PETITIONER:
V. S. KUTTAN PILLAI
Vs.
RESPONDENT:
RAMAKRISHNAN & ANR.
DATE OF JUDGMENT18/09/1979
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 185 1980 SCR (1) 673
1980 SCC (1) 264
ACT:
Code of Criminal Procedure, 1973 Sections 91 and
93(1)(c)-Scope of -Appellants office bearers of a Sabha-
Warrant under s. 93(1)(c) issued for search and seizure of
documents-Search warrant if violates fundamental right under
Article 20(3) of Constitution.
Constitution of India-Article 20(3)-Right if violated
by issue of search warrant under s. 93(1)(c) of Cr.P.C..
1973.
HEADNOTE:
Section 91 of the Code of Criminal Procedure, 1973
confers power on the court or an officer in charge of a
police station to issue a summons or written order to any
person in whose possession or power a document the
production of which the court or the officer considers
necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under D.
the Code calling upon him to produce the document.
Section 93 of the Code contemplates three situations in
which the court may issue a search warrant: (a) where the
Court has reason to believe that a person to whom the
summons or order under s. 91 has been or might be addressed
will not or would not produce the document or thing as
required by such summons or requisition or (b) where such
document or thing is not known to the court to be in the
possession of any person or (c) where the court considers
that the purposes of any enquiry, trial or other proceeding
under this code will not be served by a general search or
inspection, then it may issue a search warrant; and the
person to whom such warrant is directed may search or
inspect in accordance therewith and the provisions contained
in the code.
The complainant (respondent no. 1 ) made an application
before a magistrate for the issue of a warrant for the
search and seizure of certain books and documents of a Sabha
of which the accused were office-bearers. After the seizure
of the books and documents, on the application of one of the
accused persons, the magistrate directed their return to the
persons from whom they were recovered. In the respondent
revision petition the High Court held that the provisions
contained in s. 93(1) of the Cr.P.C. were not hit by Art.
20(3) of the Constitution.
Dismissing the appeal,
^
HELD: The High Court was right in sustaining the
general search warrant under s. 93(1)(c) of the Code. [682
H]
1. The immunity against self incrimination extends to
any incriminating evidence which the accused may be
compelled to give but does not extend to cover a situation
where evidence which may have tendency to incrinate
674
the accused is being collected without compelling him to be
a party to the collection of the evidence. The search of the
premises occupied by the accused, without compelling the
accused to be party to such search, would not be violative
of Art. 20(3) of the Constitution. [682C]
2. A search and seizure pursuant to a search warrant
under s. 93 ( 1 ) (c) 8 of the Code would not have the
remotest tendency to compel an accused to incriminate
himself. He is not required to participate in the search. He
may remain a passive spectator or may even be absent. Merely
because the accused is occupying the premises to be searched
it cannot be said that by such search and consequent seizure
of documents, including the document which may contain
statements attributable to the personal Knowledge of the
accused and which may have a tendency to incriminate him,
would violate the constitutional guarantee against self-
incrimination because he is not compelled to do anything. A
passive submission to search cannot be styled as compulsion
on the accused to submit to search. If anything is recovered
during the search which may provide incriminating evidence
against the accused it cannot be called a compelled
testimony. [681 G-H]
3. Section 93(1)(c) comprehends a situation where a
search warrant can be issued as the court is unaware of not
only the person but even the place where the documents may
be found and that a general search is necessary. Therefore,
power of the court under this clause cannot be cut down by
importing some of the requirements of cl. (b) of the s.
93(1). [682 F-G]
In the instant case although the order of the
magistrate was laconic certain important aspects could not
be over-looked. The objects of the Sabha were of a general
charitable nature. An earlier search warrant was quashed by
the High Court. When the complainant made more serious
allegation a search warrant was issued to conduct a search
of the institution. The office premises, the books and other
documents of the Sabha could not be said to be in possession
of any individual accused. They were in the possession of
the institution. A search of such a public place under the
authority of a general search warrant can easily be
sustained under s. 93(1)(c). Viewed this way there was no
illegality in the Magistrate's order.
