MANU/SC/0018/1954

Equivalent Citation: AIR1954SC300, [1954]1SCR1077

IN THE SUPREME COURT OF INDIA

Petitions Nos. 372 and 375 of 1953

Decided On: 15.03.1954

Appellants:M.P. Sharma and Ors.

Vs.
Respondent:Satish Chandra and Ors.

Hon'ble Judges/Coram:
M.C. Mahajan, C.J., B. Jagannadhadas, B.K. Mukherjea, Ghulam Hasan, N.H. Bhagwati, Sudhi Ranjan
Das, T.L. Venkatarama Aiyyar and Vivian Bose, JJ.

Overruled/Reversed by:
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. MANU/SC/1044/2017

Case Notes:
The case debated on whether the search warrant issued as per Section 96(1) of the Code of
Criminal Procedure, 1898 would be ultra vires Article 19(1)(f) and 20(3) of the Constitution
of India - Another issue debated was whether the search and seizure of documents according
to Sections 94 and 96 of the Code of Criminal Procedure was a compelled production within
the meaning of Article 20 of the Constitution - It was held that the provision for search
warrant under Section 96 (1) of the Code of Criminal Procedure was not offensive of Article
19 (1)(f) of the Constitution - It was also held that a search and seizure under the provisions
of the Code of Criminal Procedure was not a compelled production

