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TMI Blog1964 (12) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... yaralal Mohanlal, is a registered moneylender doing business as moneylender at Umreth. He is required to maintain books according to the provisions of the Moneylenders' Act and the Rules made thereunder. He was prosecuted for failing to maintain the books in accordance with the provisions of the Act and the Rules, in the Court of the Judicial First Class Magistrate, Umreth. The Police Prosecutor in charge of the prosecution presented an application on July 20, 1961, praying that the Court be pleased to order the respondent to produce daily account book and ledger for the Samyat year 2013-2014. It was alleged in the application that the prosecution had already taken inspection of the said books and made copies from them, and that the original books were returned to the accused, and they were in his possession. The learned Magistrate, relying on Art. 20(3) of the Constitution, refused to accede to the prayer on the ground that the accused could not be compelled to produce any document. He followed the decision in Ranchhoddas Khimji Ashere v. Tempton Jehangir (2 Guj. L.R. 415). The State filed a revision before the learned Sessions, Judge of Kaira at Nadiad. Basing himself on the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. (3) Nothing in this section shall be deemed to affect the Indian Evidence Act, 1872, sections 123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities. 96. (1) Where any Court has reason to believe that a person to whom a summons or order under section 94 or a requisition under section 95, sub-section (1), (1). has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or where such document or thing is not known to the Court to be in the possession of any person, or where the Court considers 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 the provisions hereinafter contained. (2) Nothing h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment, penalty, forfeiture or ecclesiastical censure." The Indian Legislature was aware of the above fundamental canon of criminal jurisprudence because in various sections of the Criminal Procedure Code it gives effect to it. For example, in s. 175 it is provided that every person summoned by a Police Officer in a proceeding under S. 174 shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Section 343 provides that except as provided in ss. 337 and 338, no influence by means of any promise or threat or otherwise shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge. Again, when the accused is examined under S. 342, the accused does not render himself liable to punishment if he refuses to answer any questions put to him. Further, now although the accused is a competent witness, he cannot be called as a witness except on his own request in writing. It is further provided in S. 342A that his ailure to give evidence shall not be made the subject of any comment by any parties or the court or give ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Art. 20(3). At any rate, his decision would be final under the Code for no appeal or revision would lie against his order. Thus it seems to us that if we construe s. 94 to include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him. We may mention that the question about the constitutionality of s. 94(1), Cr. P.C., was not argued before us, because at the end of the hearing on the construction of s. 94 we indicated to the counsel that we were inclined to put a narrow construction on the said section, and so the question about its constitutionality did not arise. In the course of arguments, however, it was suggested by Mr. Bindra that even if S.. 94(1) received a broad construction, it would be open to the Court to take the view that the document or thing required to be produced by the accused would not be admitted in evidence if it was found to incriminate him, and in that sense S. 94(1) would not contravene Art. 20(3). Even so, since we thought that S. 94(1) should receive a narrow construction, we did not require the advocates to pursue the constitutional point any further. Keeping the above considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this construction of s. 94 would render s. 96 useless for no search warrant could be issued to search for documents known to be in the possession of the accused. This may be so, but a general search or inspection can still be ordered. As far as the police officer is concerned, he can use S. 165, Criminal Procedure Code. It is not necessary to review all the cases cited before us. It will be sufficient if we deal with the Full Bench decision of the Calcutta High Court in Satya Kinkar Ray v. Nikhil Chandra Jyotishopadhya([1952] I.L.R. 2 Cal. 1066), for the earlier cases are reviewed in it. Three main considerations prevailed with the High Court : First, that giving s.94 its ordinary grammatical construction it must be held that it applies to accused persons as well as to others; secondly, that there is no inconsistency between s. 94 and other provisions of the Code, and thirdly, that this construction would not make, the section ultra vires because calling upon an accused person to produce a document is not compelling the accused to give evidence against himself. Regarding the first Iwo reasons, we may point out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrants of arrest of witnesses and persons accused of offences. Chapter VII of the Code deals with process to compel the production of documents and other movable property and to compel appearance of the persons wrongfully confined, and general provisions relating to searches. Section 94 confers on a Court power to issue summons and on a police officer to make an order to any person demanding production of a document or thing believed to be in the possession of that person. Indisputably the person referred to in sub-s. (2) of S. 94 is the same person who is summoned or ordered to produce a document or thing. Sections 96 to 99 deal with warrants to search for documents or things. 'Me first paragraph of s. 96 authorises the issue of a search warrant in respect of a place belonging to any person whether he be a witness or an accused person. The inter-relation between S. 94 and the first paragraph of s. 96(1) strongly indicates that the power to issue a search warrant under paragraph one of s. 96(1) is conditional upon the person, who it is apprehended will not or would not produce a thing or document, being compellable to produce it in pursuance of a summons under s. 94(1). If under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . R. [1951] 2 Cal. 106). The observations in Ishwar Chandra Ghoshal v. The Emperor (C.W.N. 1016) to the contrary in dealing with a conviction for an offence under S. 175 Indian Penal Code for failing to comply with an order under S. 94(1) suffer from the infirmity that the Court had not the assistance of counsel for the State. This Court also has expressed the same view in The State of Bombay v. Kathi Kulu Oghad and others([1962] 3 S.C.R. 10). Sinha, C.J., delivering the judgment of the majority of the Court observed : "The accused may have documentary evidence in his possession which may throw some light on the controversy. 