The petitioner is the complainant in C.C. 8/77 on the file of the Sub-Divisional Judicial Magistrate, Alwaye. Offences punishable under Ss. 403, 409, 420 and 477-A read with S. 34 I.P.C. were alleged against the first respondent and 5 others who are the office bearers of the H.M.D.P. Sabha, Moothakunnam. After the filing of the complaint, a search warrant was issued under S. 93 if the Code of Criminal Procedure Act 2 of 1974 for searching the office of the Sabha and for seizing certain documents specified therein. Pursuant to the search warrant, books, documents and papers were produced before the Court. The 2nd accused thereafter filed Crl.M.P. 50 of 1977 for recalling the search warrant and for the return of the seized documents to him.
The contention put forward on his behalf was that the issue of search warrant was illegal and without jurisdiction in view of Art. 20(3) of the Constitution. Reliance was placed on the decisions in State of Gujarat v. Shyamlal (AIR 1965 SC 1251) : (1965 (2) Cri LJ 256), Shiv Dayal v. Sohan Lal (AIR 1970 Punj & Har 468) : (1970 Cri LJ 1517) as also the order in Crl.M.P. No. 249 of 1978 (Ker) of this court. The trial court upheld the contention that the search was without jurisdiction, and ordered return of the documents. The above order is sought to be set aside in the present petition.
2. It was argued on behalf of the petitioner that neither Art. 20(3) of the Constitution nor the provisions relating to search in the Cr.P.C. have been contravened in the instant case and the order of the trial court directing the return of the documents is unsustainable in law.
3. Art. 20(3) of the Constitution states :
"No person accused of any offence shall be compelled to be a witness against himself."
The relevant provisions relating to summoning, search and seizure of documents are contained in Ss. 91 and 93 of the Cr.P.C. which are quoted below :
"91. Summons to produce document or other thing -
(1) Whenever any Court or any officer-in-charge of a police station considers that the production of any documents 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 of 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 produced it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other section merely to produce a document or other thing 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 -
(a) to affect Ss. 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
xx xx xx
93. When search-warrant may be issued -
(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-sec. (1) of S
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92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or acquisition or (b) where such document or thing as 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 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) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (3) Nothing contained in this section shall authorize any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority." 4. Art. 20(3) embodies in it the doctrine of immunity from testimonial compulsion. Such immunity came to be recognised in England due to historical reason and became part of the Common law. The principles are also contained in the Fourth and Fifth Amendments to the Constitution of the United States of America. In India the doctrine of protection against compulsion of self-incrimination found a place in the statute book when S. 3 of Act 15 of 1852 laid down that an accused in a criminal proceeding is not a compellable witness to give evidence for or against himself. This law underwent modification in subsequent years and by virtue of the amendment of the Cr.P.C., 1898 by Act 26 of 1955, S. 342-A was incorporated under which the accused could at his option become a competent witness for the defence. The corresponding provision in the new Cr.P.C., 1973 is contained in S. 15. As regards witness, a limited protection is given under S. 130 of the Evidence Act against production of documents which might incriminate him. A witness under S. 132 is not excused from answering questions on the ground that such answer may tend to incriminate him; but no such answer shall entail a prosecution against him except for perjury. The High Courts of Calcutta and Madras held that under S. 94 Cr.P.C. 1898, a Magistrate had power to issue summons to an accused person to produce a document or other thing even if its production tended to incriminate him. See Mohomed Jackaria and Co. v. Ahmed Mahomed ((1888) ILR 15 Cal 109) and Re S. Kondereddi (1914) ILR 37 Mad 112) : (13 Cri LJ 493). That was before the Constitution of India came into force. The question whether S. 94 of the Cr.P.C. 1898 was rendered ultra vires by reason of Art. 20(3) of the Constitution came up before a Full Bench of the Calcutta High Court in Satya Kinkar v. Nikhil Chandra (AIR 1951 Cal 101 : ILR (1952) 2 Cal 106 : (52 Cri LJ 946) (FB). Speaking for the Bench. Harries C.J. held (At p. 950 of Cri LJ) : "It appears to me that this clause of Art. 20 of the Constitution does not create any new right fundamental or otherwise. Even before the Constitution, no accused person in India could be compelled to be a witness against himself and this clause simply repeats what the law was before the Constitution. As I have said earlier, calling upon an accused person to produce a document is not compelling the accused to give evidence against himself. He gives no evidence of any sort and he cannot be made to say anything concerning the document which is produced. The document may of course prejudicially affect him later, but it does not prejudice by reason of the accused being compelled to give evidence against himself. That being so, it does not appear to me that the construction of S. 94 which I am inclined to accept, would make the section ultra vires ....." 