JUDGMENT

and the report of the Inspector appointed

B. Jagannadhadas, J. under section 138 of the Indian Companies
act indicated that an organised attempt was
made from the inception of the company to
1. These two applications are for relief
misappropriate and embezzle the funds of
under article 32 of the Constitution arising
the company and declare it to be substantial
out of similar and connected set of facts and
loss, and to conceal from the shareholders
are dealt with together. They arise under
the true state of affairs by submitting false
the following circumstances. The Registrar
accounts and balance sheets. Various
of the Joint Stock Companies, Delhi State,
dishonest and fraudulent transactions were
lodged information with the Inspector
also disclosed which show that false
General, Delhi Special Police Establishment,
accounts with fictitious entries and false
to the following effect. Messrs. Dalmia Jain
records were being maintained and that
Airways Ltd. was registered in his office on
dishonest transfers of money had been
the 9th July, 1946, with an authorised
made. It was accordingly alleged that
capital of Rs. 10 crores and went into
offenses under sections 406, 408, 409, 418,
liquidation on the 13th June 1952.
420, 465, 467, 468, 471 and 477(a) of the
Indian Penal Code had been committed.
An investigation into the affairs of the
company was ordered by the Government
It was also stated that Seth R. K. Dalmia It will be seen that the petitioner in both the
who was the Director and Chairman of petitions belong to the four concerns,
Dalmia Jain Airways Ltd. has been namely, (1) Delhi Glass Works Ltd., (2)
controlling certain other concerns, viz., (1) Messrs. Allen Berry & Co., Ltd., (3) Asia
Dalmia Cement and Paper Marketing Co., Udyog Ltd., and (4) Dalmia Jain Airways
Ltd., (2) Dalmia Jain Aviation Ltd. now Ltd. The last three are stated to be Dalmia
known as Asia Udyog Ltd., and (3) Allen concerns but it does not appear from the
Berry and Co., Ltd., through his nominees records placed before us what exact
and that all these concerns were utilized in connection Delhi Glass Works Ltd. has with
order to commit the frauds. It was further them. However, it is admittedly one of the
stated therein by the Registrar of Joint places for which a search warrant was asked
Stock Companies that to determine the for and against which the First Information
extent of the fraud, it was necessary to get Report appears to have been lodged.
hold of books not only of Dalmia Jain
Airways Ltd. but also of the allied concerns In the petitions various questions were
controlled by the Dalmia group, some of raised. But such of them which raise only
which are outside the Delhi State. List of the irregularities and illegalities of the searches
offices and places in which and of the and do not involve any constitutional
persons in whose custody the records may violation are matters which may be more
be available were furnished. Speedy appropriately canvassed before the High
investigation was asked for. Court on applications under article 226 of
the Constitution and we have declined to go
This information was recorded by the into them. petitioners have, therefore,
Special Police on the 19th November, 1953, confined themselves before us to two
as the First Information Report. On the basis grounds on which they challenge the
thereof an application was made to the constitutional validity of the searches. The
District Magistrate, Delhi, under section 96 contentions raised are that the fundamental
of the Criminal Procedure Code, for the rights of the petitioners under article 20(3)
issue of warrants for the search of and article 19(1)(f) have been violated by
documents and in the places, as per the searches in question.
schedules furnished. Permission to
investigate in respect of some of the 2. So far as the contention based on article
cognizable offences mentioned in the First 19(1)(f) is concerned we agree unable to
Information Report was also asked for. On see that the petitioners have any arguable
the same day, the District Magistrate case. Article 19(1)(f) declares the right of all
ordered investigation of the offenses and citizens to acquire, hold and dispose of
issued warrants for simultaneous searches property subject to the operation of any
at as many as 34 places. The searches were existing or future law in so far as it imposes
made on the 25th November, 1953, and reasonable restrictions, on the exercise of
subsequent days and a voluminous mass of any of the rights conferred thereby, in the
records was seized from various places. interests of general public. It is urged that
the searches and seizures as effected in this
The petitioners pray that the search case were unreasonable and constitute a
warrants may be quashed as being serious restriction on the right of the various
absolutely illegal, and ask for return of the petitioners, inasmuch as their buildings
documents seized. In Petition No. 372 of were invaded, their documents taken away
1953 there are four petitioners of whom the and their business and reputation affected
second is the Delhi Glass Works Ltd., and by these large scale and allegedly arbitrary
the first the Deputy-General Manager searches and that a law (section 96(1),
thereof, the third its Secretary and the Cr.P.C.) which authorises such searches
fourth a shareholder therein. In Petition No. violates the constitutional guarantee and is
375 of 1953 there are five petitioners of invalid.
whom the first is Messrs. Allen Berry & Co.,
Ltd., second Asia Udyog Ltd., the third Shri But, a search by itself is not a restriction on
R. K. Dalmia, the fourth the Secretary and the right to hold and enjoy property. No
General Attorney of the third and the fifth a doubt a seizure and carrying away is a
shareholder of petitioners Nos. 1 and 2, and restriction of the possession and enjoyment
