The entire procedure specified in the Code of criminal procedure, 1973 is based

on principle of justice and fairness. One of the fundamental principles of legal

jurisprudence is that a person accused of any offence should be given equal
chance to be heard and to defend himself. It is in consonance with this theory
only that there are provisions in Code of Criminal Procedure, 1973 (CrPC)
related to issue of process, provisions in section 161 (3), provision in section
162 of the code that any statement recorded during the course of investigation,
shall not be signed by the person making the statement, has been specified.
Similarly upholding the similar proposition, the protection against self
incrimination has been provided as a special fundamental right, under Part III of
the Constitution of
India. Article 20(3)
states
that:
No person accused of any offence shall be compelled to be a witness against
himself.
This paper deals with the power of search and seizure of the court and police
authorities particularly the power to issue summons or notice by the court or
officer in charge of the police station under section 91(1) of CrPc. The issue has
been dealt in detail by the apex court of this country in case of M.P Sharma and
others vs Satish Chandra, State of Bombay vs Kathi Kalu Oghad and State of
Gujrat v Shyamlal Mohanlal Choksi. After going through all the three case laws
it is felt that the matter has been wrongly taken up by the court. The Supreme
Court in Kalu Oghads case has narrowly interpreted the expression to be a
witness which has created situation where a very narrow space is available for
the actual protection of this right in respect of production of documents.
This has been done by dealing with the general provisions of search and seizure
and than analysing the Shyamlal Choksi as well as Kalu Oghads case.
General

Provision

regarding

search

and

seizure

Section 91 with the head note Process to Compel Production of Things of

the
Code
of
Criminal
Procedure,
1973
states
that:
(1) Whenever any Court or any officer in charge of a police station consider that
the production of any document or other thing is necessary or desirable for the
purpose 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 in whose possession or power such
document or thing is believed to be, requiring hm to attend and produce it, or to
produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he causes
such document or thing to be produced instead of attending personally to
produce
the
same.
Whereas section 93 When search warrant may be issued; in sub section (1)
provides
that:
(1)(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 thing or
document is not known to the court to be in the possession of any person, or (c)
where the Court consider that the purpose 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 provisions hereinafter
contained.
This means that an officer in charge of a police station can send a notice or a
court can issue a summon under section 91(1) to any person within whose
possession the officer or court thinks is the document or a thing necessary for
the purpose of investigation. But if the court or officer feels that the person to
whom the summons or notice is issued, will not produce the document or thing,
the court can issue a warrant of search to the officer, under section 93(1) (a).
From time to time the constitutional validity of the warrant issued under Section
93(1) (a), in context of Article 20(3) has been raised. The contentions were
raised that the term any person in section 91(1) not only includes witnesses
and other persons, but also includes the accused. Therefore if the accused
person do not obeys the summons, he will have to face a compelled search in
his house, and this itself shows the compulsion put on the accused. Further, the
compelled search made will be an intrusion into the privacy. Also there will be a
prosecution for the offence committed under section 174 of the Indian Penal
Code, 1860. Therefore in light of all this the summons issued is a compulsion
on the accused person to produce self incriminating evidences, thereby
completely violating his fundamental right guaranteed under Article 20(3).
With regard to the first proposition about the process of issue of search warrant
under section 93(1) (a), the Honourable Supreme Court in the leading case of
M.P Sharma and Others v Satish Chandra, District Megistrate, Delhi and
Others,
through
Jaghandadas
J.
stated
that:

