The question came before the court in 1954 when several petitions were filed under article 32 before the court contending that search and seizure violate his fundamental right against self-incrimination which is given under article 20(3) of Indian Constitution.
It was urged that the searches and seizures constitute a serious restriction on the right of the various petitioners, inasmuch as their buildings were invaded, their documents taken away and their business and reputation affected by these largescale and allegedly arbitrary searches and that a law (section 96(1), Cr.P.C.) which authorises such searches violates the constitutional guarantee and is invalid.
A search to obtain documents, 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. In support of this line of argument great reliance has been placed upon American decisions in which similar questions were canvassed.
The argument on behalf of the petitioners was presented in the following way. The fundamental guarantee in article 20(3) comprehends within its scope not merely oral testimony given by an accused in a criminal case pending against him, but also evidence of whatever character compelled out of a person who is or is likely to become incriminated thereby as an accused.
It, therefore, extends not only to compelled production of documents by an accused from his possession, but also to such compelled production of oral or documentary evidence from any- other person who may become incriminated thereby as an accused in future proceedings.
If this view of the content of article 20(3) is accepted, the next step in the argument presented is that a forcible search and seizure of documents is, for purposes of constitutional protection of this guarantee, on the same footing as a compelled production of the said documents by the person from whom they are seized.
Article 20(3)
Article 20(3) runs as follows:
“No person accused of any offence shall be compelled to be a witness against himself.”
The Court’s Analysis
Speaking for Six Judge Bench, Justice Jagannadhadas said,
A search by itself is not a restriction on the right to hold and enjoy property. No doubt a seizure and carrying away is a restriction of the possession and enjoyment of the property seized. This, however, is only temporary and for the limited purpose of investigation. A search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the articles seized. Statutory regulation in this behalf is necessary and reasonable restriction cannot per se be considered to be unconstitutional.
Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of its Constitution. It has also, to a substantial extent, been recognized in the Anglo Indian administration of criminal justice in this country by incorporation into various statutory provisions.
In English law, this principle of protection against self-incrimination had a historical origin. It resulted from a feeling of revulsion against the inquisitorial methods adopted and the barbarous sentences imposed, by the Court of Star Chamber, in the exercise of its criminal jurisdiction.
This came to a head in the case of John Lilburn[1] which brought about the abolition of the Star Chamber and the firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. This principle, in course of time, developed into its logical extensions, by way of privilege of witnesses against self-incrimination, when called for giving oral testimony or for production of documents.
A change was introduced by the Criminal Evidence Act of 1898 by making an accused a competent witness on his own behalf, if he applied for it. But so far as the oral testimony of witnesses and the production of documents are concerned, the protection against, self-incrimination continued as before.
These principles, as they were before the statutory change in 1898, were carried into the American legal system and became part of its common law. (See Wigmore on Evidence, vol. VIII, pages 301 to 303). This was later on incorporated into their Constitution by virtue of the Fifth Amendment thereof.
The language of the Fifth Amendment was considered by the American Courts as being wide enough to cover all the aspects of the principle of protection against self-incrimination as administered under the English common law including oral testimony of witnesses and production of documents.
Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components-
(1) It is a right pertaining to a person accused of an offence
(2) It is a protection against compulsion to be a witness; and
(3) It is a protection against such compulsion resulting in his giving evidence “against himself”.
It was urged that both search and seizure of a document and a compelled production thereof on notice or summons serve the same purpose of being available as evidence in a prosecution against the person Concerned, and that any other view would defeat or weaken the Protection afforded by the guarantee of the fundamental right. This line, of argument is not altogether without force and has the apparent support of the Supreme Court of the United States of America in Boyd V. United States[2].
The question there which came up for consideration was in fact the converse, namely, whether a compulsory production of documents on the facts of that case amounted to search and seizure. There are dicta in that decision to the effect that a compulsory production of a man’s private papers is a search and seizure since it affects the sole object thereof and that by this process the court extorts from the party his private books and papers to make him liable for penalty.
The question therein arose under the following circumstances. In an Act to amend the, Customs Revenue Laws, there was a provision which enabled the Government Attorney to make a written motion to the court for the issue of a notice to the opposite-party for production of papers in his possession.
It was also provided by the said section that if the court in its discretion allows the motion in which is set out the fact sought to be proved and calls upon the defendant to produce the documents, and the defendant fails or refuses to produce them without any proper and satisfactory explanation, the allegation of fact sought to be proved by such production may be deemed to have been confessed.
The question that thereupon arose was whether an order for production made by the court under that section did not violate the constitutional rights declared by the Fourth and Fifth Amendments of the American Constitution.
Amendment V.
“No person……… shall be compelled in any criminal case, to be a witness against himself …”
The majority Judges, said as follows:
“The compulsory production of a man’s private papers is search and seizure and again thus. We have been unable to perceive that the seizure of a man’s private books and, papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.”
Thus what that decision really established was that the obtaining of incriminating evidence by illegal search and seizure is tantamount to the violation of the Fifth Amendment. It was in this light that subsequent cases have also understood this decision. [See Felix Gouled v. United States[3]].
Boyd’s case[4] has relied on the famous judgment of Lord Camden in Entick v. Carrington[5], and learned counsel for the petitioners has also relied on it strenuously before us. Wigmore in his Law of Evidence, Vol. VIII, page 368, has shown how some of the assumptions relating to it in Boyd’s case, were inaccurate and misleading.
It may be noted that Lord Camden’s judgment shows, by an elaborate dissertation, that the search warrant therein under consideration was unauthorised and illegal. Thus even the above dictum has reference only to an illegal search. It is, therefore, impossible to derive from Boyd’s case support for the proposition that searches and seizures, in general, are violative of the privilege of protection against self-incrimination.
Nor is it possible to import that doctrine with its differentiation between legal and illegal searches into our Constitution because we have nothing in our Constitution corresponding to the Fourth Amendment enabling the courts to import the test of unreasonableness or any analogous criterion for discrimination between legal and illegal searches.
It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in the Procedure Code of 1882 and even there the issue, of such general warrants is not based on noncompliance 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 production in compliance Therewith constitutes a testimonial act by him within the meaning of article 20(3) as above explained.
But search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure 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.
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 is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (excepting in the limited class of cases falling under section 165 of the Criminal Procedure Code). Therefore, issue of a search warrant is normally the judicial function of the Magistrate.
When such judicial function is interposed between the individual and the officer’s authority for search, no circumvention thereby of the fundamental right is to be assumed.
We are, therefore, clearly of the opinion that the searches with which we are concerned in the present cases cannot be challenged as illegal on the ground of violation of any fundamental rights and that these applications are liable to be dismissed.
Reference
M.P. Sharma v. Satish Chandra (1954)
[1] 3 State Trials 1315
[2] 116 U.S. 616
[3] 253 U.S. 298; 65 Law. Edn. 647 at 651 and 653
[4] 116 U.S. 616
[5] 19 State Trials 1030.