an officer of petitioner No. 2. of the property seized. This, however, is
only temporary and for the limited purpose person who may become incriminated
of investigation. A search and seizure is, thereby as an accused in future
therefore, only a temporary interference proceedings.
with the right to hold the premises searched
and the articles seized. Statutory regulation If this view of the content of article 20(3) is
in this behalf is necessary and reasonable accepted, the next step in the argument
restriction cannot per se be considered to be presented is that a forcible search and
unconstitutional. The damage, if any, seizure of documents is, for purposes of
caused by such temporary interference if constitutional protection of this guarantee,
found to be in excess of legal authority is a on the same footing as a compelled
matter for redress in other proceedings. We production of the said documents by the
are unable to see how any question of person from whom they are seized. This
violation of article 19(1)(f) is involved in this chain of reasoning, if accepted in its
case in respect of the warrants in question entirety, would render searches and
which purport to be under the first seizures of documents and any statutory
alternative of section 96(1) of the Criminal provisions in that behalf illegal and void, as
Procedure Code. being in violation of the fundamental right
under article 20(3). The question thus
3. The only substantial question, therefore, raised is of far reaching importance and
that has been arisen is the one relating to requires careful consideration.
article 20(3) which runs as follows :
5. Article 20(3) embodies the principle of
"No person accused of any offence shall be protection against compulsion of self-
compelled to be a witness against himself." incrimination which is one of the
fundamental canons of the British system of
4. The argument urged before us is that a criminal jurisprudence and which has been
search to obtain documents, for adopted by the American system and
investigation into an offence is a compulsory incorporated as an article of the
procuring of incriminatory evidence from Constitution. It has also, to a substantial
the accused himself and is, therefore, hit by extent, been recognised in the Anglo-Indian
article 20(3) as unconstitutional and illegal. administration of criminal justice in this
It is not disputed that, prima facie, the country by incorporation into various
article in question has nothing to indicate statutory provisions. In order, therefore, to
that it comprehends within its scope, the arrive at a correct appraisal of the scope and
prohibition of searches and seizures of content of the doctrine and to judge to what
documents from the custody of an accused. extent that was intended to be recognised
But it is urged that this is necessarily by our Constitution-makers in article 20(3),
implied therein by certain canons of liberal it is necessary to have a cursory view of the
construction which are applicable to the origin and scope of this doctrine and the
interpretation of constitutional guarantees. implications thereof as understood in
English law and in American law and as
recognised in the Indian law.
In support of this line of argument great
reliance has been placed upon American
decisions in which similar questions were 6. In English law, this principle of protection
canvassed. The argument on behalf of the against self-incrimination had a historical
petitioners is presented in the following origin. It resulted from a feeling of revulsion
way. The fundamental guarantee in article against the inquisitorial methods adopted
20(3) comprehends within its scope not and the barbarous sentences imposed, by
merely oral testimony given by and accused the Court of Star Chamber, in the exercise
in a criminal case pending against him, but of its criminal jurisdiction. This came to a
also evidence of whatever character head in the case of John Lilburn (3 State
compelled out of a person who is or is likely Trials 1315.) which brought about the
to become incriminated thereby as an abolition of the Star Chamber and the firm
accused. It, therefore, extends not only to recognition of the principle that the accused
compelled production of documents by an should not be put on oath and that no
accused from his possession, but also to evidence should be taken from him. This
such compelled production of oral or principle, in course of time, developed into
documentary evidence from any other its logical extensions, by way of privilege of
witnesses against self-incrimination, when The Criminal Procedure Code of 1872 by
called for giving oral testimony or for section 250 thereof made a general
production of documents. A change was questioning of the accused, after the
introduced by the Criminal Evidence Act of witnesses for the prosecution had been
1898 by making an accused a competent examined, compulsory and section 345
witness on his own behalf, if he applied for thereof provided that no oath or affirmation
it. But so far as the oral testimony of shall be administered to the accused
witnesses and the production of documents person. These features have been continued
are concerned, the protection against self- in the later Codes of Criminal Procedure and
incrimination continued as before. (See have been incorporated into section 342 of
Phipson on Evidence, 9th Edition, pages 215 the present Criminal Procedure Code of
and 474). 1898. The only later statutory change, so
far, in this behalf, appears to be that
7. These principles, as they were before the brought about by section 7 of the Prevention
statutory change in 1898, were carried into of Corruption Act, 1947. By virtue of that
the American legal system and became part section an accused is a competent witness
of its common law. (See Wigmore on on his own application in respect of offenses