5. Whether seizure of documents in the possession of the accused would amount to violation of Art. 20(3) of the Constitution was considered by the Supreme Court in M. P. Sharma v. Satish Chandra (AIR 1954 SC 300) : (1954 Cri LJ 865). At the instance of the Registrar, Joint Stock Company, Delhi State, criminal prosecution were launched against four concerns (1) Delhi Glass Works Ltd., (2) M/s. Allen Berry and Company Ltd., (3) Asia Udyog Ltd., and (4) Dalmia Jain Airways Ltd. The District Magistrate ordered investigation of the offences and issued warrants for simultaneous searches in as many as 34 places. As a result of the search, a voluminous mass of records was seized from the various places. The petitioners moved the Supreme Court under Art. 32 of the Constitution for quashing the search warrants as being illegal and for ordering a return of the documents seized. One of the contentions raised was that seizure of the article amounted to compelled production thereof and he provision which permit searches and seizures of documents in the possession of an accused in the case amounted to violation of the fundamental right under Art. 20(3). The Supreme Court observed that Art. 20(3) embodies the principle of protection against compulsion of self-incrimination, recognised in the British Criminal Jurisprudence and incorporated in the American Constitution. After a review of the history of the law on the point the Supreme Court stated (At p. 869 of Cri LJ) : "Thus so far as the Indian law is concerned it may be taken that the protection against self-incrimination continues more or less as in the English common law, so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence." The Court did not feel that the guarantee under Art. 20(3) against the testimonial compulsion should be limited to the oral evidence of a person standing his trial when called upon to the witness-stand and held that the phrase "to be a witness" in Art. 20(3) is nothing more that to furnish evidence and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. The Supreme Court after referring to the American decision in (1884) 116 US 616 and also to Satya Kinkar Roy v. Nikhil Chandra, AIR 1951 Cal 101 : (52 Cri LJ 946) (FB) held that Ss. 94 and 96(1) cannot be read as importing any statutory recognition of a theory that search and seizure of documents amount to compelled production and then proceeded to say : "It is to be noticed that S. 96(1) has three alternatives and that the requirement of previous notice or summons and the non-compliance with it or the likelihood of such non-compliance is prescribed only for the first alternative and not for the second or the third. A "general search" and a "search for a document or a thing not known to be in possession by any particular person" are not conditioned by any such requirements. Indeed in case covered by the second alternative such a requirement cannot even be contemplated as possible. It would, therefore, follow, on the theory propounded, that some at least of the searches within the scope of the second and third alternatives in S. 96(1) would fall outside the constitutional protection of Article 20(3) - and anomalous distinction for which no justification can be found on principle." 6. The court then consider the legislative history of the Indian law relating to searches and concluded : "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 it 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 ............ Even in the American decisions there is a strong current of judicial opinion in support of this distinction. In - 'Hale v. Henkel,' (1905) 201 US 43, Justice McKenna in his dissenting judgment makes the following observations : "Search implies a quest by an officer of the law; a seizure contemplates a forcible disposition of the owner ............. The quest of an officer acts upon the things themselves, - may be secret, intrusive, accompanied by force. The service of a 'subpoena' is but the delivery of a paper to a party, - is open and above board. There is no element of trespass or force in it." 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 the 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 Art. 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 Magistrate (excepting in the limited class of cases falling under S. 165 of the Criminal P.C.). 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 not aware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such occasional error is not ground to assume circumvention of the constitutional guarantee. 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." 7. It appears that the decision related to a case of general search; but the ratio of the decision as contained in the foregoing extracts, is that there is not much difference between a general search and a search for a particular document or thing as far as applicability of Art. 20(3) is concerned. 