It may be mentioned in passing that the provision for the issue of general
search warrants appears for the first time in procedure Code of 1882 and even
there the issue of general warrants is not based on non compliance with a
previous summons for production. It is, therefore, clear that there is no basis in
the Indian law for the assumption that a search or seizure of a thing or document
is in itself to be treated as compelled production of the same. Indeed a little
consideration will show that the two are essentially different matters for the
purpose relevant to the present discussion. A notice to produce is addressed to
the party concerned and his productions in compliance therewith constitute a
testimonial act by him within the meaning as explained above. But search
warrant is addressed to an officer of the government, generally a police officer.
Neither the search nor the seizures are acts of the occupier of the searched
premises. They are acts of another to which he is obliged to submit and are,
therefore,
not
his
testimonial
acts
in
any
sense.
Which in whole means that the search conducted by the police officer or any
investigating officer will be valid only if it has been conducted without any help
(involuntary help) from the person, only if any formal accusation has been
levelled
against
the
person.
However with regard to intrusion into the privacy, it has been settled that the
right to privacy is not an absolute right and is subject to reasonable restriction
whenever there are contravelling interest, which requires much weight age than
the right to privacy of the person, for the sake of justice.
Now the only question which is left, is: whether the accused will be penalized
under section 174 of the IPC, 1860 if he does not comply with the notice or
summons
is
issued
to
him?
Section 174 with head note Non- attendance in obedience to an order from
public
servant,
states
that:
Whoever, being legally bound to attend in person or by agent at a certain place
and time in obedience to a summon, notice, order or proclamation proceeding
from any public servant legally competent, as such public servant, to issue the
same,
Intentionally omits to attend at that place or time, or departs from the place
where he is bound to attend before the time at which it is lawful for him to
depart,
Shall be punished with simple imprisonment for a term which may extend to

one month, or with fine which may extend to five hundred rupees, or with both,
Or, if the summons, notice, order or proclamation is to attend in person or by
agent in a Court of Justice, with a simple imprisonment for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with
both.
With regard to the above proposition, the apex court in case of State of Gujrat v
Shyamlal Mohanlal Choksi has held that the term any person in section 91 of
CrPC does not include the person accused of any offence and therefore no
notice
can
be
issued
to
the
accused.
However the judgment of the court in the above case does not absolutely restrict
the accused person. The ratio decidendi of the judgment has kept open the doors
for the some amount of flexibility (which will be dealt in detail), which is
strictly within the boundaries constructed by the same Supreme Court in case of
State
of
Bombay
v
Kathi
Kalu
Oghad.
In the above case one of the absurd decision was made by the Supreme Court
(majority bench) where a narrow interpretation of the phrase to be a witness
specified in Article 20(3) was made. Therefore this interpretation along with the
decision
in
Shyamalals
case
raises
two
issues:
(1) Whether the proposition stated by the majority bench in the Kathi Kalu
Oghad case is practically applicable, in light of the protection against self
incrimination?
(2) Whether still there is a scope that the person accused of any offence can be
summoned to produce any document or other thing for the purpose of
investigation?
To
be
a
witness
real
meaning
The protection against self incrimination as has been provided in Article 20(3)
is based on the following principle: nemo tenetur prodere or nemo tenetur
scripsum accusare which means that an accused should not be compelled to
furnish any evidence against him. It is the duty of the State/ prosecution to
prove him guilty, beyond reasonable doubt. This is just to give proper equal
opportunity to accused to know what charges has been levelled against him,
what case the prosecution has prepared and then on the basis of which he will
prepare
a
proper
defence
for
himself.
Historical
Background
This principle has been embodied in the statutes first in the fifth amendment of

the

American Constitution which

states

that:

No person shall be compelled in any criminal case to be a witness

against
himself
The same principle has been embodied in the Indian Constitution, but with
some
different
words:
Article 20(3): No person accused of any offence shall be compelled to be a
witness
against
himself.
The difference between the two provisions has been dealt in detail in the
previous chapter. The expression to be a witness here needs some special
consideration as the soul of the entire provision lie in this expression. The
interpretation of this expression will determine the extent up to which whether
there is a complete umbrella against self incrimination or not.
The Supreme Court in case of Sharma v Satish stated that to be a witness
means to become a witness and not to appear as a witness and thus the
protection not only extends to compelled testimony in court but extend even to
pre trial investigation and interrogation. This interpretation of the phrase has
been even followed by the same court in State of Bombay v Kathi Kalu Oghad
and
State
of
Gujrat
v
Shyallal
Mohanlal
Choksi.
However apart from this interpretation, one another interpretation made by the
apex court in Kalu Oghads case where the majority through Sinha,
Bhuvneshwar
P.(CJ)
stated
that:
to be a witness means imparting knowledge in respect of relevant facts, by
means of oral statements in writing, by a person who has personal knowledge of
the facts to be communicated to a court or to a person holding enquiry or
investigation. A person is said to be a witness, to a certain state of facts which
has to be determined by a court or authority to come to a decision, by testifying
to what he has seen, or something which he has heard which is capable of being
heard and is not hit by rule excluding hearsay or giving his opinion, as an
expert,
in
respect
of
matters
in
controversy.
Therefore even if an accused has any document which has the tendency to
expose the guilt of the accused, or by which he will himself confirm the
criminal charges against him, he can be summoned to produce the document
and that the summoned issued will not be considered to be against self
incrimination. The only requirement is that the content of the document should
not disclose any information based on the personnel knowledge of the accused.