Shyamlal Mohanlal v. State of Gujarat, [1965] 2 SCR
457, M. P. Sharma & others v. Satish Chandra District
Magistrate, Delhi & ors., [19541 SCR 1077, The State of
Bombay v. Kathi Kalu Gohad & Ors. [1962] 3 SCR 10.
explained.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 17
of 1979.
Appeal by Special Leave from the judgement and order
dated 16-3-1978 of the Kerala High Court in Crl. M.P. No.
124/77.
T. C. Raghavan and N. Sudhakaran for the Appellant.
Nemo for the Respondent.
675
The Judgment of the Court was delivered by A
DESAI, J.-Nemo tenetu prodere-no man is bound to
‘accuse himself-which finds constitutional recognition in
Article 20(3) of he Constitution, conferring immunity from
compelling an accused person to be a witness against himself
by giving self-incriminating evidence, has been put into
forefront to support a prayer for quashing he search warrant
issued by the Sub-Divisional Magistrate, Always, on 4th
January ]977 directing The Deputy Superintendent of Police,
Always, to search the premises styled as the office of
H.M.D.P. Sabha (‘Sabha’ for short), Moothakunam, and to
seize the books, documents and papers as set out in the
application for issuance of search warmly. The Magistrate
had before him a complaint filed by the first respondent
Ramakrishnan against the petitioner and S others for having
committed offences under sections 403, 409, 420 and 477A
read with s. 34, Indian Penal Code. Original accused 1, and
accused 2 the present petitioner, were respectively
President and Secretary of the Sabha and original accused 3
to 6 were described as Managers of the Institution. The
complainant made an application on 4th January 1977
requesting the learned Magistrate to issue a search warrant
to search the office premises of the Sabha and seize the
books, documents, etc. described in the application, if
found therein. On the very day the Magistrate issued a
search warrant and in fact it was executed and certain
books, vouchers and papers were produced before the Court.
The present petitioner (original accused 2) requested the
learned Magistrate to recall the warrant and to return the
books and documents seized under the authority of the search
warrant. The learned Magistrate was of the opinion that in
view of the decision of this Court in Shyamlal Mohanlal v.
State of Gujarat(l), and an earlier decision of V. Khalid,
J. Of Kerala High Court, no search warrant could be issued
under s. 91 of the Code of Criminal Procedure, 1973 (‘new
Code’ for short), and accordingly directed that anything
recovered pursuant to the search warrant Issued by him be
returned to the person from whom the same were recovered.
The order was, however, to take effect after the decision on
the requisition which was by then received from the Income-
Tax officer under s. 132A of the Income Tax Act. First
respondent (original complainant) preferred a revision
application to the High Court of Kerala questioning the
correctness of the decision of the learned Magistrate and
the claim to constitutional immunity of the accused from
search and seizure of books, documents, etc. directed with a
view to collecting evidence against him, being violative of
Art. 20(3) of the Cons-
676
titution was canvassed before the Court. The High Court
after an exhaustive review of the decisions of this Court as
well as those bearing on the Fifth Amendment to the American
constitution held that the provisions relating to search
contained in s. 93(1) of the Criminal Procedure Code, 1973,
are not hit by Article 20(3) of the Constitution.
Section 91 confers power on the Court or an officer in
charge of a J police station to issue a summons or written
order as the case may be, to any person in whose possession
or power a document, the production of which the Court or
the officer considers necessary or desirable for the
purposes of any investigation, inquiry, trial or other
proceeding under the Code. Section 93 confers power on the
Court to issue search warrant under three different
situations.
Sections 91 and 93, so far as they are relevant, read
as under:
“91. (1) Whenever any Court or any officer in
charge of a police station considers that the
production of any document or other thing is necessary
or desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this Code by
or before such Court or officer, such Court may issue a
summons, or such officer a written order, to the person
m whose possession or power such document or thing is
believed to be, requiring him to attend and produce it,
or to produce it, at the time and place stat ed in the
summons or order.”