8. The Supreme Court held in State of Gujarat v. Shyamalal Mohanlal (AIR 1965 SC 1251) : (1965 (2) Cri LJ 256) that S. 94(1) Code of Criminal Procedure, 1898 did not apply to an accused. See also Swarnalingam v. Asst. Labour Inspector (AIR 1956 Mad 165) : (1956 Cri LJ 248 (1), Gurpurb Singh v. Autar Singh (1960 Cri LJ 470 (J&K)) and Swarnalingam v. Asst. Inspector of Labour (AIR 1955 Mad 716) : (1955 Cri LJ 1602 (2)). 9. However, there appears to exist a conflict of opinion as to whether a search warrant under S. 93(1)(a) of the Code of Criminal Procedure, 1973 (corresponding to the first category in S. 96(1) of the Code of 1898) violates Art. 20(3) of the Constitution. In Shiv Dayal v. Sohan Lal (AIR 1970 Punj and Har 468) : (1970 Cri LJ 1517) the offences included besides those under the Indian Penal Code violations of the Trade and Merchandise Act. Search warrants were issued for the search of the office, factory and godown of the accused for recovery of the trade marks patterns and bill-books. Petitions were, thereupon, filed by the accused for quashing the order issuing warrants. When the matter came up before the High Court, the learned Judge who disposed of the case observed (At p. 1519 of Cri LJ) : "From a bare perusal of S. 96(1) it emerges that it contains three alternation and whereas alternative No. 1 relates to S. 94(1), the other two alternatives are not concerned with this provision. The requirement of previous notice or summons and the non-compliance with it or the likelihood of such non-compliance is prescribed only for the first alternative and not for the other two alternatives. A general search or a search for a document not known to be in possession of any particular person is not controlled by the requirements of Section 94(1). In State of Gujarat v. Shyamlal Mohanlal Choksi, AIR 1965 SC 1251 : (1965 (2) Cri LJ 256), the Supreme Court has taken the view that no search warrant could be issued to search for documents knows to be in the possession of the accused. This result followed from the view that S. 94 did not apply to an accused under trial." It is noticed that the warrant issued in the case was even otherwise not sustainable. 10. The above decision was followed by a Division Bench of the Jammu and Kashmir High Court in Ram Rakha v. Sat Paul (1973 Cri LJ 93). The conclusion arrived at in this case by the High Court was that the warrant issued in the case was a general warrant and, therefore, the bar of Art. 20(3) did not arise in the case. In both the above cases, the Courts apparently had in view the following observations in the dissenting judgment of Shah, J. in State of Gujarat v. Shyamalal Mohanlal (AIR 1965 SC 1251 : 1965 (1) SC WR 964) : (1965 (2) Cri LJ 256) (At p. 261 of Cri LJ) : "If S. 94(1) does not authorise a Magistrate to issue a summons to a person accused of an offence for the production of a document or thing in his possession evidently in exercise of the powers under S. 96(1) no warrant may be issued to search for a document or thing in his possession." But the said observation did not take into account the distinction between a summons to produce a document and a search referred to in M. P. Sarma's case (AIR 1954 SC 300) : (1954 Cri LJ 865) in the following extract (At p. 872 of Cri LJ) : "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 Art. 20(3) as above explained. But a search warrant is addressed to an officer of the Government, generally a police officer. Neither the search not 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." 11. The distinction between summons to produce and an order of search and seizure made in the above case has been referred to by Fazal Ali, J. in Gurpurb Singh v. S. Autar Singh (1960 Cri LJ 470 (J&K)). The learned Judge stated (at p. 471) :- Their Lordship of the Supreme Court have drawn a clear distinction between an order of the Court by which the accused himself is directed to produce the documents and and order of the Court by which police is directed to search or seize the documents in possession of the accused. The former case amounts to testimonial compulsion which comes within the ambit of Article 20(3), Constitution of India whereas in the latter case Art. 20(3) has not application." 12. A distinction is sought to be made in the above cases between a general search and a search for a particular document and it is stated that while there is no prohibition against a general search, a search for a particular document in the possession of the accused is barred under Art. 20(3). The distinction is probable based on the following observation of the Supreme Court in M. P. Sarma's case (1954 Cri LJ 865) (at p. 871) : "It is to be noticed that Section 96(1) has three alternatives and that the requirement of previous notice or summons and the non-compliance with it or the likelihood of such non-compliance is prescribed only for the first alternative and not for the second or the third. A "general search" and a "search for a document or a thing not known to be in possession of any particular person" are not conditioned by any such requirement. Indeed in cases covered by the second alternative such a requirement cannot even