Firstly, let me point out that under Sections 165 and 166 of the Criminal Procedure Code, an investigating officer is empowered to conduct search without warrant from a Magistrate in the situations described in these sections.
Secondly, the search conducted without warrant under these two sections is also subject to the provisions of Section 100 which relates to search conducted with a search warrant.
Thirdly, Section 100 of the Cr.P.C. requires that before making a search, the police officer 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.
So, it should be clear from the above provision contained in Section 100 that while it is generally expected that the police officer will call two or more independent and respectable witnesses from the locality in which the place to be searched is situate for witnessing the search, yet it is not mandatory that the witnesses should always be from the same locality. The section provides that if no such inhabitant of the said locality is available or is willing to be a witness to the search, then two or more persons from any other locality may also be asked to witness the search.
Therefore, there is no legal bar to take search witnesses from other localities, though, of course, local witnesses are preferable.
I may point out from my personal experience as a former IPS officer that many a time local persons (who can be said to independent and respectable) may not always be available or may not always be willing to witness the search. Sometimes, they are too well known to the accused persons (which means they may not be independent) while on some other occasions they are reluctant to be witness against a person of their locality in order to avoid hostility or for some other reasons such as, generally, people avoid police and court cases. Generally, people avoid to be called in future in courts as witnesses for their examination and then cross-examination.
Therefore, the Parliament has rightly allowed even outside persons to act as witnesses to search.
Thus, to reiterate, there is no legal bar for taking outsiders as search witnesses, though it is advisable to take the local witnesses wherever possible.
Now, in the facts of your case, if you feel that the police has used people of suspicious character as witnesses in the search in the house of your client, then that means your client may have some information or idea about these witnesses. So, perhaps, at the time of the examination in court, you may confront these witnesses in cross-examination to shake their credibility of being independent and respectable witnesses, to the extent permissible under cross-examination under the provisions of the Evidence Act.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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