Search Without Warrant Is Breach Of Right To Privacy Says Bombay HC, Fines State Rs.25,000 For illegal Search :[Read Judgment]

Division bench of Justice TV Nalawade and Justice SM Gavhane of Aurangabad bench were hearing a criminal writ petition filed by one Dnyaneshwar Todmal, a driver by profession.

The incident in question took place on the intervening night of May 5 and May 6, 2018 at about 2 am The search of the house of the petitioner was taken by Newasa Police, District Ahmednagar. According to the petitioner, police had not obtained search warrant for taking such search and ultimately nothing objectionable was recovered from his house. Petitioner contended that during search, one Constable named Vitthal Gaikwad had tried to plant a country made pistol in his house but due to alertness of the petitioner he could not plant such arm. It is the contention of the petitioner that while leaving the house, police officials threatened him saying that they would implicate him in a false crime. It was contended that this act of the police was infringement into his privacy, violation of his fundamental rights guaranteed under Article 21 of the Constitution of India.

Petitioner filed a complaint on May 7, 2018 before the concerned Tahsildar about the aforesaid illegal act of police but no action was taken. The said complaint was also given to the District Superintendent of Police on May 10, 2018 and copy of the complaint was sent to State Human Rights Commission but no action was taken against the respondents, petitioner contended.

Although the petitioner filed a writ petition in 2018, during the proceedings a letter of the District Superintendent of Police, Ahmednagar was shown to the Court and it was to the effect that the Sub Divisional Police Officer was appointed to make inquiry. Thus, in view of the steps taken by the superior police officers, the petition was disposed of.

The Superintendent of Police, Ahmednagar filed an affidavit in reply for the aforesaid petition. He contended that from 2014 onwards as many as 16 crimes were registered against other persons of that area as they were found in possession of fire arms. Due to such circumstance there was a probability that persons of that local area were having fire arms and they were involved in illegal activities and so action was taken by police which was on the basis of secret information, the affidavit states.

Judgement

Court observed-

"The provision of section 166 of the CrPC shows that police officer in charge of a police station may require another to issue search-warrant when a place to be searched is situated within local jurisdiction of the other police station. This Court holds that provisions of sections 165 and 166 of the CrPC are applicable in a case like present one."

Thereafter, placing reliance on a judgement of the Supreme Court, the bench noted-

"In the case reported as State v. Rehman (AIR 1960 SC 210) it is laid down by the Apex Court that as search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power. The provision of section 165 of the 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 Apex Court had laid down in the aforesaid case that as the provision of section 165(1) of the CrPC is mandatory in nature, it should be strictly followed. Thus, before entering a house, investigating officer has to specify in writing the things for which search is to be made and also the ground of his belief that such things would be found in the house which is to be searched.

Court also gave police the opportunity to show that there was some secret information received by police on that night, on the basis of which search was conducted at 2 am. However, Court noted-

"Though from the information, the informant's name needs not be disclosed, it is necessary for police to create a record of the information received. Entry of such information which involves commission of cognizable offence needs to be made in station diary. When police officers leave for action, they need to make an entry about their movements in station diary. In the present matter the record produced 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 of the CrPC."

Thus, Court declared that the police action was illegal-

"This Court has no hesitation to hold that the State is liable to pay compensation to the petitioner for such illegal action. That action of police was not only the infringement into privacy but that action defamed the entire family."

The bench also noted that prosecution's argument does not show how the action taken against the petitioner can be justified.

"If in the past some crimes were registered against the petitioner for offence of accidents that cannot be considered to say that the petitioner had criminal background when his occupation was driver. Many times, a driver faces such prosecution."

Thus, Court directed the government to deposit Rs.25,000 as compensation payable to the petitioner. Also, gave the State liberty to recover the compensation from the respondent police officers.

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