Search operation without warrant breaches right to privacy, rules HC

Mumbai: In a significant ruling, the Aurangabad bench of the Bombay High Court has held that carrying out search operations at someone's house without any warrant would amount to breach of their fundamental right to privacy. The HC also said that the 'illegal' raids will also defame the person or the family, whose residence is searched by police.

A bench of Justices Tanaji Nalawade and Sopan Gavhane also ordered Maharashtra Police to pay Rs 25,000 compensation to Dynaneshwar Todmal, 34, whose house was searched by Ahmednagar Police on the intervening night of May 5 and May 6, 2018, by 10 police officers.

According to Todmal, police had not obtained a search warrant to undertake this operation and ultimately, nothing objectionable was recovered from his house. He alleged that one of the police officers tried to plant a country-made pistol in his house but the attempt failed. He accordingly, sought Rs 10 lakh in compensation.

On the other hand, police highlighted the two cases in which Todmal, a driver, had been booked. Both cases pertained to accidents which had occurred in 2011 and 2015. Police also contended, the search was conducted in “good faith”.

To buttress their case, police cited the statements of those who had deposed as witnesses in the two accident cases.

Having considered the contentions, the bench referred to the provisions of the Code of Criminal Procedure (CrPC), which enables a police officer to search any premises without obtaining a warrant from a magistrate.

The bench, however, opined, in the event such a warrant is not being obtained, police have to specify in writing the purpose for which the search is to be carried out.

“Thus, on the one hand, the laws enable police to search the house for investigation of any crime, on the other, it becomes mandatory for police to record reasons as the first step before entering the house,” Justice Nalawade noted.

“In view of the provision, and as police officers entered the house that too in night time when Todmal was sleeping with his family which included two ladies and the children, this court holds that it was intrusion into privacy,” Justice Nalawade held.

“If such act is done illegally without following the procedure which is contemplated in Article 21 of the Constitution of India, the consequences follow. In such a case, there cannot be defence that it was a mistake on the part of the police officers,” Justice Nalawade ruled.

The bench noted that the policemen were on different duties but all of them came together at the relevant time for the search operations but without any warrant.

“This court holds that the action of the police officers was illegal. We have no hesitation to hold that the state is liable to pay compensation to Todmal family for such illegal action, which not only infringed on the right to privacy but also defamed the entire family,” Justice Nalawade added.

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