Evidence, Vol. VIII, pages 301 to 303). This under that Act. So far as witnesses are
was later on incorporated into their concerned, section III of Act XV of 1852 also
Constitution by virtue of the Fifth declared the protection of witnesses against
Amendment thereof. The language of the compulsion to answer incriminating
Fifth Amendment was considered by the questions.
American Courts as being wide enough to
cover all the aspects of the principle of Shortly thereafter in 1855, this protection
protection against self-incrimination as was modified by section 32 of Act II of 1855
administered under the English common law which made him compellable to answer
including oral testimony of witnesses and even incriminating questions but provided
production of documents. (See Will is on immunity from arrest or prosecution on the
Constitutional law, pages 518 and 519). basis of such evidence or any other kind of
use thereof in criminal proceedings except
In the course of time further extensions of prosecution for giving false evidence. This
that privilege were recognised by the courts position has been continued under section
relating to searches and seizures. It came 132 of the Evidence Act I of 1872 which is
to be held that unreasonable searches and still in force. So far as documents are
seizures of documents fell equally within the concerned, it does not appear that the
mischief of the Fourth and the Fifth Indian statutory law specifically recognised
Amendments [Boyd v. United States 116 protection against production of
U.S. 616.], and that documents or other incriminating documents until Evidence Act
evidence so obtained were inadmissible in I of 1872 was enacted which has a provision
evidence [Weeks v. United States 232 U.S. in this behalf in section 130 thereof. It is not
383.]. quite clear whether this section which
excludes parties to a suit applies to an
accused.
8. In the Indian law the extent to which this
protection is recognised appears from the
various relevant statutory provisions from Thus so far as the Indian law is concerned it
time to time. Section III of Act XV of 1852 may be taken that the protection against
recognised that an accused in a criminal self-incrimination continues more or less as
proceeding was not a competent or in the English common law, so far as the
compellable witness to give evidence for or accused and production of documents are
against himself. This provision was repealed concerned, but that it has been modified as
by the Evidence Act I of 1872. But regards oral testimony of witnesses, by
meanwhile the Criminal Procedure Code of introducing compulsion and providing
1861 in sections 204 and 203 thereof immunity from prosecution on the basis of
respectively provided that no oath shall be such compelled evidence.
administered to the accused and that it shall
be in the discretion of the Magistrate to 9. Since the time when the principle of
examine him. protection against self-incrimination
became established in English law and in
other systems of law which have followed it, (1) It is a right pertaining to a person
there has been considerable debate as to "accused of an offence"; (2) It is a
the utility thereof and serious doubts were protection against "compulsion to be a
held in some quarters that this principle has witness"; and (3) It is a protection against
a tendency to defeat justice. In support of such compulsion resulting in his giving
the principle it is claimed that the protection evidence "against himself". The cases with
of accused against self-incrimination which we are concerned have been
promotes active investigation from external presented to us on the footing that the
sources to find out the truth and proof of persons against whom the search warrants
alleged or suspected crime instead of were issued, were all of them persons
extortion of confessions on unverified against whom the First Information Report
suspicion. (See Wigmore on Evidence, Vol. was lodged and who were included in the
VIII, page 309). category of accused therein and that
therefore they are persons "accused of an
It is also claimed that privilege in its offence" within the meaning of article 20(3)
application to witnesses as regards oral and also that the documents for whose
testimony and production of documents search the warrants were issued, being
affords to them in general a free required for investigation into the alleged
atmosphere in which they can be persuaded offenses, such searches were for
to come forward to furnish evidence in incriminating material.
courts and be of substantial help in
elucidating truth in a case, with reference to It may be noticed that some of the accused
material within their knowledge and in their enumerated in the First Information Report
possession. (See Wigmore on Evidence, Vol. are incorporated companies. But no
III, page 307). question has been raised before us that the
protection does not apply to corporations or
On the other hand, the opinion has been to documents belonging to them - a
strongly held in some quarters that this rule question about which there has been
has an undesirable effect on social interests considerable debate in the American Courts.
and that in the detection of crime, the State On the above footing, therefore, the only
is confronted with overwhelming difficulties substantial argument before us on this part
as a result of this privilege. It is said this has of the case was that compelled production
become a hiding place of crime and has of incriminating documents from the
outlived its usefulness and that the rights of possession of an accused is compelling an
accused persons are amply protected accused to be a witness against himself.
without this privilege and that no innocent This argument accordingly raises mainly the
person is in need of it. (See Wigmore on issue relating to the scope and connotation