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 by the Court to produce that document in accordance with the provisions of S. 139 of the Evidence Act, * * * The learned Chief Justice did not expressly refer to the source of the power, but apart from s. 94(1) of the Code of Criminal Procedure there is no other provision which enables a Magistrate to summon a person to produce a document or thing in his possession. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance; in the case of penalties, as to pound breach, or fraudulent removal of goods by a tenant. and in the case of forfeiture, as to breach of covenant to take beer from a particular brewery or to insure against fire or not to sublet without licence. (See Phlipson Paragraph 613). In the United States of America where the immunity against self-incrimination is constitutional, the Fifth Amendment provides : "No person .... shall be compelled in any criminal case. To be a witness against himself." By judicial interpretation the rule has received a much wider application. The privilege is held to apply to witnesses as well as parties in proceedings civil and criminal : it covers documentary evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction, or furnish a link in the chain of evidence, and to production of chattel sought by legal process. The rule of protection against self-incrimination prevailing in the United Kingdom, or as interpreted by Courts in the United States of America has never been accepted in India. Scattered through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an expert : King Emperor v. Tun Hlaing([1923] 1 tan. 759, F.B ) and Zahuri Sahu v. King Emperor([1927] 6 Pat. 623). Section 4 of the Identification of Prisoners Act, 1920, obliges a person arrested in connection with an offence punishable with rigorous imprisonment, if so required by a police officer to give his measurements. Section 5 of the Act authorises a Magistrate for the purposes of any investigation or proceeding under the Code ,of Criminal Procedure, 1898, to order any person to be produced or to attend at any time for his measurements or photograph to be taken, by a police officer. Similarly under S. 129-A of the Bombay Prohibition Act, 1949, the Prohibition Officer is authorised to have a person suspected to be intoxicated, medically examined and have his blood tested for determining the percentage of alcohol therein. Offer of resistance to production of his body or the collection of blood may be overcome by all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test. Section 16 of the Arms Act II of 1878 requires a person possessing arms, ammunition or military stores, when such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, J., at pp. 137-138. After observing that the "party" referred to in S. 365 (which invested a Magistrate with power to issue a summons to produce documents) "might be, as it is obvious, either the accused himself, or a third party and the Legislature in 1872. thought it right to lay it down in clear terms that any I party may be compelled to produce documents for the purpose of any investigation or Judicial proceedings, the learned Judge quoted from the record of the speech of the Lieutenant Governor a passage, of which the following is material : "The prevailing ideas on the subject of criminal law had been somewhat affected by the English law; and the departures from the rules of the English law which the Committee recommended were founded on this ground, that many of the prominent parts of the English law were based on political considerations, the object of those familiar rules of criminal law being not to bring the criminal to justice, but to protect the people from a tyrannical Government, * * *. Not only were those provisions now unnecessary in England, but they were especially out of place in a country wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish evidence in courts and be of help in elucidating the truth in a case, with materials known to them or in their possession. On the one hand, there are strong advocates of the view that this rule has an undesirable effect on the larger social interest of detection of crime, and a doctrinaire adherence thereto confronts the State with overwhelming difficulties. It is said that it is a protector only of the criminal I am not concerned to enter upon a discussion of the relative merits of these competing theories. The Court's function is strictly to ascertain the law and to administer it. A rule continuing to remain on the statute book whatever the reason, which induced the Legislature to introduce it at the inception, may not be discarded by the Courts, even if it be inconsistent with notions of a later date : the remedy lies with the Legislature to, modify it and not with the Courts. There is one more ground which must be taken into consideration. The interpretation suggested by Mr. Tatachari interferes with the smooth working of the scheme of the related provisions of the Code of Criminal Procedure. Section 94, prima facie, authorises a Magistrate or a police officer for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) does not extend to the issue of an order against an accused person by a police officer, would the police officer in charge of the investigation, be entitled to search for a thing or document in any place occupied by the accused or to which he has access for such document or thing ? To assume that the police officer in charge of the investigation may in the course of investigation exercise power which cannot be exercised when the Court issues a search warrant would be wholly illogical. To deny to the investigating officer the power to search for a document or thing in the possession of a person accused is to make the investigation in many cases a farce. Again, if it be held that a Court has under the third paragraph of S. 96(1) power to issue a general search warrant, exercise of the power would make a violent infringement of the protection against self-incrimination, as understood in the United Kingdom, because the Courts in that country frowned upon the issue of a general warrant for search ,of a document or thing : Entick v.Carrington (19 Howell, St. Tr. 1029). On a review of these considerations, in my view the rule of protection against self-incrimination as understood in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution be infringed thereby would be a reasonable excuse for non-production within the meaning of s. 485 of the Code of Criminal Procedure, and an order which is in violation of Art. 20(3) requiring the person to produce a document would not be regarded as lawful within the meaning of s. 175 of the Indian Penal Code. But, apart from the protection conferred by Art. 20(3), there is no reservation which has to be implied in the application of s. 94(1). must mention that in this case, we are not invited to decide whether s. 94(1) infringes the guarantee of Art. 20(3) of the Constitution. That question has not been argued before us, and I express no opinion thereon. Whether in a given case the guarantee of protection against testimonial compulsion under Art. 20(3) is infringed by an order of a Court acting in exercise of power conferred by s. 94(1) must depend upon the nature of the document ordered to be produced. If by summoning a person who is accused before the Court to produce documents or things he is compelled to be a witness against himself, the summons and all proceedings taken thereon by order of the Court will be void. This protection must undoubtedly be made ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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