With regard to this Das Gupta J: speaking for the minority in the same case,
criticized
the
above
proposition
in
following
words:
We have to remind ourselves that while on the one hand that Constitutionmakers could not have intended to stifle legitimate modes of investigation we
have to remember further that quite clearly they thought that certain things
should not be allowed to be done, during the investigation or trial, however
helpful they might seem to be the unfolding of truth and an unnecessary
apprehension of disaster to, the police system and the administration of justice,
should not deter us from giving words their proper meaning.
With regard to the practical application of the same proposition he further cited
an example that if an accused person has in his possession, a letter written to
him by an alleged co conspirator in reference to their common intention in
connection with the conspiracy for committing particular offence. Under section
10 of the Evidence Act, 1872 the document is the relevant fact as against the
accused himself for the purpose of proving the conspiracy and also for the
purpose of showing that any such person was party to it. By producing this
accused will not be imparting, any personnel knowledge of facts; yet it would
be
certainly
be
giving
evidence
of
a
relevant
facts.
Though not on the basis of the personnel knowledge, but certainly the
submission of document will be self incriminatory. But as per the ratio
decidendi of the majority in this case, this will be the practical application.
Therefore this it self is evident as to what is scope of the applicability of the
protection
guaranteed
by Article 20(3).
However in a later decision in the case of State of Gujrat v Shyamlal Mohanlal
Choksi. Supreme Court held that the term person under section 91(1) does not
include the accused person. However going again by the ratio decidendi of the
judgment the court has stated that it is implicit in the section 91(1) that an
accused will not be called for any document which will be self incriminating.
The
Sikri
J.
speaking
for
the
majority
stated
that:
If after a thing or document is produced, its admissibility is going to be
examined and the document or thing in question is not going to be admitted in
evidence if it incriminates the accused person, the order to produce the thing or
document would seem to serve no purpose; it cannot be overlooked that it is
because the document or thing is likely to be relevant and material in supporting
the prosecution case that on most occasion the power under section 94(1) would
be resorted to, so that on the alternative view which seeks to exclude
incriminating document or things, the working of section 94(1) would yield no

result.
So could it now be said that the person accused of any offence has been
completely excluded from the application of power under section 91(1)?
The decision of the apex court has to be looked in light of the judgment of the
court in Kalu Oghads case. Therefore summing up both these judgments
together it could be very well established that the accused, with due respect to
his right against self incrimination, is definitely exempted from being
summoned to produce incriminating documents but only if it does not contain
any
material
on
the
basis
of
his
personal
knowledge.
This will definitely raise a question in the mind that how the authority will come
to know that whether any document is based on the personal knowledge of the
accused?
The answer to this typical question is very simple. First the authorities will call
the accused person with the documents, after which they will come to know
whether the document is incriminating or not (strictly according to the majority
ruling
in
Kalu
Oghads
case).
This has created a situation where both the heads and the tales are in the hand of
authorities.
Correcting
the
flaw
The entire discussion made above raise only one question in mind. Is this was
the legislative intention behind this protection afforded to the accused? Is this is
what
really
should
be?
This fact is clearly established that the right against self incrimination is not an
absolute privilege provided to the accusedbut still the interpretation of phrase
procedure established by law as has been done by the Court in Menka Gandhi
case is to be a just fair and reasonable procedure. Any procedure will ensure
justness and fairness only when it respects the right of victim and accused
equally. On the contrary the present law developed is violating the right to equal
protection of law under Article 14 of the accused or suspect. So how is the
justness and fairness ensured to the accused? It will definitely, finally lead him
to the accusation. Therefore how much substantive the document is, how much
relevant it could be for proving the fact in issue beyond reasonable doubt, if it is
incriminating it should not be called by the accused by issuing any notice or
summons. If called than it should be considered as an inadmissible document.
Repeating the Sikri J. in Shyamlals case the term any person in section 91
should exclude the accused person. Only than the real objective with which the

