{"id":54320,"date":"1979-09-18T00:00:00","date_gmt":"1979-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-s-kuttan-pillai-vs-ramakrishnan-anr-on-18-september-1979"},"modified":"2015-02-19T21:42:42","modified_gmt":"2015-02-19T16:12:42","slug":"v-s-kuttan-pillai-vs-ramakrishnan-anr-on-18-september-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-s-kuttan-pillai-vs-ramakrishnan-anr-on-18-september-1979","title":{"rendered":"V. S. Kuttan Pillai vs Ramakrishnan & Anr on 18 September, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V. S. Kuttan Pillai vs Ramakrishnan & Anr on 18 September, 1979<\/div>\n
Equivalent citations: 1980 AIR 185, \t\t 1980 SCR (1) 673<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nV. S. KUTTAN PILLAI\n\n\tVs.\n\nRESPONDENT:\nRAMAKRISHNAN & ANR.\n\nDATE OF JUDGMENT18\/09\/1979\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1980 AIR  185\t\t  1980 SCR  (1) 673\n 1980 SCC  (1) 264\n\n\nACT:\n     Code  of  Criminal\t Procedure,  1973  Sections  91\t and\n93(1)(c)-Scope of  -Appellants office  bearers of  a  Sabha-\nWarrant under  s. 93(1)(c)  issued for search and seizure of\ndocuments-Search warrant if violates fundamental right under\nArticle 20(3) of Constitution.\n     Constitution of  India-Article 20(3)-Right\t if violated\nby issue  of search  warrant under  s. 93(1)(c)\t of Cr.P.C..\n1973.\n\n\n\nHEADNOTE:\n     Section 91\t of the\t Code of  Criminal  Procedure,\t1973\nconfers power  on the  court or\t an officer  in charge\tof a\npolice station\tto issue  a summons  or written order to any\nperson\tin   whose  possession\t or  power  a  document\t the\nproduction of  which the  court\t or  the  officer  considers\nnecessary   or\t desirable   for   the\t purposes   of\t any\ninvestigation, inquiry,\t trial or  other proceeding under D.\nthe Code calling upon him to produce the document.\n     Section 93 of the Code contemplates three situations in\nwhich the  court may  issue a  search warrant: (a) where the\nCourt has  reason to  believe that  a  person  to  whom\t the\nsummons or  order under s. 91 has been or might be addressed\nwill not  or would  not produce\t the document  or  thing  as\nrequired by  such summons  or requisition  or (b) where such\ndocument or  thing is  not known  to the  court to be in the\npossession of  any person  or (c)  where the court considers\nthat the  purposes of any enquiry, trial or other proceeding\nunder this  code will  not be  served by a general search or\ninspection, then  it may  issue a  search warrant;  and\t the\nperson to  whom such  warrant  is  directed  may  search  or\ninspect in accordance therewith and the provisions contained\nin the code.\n     The complainant (respondent no. 1 ) made an application\nbefore a  magistrate for  the issue  of a  warrant  for\t the\nsearch and seizure of certain books and documents of a Sabha\nof which  the accused were office-bearers. After the seizure\nof the books and documents, on the application of one of the\naccused persons, the magistrate directed their return to the\npersons from  whom they\t were recovered.  In the  respondent\nrevision petition  the High  Court held\t that the provisions\ncontained in  s. 93(1)\tof the\tCr.P.C. were not hit by Art.\n20(3) of the Constitution.\n     Dismissing the appeal,\n^\n     HELD: The\tHigh  Court  was  right\t in  sustaining\t the\ngeneral search\twarrant under  s. 93(1)(c) of the Code. [682\nH]\n     1. The  immunity against  self incrimination extends to\nany  incriminating   evidence  which   the  accused  may  be\ncompelled to  give but\tdoes not extend to cover a situation\nwhere evidence which may have tendency to incrinate\n674\nthe accused  is being collected without compelling him to be\na party to the collection of the evidence. The search of the\npremises occupied  by the  accused, without  compelling\t the\naccused to  be party  to such search, would not be violative\nof Art. 20(3) of the Constitution. [682C]\n     2. A  search and  seizure pursuant\t to a search warrant\nunder s.  93 (\t1 )  (c) 8  of the  Code would\tnot have the\nremotest  tendency  to\tcompel\tan  accused  to\t incriminate\nhimself. He is not required to participate in the search. He\nmay remain a passive