eliminate the chance of any person stealthily taking away on his person any article or thing for which the place is being searched, sub-section (3) provides for the search of such person. If the person to be searched is a woman then, in order to protect her modesty, her search should be made by another woman with utmost decency.
Sub-section (4) requires that before a search is made, the officer concerned will call upon two or more independent respectable inhabitants of the locality in which the place to be searched is situate, to attend and witness the search.
The object of this provision is to guard against any possibility of unfair dealing or planting by persons making the search. If no such inhabitants of the locality are available or they are not willing to be a witness, then inhabitants of any other locality may be made witnesses to the search. The Supreme Court has in a number of cases observed that presence of the witnesses at a search is always desirable and their absence may weaken the evidence.
The Supreme Court, in Hazara Singh v. State of Punjab, ruled that the witnesses who had been joining in the police raids and had been appearing as witnesses for the police for the last fifteen years could not be considered as independent witnesses.
It is submitted that respectable persons are generally reluctant to be a witness to a search because of the reason that they are subsequently required to attend the Court as witnesses and refusal or neglect to do without reasonable cause is punishable under Section 187 I.P.C.
Though this section does not prohibit searches being carried out during night but it has been held that unless otherwise necessary, they should be conducted during day time.
Sub-section (5) provides that the police officer or other person making the search shall prepare a list of articles and things seized in the course of the search and it shall be signed by the witnesses but not the accused. It is highly objectionable to make the accused sign or put his thumb impression on the search-list.
Where the search-memo was signed only by the policemen and not by any independent witnesses though they were present, the search was held to be doubtful and untrustworthy and, therefore, invalid.
Sub-section (6) provides that the occupant of the place of search or his nominee shall be permitted to be present during the search except where there is reason to believe that securing his presence might cause inordinate delay which might frustrate the purpose of the search.
The Supreme Court has held that a motor car is not a “place” within the meaning of Section 100 and, therefore, provisions relating to searches as contained in this section will not apply to searches of motor cars.
Briefly speaking, it may be said that Section 100 generally provides for the procedure to be followed in case of every search of a place. Besides, Sections 165 and 166 provide for additional procedure to be followed when search is made by a police officer without a warrant. The contravention of these provisions will render the search irregular, if not illegal. Whether it should be treated as irregular or illegal, would depend upon the extent of prejudice caused to the accused person due to non-compliance of the said procedure.
Where the official witnesses were examined in a case to prove search and recovery had no animus or hostility against the accused and the cross-examination directed against them had not elicited anything which could possibly cause a dent in the prosecution case. The accused was acquitted because of the non-compliance of Section 100 (4) of the Code.