Search by a Police Officer | Section 185 and 186 BNSS

Search by a Police Officer during Investigation: Sections 185 and 186 BNSS, the Recorded Grounds, the Safeguards and the Consequence of Breach

A search warrant issued by a court under Chapter VII is preceded by a judicial decision. A search under section 185 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is not. It is conducted by a police officer on his own authority, in the course of an investigation, without any application to anyone and without any prior scrutiny of his reasons. It is the most common kind of search in India and the least supervised.

The Sanhita compensates for the absence of prior judicial control in two ways. It attaches conditions to the power, the most important of which is that the officer must record the grounds of his belief in writing before he searches. And it requires the record to be sent forthwith to the nearest Magistrate, so that the decision, though taken without leave, is examined afterwards. This topic sets out the conditions, the safeguards that apply to the conduct of the search, and what follows when they are not observed.

1. Section 185: the Power

Section 185(1), BNSS 2023

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 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.

Figure 1: The seven conditions

1.1 The four preconditions

The right officer. An officer in charge of a police station, or a police officer making an investigation. An officer who is neither, or who is investigating some other case, has no power under the section.
Reasonable grounds for believing. Not suspicion, and not a hope. And the belief must relate to something necessary for the purposes of an investigation into an offence which he is authorised to investigate — so a search for material useful to some other inquiry is outside the section.
Within his own limits. The place must lie within the limits of the police station of which he is in charge or to which he is attached. Section 186 governs a place outside those limits.
It cannot otherwise be obtained without undue delay. This is the condition that justifies dispensing with a warrant, and it is the one most often left unaddressed in the record. Where the thing could be obtained by a summons under section 94, or by an application for a warrant under section 96, the officer’s own power is not engaged.

1.2 The recorded grounds

The officer may search only after recording in writing the grounds of his belief and specifying, so far as possible, the thing for which the search is to be made. Two things follow, and they are the points on which most challenges turn.

⚠ The record must precede the search, and must state facts

The words are “after recording”. A record prepared after the search, or prepared at the time and dated earlier, does not satisfy the section. The requirement exists so that the officer’s reasons are fixed before he knows what he will find, and cannot be adjusted to fit the outcome.

The record must state the grounds of belief, which means the facts on which the officer acted — the information received, its source so far as it can be given, and why it made him believe the thing would be found at that place. A recital that “reliable information was received” is not a statement of grounds.

And it must specify, so far as possible, the thing for which the search is to be made. The qualification is a real one, because an officer cannot always know exactly what he is looking for; but it requires him to say what he can, and a search authorised in terms for “anything incriminating” is a general search which the section does not permit.

1.3 In person, or by a subordinate

Sub-section (2) requires the officer, if practicable, to conduct the search in person. Sub-section (3) permits delegation only where he is unable to conduct it in person and there is no other person competent to make the search present at the time; and then only after recording in writing his reasons for so doing, and by delivering to the subordinate an order in writing specifying the place to be searched and, so far as possible, the thing for which the search is to be made.

The structure is the same as elsewhere in the Sanhita: the person on whom the statute confers a power exercises it himself, and delegation is permitted only on recorded reasons and by a written order that fixes its scope. A subordinate who searches without such an order has no authority, and the order is the document that shows the limits within which he was entitled to act.

2. The Safeguards, and Section 186

Figure 2: The safeguards, the consequence of breach, and searches outside the officer’s limits

2.1 What sub-sections (4) and (5) add

Sub-section (4) applies to a search under the section the provisions of the Sanhita as to search warrants and the general provisions as to searches contained in section 103, so far as may be. The consequence is substantial: a police search under section 185 must comply with the same requirements as the execution of a search warrant.

Two or more independent and respectable inhabitants of the locality must be called upon to attend and witness the search, and a written order may be issued to them.
The search is made in their presence, and a list of all things seized and of the places in which they were found is prepared and signed by them.
The occupant of the place, or someone on his behalf, must be permitted to attend, and a copy of the list signed by the witnesses is delivered to him.
A person in or about the place reasonably suspected of concealing an article about his person may be searched; and if that person is a woman, the search is made by another woman with strict regard to decency, with a separate list given to her.
Under section 105, which is new, the search and seizure shall be recorded by audio-video electronic means and the recording forwarded without delay to a Magistrate.