spectator or may even be absent. Merely\nbecause the accused is occupying the premises to be searched\nit cannot be said that by such search and consequent seizure\nof documents,  including  the  document\t which\tmay  contain\nstatements attributable\t to the\t personal Knowledge  of\t the\naccused and  which may\thave a\ttendency to incriminate him,\nwould violate  the constitutional  guarantee  against  self-\nincrimination because  he is not compelled to do anything. A\npassive submission  to search cannot be styled as compulsion\non the accused to submit to search. If anything is recovered\nduring the  search which  may provide incriminating evidence\nagainst\t the   accused\tit  cannot  be\tcalled\ta  compelled\ntestimony. [681 G-H]\n     3. Section\t 93(1)(c) comprehends  a situation  where  a\nsearch warrant\tcan be issued as the court is unaware of not\nonly the  person but  even the place where the documents may\nbe found  and that a general search is necessary. Therefore,\npower of  the court  under this clause cannot be cut down by\nimporting some\tof the\trequirements of\t cl. (b)  of the  s.\n93(1). [682 F-G]\n     In\t the   instant\tcase   although\t the  order  of\t the\nmagistrate was\tlaconic certain\t important aspects could not\nbe over-looked.\t The objects of the Sabha  were of a general\ncharitable nature.  An earlier search warrant was quashed by\nthe High  Court. When  the  complainant\t made  more  serious\nallegation a  search warrant  was issued to conduct a search\nof the institution. The office premises, the books and other\ndocuments of the Sabha could not be said to be in possession\nof any\tindividual accused.  They were\tin the possession of\nthe institution.  A search  of such a public place under the\nauthority  of\ta  general  search  warrant  can  easily  be\nsustained under\t s. 93(1)(c).  Viewed  this way there was no\nillegality in the Magistrate's order.\n     Shyamlal Mohanlal\tv. State  of Gujarat,<\/a>  [1965] 2\t SCR\n457, M.\t P. Sharma  &  others  v.  Satish  Chandra  District\nMagistrate, Delhi  & ors.<\/a>,  [19541 SCR\t1077, The  State  of\nBombay\tv.  Kathi  Kalu\t Gohad\t&  Ors.<\/a>\t [1962]\t 3  SCR\t 10.\nexplained.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 17
\nof 1979.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t judgement and order
\ndated 16-3-1978\t of the\t Kerala High  Court in Crl. M.P. No.
\n124\/77.\n<\/p>\n
     T. C. Raghavan and N. Sudhakaran for the Appellant.
\n     Nemo for the Respondent.\n<\/p>\n
675<\/span><\/p>\n
     The Judgment of the Court was delivered by A
\n     DESAI,  J.-Nemo  tenetu  prodere-no  man  is  bound  to
\n‘accuse himself-which  finds constitutional  recognition  in
\nArticle 20(3)  of he  Constitution, conferring immunity from
\ncompelling an accused person to be a witness against himself
\nby giving  self-incriminating evidence,\t has been  put\tinto
\nforefront to support a prayer for quashing he search warrant
\nissued by  the Sub-Divisional  Magistrate,  Always,  on\t 4th
\nJanuary ]977  directing The Deputy Superintendent of Police,
\nAlways, to  search the\tpremises styled\t as  the  office  of
\nH.M.D.P. Sabha\t(‘Sabha’ for  short),  Moothakunam,  and  to
\nseize the  books, documents  and papers\t as set\t out in\t the
\napplication for\t issuance of  search warmly.  The Magistrate
\nhad before  him a  complaint filed  by the  first respondent
\nRamakrishnan against  the petitioner and S others for having
\ncommitted offences  under sections  403, 409,  420 and\t477A
\nread with  s. 34, Indian Penal Code. Original accused 1, and
\naccused\t 2   the  present   petitioner,\t were\trespectively
\nPresident and  Secretary of the Sabha and original accused 3
\nto 6  were described  as Managers  of the  Institution.\t The
\ncomplainant  made   an\tapplication   on  4th  January\t1977
\nrequesting the\tlearned Magistrate to issue a search warrant
\nto search  the office  premises of  the Sabha  and seize the
\nbooks, documents,  etc. described  in  the  application,  if
\nfound therein.\tOn the\tvery day  the  Magistrate  issued  a
\nsearch warrant\tand in\tfact it\t was  executed\tand  certain
\nbooks, vouchers\t and papers  were produced before the Court.