right against self incrimination was included as a fundamental right, will be

achieved.
Conclusion
Since time it has been stated that the right against self incrimination is actually a
privilege provided to an accused and is the major factor in defeating the justice.
This is not the first time when such an attempt has been made to change the
nature of what has actually been stated in Article 20(3). Malimath Committee
Report titled Reforms in Criminal Justice system has even held that though
the accused has right to remain silent an inference could be well drawn from the
silence of the accused, which is also contrary to the principle of the right to
remain
silent
of
the
accused.
After the enactment of the constitution of India in 1950 the India became a
sovereign socialist secular democratic republic. It is now well competent to
decide its political and economic future. At the time of the enactment of
the Constitution this humane right of the accused that is right against self
incrimination was included in article 20 of the Constitution of India, not to
insult the right of the accused in this very manner as has been made by narrowly
interpreting
it.
Therefore it is urged to the lawmakers of the country that there should be equal
respect of this very right in the manner as the other fundamental rights are
respected.
Bibliography
Statutes
(1)
Code
(2)
Indian
(3)
Indian

of

Criminal
Penal
Evidence

Procedure,
Code,
Act,

referred
1973
1860
1872

Books
referred
(1) Basu D.D. Introduction to the Constitution Of India, Lexis Nexis Butter
Worth
Wadhwa,
Nagpur
(2) Basu D.D, Commentary on the Constitution Of India, 8th Edition 2008, Vol
3,
Lexis
Nexis
Butterworth
Wadhwa,
Nagpur
(3) Datar Arvind P; Commentary on the Constitution Of India, Vol 1, Wadhwa
Nagpur
(4) Ratanlal Dheerajlal; Code of Criminal Procedure, 17th Edition reprint 2009,
Lexis
Nexis
Butterworth
Wadhwa,
Nagpur
(5) Ratanlal Dheerajlal; Indian Penal Code, 1860, 30th Edition reprint 2009,
Lexis
Nexis
Butterworth
Wadhwa,
Nagpur

Dictionaries
referred
(1) Aiyar P. Ramanath; Concise Law Dictionary; 3rd Edition reprint, 2009,
Lexis
Nexis
Butterworth
Wadhwa,
Nagpur
The author is a IIIrd year student of law @MATS LAW SCHOOL, MATS
University and can be reached at shishir@legalserviceindia.com
It is completely based on principle of natural justice that the parties in dispute
should be given equal chance to be heard and the final decision must be
completely based on the merits of the arguments presented by both the parties.
[3] Provided in Chapter XVI: Commencement of Proceeding Before Magistrate,
of which section 207 provides that before any proceeding be instituted the
accused shall be provided with the police report filed by police after completion
of investigation under section 170, First Information Report lodged by the
complainant under section 154, all the statements of witnesses and accused
recorded during course of investigation under section 162 (which also includes
statements under course of examination under section 161), any confessional or
non confessional statement recorded under section 164, all the documents and
material forwarded to magistrate under sub section (5) of section 173. Also this
section provides that if magistrate deems fit that he can also order the
investigating officer to forward all those excerpts as well, which in the opinion
of investigating officer, under sub section (6) of section 173, should not be
disclosed
to
the
accused
ex
delito
justice.
This states that any person called for the purpose of examination under section
161 shall answer all questions truly except the answer to which would have
tendency to expose the person to criminal charges. This provision is completely
in consonance with the fifth amendment of the American constitution which
states that:No person. shall be compelled in any criminal case to be a
witness against himself. It is the principle only which has been derived
in Article 20 (3) specified in Part III of the Constitution Of India, but there is a
wide difference between this very provision of the code and article 20 (3) is that
while the protection against the later can be claimed only when a formal
accusation has been leveled against the person as for e.g. lodging of FIR, and
thus the protection cannot be afforded to any person who is a witness in that
very case. But as per the provision of section 161 (3) as well as fifth amendment
of the American Constitution, the protection even extend to the witness.
[5] The legislative intention of this provision has been rightly observed by the
apex court of this country, is to protect the accused from overzealous police
officer or untruthful witnesses; Tehsildar Singh v State of U.P;

