The ‘Need’ of Warrant
Section 93 of the Code of Criminal Procedure, 1973 (the Code) entails the situations when search warrants can be issued. If the Court is of the belief that the person to whom the summon or order under Section 91 has been addressed, will not adduce such document essential to the proceedings, a search warrant against such person can be issued. The Court limits the extent of such search and seizure and the authorized` inspection personnel is expected to follow such order. Similar lines of protection can be found in a juxtaposed reading of Articles 19, 20(3) and 21 of the Indian Constitution which give protection to the accused person from testifying against themselves. Warrantless search and seizure may prove to be a serious violation of the fundamental right to privacy which is guaranteed by law.
As held in Kharak Singh v State of U.P., the security of one’s privacy against arbitrary intrusion by the police forms the basis of a free society. Such invasion is against “the very essence of a scheme of ordered liberty.” Further, in State v. Bhawani Singh it has been observed that “an Indian citizen’s house… is his castle, because next to his personal freedom, comes the freedom of his house.” Just as a citizen cannot be bereft of his personal liberty except under authority of law, similarly, no officer of the State features a right to forcibly enter a citizen’s house except under the authority of law. Even with the existence of a probable cause, searches without a search warrant are presumed to be unlawful, notwithstanding the narrowly construed exceptions.[i]
The right of the people to receive warrants before the search of and seizure from their premises is in the lines of the Fourth Amendment to the U.S. Constitution, which holds searches conducted outside the judicial process, without prior approval by judge or magistrate unreasonable as it is the right of the people to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures.”[ii] Moreover, violating one’s Fourth Amendment rights is automatically a violation of the Fourteenth Amendment due process rights, of the person subjected to the illegal search or seizure.[iii] Therefore, on an appreciation of the Indian jurisprudence, in juxtaposition with the United States fundamentals, it can be assumed that in normal circumstances, the conduction of search and seizure without warrant is clearly in violation of personal liberty.
The Case of Electronic Evidence
We live in a society, where there is an indelible need for the usage of electronic devices. The usage of such devices for carrying out almost every activity under the Sun. Hence, the mobiles, tablets, laptops can prove to be of evidentiary value in connivance for the commission of a crime. Electronic records are admissible, subject to safeguards adopted by the Court about the authenticity of the same. Computer Data is extremely volatile, being susceptible to be deleted, altered or tampered with the help of few operations, rendering it impossible to trace the perpetrator or proving his guilt. New techniques and devices though being the order of the day, are susceptible to tampering leading to an exigent circumstance and hence standard of proof of its authenticity and accuracy has to be more stringent than any other documentary evidence.[iv]
In such a scenario, the seizure becomes necessary and without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. The Indian legislature takes allegiance to this view where Information and Communication Technology (ICT) is concerned. Section 80 of the Information and Technology Act, 2000 (‘IT Act’) deals with the search and seizure of computer data on connected systems, legitimizing such actions in presence of reasonable justifications. The power to search and seize is vested upon the police officer not below the rank of inspector or any authorized officer of the central or state government. Such officers are allowed to arrest without warrant any person who is reasonably suspected of having committed, or committing or about to commit any offence under the IT Act.
In the light of a dilemma, Section 165 of the Code should come into play when there is a lack of time and an immediate step needs to be taken with the situation ensuring that such delay would frustrate the object of the search. Section 165(1) necessitates the requirement of a specific search for its invocation without a warrant.[v] Further, it also permits search for anything necessary for investigation. The essence of the judgement rendered in State v Sant Prakash, was based on the notion that even where the search itself becomes illegal by reason of non-compliance with Section 165, the property recovered at search may be used in evidence against the person concerned accused of an offence on the basis of such recovery, because the illegality of the search itself will not render the seizure illegal. In such a scenario, even though a person may resist an illegal search, the illegality will not vitiate the seizure or the evidence collected by such seizure or the trial which follows on the basis of such evidence.
Warrantless Search And Seizure-The Better Approach
By a conjoint appreciation of the relevant sections of the IT Act and the Code, it can be assumed that the police is justified in carrying out a search and seizure without warrant, if there is an existence of reasonable grounds for belief of some definite facts.[vi] In addition, omission to comply with certain procedural portions of Sections 165 and 166 of the Code of Criminal Procedure may be overlooked where the officer was acting in continuous discharge of duty. This view finds its support from the case of M.P Sharma v Satish Chandra, where the apex court has upheld the fact that there is no infringement of Article 19 or Article 20(3) of the Constitution because seizures are only means of temporary interference with the right to hold premises searched and the articles seized. Hence, the fundamental right(s) of the accused is not essentially infringed by such an intrusion.
It can be vehemently gathered that in situations involving tampering of data which is almost inevitable in cases concerning electronic records, warrantless search and seizure must be allowed so as to facilitate quick action. A reference can be obtained from the methods enshrined under Section 2 of the Council of Europe Recommendation No. R (95) 13 which provides for expedited preservation of stored computer data. A comprehensive reading of Articles 16 and 29 authorizes warrantless preservation of such data by the authorities while its possession remains with the custodian until the production of an order or warrant. This method is less intrusive while upholding the privacy of the custodian and at the same time, ensuring the authenticity of such electronic evidence.
Even though the United States jurisprudence condemns warrantless search and seizure under the 4th Amendment, certain exceptional circumstances have been held to validate the warrantless search of a residence where the police are responding to an emergency[vii] or are in hot pursuit of the suspect,[viii] where the residence is the scene of the suspect’s criminal operations,[ix] and where the suspect is observed removing contraband from the residence.[x] It is expedient that the search and seizure involving electronic records is given due importance and obtaining such records be evaluated as an “exigent circumstance” where obtaining a warrant is merely a wastage of time and hence, the authority is allowed to carry out such search without the presence of a warrant, in light of the greater public good.
[i] Mincey v Arizona  437 U.S. 385 .
[ii] Coolidge v New Hampshire  403 U.S. 443, .
[iii] Mapp v Ohio  367 U.S. 643.
[iv] Terry v Ohio 392 U.S. 1, 20 
[vi] Sarkar, Code of Criminal Procedure (10th Ed, Vol. 1 LexisNexis 2012).
[vii] United States v Jeffers 342 U.S. 48 .
[viii] Warden v Hayden 387 U.S. 294 .
[ix] People v Kendall 212 Cal. App. 2d 472 28 Cal. Rptr. 53 .
[x] Martin v United States, 155 F.2d 503 (5th Cir. 1946).
Law Student, NUSRL, Ranchi