Sub-section (5) requires copies of any record made under sub-section (1) or sub-section (3) to be sent forthwith to the nearest Magistrate empowered to take cognizance of the offence, and entitles the owner or occupier of the place searched, on application, to be furnished free of cost with a copy by the Magistrate. That is the provision that makes the recorded grounds capable of being tested: without it, the record would sit in the case diary, which the accused cannot call for.

2.2 Section 186: a search outside the officer’s own limits

Where the officer wishes to search a place outside the limits of his own station, section 186 provides two routes. The ordinary course is to require the officer in charge of the station within whose limits the place lies to cause the search to be made, and that officer then proceeds as if the thing were within his own limits. The exception applies where there is reason to believe that delay may result in the evidence being concealed or destroyed: the officer may then search himself in the other station’s limits.

Where he does so, he must forthwith send notice of the search to the officer in charge of that station, and copies of the records to the Magistrate empowered to take cognizance of the offence and to the Magistrate within whose local limits the place searched is situate. The owner or occupier may apply to the second Magistrate for a free copy. The double transmission exists because a search in another jurisdiction is the case in which the least local scrutiny is available, and the section compensates by requiring two judicial officers to be told.

3. What Follows from a Breach

📖 State of Rajasthan v. Rehman, AIR 1960 SC 210

Facts: A search was conducted by a police officer in the course of an investigation without the requirements of section 165 of the Code of Criminal Procedure, 1898 having been complied with: the grounds of belief were not recorded as the section required. Articles were recovered and the accused was prosecuted. The question was whether the failure to comply with the section rendered the search illegal, and if so what followed.

Held: The Supreme Court held that the provisions of the section are mandatory and that a search conducted without compliance is illegal. The section is a serious invasion of the rights of a person in his own premises, and the conditions it imposes — reasonable grounds, the recording of them, the specification of the thing sought — are the protection the legislature has given. But the Court held that the illegality of the search does not affect the admissibility of the evidence of what was recovered: the recovery is a fact, and Indian law contains no rule excluding relevant evidence because of the manner in which it was obtained. What follows is that the court must scrutinise the evidence of the recovery with care, since the safeguards designed to make it reliable were absent, and the officer is liable for the illegality.

Ratio: The conditions in the section are mandatory and a search that disregards them is illegal. But the illegality does not exclude the evidence; it obliges the court to examine the evidence of the recovery with greater care.

📖 State of Punjab v. Balbir Singh, (1994) 3 SCC 299

Facts: Searches and seizures had been made by police officers in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 without compliance with the safeguards in the general search provisions of the Code of Criminal Procedure and in the special statute. The Court was asked to settle the extent to which the general provisions on arrest and search apply to investigations under a special statute, and what the consequence of non-compliance is.

Held: The Court held that the provisions of the Code relating to arrest and search apply to investigations under the special statute except to the extent they are expressly excluded, and that the safeguards in the general search provisions are therefore attracted. It distinguished between provisions that are mandatory and those that are directory: non-compliance with a mandatory safeguard designed to protect the person searched renders the search illegal and vitiates the conviction where the recovery is the foundation of the case, whereas non-compliance with a directory provision is an irregularity affecting the weight of the evidence. The Court held that the requirement of recording grounds before a search, and the requirement that the person searched be informed of his right where the statute confers one, are of the first kind, and it set out the consequences of each class of default.

Ratio: The general safeguards on search apply to investigations under special statutes unless excluded. Non-compliance with a mandatory safeguard renders the search illegal; non-compliance with a directory one is an irregularity going to weight.

⚠ Holding the two propositions together

These decisions are frequently cited against each other, and they do not conflict. The search is illegal where the conditions were not satisfied — that is Rehman, and it is the reason the officer is answerable and the reason the court is put on inquiry.

The evidence is not excluded — that too is Rehman, and it reflects the absence of any general exclusionary rule in Indian law. The recovery remains admissible and is assessed on its own merits.

But where the recovery is the foundation of the case, and the safeguards that would have made it reliable were disregarded, the court may find the recovery not proved at all, and the conviction then fails — not because the evidence was excluded, but because it was not believed. That is the practical effect of the distinction drawn in Balbir Singh, and it is why the difference between a mandatory and a directory requirement matters.