“93. (l)(a) Where any Court has reason to believe
that a person to whom a summons or order under section
91 or a requisition under sub-section ( 1 ) of section
92 has been, or might, be, addressed, will not or would
not produce the document or thing as required by such
summons or requisition, or
(b) where such document or thing is not known to
the Court to be in the possession of any person, or
(c) where the Court considers that the purposes of
any inquiry, trial or other proceeding under this Code
will be served by a general search or inspection, it
may issue a search-warrant; and the person to whom such
warrant is directed, may search or inspect in
accordance therewith and the provisions hereinafter
contained”.
In exercise of the power conferred by s. 91 a summons
can be issued by the Court to a person in whose possession
or power any
677
document or other thing considered necessary or desirable
for the purpose of any investigation, inquiry, trial or
other proceeding under the Code calling upon him to produce
the document or thing at the time and place to be mentioned
in the summons. On the advent of the Constitution, and
especially in view of the provision contained in Art. 20(3),
Courts were faced with a problem whether the person referred
to in s. 91(1) of the Code (s 94 of old Code) would include
an accused. In other words, the question was whether a
summons can be addressed to the accused calling upon him to
produce any document which may be in his possession or power
and which is necessary or desirable for the purpose of an
investigation, inquiry, trial, etc. in which such person was
an accused person. The wider question that was raised soon
after the enforcement of the Constitution was whether search
of the premises occupied or in possession of a person
accused of an offence or seizure of anything therefrom would
violate the immunity from self-incrimination enacted in
Article 20(3). In M. P. Sharma & others v. Satish Chandra,
District Magistrate, Delhi & ors.,(ll) the contention put
forth was that a search to obtain document for investigation
into an offence is- a compulsory procuring of incriminatory
evidence from the accused himself and is, therefore, hit by
Art. 20(3) as unconstitutional and illegal. A specific
reference was made to ss. 94 and 96 of the Criminal
Procedure Code, 1898 (‘old Code’ for short), both of which
are re-enacted in almost identical language as ss. 91 and 93
in the new Code, in support of the submission that a seizure
of documents on search is in the contemplation or law a
compelled production of documents. A Constitution Bench of 8
judges of this Court unanimously negatived this contention
observing:
“A power of search and seizure is in any system of
jurisprudence an overriding power of the State for the
protection of social security and that power is
necessarily regulated by law. When the Constitution
makers have thought fit not to subject such regulation
to constitutional limitations by recognition of a
fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import
it, into a totally different fundamental right, by some
process of strained construction. Nor is it legitimate
to assume that the constitutional protection under
Article 20(3) would be defeated by the statutory
provisions for searches”.
678
It was concluded that a search under the enabling provisions
of the Criminal Procedure Code cannot be challenged as
illegal on the ground of violation of Article 20(3). It must
be made clear that the question whether there is any element
of compulsion in issuing a summons to a person accused of an
offence under s. 94 (old) s. 91 (new) to produce a document
or thing in his possession or power considered n necessary
or desirable for any inquiry, investigation or, trial under
the Code of Criminal Procedure was kept open. In other
words, the question whether the expression ‘person’ in s. 94
(old) s. 91 (new) would comprehend a person accused of an
offence was left open.
Following the decision in M. P. Sharma’s case, a
Division Bench of the Madras High Court in Swarnalingam
Chettiar v. Assistant Labour Inspector, Karaikudi(l) held
that a summons could not be issued under s. 94 of the old
Code to the accused for production of certain documents in
his possession irrespective of the fact whether those
documents contained some statement of the accused made of
his personal knowledge and accordingly the summons issued to
the accused to produce certain documents was quashed. After
the matter went back to the trial court, on an application
of the Sub-Inspector investigating the case, for a search
warrant to be issued to obtain documents mentioned in the
list attached to the petition and likely to be found upon a
search of the premises of Karaikudi Railway out Agency, the
Magistrate issued a notice to the accused to show cause E,
why a general search warrant as asked for should not be
issued. Again the accused moved the High Court in revision
and in Swarnalingam Chettiar v. Assistant Inspector of
Labour Karaikudi(2) the High Court quashed the notice
holding that such notice practically amounts to stating that
either he produces the document or else the premises will be
searched and this will amount to testimonial compulsion held
impermissible by the decision of the Supreme Court in M. P.