\nThe present  petitioner (original  accused 2)  requested the
\nlearned Magistrate  to recall  the warrant and to return the
\nbooks and documents seized under the authority of the search
\nwarrant. The  learned Magistrate  was of the opinion that in
\nview of\t the decision  of this Court in Shyamlal Mohanlal v.
\nState of  Gujarat<\/a>(l), and  an earlier decision of V. Khalid,
\nJ. Of  Kerala High  Court, no search warrant could be issued
\nunder s.  91 of\t the Code  of Criminal Procedure, 1973 (‘new
\nCode’ for  short), and\taccordingly directed  that  anything
\nrecovered pursuant  to the  search warrant  Issued by him be
\nreturned to  the person\t from whom  the same were recovered.
\nThe order was, however, to take effect after the decision on
\nthe requisition\t which was by then received from the Income-
\nTax officer  under s.  132A of\tthe Income  Tax\t Act.  First
\nrespondent  (original\tcomplainant)  preferred\t a  revision
\napplication to\tthe High  Court of  Kerala  questioning\t the
\ncorrectness of\tthe decision  of the  learned Magistrate and
\nthe claim  to constitutional  immunity of  the accused\tfrom
\nsearch and seizure of books, documents, etc. directed with a
\nview to\t collecting evidence against him, being violative of
\nArt. 20(3) of the Cons-\n<\/p>\n
676<\/span><\/p>\n
titution was  canvassed before\tthe Court.  The\t High  Court
\nafter an exhaustive review of the decisions of this Court as
\nwell as those bearing on the Fifth Amendment to the American
\nconstitution held  that the  provisions relating  to  search
\ncontained in  s. 93(1) of the Criminal Procedure Code, 1973,
\nare not hit by Article 20(3) of the Constitution.\n<\/p>\n
     Section 91\t confers power on the Court or an officer in
\ncharge of  a J\tpolice station to issue a summons or written
\norder as  the case may be, to any person in whose possession
\nor power  a document,  the production  of which the Court or
\nthe  officer   considers  necessary  or\t desirable  for\t the
\npurposes of  any  investigation,  inquiry,  trial  or  other
\nproceeding under  the Code.  Section 93 confers power on the
\nCourt  to   issue  search   warrant  under  three  different
\nsituations.\n<\/p>\n
     Sections 91  and 93,  so far as they are relevant, read
\nas under:\n<\/p>\n
\t  “91. (1)  Whenever any  Court or  any\t officer  in
\n     charge  of\t  a  police   station  considers   that\t the
\n     production of  any document or other thing is necessary
\n     or desirable  for the  purposes of\t any  investigation,
\n     inquiry, trial  or other  proceeding under this Code by
\n     or before such Court or officer, such Court may issue a
\n     summons, or such officer a written order, to the person
\n     m whose  possession or  power such document or thing is
\n     believed to be, requiring him to attend and produce it,
\n     or to  produce it, at the time and place stat ed in the
\n     summons or order.”\n<\/p><\/blockquote>\n
\t  “93. (l)(a)  Where any Court has reason to believe
\n     that a  person to whom a summons or order under section
\n     91 or  a requisition under sub-section ( 1 ) of section
\n     92 has been, or might, be, addressed, will not or would
\n     not produce  the document\tor thing as required by such
\n     summons or requisition, or\n<\/p><\/blockquote>\n
\t  (b) where  such document  or thing is not known to
\n     the Court to be in the possession of any person, or\n<\/p><\/blockquote>\n
\t  (c) where the Court considers that the purposes of
\n     any inquiry,  trial or other proceeding under this Code
\n     will be  served by\t a general  search or inspection, it
\n     may issue a search-warrant; and the person to whom such
\n     warrant  is   directed,  may   search  or\t inspect  in
\n     accordance therewith  and\tthe  provisions\t hereinafter
\n     contained”.<\/p><\/blockquote>\n
     In exercise  of the  power conferred by s. 91 a summons
\ncan be\tissued by  the Court to a person in whose possession
\nor power any
\n677<\/span>
\ndocument or  other thing  considered necessary\tor desirable
\nfor the\t  purpose  of any  investigation, inquiry,  trial or
\nother proceeding  under the Code calling upon him to produce
\nthe document  or thing at the time and place to be mentioned
\nin the\tsummons. On  the advent\t of  the  Constitution,\t and
\nespecially in view of the provision contained in Art. 20(3),
\nCourts were faced with a problem whether the person referred