4. Section 185 Compared with a Search Warrant

	Search warrant under section 96	Police search under section 185
Who decides	A Court, on the grounds the section specifies	The police officer himself, on his own belief
Prior scrutiny	Yes. The court considers whether the grounds exist before the warrant issues	None. The scrutiny is after the event, when the record reaches the Magistrate under sub-section (5)
The record	The warrant itself, which is a judicial order	The officer’s written grounds of belief, recorded before the search
Territorial reach	Any place in India, subject to the endorsement machinery in sections 80 to 83	Within the limits of the officer’s own station; section 186 for a place outside them
Who executes it	Ordinarily a police officer to whom it is directed	The officer himself if practicable; a subordinate only on recorded reasons and a written order
Conduct of the search	Section 103 applies	Section 103 applies by force of section 185(4)
Recording	Section 105: audio-video recording forwarded to a Magistrate	Section 105 applies equally
Copy to the occupier	A copy of the list under section 103	A copy of the list under section 103, and a free copy of the officer’s record from the Magistrate under section 185(5)

5. Key Takeaways

The position stated shortly

1. Section 185 permits an officer in charge of a police station or a police officer making an investigation to search without a warrant, on his own authority.

2. Four conditions must be satisfied: reasonable grounds for believing that the thing may be found; that it is necessary for an investigation he is authorised to conduct; that the place is within the limits of his own station; and that the thing cannot otherwise be obtained without undue delay.

3. He may search only after recording in writing the grounds of his belief and specifying, so far as possible, the thing sought. The record must precede the search and must state facts, not a recital of the statutory language.

4. He shall search in person if practicable; delegation requires recorded reasons and a written order specifying the place and the thing.

5. Section 185(4) applies the general provisions on searches in section 103: two independent and respectable inhabitants of the locality, a list of things seized and the places found signed by them, the occupant present and given a copy, and a woman searched only by a woman.

6. Section 105 requires the search and seizure to be recorded by audio-video electronic means and the recording forwarded to a Magistrate.

7. Section 185(5): copies of the record go forthwith to the nearest Magistrate, and the owner or occupier may obtain a free copy from him. That is what makes the recorded grounds testable.

8. Section 186: for a place outside his limits, the ordinary course is to require the local station to search; he may search himself only where delay may result in evidence being concealed or destroyed, and must then notify that station and two Magistrates.

9. A search that disregards the conditions is illegal, and the officer is answerable; but the evidence of the recovery is not excluded, because Indian law has no general exclusionary rule: Rehman.

10. The court examines such a recovery with greater care, and where the recovery is the foundation of the case and the mandatory safeguards were disregarded, the conviction may fail because the recovery is not believed: Balbir Singh.

6. Frequently Asked Questions

Can the police search a place without a warrant?

Yes, under section 185, where the officer in charge or the officer making the investigation has reasonable grounds for believing that something necessary for an investigation he is authorised to conduct may be found in a place within the limits of his station, and that it cannot otherwise be obtained without undue delay.

Must the officer record anything before searching?

Yes. He may search only after recording in writing the grounds of his belief and specifying, so far as possible, the thing for which the search is to be made. The record must precede the search, and copies of it are sent forthwith to the nearest Magistrate.

Can the occupier obtain a copy of the officer’s reasons?

Yes. Section 185(5) entitles the owner or occupier of the place searched, on application, to be furnished free of cost with a copy of the record by the Magistrate to whom it was sent.

Do the ordinary search safeguards apply to a police search?

Yes. Section 185(4) applies the provisions on search warrants and the general provisions on searches in section 103, so far as may be. Two or more independent and respectable inhabitants of the locality must witness the search, a list of the things seized and the places found is signed by them, the occupant may attend and gets a copy, and a woman is searched only by a woman.

Can a police officer search a place outside his own station limits?

Ordinarily he must require the officer in charge of the station within whose limits the place lies to cause the search to be made. He may search himself only where there is reason to believe that delay may result in the evidence being concealed or destroyed, and must then send notice to that station and copies of the records to two Magistrates.

What happens if the search was illegal?

The search is illegal and the officer is answerable, but the evidence of what was recovered is not thereby excluded, since Indian law contains no general exclusionary rule. The court examines the evidence of the recovery with greater care, and where the recovery is the foundation of the case and the mandatory safeguards were disregarded, it may find the recovery not proved.

Related Topics

Production of Documents and Search: Sections 94 to 110, BNSS
Constitutional Protection Against Unreasonable Search and Article 20(3)
Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196
The Case Diary under the BNSS, 2023: Section 192
Forensic Investigation under the BNSS, 2023: Section 176(3)
Search Warrant and Summons to Produce Compared