Evidence, Vol. III, pages 314 and 315). of the second of the three components
Certain passages at pages 441 and 442 of above stated.
Vol. I of Stephen's History of the Criminal
Law of England are also instructive in this 11. Broadly stated the guarantee in article
context and show a similar divergence of 20(3) is against "testimonial compulsion". It
opinion. is suggested that this is confined to the oral
evidence of a person standing his trial for an
10. In view of the above background, there offence when called to the witness-stand.
is no inherent reason to construe the ambit We can see no reason to confine the content
of this fundamental right as comprising a of the constitutional guarantee to this barely
very wide range. Nor would it be legitimate literal import. So to limit it would be to rob
to confine it to the barely literal meaning of the guarantee of its substantial purpose and
the words used, since it is a recognised to miss the substance for the sound as
doctrine that when appropriate a stated in certain American decisions. The
constitutional provision has to be liberally phrase used in article 20(3) is "to be a
construed, so as to advance the intendment witness." A person can "be a witness" not
thereof and to prevent its circumvention. merely by giving oral evidence but also by
producing documents or making intelligible
gestures as in the case of a dumb witness
Analysing the terms in which this right has
(see section 119 of the Evidence Act) or the
been declared in our Constitution, it may be
like. "To be a witness" is nothing more than
said to consist of the following components.
"to furnish evidence", and such evidence of such documents from the custody of
can be furnished through the lips or by these persons are unconstitutional and
production of a thing or of a document or in
other modes. hence illegal on the ground that in effect
they are tantamount to compelled
So far as production of documents is production of evidence.
concerned, no doubt section 139 of the
Evidence Act says that a person producing It is urged that both search and seizure of a
a document on summons is not a witness. document and a compelled production
But that section is meant to regulate the thereof on notice or summons serve the
right of cross-examination. It is not a guide same purpose of being available as evidence
to the connotation of the word "witness", in a prosecution against the person
which must be understood in its natural concerned, and that any other view would
sense, i.e., as referring to a person who defeat or weaken the protection afforded by
furnishes evidence. Indeed, every positive the guarantee of the fundamental right. This
volitional act which furnishes evidence is line of argument is not altogether without
testimony, and testimonial compulsion force and has the apparent support of the
connotes coercion which procures the Supreme Court of the United States of
positive volitional evidential acts of the America in Boyd v. United States 116 U.S.
person, as opposed to the negative attitude 616..
of silence or submission on his part. Nor is
there any reason to think that the protection
13. The question there which came up for
in respect of the evidence so procured is
confined to what transpires at the trial in the consideration was in fact the converse,
namely, whether a compulsory production
court room.
of documents on the facts of that case
amounted to search and seizure. There are
The phrase used in article 20(3) is "to be a dicta in that decision to the effect that a
witness" and not to "appear as a witness"; compulsory production of a man's private
It follows that the protection afforded to an papers is a search and seizure since it
accused in so far as it is related to the affects the sole object thereof and that by
phrase "to be a witness" is not merely in this process the court extorts from the party
respect of testimonial compulsion in the his private books and papers to make liable
court room but may well extend to for penalty. It is necessary, therefore to
compelled testimony previously obtained examine this decision rather closely in order
from him. It is available therefore to a to determine how far it can be a safe guide
person against whom a formal accusation for our purpose.
relating to the commission of an offence has
been leveled which in the normal course
The question therein arose under the
may result in prosecution.
following circumstances. In an Act to amend
the Customs Revenue Laws, there was a
Whether it is available to other persons provision which enabled the Government
in other situations does not call for Attorney to make a written motion to the
decision in this case. court for the issue of a notice to the
opposite-party for production of papers in
his possession. The motion could be made if
12. Considered in this light, the guarantee in the Attorney's opinion those books
under article 20(3) would be available in the contain materials which will prove an
present cases to these petitioners against alleged fact in support of a charge of
whom a First Information Report has been defrauding the revenues, involving penalty
recorded as accused therein. It would and forfeiture of merchandise to which the
extend to any compulsory process for fraud relates. It is also provided by the said
production of evidentiary documents which section that if the court in its discretion
are reasonably likely to support a allows the motion in which is set out the fact
prosecution against them. sought to be proved and calls upon the
defendant to produce the documents, and
The question then that arises next is the defendant fails or refuses to produce
them without any proper and satisfactory
whether search warrants for the seizure explanation, the allegation of fact sought to
be proved by such production may be "The compulsory production of a man's
deemed to have been confessed. private papers is search and seizure."