\nto in  s. 91(1) of the Code (s 94 of old Code) would include
\nan accused.  In other  words, the  question  was  whether  a
\nsummons can  be addressed to the accused calling upon him to
\nproduce any document which may be in his possession or power
\nand which  is necessary\t or desirable  for the purpose of an
\ninvestigation, inquiry, trial, etc. in which such person was
\nan accused  person. The\t wider question that was raised soon
\nafter the enforcement of the Constitution was whether search
\nof the\tpremises occupied  or  in  possession  of  a  person
\naccused of an offence or seizure of anything therefrom would
\nviolate the  immunity  from  self-incrimination\t enacted  in
\nArticle 20(3).\tIn M.  P. Sharma & others v. Satish Chandra,
\nDistrict Magistrate,  Delhi &  ors.<\/a>,(ll) the  contention put
\nforth was that a search to obtain document for investigation
\ninto an\t offence is- a compulsory procuring of incriminatory
\nevidence from  the accused himself and is, therefore, hit by
\nArt. 20(3)  as\tunconstitutional  and  illegal.\t A  specific
\nreference was  made  to\t ss.  94  and  96  of  the  Criminal
\nProcedure Code,\t 1898 (‘old  Code’ for short), both of which
\nare re-enacted in almost identical language as ss. 91 and 93
\nin the new Code, in support of the submission that a seizure
\nof documents  on search\t is in\tthe contemplation  or law  a
\ncompelled production of documents. A Constitution Bench of 8
\njudges of  this Court  unanimously negatived this contention
\nobserving:\n<\/p>\n
\t  “A power of search and seizure is in any system of
\n     jurisprudence an  overriding power of the State for the
\n     protection\t of   social  security\tand  that  power  is
\n     necessarily regulated  by law.  When  the\tConstitution
\n     makers have  thought fit not to subject such regulation
\n     to\t constitutional\t limitations  by  recognition  of  a
\n     fundamental right to privacy, analogous to the American
\n     Fourth Amendment,\twe have\t no justification  to import
\n     it, into a totally different fundamental right, by some
\n     process of\t strained construction. Nor is it legitimate
\n     to assume\tthat  the  constitutional  protection  under
\n     Article  20(3)  would  be\tdefeated  by  the  statutory
\n     provisions for searches”.\n<\/p><\/blockquote>\n
678<\/span><\/p>\n
It was concluded that a search under the enabling provisions
\nof the\tCriminal Procedure  Code  cannot  be  challenged  as
\nillegal on the ground of violation of Article 20(3). It must
\nbe made clear that the question whether there is any element
\nof compulsion in issuing a summons to a person accused of an
\noffence under  s. 94 (old) s. 91 (new) to produce a document
\nor thing  in his  possession or power considered n necessary
\nor desirable  for any inquiry, investigation or, trial under
\nthe Code  of Criminal  Procedure was  kept  open.  In  other
\nwords, the question whether the expression ‘person’ in s. 94
\n(old) s.  91 (new)  would comprehend  a person accused of an
\noffence was left open.\n<\/p>\n
     Following the  decision  in  M.  P.  Sharma’s  case,  a
\nDivision Bench\tof the\tMadras High  Court  in\tSwarnalingam
\nChettiar v.  Assistant Labour  Inspector, Karaikudi(l)\theld
\nthat a\tsummons could  not be  issued under s. 94 of the old
\nCode to\t the accused  for production of certain documents in
\nhis  possession\t irrespective  of  the\tfact  whether  those
\ndocuments contained  some statement  of the  accused made of
\nhis personal knowledge and accordingly the summons issued to
\nthe accused  to produce certain documents was quashed. After
\nthe matter  went back  to the trial court, on an application
\nof the\tSub-Inspector investigating  the case,\tfor a search
\nwarrant to  be issued  to obtain  documents mentioned in the
\nlist attached  to the petition and likely to be found upon a
\nsearch of  the premises of Karaikudi Railway out Agency, the
\nMagistrate issued  a notice  to the accused to show cause E,
\nwhy a  general search  warrant as  asked for  should not  be
\nissued. Again  the accused  moved the High Court in revision
\nand in\tSwarnalingam  Chettiar\tv.  Assistant  Inspector  of
\nLabour\tKaraikudi(2)  the  High\t Court\tquashed\t the  notice
\nholding that such notice practically amounts to stating that
\neither he produces the document or else the premises will be
\nsearched and this will amount to testimonial compulsion held
\nimpermissible by  the decision of the Supreme Court in M. P.
