MANU/SC/0285/1979

Equivalent/Neutral Citation: AIR1980SC 185, 1980C riLJ196, 1979 INSC 186, (1980)1SC C 264, (1980)SC C (C ri)226, [1980]1SC R673

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 178 of 1979
Decided On: 18.09.1979
V.S. Kuttan Pillai Vs. Ramakrishnan and Ors.
Hon'ble Judges/Coram:
D.A. Desai and O. Chinnappa Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: T.C. Raghavan and N. Sudhakaran, Advs
For Respondents/Defendant: Nemo
JUDGMENT
D.A. Desai, J.
1 . Nemo tenetu prodere-no man is bound to accuse himself-which finds constitutional
recognition in Article 20(3) of the 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 the search warrant issued
by the Sub-Divisional Magistrate, Alwaye, on 4th January 1977 directing the Deputy
Superintendent of Police, Alwaye, 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 warrant. The Magistrate
had before him a complaint filed by the first respondent Ramakrishnan against the
petitioner and 5 others for having committed offences under Sections 403, 409, 420 and
477A read with Section 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
MANU/SC/0092/1964 : 1965CriL J256 , and an earlier decision of V. Khalid, J. of
Kerala High Court, no search warrant could be issued under Section 91 of the CrPC,
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 Section 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

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and seizure of books, documents, etc. directed with a view to collecting evidence
against him, being violative of Article 20(3) of the Constitution 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 Section 93(1) of the Criminal Procedure Code,
1973, are not hit by Article 20(3) of the Constitution.
2. Section 91 confers power on the Court or an officer in charge of a 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.
3. Sections 91 and 93, so for as they are relevant, read as under :
9 1 . (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 in 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 stated in the
summons or order."
93. (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 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.
4 . In exercise of the power conferred by Section 91 a summons can be issued by the
Court to a person in whose possession or power any 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 Article 20(3), Courts were faced
with a problem whether the person referred to in Section 91(1) of the Code (Section 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 and Ors. v. Statish Chandra,
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District Magistrate, Delhi and Ors. MANU/SC/0018/1954 : 1978(2)ELT287(SC) 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 Article 20(3) as unconstitutional and illegal. A specific reference
was made to Section 94 and 96 of the Criminal Procedure Code, 1898 ('old Code' (for
short), both of which are re-enacted in almost identical language as Sections 91 and 93
in the new Code, in support of the submission that a seizure of documents on search is
in the contemplation of 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.
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 demerit of compulsion in issuing a
summons to a person accused of an offence under Section 94 (old) Section 91 (new) to
produce a document or thing in his possession Or power considered necessary or
desirable for any inquiry, investigation or trial under the CrPC was kept open. In other
words, the question whether the expression 'person' in Section 94 (old) Section 91
(new) would comprehend a person accused of an offence was left open.
5 . 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
MANU/TN/0506/1954 : A.I.R. 1956 Mad 165, held that a summons could not be issued
under Section 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 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 MANU/TN/0287/1955 : AIR1955Mad716 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.
6 . In The State of Bombay v. Kathi Kalu Oghad and Ors. MANU/SC/0134/1961 :
1961CriL J856 a question arose whether obtaining specimen hand writing or thumb
impression of the accused would contravene the constitutional guarantee in Article
20(3). In this case there was some controversy about certain observations in M.P.
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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 colleague. In Sinha, CJ's
opinion, the observation in M.P. Sharma's case (supra) that Section 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 Article 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.
7 . 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.
8 . The matter again came up before a Constitution Bench of this Court in Shyamlal
Mohanlal v. State of Gujarat MANU/SC/0092/1964 : 1965CriL J256 .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 Section 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 pat in forefront before the Court was
whether the expression 'person' in Section 94(1) which is the same as Section 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 Section 94(1) upon its true
construction does not 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 Article 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 Section 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
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testimony and would be violative of the constitutional immunity against self-
incrimination.
9. 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 Section 91(1), we do not consider it necessary to refer the matter to a
larger Bench to resolve the conflict.
10. 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 Section
91(1) cannot be issued to a person accused of an offence calling upon him to produce
document of thing considered necessary or desirable for the purpose of an
investigation, inquiry, trial or other proceeding under the CrPC'
11. If summons as hereinbefore discussed cannot be issued to an accused person under
Section 91(1), ipso facto a search warrant contemplated by Section 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 Section
93(1)(a) could only be issued where a Summons could have been issued under Section
91(1) but the same would not be issued oh an apprehension that the person) to whom
the summons is directed would not comply with the same and, therefore, in order to
obtain the document or thing to produce which the summons was to be issued, a search
warrant may be issued under Section 93(1)(a).
1 2 . Section 93, however, also envisages situations other than one contemplated by
Section 93(1)(a) for issuance of a search warrant It must be made distinctly clear that
the present search warrant is not issued under Section 93(1)(a).
13. 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 Section 93(1) would not
be attracted.
14. 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 Section
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

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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 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 accuses 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 I 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).
15. It was, however, urged that Section 93(1)(c) must be read in the context of Section
93(1)(b) and it would mean that where documents are known to be at 4 certain, place;
and in possession, of a certain person any general search warrant as contemplated by
Section 93(1)(c) will have to be ruled out because in such a situation Section 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 Section 93(1)(c) by importing into it some of the
requirements of Section 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 Section 93(1)(c).
16. 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.
17. 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
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warrant was issued but it was quashed by the Kerala High Court. Thereafter another
complaint was filed making sortie 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 Section 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.
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