Source: Jharkhand High Court

Why in News?

Recently, the Jharkhand High Court in the matter of Md. Reyazul & Anr. v. State of Jharkhand, has held that Section 100(5) of the Criminal Procedure Code, 1973 (CrPC) does not require the witnesses of search and seizure to attend the court as a witness unless specially summoned by the court.

What was the Background of Md. Reyazul & Anr. v. State of Jharkhand Case?

• In this case, the petitioners were sentenced by the Lower Court to undergo rigorous imprisonment for two years for the offence under Section 414 of the Indian Penal Code, 1860 (IPC).
• The period of imprisonment already undergone by the petitioners during the trial was ordered to be set off.
• An appeal was filed by the petitioners in the Court of Additional Sessions Judge who upheld the judgment of conviction passed by the lower court.
• Thereafter, a criminal revision application has been filed against the judgement passed by the Additional Sessions Judge before the High Court of Jharkhand.
• The senior counsel for the petitioners contended that the lower court as well as the appellate court had wrongly come to a finding regarding the guilt of the petitioners and had not considered the fact that the prosecution failed to examine the seizure witnesses.
• The High Court partly allowed the revision application.

What were the Court’s Observations?

• Justice Ambuj Nath observed that in order to prove the factum of recovery, it is sufficient for the prosecution to adduce the seizure list in evidence. Section 100(5) CrPC does not require the witnesses of search and seizure to attend the court as a witness unless specially summoned by the court.

What are the Relevant Legal Provisions Involved in it?

Section 100 of CrPC

• Section 100 of CrPC deals with the persons in charge of closed places to allow search whereas the same provision has been covered under Section 103 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS). It states that —

(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47.

(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 and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).

Section 414 of IPC

• Section 414 of IPC deals with the assisting in concealment of stolen property whereas the same provision has been covered under Section 317(5) of Bhartiya Nyaya Sanhita, 2023 (BNS).
• It states that whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
• The term stolen property has been defined in Section 410 of IPC.