\nSharma’s case (supra). This view of the Madras High Court is
\nno more\t good law  in view  of the  later decisions  of this
\nCourt.\n<\/p>\n
     In The Slate of Bombay v. Kathi Kalu Oghad & Ors.,(3) a
\nquestion arose\twhether obtaining  specimen hand  writing or
\nthumb  impression   of\tthe  accused  would  contravene\t the
\nconstitutional guarantee  in Art.  20(3). In this case there
\nwas some  controversy about  certain observations  in M.  P.
\nSharma’s case  (supra) and,  therefore, the matter was heard
\nby a  Bench of 11 Judges. Two opinions were handed down, one
\nby Chief Justice Sinha for himself and 7 brother judges, and
\nanother by Das Gupta, J. for himself and 2 other colleagues.
\nIn Sinha, CJ’s opinion, the observation in M. P.\n<\/p>\n
679<\/span><\/p>\n
Sharma’s case (supra) that s. 139 of the Evidence Act has no
\nbearing on  the connotation  of the  word ‘witness’  is\t not
\nentirely  well-founded\t in   law.   Immunity\tfrom   self-
\nincrimination as  re-enacted in\t Art. 20(3) was held to mean
\nconveying information  based upon  the personal knowledge of
\nthe person  giving the\tinformation and\t could\tnot  include
\nmerely the  mechanical process\tof  producing  documents  in
\ncourt which  may throw\ta light\t on any\t of  the  points  in
\ncontroversy, but  which do  not contain any statement of the
\naccused based  on his  personal knowledge.  It was concluded
\nthat to\t be  a\twitness\t is  not  equivalent  to  furnishing
\nevidence in  its widest\t significance; that  is to  say,  as
\nincluding not merely making of oral or written statement but
\nalso production of document or giving materials which may be
\nrelevant at  trial to  determine the  innocence or  guilt of
\nthe’ accused.\n<\/p>\n
     What was  kept open  in Sharma’s case (supra) whether a
\nperson accused\tof an offence could be served with a summons
\nto produce  documents was  decided when it was observed that
\nimmunity from  self-incrimination would\t not comprehend\t the
\nmechanical process of producing documents in court which may
\nthrow a\t light on any of the points in controversy but which
\ndo not\tcontain a  statement of\t the accused  based  on\t his
\npersonal knowledge.\n<\/p>\n
     The matter again came up before a Constitution Bench of
\nthis Court  in Shyamlal\t Mohanlal v. State of Gujarat<\/a>(l). In
\nthat case  appellant Shyamlal Mohanlal was a licensed money-
\nlender and according to the provisions of the relevant Money
\nLending Act and Rules he was under an obligation to maintain
\nbooks. He  was prosecuted  for failing\tto maintain books in
\naccordance with the provisions of the Act and the Rules. The
\npolice prosecutor  incharge of\tthe case  on behalf  of\t the
\nprosecution presented an application requesting the Court to
\norder the  appellant Shyamlal Mohanlal to produce daily book
\nand ledger  for a  certain year. Presumably it was a request
\nto issue  summons as  contemplated by s. 94 of the old Code.
\nThe Learned  Magistrate rejected  the request  on the ground
\nthat in\t so doing  the\tguarantee  of  immunity\t from  self-
\nincrimination would  be violated. The matter ultimately came
\nto this\t Court and  the question  that was  put in forefront
\nbefore the  Court was  whether the expression ‘person’ in s.