Sharma’s case (supra). This view of the Madras High Court is
no more good law in view of the later decisions of this
Court.
In The Slate of Bombay v. Kathi Kalu Oghad & Ors.,(3) a
question arose whether obtaining specimen hand writing or
thumb impression of the accused would contravene the
constitutional guarantee in Art. 20(3). In this case there
was some controversy about certain observations in M. P.
Sharma’s case (supra) and, therefore, the matter was heard
by a Bench of 11 Judges. Two opinions were handed down, one
by Chief Justice Sinha for himself and 7 brother judges, and
another by Das Gupta, J. for himself and 2 other colleagues.
In Sinha, CJ’s opinion, the observation in M. P.
679
Sharma’s case (supra) that s. 139 of the Evidence Act has no
bearing on the connotation of the word ‘witness’ is not
entirely well-founded in law. Immunity from self-
incrimination as re-enacted in Art. 20(3) was held to mean
conveying information based upon the personal knowledge of
the person giving the information and could not include
merely the mechanical process of producing documents in
court which may throw a light on any of the points in
controversy, but which do not contain any statement of the
accused based on his personal knowledge. It was concluded
that to be a witness is not equivalent to furnishing
evidence in its widest significance; that is to say, as
including not merely making of oral or written statement but
also production of document or giving materials which may be
relevant at trial to determine the innocence or guilt of
the’ accused.
What was kept open in Sharma’s case (supra) whether a
person accused of an offence could be served with a summons
to produce documents was decided when it was observed that
immunity from self-incrimination would not comprehend the
mechanical process of producing documents in court which may
throw a light on any of the points in controversy but which
do not contain a statement of the accused based on his
personal knowledge.
The matter again came up before a Constitution Bench of
this Court in Shyamlal Mohanlal v. State of Gujarat(l). In
that case appellant Shyamlal Mohanlal was a licensed money-
lender and according to the provisions of the relevant Money
Lending Act and Rules he was under an obligation to maintain
books. He was prosecuted for failing to maintain books in
accordance with the provisions of the Act and the Rules. The
police prosecutor incharge of the case on behalf of the
prosecution presented an application requesting the Court to
order the appellant Shyamlal Mohanlal to produce daily book
and ledger for a certain year. Presumably it was a request
to issue summons as contemplated by s. 94 of the old Code.
The Learned Magistrate rejected the request on the ground
that in so doing the guarantee of immunity from self-
incrimination would be violated. The matter ultimately came
to this Court and the question that was put in forefront
before the Court was whether the expression ‘person’ in s.
94(1) which is the sale as s. 91(1) of the new Code,
comprehends within its sweep a person accused of an offence
and if it does, whether an issue of summons to produce a
document in his possession or power would violate the
immunity against self-incrimination guaranteed by Article
20(3). The majority opinion handed down by Sikri, J. ruled
that s. 94(1) upon its true construction does not
680
apply to an accused person. While recording this opinion
there is no reference to the decision of the larger Bench in
Kathi Kalu oghad’s case (supra). Shah, J. in his dissenting
judgment referred to the observation that the accused may
have documentary evidence in his possession which may throw
some light on the controversy and if it is a document which
is not his statement conveying his personal Knowledge
relating to the charge against him, he may be called upon to
produce it. Proceeding further it was observed that Art.
