It's 4 P.M. You're expecting evening tea. There's a knock at your door. Police officers claim they need to search your home, but they do not have a warrant. Your first instinct may be to say no. Isn't that our right to deny? Under Indian law, not always. Section 185 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, authorizes police to undertake warrantless searches under specific circumstances and if you don't know what those conditions are, you could be taken entirely by surprise.
In today's post, we'll explain what Section 185 actually states, when it can be utilized and where the risks are.
Relevant Section: Section 165,
Code of Criminal Procedure,1973 (CrPC), Corresponds to Section 185 in Bharatiya Nagarik
Suraksha Sanhita, 2023
If
police have sufficient grounds to believe that a search is necessary for an
investigation and that waiting would cause evidence to disappear or
be destroyed, they search without a warrant.
This
provision mirrors Section 165 of the old Code of Criminal Procedure (CrPC) but
introduces stronger accountability through digital recording and mandatory
reporting.
Section
185 in Bharatiya Nagarik Suraksha Sanhita, 2023
185.
Search by police officer.
(1)Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief in the case-diary and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
When are police permitted to conduct searches without a warrant?
The law specifies particular situations in which a search without a warrant is permissible. These situations are:
- Hot pursuit: Following a suspect believed
to be concealed in a specific location.
- Imminent danger: Situations that are a threat
to life or public safety.
- Possession of illegal items: Suspected drugs, weapons, or
contraband located on the premises.
- NDPS (Narcotic Drugs and Psychotropic Substances Act, 1985)
- UAPA (The Unlawful Activities (Prevention) Act, 1967).
Example: A local police officer receives information that a man
wanted for kidnapping is hiding in a nearby house. The officer knows that by
the time a warrant is obtained, the suspect can flee. He documents the reason
in the case diary, notifies the Magistrate within 48 hours, and proceeds with
the search. This exemplifies a standard application of Section 185.
How
this applies:
- Reasonable Belief: The officer conducting the search must genuinely believe that the search is urgent and necessary.
- Written Record: Grounds must be documented in writing (in the case diary under BNSS), clearly mentioning and stating what is being searched for.
- Jurisdiction: The search must happen inside the jurisdiction of the officer’s police station’s limits.
- Personal Search: Officer to see conduct of search personally, if feasible.
- Audio-Visual Recording (BNSS): The search should preferably be recorded via mobile or any audio-video device.
- Delegation: If the officer can’t search personally, a subordinate can be granted permission to do so on his behalf but only after proper written instructions and the reasons must be recorded.
- Magistrate Oversight: A copy of the search record must be dispatched to the nearest Magistrate within 48 hours, and the occupier has the right to request a free copy.
Other
Laws Allowing Warrantless Searches
In addition to Section 185, several specific laws authorize warrantless searches:
- NDPS Act: Searches related to Narcotics may be conducted without a warrant in urgent circumstances.
- Unlawful Activities (Prevention) Act (UAPA)
- Arms Act
- BNSS Section 35/CrPC Section 41: These provisions permit warrantless arrests in cognizable offences, frequently accompanied by an immediate search of adjacent premises.
Instances
of Cognizable Offences (Which may lead to warrantless arrest and
search):
- Section 109 BNS (Bharatiya Nyaya Sanhita, 2023)/Section 307 IPC (The Indian
Penal Code, 1860) - Attempt to murder.
- Section 64 BNS/Section 376 IPC - Rape (Punishment for Rape is outlined in this section).
- Section 310 BNS /Section 395 IPC - Dacoity.
- Section 103 BNS /Section 302 IPC - Murder (Punishment for Murder is outlined in this section).
- Section 140 BNS /Section 364, 364(A) IPC - Kidnapping or abduction with the intent to murder, or for ransom, or other exploitative purposes.
Where
Things Get Complicated
Although
this provision is intended for emergency situations, it carries inherent risks:
- The officer is not obligated to obtain prior judicial approval.
- The determination to enter is founded on their belief rather than a judicial ruling.
- The protective measures are only activated after the search has taken place. This implies that if an officer misuses this authority, the harm may already be inflicted by the time a court evaluates the situation.
Safeguards
You Should Know
- Written Record: The officer is required to record the justification for the search in the case diary.
- Video Recording: Ideally, the entire procedure should be captured on video to enhance transparency and accountability, particularly under the Bharatiya Nagarik Suraksha Sanhita (BNSS). While not explicitly mentioned as mandatory for all searches, the BNSS, through sections 105 and 185, requires audio-video recording of search and seizure procedures. This includes the preparation of search lists and witness signatures, and the recordings are to be forwarded to the relevant magistrate.
- Magistrate Oversight: Details of the search must be submitted to a Magistrate within 48 hours.
- Occupier Rights: The individual whose residence is searched has the right to request a free copy of the search record.
- Delegation With Reason: If a senior officer is unable to conduct the search personally, they must issue a written directive to a subordinate, providing detailed justifications.
The Privacy Angle
Right
to privacy is recognized as a Fundamental
Right under Article 21 (Justice
Puttaswamy v. Union of India, 2017). Any legislation that permits
intrusion into an individual's home must balance state interests with personal
dignity. Section 185 attempts to achieve this through reporting and video
recording. However, enforcement gaps may still persist.
Why
You Should Be Concerned
Many
individuals continue to think that a warrant is invariably necessary. This
misconception provides them with a misleading sense of security. If you are
unaware that a law enforcement officer can legally enter your residence without
a warrant under certain circumstances, you are less inclined to:
- Inquire about the case diary entry
- Verify the officer's jurisdiction
- Ask for a copy of the search report
- Confirm that a video recording was made
Understanding
the law is not merely a legal matter - it is a form of self-protection and
awareness.
Concluding
Reflections
Section 185 of the BNSS provides law enforcement with the essential agility to respond promptly; however, it simultaneously encourages citizens to remain vigilant. Every legal authority is accompanied by a corresponding legal obligation. The more informed we are regarding the functioning of these powers, the more effectively we can ensure accountability.
Therefore,
when someone asserts that police invariably require a warrant, you will possess
a clearer understanding. Ideally, you will also assist them in grasping this
concept.
References
for Further Reading
- Bharatiya Nagarik Suraksha
Sanhita (BNSS), 2023 - https://www.indiacode.nic.in/handle/123456789/20099?view_type=browse
- Code of Criminal Procedure,
1973 - https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure,_1973.pdf
- NDPS Act, 1985 - https://www.indiacode.nic.in/bitstream/123456789/18974/1/narcotic-drugs-and-psychotropic-substances-act-1985.pdf
- Unlawful Activities (Prevention) Act, 1967 (UAPA) - https://www.mha.gov.in/sites/default/files/A1967-37.pdf
- Article 21 of the Indian
Constitution - https://indiankanoon.org/doc/1199182/
- Justice K.S. Puttaswamy
(Retd.) v. Union of India (2017) - https://www.scobserver.in/cases/puttaswamy-v-union-of-india-fundamental-right-to-privacy-case-background/
- BNSS vs CrPC Comparison -
Structural and Procedural Shifts - https://bprd.nic.in/uploads/pdf/Comparison%20summary%20BNSS%20to%20CrPC.pdf
- Cognizable vs Non-Cognizable
Offences - https://lawctopus.com/clatalogue/clat-pg/cognizable-and-non-cognizable-offences-under-crpc/
- BNSS Section 105 - Recording
of Search and Seizure (for video requirement) - https://indiankanoon.org/doc/2838436/
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