\n94(1) which  is the  sale as  s.  91(1)\t of  the  new  Code,
\ncomprehends within  its sweep a person accused of an offence
\nand if\tit does,  whether an  issue of\tsummons to produce a
\ndocument in  his  possession  or  power\t would\tviolate\t the
\nimmunity against  self-incrimination guaranteed\t by  Article
\n20(3). The  majority opinion  handed down by Sikri, J. ruled
\nthat s. 94(1) upon its true construction does not
\n680<\/span>
\napply to  an accused  person. While  recording this  opinion
\nthere is no reference to the decision of the larger Bench in
\nKathi Kalu  oghad’s case (supra). Shah, J. in his dissenting
\njudgment referred  to the  observation that  the accused may
\nhave documentary  evidence in his possession which may throw
\nsome light  on the controversy and if it is a document which
\nis  not\t his  statement\t conveying  his\t personal  Knowledge
\nrelating to the charge against him, he may be called upon to
\nproduce it.  Proceeding further\t it was\t observed that\tArt.
\n20(3) would  be no  bar to  the summons\t being issued  to  a
\nperson accused\tof an offence to produce a thing or document
\nexcept in the circumstances herein above mentioned. Whatever
\nthat may  be, it  is  indisputable  that  according  to\t the
\nmajority opinion  the expression  ‘person’ in  s. 91(1) (new
\nCode) does  not take within its sweep a person accused of an
\noffence which would mean that a summons issued to an accused
\nperson to  produce a  thing or document considered necessary
\nor desirable for the purpose of an investigation, inquiry or
\ntrial would  imply compulsion  and the\tdocument or thing so
\nproduced would be compelled testimony and would be violative
\nof the constitutional immunity against self-incrimination.\n<\/p>\n
     There  appears   to  be   some  conflict\tbetween\t the
\nobservations in\t M. P. Sharma’s case (supra) as reconsidered
\nin Kothi  Kala oghad’s\tcase (supra) and the one in the case
\nof Shyamlal  Mohanlal (supra).\tHowever, as this case is not
\ndirectly relatable to a summons issued under s. 91(1), we do
\nnot consider  it necessary  to refer  the matter to a larger
\nBench to resolve the conflict.\n<\/p>\n
     In view  of the  decision in  Shyamlal Mohanlal’s\tcase
\n(supra) one  must proceed  on the  basis that  a summons  to
\nproduce a  thing or  document as  contemplated by  s.  91(1)
\ncannot be  issued to  a person accused of an offence calling
\nupon him  to produce  document or thing considered necessary
\nor desirable  for the  purpose of an investigation, inquiry,
\ntrial  or  other  proceeding  under  the  Code\tof  Criminal
\nProcedure.\n<\/p>\n
     If summons\t as hereinbefore  discussed cannot be issued
\nto an  accused person  under s.\t 91(1), ipso  facto a search
\nwarrant contemplated by s. 93(1) (a) cannot be issued by the
\nCourt for  the obvious\treason that  it can  only be  issued
\nwhere the  Court could\thave issued  a summons but would not
\nissue the  same under  the apprehension\t that the  person to
\nwhom such  summons is  issued will  not or would not produce
\nthe thing  as required\tby such\t summons or  requisition.  A
\nsearch warrant\tunder s. 93(1)(a) could only be issued where
\na summons could have been issued under s. 91(1) but the same
\nwould not  be issued  on an apprehension that the person, to
\nwhom
\n681<\/span>
\nthe summons  is directed would not comply with the same and,
\nthere- A  fore, in  order to obtain the document or thing to
\nproduce which  the summons  was\t to  be.  issued,  a  search
\nwarrant may be issued under s. 93 (1) (a) .\n<\/p>\n
     Section 93,  however, also\t envisages situations  other
\nthan one  contemplated by  s. 93(1)(a)\tfor  issuance  of  a
\nsearch warrant.\t It must  be made  distinctly clear that the
\npresent search warrant is not issued under s. 93 ( 1 ) (a) .\n<\/p>\n
     Section 93(1)  (b)\t comprehends  a\t situation  where  a
\nsearch warrant\tmay be issued to procure a document or thing
\nnot known  to the  Court to  be in  the\t possession  of\t any
\nperson. In  other words,  a general  search warrant  may  be
\nissued to  procure the\tdocument or  thing  and\t it  can  be
\nrecovered from\tany person  who may  be ultimately  found in