The question that thereupon arose was and again thus

whether an order for production made by
the court under that section did not violate "We have been unable to perceive that the
the constitutional rights declared by the seizure of a man's private books and papers
Fourth and Fifth Amendments of the to be used in evidence against him is
American Constitution. These amendments substantially different from compelling him
are as follows : to be a witness against himself."

Amendment IV. 15. Thus in the view that the order for
production was tantamount to search to
The right of the people to be secure in their search and seizure and that in the case it
persons, houses, papers, and effects was for a purpose prohibited by the Fifth
against unreasonable searched and Amendment, they held that the Fourth
seizures, shall not be violated; and no Amendment prohibiting unreasonable
warrants shall issue, but upon probable searches was also violated. The minority
cause, supported by oath of affirmation, and Judges, however, did not accept this view
particularly describing the place to be and pointed out that there was an essential
searched, and the persons or things to be difference between the seizure of a
seized. document on search and the production of
a document. But even otherwise, it would
Amendment V. appear on a careful consideration of the
decision that the majority were at pains to
make out that, in the circumstances of the
"No person...... shall be compelled in any
case the order for production would amount
criminal case, to be a witness against
to "an unreasonable search and seizure"
himself;..........."
and is hence unconstitutional as violating
the Fourth and Fifth Amendments.
14. On the facts of the above case, there
was no difficulty in holding that the
The case, therefore, does not lend support
production of documents in response to the
for any general doctrine that a search and
motion granted by the court was a
seizure in all circumstances is tantamount
compelled production of incriminating
to a compelled production in violation of the
evidence and that it violated the Fifty
Fifty Amendment. That decision itself
Amendment. The minority judgment
expressly recognizes the legality of various
brought this out clearly in the following
kinds of searches and indeed the Fourth
passages :
Amendment itself shows it. Thus what that
decision really established was that the
"The order of the court under the statute is obtaining of incriminating evidence by
in effect a subpoena ducks tecum; and illegal search and seizure is tantamount to
though the penalty for the witness' failure the violation of the Fifty Amendment. It was
to appear in court with the criminal papers in this light that subsequent cases have also
is not fine and imprisonment, it is one which understood this decision. [See Felix Gouled
may be made more severe, namely, to have v. United States (255 U.S. 298; 65 Law.
the charges against him of a criminal nature Edn. 647 )].
taken for confessed and made the
foundation of the judgment of the court.
16. (15) '(1884) 116 U.S. 616. has relied on
That this is within the protection which the
the famous judgment of Lord Camden in
Constitution intended against compelling a
Entick v. Carrington 19 ST 1030, and
person to be a witness against himself is, I
learned counsel for the petitioners has also
think, quite clear."
relied on it strenuously before us. Wigmore
in his law of Evidence, Vol. VIII, page 368,
The majority Judges, how ever, went one has shown how some of the assumptions
step further and said as follows : relating to it in Boyd's case 116 U.S. 616,
were inaccurate and misleading. While no
doubt Lord Camden refers to the principle of or desirable for the purpose of any
protection against self accusation with great investigation, inquiry, trial or other
force, in his consideration of the validity of proceeding under this Code by or before
general search warrants, that case does not such court or officer, such court may issue
treat a seizure on a search warrant as ipso a summons, or such officer a written order,
facto tantamount to self incrimination. All to the person in whose possession or power
that was said was that the legal philosophy such document or thing is believed to be,
underlying both is the same, as appears requiring him to attend and produce it, or to
from the following passage : produce it, at the time and place stated in
the summons or order.
"It is very certain, that the law obliges no
man to accuse himself; because the ........................................"
necessary means of compelling self-
accusation, failing upon the innocent as well "96(1). Where any Court has reason to
as the guilty, would be both cruel and believe that a person to whom a summons
unjust; and it should seem, that search for or order under section 94 or a requisition
evidence is disallowed upon the same under section 95, sub-section (1), has been
principle. There too the innocent would be or might be addressed will not or would not
confounded with the guilty." produce the document or thing as required
by such summons or requisition,
17. It may be noted that Lord Camden's
judgment shows, by an elaborate or where such document or thing is not
dissertation, that the search warrant therein know to the court to be in the possession of
under consideration was unauthorised and any person,
illegal. Thus even the above dictum has
reference only to an illegal search.
or where the court considers that the
purposes of any inquiry, trial or other
18. It is, therefore, impossible to derive proceeding under this Code will be served
from Boyd's case 116 U.S. 616, support for by a general search or inspection,