[6]
[7]
[8]
[9]

AIR
AIR
AIR
AIR

1954
1961
1965
1954

SC
SC
SC
SC

300
1808
1251
300

Govind v State of M.P; (1975) 2 SCC 148. It has also been held by the learned
author Dr. D.D Basu that: Intrusion into the privacy may be by, (1) legislative
provision, (2) administrative or executive orders, and (3) judicial orders. The
legislative intrusion must be tested on the touchstone of the reasonableness as
guaranteed by the Constitution and for that purpose the court can go into the
proportionality of the intrusion vis--vis the purpose sought to be achieved. So
far as executive or administrative action is concerned, it is again to be
reasonable having regard to the fact and circumstances of the case. As to
judicial warrants, the court must have sufficient reason to believe that the search
or seizure is warranted while keeping in mind the extent of search or seizure
necessary for the protection of particular State interest .Warrantless searches,
whenever permitted, must be in good faith intended to preserve evidence or
intended to prevent sudden danger to person or property; D.D Basu;
Commentary on theConstitution of India, 8th Edition 2008, Vol 3, Lexis Nexis
Butterworth
Wadhwa,
Nagpur.
[11]
[12]
[13]
[14]
[15]
[16]
[17]

AIR
Infra
Infra
AIR
Infra
Supra
Supra

1965
note
note
1961
note
not

SC
no;
no;
SC
no;
no;
note

1251
19
20
1808
18
2
no;4

[18] The main issue raised in the case was whether thumb impression, palm
impression, specimen signatures etc given during the course of investigation is a
compelling any person to be a witness against himself, if the person refuse to
give the same. It was in this context the interpretation was made by the majority
bench regarding what the phrase to be a witness should mean. However the
practical application of the same interpretation will be completely violating the
right
of
the
accused.
Though speaking for the minority Das Gupta J. also arrived at the same
conclusion (with regard to the giving of thumb impression, signatures etc,
which was the main question in issue in this case) but with some different logic
than those of the majority. However still the opinion and views expressed by the
judge needs special attention as it has completely and clearly shown what could
be
the
disastrous
consequences
of
the
majority
decision.

In this case the constitutional validity of Section 91(1) of the code of Criminal
Procedure was challenged. It was contended that if the any officer or any court
issue any notice or summon to any person accused of any offence, to produce
any document which would have tendency to expose the person to criminal
charges, the summon or order issued will be against the fundamental right of
self incrimination. Therefore the term any person in section 91(1) does not
include the accused person as if he will not obey the summon or order still he
can be prosecuted under section 174 of the IPC, 1860, which is nothing but a
compulsion being put upon the accused to incriminate himself.
[21] This could be attributed from the judgment made in the same case by Shah
J. stating that: If by summoning a person who is accused before the court to
produce document or things, he is compelled to be a witness against himself, the
summons and all proceedings taken thereon by the court will be void. This
protection must undoubtly be made effective, but within the sphere delimited by
the
judgment
of
this
court
in
Kalu
Oghads
case.
[22] It is in light of theory of interrelationship of fundamental right developed
by the Honorable Supreme Court in Menka Gandhi v Union Of India, AIR 1978
SC 597, that all other fundamental rights are now subject to the procedure
established by law underArticle 21 of the Constitution Of India. Article 21
states that: No person shall be deprived of his life or personal liberty except
according to procedure established by law.