\npossession of  it and it was not known to the Court that the
\nperson from  whose possession it was found was in possession
\nof it.\tIn the\tpresent case  the search  warrant was  to be
\nexecuted at  the office of the Sabha and it can be said that
\noffice bearers\tof the\tSabha were  the persons\t who were in
\npossession of  the documents  in respect of which the search
\nwarrant was  issued. Therefore, clause (b) of s. 93(1) would
\nnot be attracted.\n<\/p>\n
     Section  93(1)  (c)  of  the  new\tCode  comprehends  a
\nsituation where the Court may issue a search warrant when it
\nconsiders that\tthe purpose  of an  inquiry, trial  or other
\nproceeding under the Code will be served by a general search
\nor inspection  to search,  seize and  produce the  documents
\nmentioned in the list. When such a general search warrant is
\nissued, in  execution of  it the premises even in possession
\nof the\taccused can  be searched and documents found therein
\ncan be\tseized irrespective  of the  fact that the documents
\nmay contain  some statement  made by  the accused  upon\t his
\npersonal knowledge  and\t which\twhen  proved  may  have\t the
\ntendency to  incriminate the accused. However, such a search
\nand seizure  pursuant to  a search  warrant issued  under s.
\n93(1) (c) will not have even the remotest tendency to compel
\nthe accused  to incriminate  himself. He  is expected  to do
\nnothing. He is not required to participate in the search. He
\nmay remain  a passive  spectator. He may even remain absent.
\nSearch can  be conducted under the authority of such warrant
\nin the\tpresence  of  the  accused.  Merely  because  he  is
\noccupying the  premises which  is to  be searched  under the
\nauthority of  the search  warrant it cannot even remotely be
\nsaid that by such search and consequent seizure of documents
\nincluding  the\t documents  which   may\t contain  statements
\nattributable to the personal knowledge of the
\n682<\/span>
\naccused and  which may\thave tendency  to  incriminate\thim,
\nwould violate  the constitutional  guarantee  against  self-
\nincrimination because  he is not compelled to do anything. A
\npassive\t submission   to  search   cannot  be  styled  as  a
\ncompulsion on  the  accused  to\t submit\t to  search  and  if
\nanything  is  recovered\t during\t search\t which\tmay  provide
\nincriminating evidence\tagainst the  accused  it  cannot  be
\nstyled as  compelled testimony.\t This is too obvious to need
\nany  precedent\t in  support.  The  immunity  against  self-
\ncrimination extends  to any incriminating evidence which the
\naccused may  be compelled  to give.  It does  not extend  to
\ncover such  situation  as  where  evidence  which  may\thave
\ntendency to  incriminate  the  accused\tis  being  collected
\nwithout in  any manner\tcompelling him or asking him to be a
\nparty to  the collection  of the  evidence.  Search  of\t the
\npremises occupied  by the  accused without the accused being
\ncompelled to  be  a  party  to\tsuch  search  would  not  be
\nviolative  of  the  constitutional  guarantee  enshrined  in
\nArticle 20(3). .\n<\/p>\n
     It was,  however, urged  that s. 93(1) (c) must be read
\nin the\tcontext of s. 93(1) (b) and it would mean that where
\ndocuments are  known  to  be  at  a  certain  place  and  in
\npossession of a certain person any general search warrant as
\ncontemplated by\t s. 93(1)  (c) will  have to  be  ruled\t out
\nbecause in  such a  situation s.  93(1)(a)  alone  would  be
\nattracted. Section  93(1)(b) comprehends  a situation  where
\nthe Court  issues a  search warrant in respect of a document
\nor a  thing to\tbe recovered  from a certain place but it is
\nnot known  to the Court whether that document or thing is in
\npossession of  any particular person. Under clause (b) there
\nis a  definite allegation  to recover  certain\tdocument  or
\nthing from a certain specific place but the Court is unaware
\nof the\tfact whether  that document or thing or the place is
\nin possession  of  a  particular  person.  Section  93(1)(c)
\ncomprehends a situation where a search warrant can be issued
\nas the\tCourt is unaware of not only the person but even the
