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.

Sections 93, read as under: 93-

(l)(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”.

In exercise of the power conferred by s. 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.

The issue of self-incrimination

On the advent of the Constitution, and especially in view of the provision contained in Art. 20(3), Courts were faced with a problem whether the person referred to in s. 91(1) of the Code (s 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 & others v. Satish Chandra, District Magistrate, Delhi & ors.[1] 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 Art. 20(3) as unconstitutional and illegal.

A specific reference was made to ss. 94 and 96 of the Criminal Procedure Code, 1898 (‘old Code’ for short), both of which are re-enacted in almost identical language as ss. 91 and 93 in the new Code, in support of the submission that a seizure of documents on search is in the contemplation or law a compelled production of documents.

A Constitution Bench of 8 judges of Supreme 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 element of compulsion in issuing a summons to a person accused of an offence under s. 94 (old) s. 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 Code of Criminal Procedure was kept open.

In other words, the question whether the expression ‘person’ in s. 94 (old) s. 91 (new) would comprehend a person accused of an offence was left open.

In The State of Bombay v. Kathi Kalu Oghad & Ors.,(1964) a question arose whether obtaining specimen hand writing or thumb impression of the accused would contravene the constitutional guarantee in Art. 20(3). In this case there was some controversy about certain observations in M. P. 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 colleagues.

In Sinha, CJ’s opinion, the observation in M. P. Sharma’s case (supra) that s. 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 Art. 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.

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.

The matter again came up before a Constitution Bench of Supreme Court in Shyamlal Mohanlal v. State of Gujarat (1964).

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 s. 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 Supreme Court and the question that was put in forefront before the Court was whether the expression ‘person’ in s. 94(1) which is the sale as s. 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 s. 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 Art. 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 s. 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 testimony and would be violative of the constitutional immunity against self-incrimination.

Conflicts between the observations

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).

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 s. 91(1) cannot be issued to a person accused of an offence calling upon him to produce document or thing considered necessary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure.

In V. S. Kuttan Pillai vs Ramakrishnan (1979) ,the court made it clear that if summons as hereinbefore discussed cannot be issued to an accused person under s. 91(1), ipso facto a search warrant contemplated by s. 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 s. 93(1)(a) could only be issued where a summons could have been issued under s. 91(1) but the same would not be issued on 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 s. 93 (1) (a) . Section 93, however, also envisages situations other than one contemplated by s. 93(1)(a) for issuance of a search warrant.

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.

Section 93(1) (c) of the 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 s. 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 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 accused 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.

The immunity against self- crimination extends to any incriminating evidence which the accused may be compelled to give. It does not extend to cover 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). .

[1] 1954 AIR 300