the proposition that searches and seizures,
in general, are violative of the privilege of
it may issue a search-warrant; and the
protection against self-incrimination. Nor is
person to whom such warrant is directed,
it possible to import that doctrine with its
may search or inspect in accordance
differentiation between legal and illegal
therewith and the provisions hereinafter
searches into our Constitution because we
contained.
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 20. It is pointed out that the procedure
and illegal searches. contemplated is that normally there should
be a summons or notice for production
19. In the arguments before us strong under section 94 and it is only if there is no
reliance has also been placed on the compliance therewith or if the Magistrate is
provision of sections 94 and 96 of the satisfied about the likelihood of non-
Criminal Procedure Code in support of the compliance that a search warrant is to be
broad proposition that a seizure of issued. It is, therefore, urged that these
documents on search is in the provisions themselves show that in law
contemplation of law a compelled search and seizure is a substitute for
production of documents. The sections run compelled production on summons. There
as follows : has been some debate before us whether
section 94 applies to an accused person and
whether there is any element of compulsion
"94(1), Whenever any court, or in any place
in it. For the purpose of this case it is
beyond the limits of the towns of Calcutta
and Bombay, any officer in charge of a unnecessary to decide these points.
police-station considers that the production
of any document or other thing is necessary We may assume without deciding that the
section is applicable to the accused as held
by a Full Bench of the Calcutta High Court in may grant his warrant to search for such
a recent case in Satya Kinkar Roy v. Nikhil thing; and it shall be lawful for the officer
Chandra Jyotishopadhaya charged with the execution of such warrant
MANU/WB/0018/1951 : AIR1951Cal101 . to search for such thing in any house or
We may also assume that there is an place within the jurisdiction of such
element of compulsion implicit in the Magistrate. In such case the Magistrate may
process contemplated by section 94 specify in his warrant the house or place, or
because, in any case, non-compliance part thereof, to which only the search shall
results in the unpleasant consequence of extend."
invasion of one's premises and rummaging
of one's private papers by the minions of law 22. There was also section 142 of the said
under a search warrant. Notwithstanding Code which vested in an officer in charge of
these assumptions we are unable to read police station with the power to make a
section 94 and 96(1) of the Criminal search suo moto in certain circumstances.
Procedure Code as importing any statutory In the next Criminal Procedure Code, Act I
recognition of a theory that search and of 1872, the relevant provisions were in
seizure of documents is compelled sections 365, 368 and 379. Section 379 was
production thereof. more or less a repetition of section 142 of
the previous Code (Act XXV of 1861) vesting
It is to be noticed that section 96(1) has power in a police officer to make a suo moto
three alternatives and that the requirement search. Section 365 appears to be the
of previous notice or summons and the non- earliest statutory provision for the issue of
compliance with it or the likelihood of such a summons, either by a police officer or by
non-compliance is prescribed only for the a court for the production of a document
first alternative and not for the second or required for investigation. This was followed
the third. A "general search" and a "search by section 368 relating to the issue of
for a document or a thing not known to be search-warrants which was in the following
in possession of any particular person" are terms :
not conditioned by any such requirement.
Indeed in cases covered by the second "When a Magistrate considers that the
alternative such a requirement cannot even production of anything is essential to the
be contemplated as possible. It would, conduct of an inquiry into an offence known
therefore, follow, on the theory or suspected to have been committed or to
propounded, that some at least of the the discovery of the offender,
searches within the scope of the second and
third alternatives in section 96(1) would fall
or when he considers that such inquiry or
outside the constitutional protection of
discovery will be furthered by the search or
article 20(3) - an anomalous distinction for
inspection of any house or place,
which no justification can be found on
principle.
he may grant his search-warrant; and the
officer charged with the execution of such
21. A consideration of the history of Indian
warrant may search or inspect any house or
statutory legislation relating to searches
place within the jurisdiction of the
does not support the theory propounded.
The provisions for searches are to be found Magistrate of the District.
in the successive Codes of Criminal
Procedure. In the earliest Code, Act XXV of The Magistrate issuing such warrant may, if
1861, there appears no provision for issuing he sees fit, specify in his warrant the house
summons or notices for production of or place, or part thereof, to which only the
documents, but there was only a provision search or inspection shall extend; and the
for the issue of a search warrant by a officer charged with the execution of such
Magistrate under section 114 thereof, which warrant shall then search or inspect only the
is in the following terms : house, place or part so specified."