\nplace where  the documents  may be  found and that a general
\nsearch is  necessary. One  cannot, therefore,  cut down\t the
\npower of  the Court  under s. 93(1) (c) by importing into it
\nsome of\t the  requirements  of\ts.  93(1)(b).  No  canon  of
\nconstruction would  permit such\t an erosion  of power of the
\nCourt to issue a general search warrant. It also comprehends
\nnot merely  a general  search but even an inspection meaning
\nthereby inspection  of a  place and a general search thereof
\nand seizure of documents or things which the Court considers
\nnecessary or  desirable for the purpose of an investigation,
\ninquiry, trial\tor other proceeding under the Code. The High
\nCourt accordingly  sustained the  general search  warrant in
\nthis case under s. 93(1)(c).\n<\/p>\n
683<\/span><\/p>\n
     Turning to the facts of this case it was contended that
\nthe order  of the Magistrate clearly disclosed an utter non-
\napplication of\tmind and  a mere  mechanical disposal of the
\napplication before  the Court. Undoubtedly the order is of a
\nlaconic nature.\t But then  there are  certain aspects of the
\ncase which  cannot be  overlooked before  this\tCourt  would
\ninterfere in such an interlocutory order.\n<\/p>\n
     The appellant  and his co-accused are office bearers of
\na public  institution styled  as  H.M.D.P.  Sabha.  We\twere
\ninformed at  the hearing of this petition that this Sabha is
\na public  institution engaged  in the.\tactivity of  running
\neducational   institutions   and   supporting\tobjects\t  or
\nactivities of  a general  charitable nature.  When the first
\ncomplaint  was\t filed,\t the  allegation  therein  was\tthat
\ncriminal breach\t of trust  in respect of funds of the public
\ninstitution  has   been\t committed  by\tthe  office  bearers
\nthereof. A  search warrant  was issued but it was quashed by
\nthe Kerala  High Court.\t Thereafter an\tother complaint\t was
\nfiled making  some more\t serious allegations  and  a  search
\nwarrant was  sought. Now,  this\t search\t warrant  was  being
\nissued to  conduct search  of the premises used as office of
\nan institution.\t The place  will be  in\t possession  of\t the
\ninstitution. The  office bearers of the Sabha are accused of
\nan  offence.   Documents  and\tbooks  of  accounts  of\t the
\ninstitution are\t required  for\tthe  purpose  of  the  trial
\nagainst the  office bearers  of the  institution. The office
\npremises could\tnot be\tsaid to\t be  in\t possession  of\t any
\nindividual  accused   but  stricto  sensu  it  would  be  in
\npossession of  the institution.\t Books of accounts and other
\ndocuments of  the institution  could not  be said  to be  in
\npersonal custody  or possession of the office bearers of the
\ninstitution but\t they are  in possession  of the institution
\nand are\t lying in the office of the institution. A search of
\nsuch a\tpublic place under the authority of a general search
\nwarrant can  easily be\tsustained under\t s. 93(1)(c). If the
\norder of  the learned  Magistrate is construed to mean this,
\nthere is  no,  illegality  committed  in  issuing  a  search
\nwarrant. Of  course, issuance  of  a  search  warrant  is  a
\nserious matter\tand it\twould be advisable not to dispose of
\nan application\tfor search  warrant in a mechanical way by a
\nlaconic\t order.\t  Issue\t of  search  warrant  being  in\t the
\ndiscretion of  the Magistrate  it  would  be  reasonable  to
\nexpect of  the Magistrate  to give  reasons which swayed his
\ndiscretion in  favour  of  granting  the  request.  A  clear
\napplication of\tmind  by  the  learned\tMagistrate  must  be
\ndiscernible in the order granting the search warrant. Having
\nsaid this,  we see no justification for interfering with the
\norder of the High Court in this case.\n<\/p>\n
P.B.R.\t\t\t\t\t   Appeal dismissed.\n684<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V. S. Kuttan Pillai vs Ramakrishnan & Anr on 18 September, 1979 Equivalent citations: 1980 AIR 185, 1980 SCR (1) 673 Author: D Desai Bench: Desai, D.A. 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-54320","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV. S. 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