20(3) would be no bar to the summons being issued to a
person accused of an offence to produce a thing or document
except in the circumstances herein above mentioned. Whatever
that may be, it is indisputable that according to the
majority opinion the expression ‘person’ in s. 91(1) (new
Code) does not take within its sweep a person accused of an
offence which would mean that a summons issued to an accused
person to produce a thing or document considered necessary
or desirable for the purpose of an investigation, inquiry or
trial would imply compulsion and the document or thing so
produced would be compelled testimony and would be violative
of the constitutional immunity against self-incrimination.
There appears to be some conflict between the
observations in M. P. Sharma’s case (supra) as reconsidered
in Kothi Kala oghad’s case (supra) and the one in the case
of Shyamlal Mohanlal (supra). However, as this case is not
directly relatable to a summons issued under s. 91(1), we do
not consider it necessary to refer the matter to a larger
Bench to resolve the conflict.
In view of the decision in Shyamlal Mohanlal’s case
(supra) one must proceed on the basis that a summons to
produce a thing or document as contemplated by s. 91(1)
cannot be issued to a person accused of an offence calling
upon him to produce document or thing considered necessary
or desirable for the purpose of an investigation, inquiry,
trial or other proceeding under the Code of Criminal
Procedure.
If summons as hereinbefore discussed cannot be issued
to an accused person under s. 91(1), ipso facto a search
warrant contemplated by s. 93(1) (a) cannot be issued by the
Court for the obvious reason that it can only be issued
where the Court could have issued a summons but would not
issue the same under the apprehension that the person to
whom such summons is issued will not or would not produce
the thing as required by such summons or requisition. A
search warrant under s. 93(1)(a) could only be issued where
a summons could have been issued under s. 91(1) but the same
would not be issued on an apprehension that the person, to
whom
681
the summons is directed would not comply with the same and,
there- A fore, in order to obtain the document or thing to
produce which the summons was to be. issued, a search
warrant may be issued under s. 93 (1) (a) .
Section 93, however, also envisages situations other
than one contemplated by s. 93(1)(a) for issuance of a
search warrant. It must be made distinctly clear that the
present search warrant is not issued under s. 93 ( 1 ) (a) .
Section 93(1) (b) comprehends a situation where a
search warrant may be issued to procure a document or thing
not known to the Court to be in the possession of any
person. In other words, a general search warrant may be
issued to procure the document or thing and it can be
recovered from any person who may be ultimately found in
possession of it and it was not known to the Court that the
person from whose possession it was found was in possession
of it. In the present case the search warrant was to be
executed at the office of the Sabha and it can be said that
office bearers of the Sabha were the persons who were in
possession of the documents in respect of which the search
warrant was issued. Therefore, clause (b) of s. 93(1) would
not be attracted.
Section 93(1) (c) of the new Code comprehends a
situation where the Court may issue a search warrant when it
considers that the purpose of an inquiry, trial or other
proceeding under the Code will be served by a general search
or inspection to search, seize and produce the documents
mentioned in the list. When such a general search warrant is
issued, in execution of it the premises even in possession
of the accused can be searched and documents found therein
can be seized irrespective of the fact that the documents
may contain some statement made by the accused upon his
personal knowledge and which when proved may have the
tendency to incriminate the accused. However, such a search
and seizure pursuant to a search warrant issued under s.
93(1) (c) will not have even the remotest tendency to compel
the accused to incriminate himself. He is expected to do
nothing. He is not required to participate in the search. He
may remain a passive spectator. He may even remain absent.
Search can be conducted under the authority of such warrant
in the presence of the accused. Merely because he is
occupying the premises which is to be searched under the
authority of the search warrant it cannot even remotely be
said that by such search and consequent seizure of documents
including the documents which may contain statements
attributable to the personal knowledge of the
682
accused and which may have tendency to incriminate him,
would violate the constitutional guarantee against self-
incrimination because he is not compelled to do anything. A
passive submission to search cannot be styled as a
compulsion on the accused to submit to search and if
anything is recovered during search which may provide
incriminating evidence against the accused it cannot be
styled as compelled testimony. This is too obvious to need
any precedent in support. The immunity against self-
crimination extends to any incriminating evidence which the
accused may be compelled to give. It does not extend to
cover such situation as where evidence which may have
tendency to incriminate the accused is being collected
without in any manner compelling him or asking him to be a
party to the collection of the evidence. Search of the
premises occupied by the accused without the accused being
compelled to be a party to such search would not be
violative of the constitutional guarantee enshrined in
Article 20(3). .