"When a Magistrate shall consider that the 23. It will be noticed that even when the
production of any thing is essential to the procedure of summons for production of
conduct of an enquiry into an offence known documents was introduced, as above in
or suspected to have been committed, he section 365, the provision for the issue of a
search-warrant in section 368 had power of the State for the protection of
absolutely nothing to do with the question social security and that power is necessarily
of non-compliance by the concerned person regulated by law. When the Constitution
with the summons of production. It is only makers have thought fit not to subject such
in the next Criminal Procedure Code, Act X regulation to constitutional limitations by
of 1882, that the provisions, section 94 and recognition of a fundamental right to
96, appear which correspond to the present privacy, analogous to the American Fourth
sections 94 and 96 of Act V of 1898, linking Amendment, we have no justification to
up to some extent the issue of search- import it, into a totally different
warrants with non-compliance or likelihood fundamental right, by some process of
of non-compliance with a summons to strained construction.
produce.
Nor is it legitimate to assume that the
It may be mentioned in passing that the
constitutional protection under article
provision for the issue of general search
warrants appears for the first time in the 20(3) would be defeated by the statutory
Procedure Code of 1882 and even there the provisions for searches. It is to be
issue of such general warrants is not based remembered that searches of the kind we
on non-compliance with a previous
summons for production. It is, therefore,
are concerned with are under the
clear that there is no basis in the Indian law authority of a Magistrate (excepting in
for the assumption that a search of seizure the limited class of cases falling under
of a thing or document is in itself to be section 165 of the Criminal Procedure
treated as compelled production of the
same. Indeed a little consideration will show
Code). Therefore, issue of a search
that the two are essentially different warrant is normally the judicial function
matters for the purpose relevant to the of the Magistrate. When such judicial
present discussion. A notice to produce is function is interposed between the
addressed to the party concerned and his
production in compliance therewith
individual and the officer's authority for
constitutes a testimonial act by him within search, no circumvention thereby of the
the meaning of article 20(3) as above fundamental right is to be assumed. We
explained. But search warrant is addressed are not unaware that in the present set up
to an officer of the Government, generally a
police officer. Neither the search nor the of the Magistrate in this country, it is not
seizure are acts of the occupier of the infrequently that the exercise of this
searched premises. They are acts of another judicial function is liable to serious
to which he is obliged to submit and are, error, as is alleged in the present case.
therefore, not his testimonial acts in any
sense. Even in the American decisions there But the existence of scope for such
is a strong current of judicial opinion in occasional error is no ground to assume
support of this distinction. In Hale v. Henkel circumvention of the constitutional
201 U.S. 43; 50 Law. Edn 652., Justice
guarantee.
McKenna in his dissenting judgment makes
the following observations :
25. We are, therefore, clearly of the opinion
that the searches with which we are
"Search implies a quest by an officer of the
concerned in the present cases cannot be
law; a seizure contemplates a forcible
challenged as illegal on the ground of
dispossession of the owner......... The quest
violation of any fundamental rights and that
of an officer acts upon things themselves, -
these applications are liable to be
may be secret, intrusive, accompanied by
dismissed.
force. The service of a subpoena is but the
delivery of a paper to a party, - is open and
aboveboard. There is no element of trespass 26. As stated at the outset, we have dealt
or force in it." only with the constitutional issues involved
in this case leaving the other allegations as
to the high-handedness and illegality of the
24. A power of search and seizure is in any
searches open to be raised and canvassed
system of jurisprudence an overriding
before the High Court on appropriate
applications. But we cannot help observing
that on those allegations and on the
material that has come within our notice,
there appears to be scope for serious
grievance on the side of the petitioners,
which requires scrutiny.

27. We accordingly dismiss these

applications but without costs.

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