It was, however, urged that s. 93(1) (c) must be read
in the context of s. 93(1) (b) and it would mean that where
documents are known to be at a certain place and in
possession of a certain person any general search warrant as
contemplated by s. 93(1) (c) will have to be ruled out
because in such a situation s. 93(1)(a) alone would be
attracted. Section 93(1)(b) comprehends a situation where
the Court issues a search warrant in respect of a document
or a thing to be recovered from a certain place but it is
not known to the Court whether that document or thing is in
possession of any particular person. Under clause (b) there
is a definite allegation to recover certain document or
thing from a certain specific place but the Court is unaware
of the fact whether that document or thing or the place is
in possession of a particular person. Section 93(1)(c)
comprehends a situation where a search warrant can be issued
as the Court is unaware of not only the person but even the
place where the documents may be found and that a general
search is necessary. One cannot, therefore, cut down the
power of the Court under s. 93(1) (c) by importing into it
some of the requirements of s. 93(1)(b). No canon of
construction would permit such an erosion of power of the
Court to issue a general search warrant. It also comprehends
not merely a general search but even an inspection meaning
thereby inspection of a place and a general search thereof
and seizure of documents or things which the Court considers
necessary or desirable for the purpose of an investigation,
inquiry, trial or other proceeding under the Code. The High
Court accordingly sustained the general search warrant in
this case under s. 93(1)(c).
683
Turning to the facts of this case it was contended that
the order of the Magistrate clearly disclosed an utter non-
application of mind and a mere mechanical disposal of the
application before the Court. Undoubtedly the order is of a
laconic nature. But then there are certain aspects of the
case which cannot be overlooked before this Court would
interfere in such an interlocutory order.
The appellant and his co-accused are office bearers of
a public institution styled as H.M.D.P. Sabha. We were
informed at the hearing of this petition that this Sabha is
a public institution engaged in the. activity of running
educational institutions and supporting objects or
activities of a general charitable nature. When the first
complaint was filed, the allegation therein was that
criminal breach of trust in respect of funds of the public
institution has been committed by the office bearers
thereof. A search warrant was issued but it was quashed by
the Kerala High Court. Thereafter an other complaint was
filed making some more serious allegations and a search
warrant was sought. Now, this search warrant was being
issued to conduct search of the premises used as office of
an institution. The place will be in possession of the
institution. The office bearers of the Sabha are accused of
an offence. Documents and books of accounts of the
institution are required for the purpose of the trial
against the office bearers of the institution. The office
premises could not be said to be in possession of any
individual accused but stricto sensu it would be in
possession of the institution. Books of accounts and other
documents of the institution could not be said to be in
personal custody or possession of the office bearers of the
institution but they are in possession of the institution
and are lying in the office of the institution. A search of
such a public place under the authority of a general search
warrant can easily be sustained under s. 93(1)(c). If the
order of the learned Magistrate is construed to mean this,
there is no, illegality committed in issuing a search
warrant. Of course, issuance of a search warrant is a
serious matter and it would be advisable not to dispose of
an application for search warrant in a mechanical way by a
laconic order. Issue of search warrant being in the
discretion of the Magistrate it would be reasonable to
expect of the Magistrate to give reasons which swayed his
discretion in favour of granting the request. A clear
application of mind by the learned Magistrate must be
discernible in the order granting the search warrant. Having
said this, we see no justification for interfering with the
order of the High Court in this case.
P.B.R. Appeal dismissed.
684