be contemplated as possible. It would, therefore follow on the theory propounded, that some at least of the searches within the scope of the second and third alternatives in Section 96(1) would fall outside the constitutional protection of Art. 20(3) - an anomalous distinction for which no jurisdiction can be found on principle." The distinction is referred to in Shyamalal Mohanlal's case (AIR 1965 SC 125) : (1965 (2) Cri LJ 256) (at p. 265 of Cri LJ) : "It is urged by Mr. Bindra that this construction of Section 94 would render S. 96 unless for no search warrant could be issued to search for document 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". That the Supreme Court in M. P. Sarma's case characterised the distinction as "as anomalous distinction for which no justification can be found on principle" makes it amply clear that the Supreme Court discountenanced such distinction and refused to act upon it for the purpose of deciding whether S. 96 Cr.P.C. (old Code) violated the provisions of Art. 20(3). Nor is there any distinction between search under Section 94 and Sec. 165 Cr.P.C. so far as bar under Art. 20(3) is concerned. 13. Neither S. 96(1) of the old Criminal Procedure Code nor S. 93(1) of the new Code directs that a notice to produce the document should precede and order for search. It is not also correct to say that the Supreme Court in Shyamalal Mohanlal's case (AIR 1965 SC 1251) : (1965 (2) Cri LJ 256) has taken a definite view that no search warrant should be issued for documents known to be in the possession of the accused. The question did not arise for consideration in that case. The observation quoted above are only casual and do not even amount to obiter dicta. I must, therefore, say with respect that I am unable to agree to the reasoning adopted in Shiv Dayal's case (AIR 1970 Punj and Har 468) : (1970 Cri LJ 1517) and followed in Ram Rakha v. Sat Paul (1973 Cri LJ 93 (J&K)). 14. A view contrary to that expressed in the above referred two cases was taken by Balakrishna Ayyar J. in In re Sorualingam (AIR 1955 Mad 685) : (1955 Cri LJ 1602 (1)) (a sequel to Swarnalingam v. Asst. Inspector of Labour AIR 1955 Mad 716) : (1955 Cri LJ 1602 (2)). The following passage in the Judgment will throw considerable light on the practical consequences that may follow the denial of a search warrant in particular cases (at p. 1602 of Cri LJ) : "Now, though by reason of Art. 20(3) of the Constitution a Court is precluded form issuing summons to an accused person to produce any document or thing in his custody, no article of the Constitution prohibits either a search under S. 165, Cr.P.C. by the police of premises involved in a cognizable offence or the issue of a search warrant by a Magistrate whether the offences involved is congnizable or non-cognizable. It is easy to see where a different view would lead us. A person may commit a murder and bury the body in the backyard of his house and he may commit burglary and keep the loot in an almirah inside his house. Or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk, and they would all be as safe as if they had been lodged in the Bank of England. The Constitution is not intended to be a charter for the lawless and there is nothing in Art. 20 of the constitution or in any of its other articles to prohibit the police from searching either the person of the accused or the premised in the manner laid down by Criminal P.C. Nor have the powers of the Magistrate to issue a search warrant in the circumstances set out in the Code been abrogated by the Constitution." 15. The underlying purpose of the protection afforded to an accused person against compulsion in respect of self-incrimination is to save him from under harassment at the instance of persons in authority in charge of prosecution and "to force the prosecuting officers to go out and search and obtain all the extrinsic available evidence of an offence without relying upon accused's admissions." A doctrinaire insistence that no search warrant should be issued to find out article in the possession or control of the accused which may tend to incriminate him may have undesirable results, as will be seen from the following passages from Wigmore on Evidence, Third Edition. Vol. VIII at pages 362-363, quoted by Ramaswami, J. in Subayya Gounder v. Bhoopala (AIR 1959 Mad 396) : (1959 Cri LJ 1087) (at pp. 1091 of Cri LJ) :- "Such, too, is the inference from the policy of the privilege as a defensible institution .... that is to say, it exists mainly in order to stimulate the prosecution to a full and fair search for evidence procurable by their own exertion, and to deter them from a lazy and pernicious reliance upon the accused's testimony extracted by force of law. "Such, finally, is the practical requirement that follows from the necessity of recognising other unquestioned methods of procuring evidence; for if the privilege extended beyond these limits, and protected and protected an accused otherwise than in his strictly testimonial status, - if, in other words, it created inviolability not only for his physical control of his own vocal utterances, but also for his physical control in whatever from exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles, - a clear 'reductio ad absurdum.' 16. It is true that the Supreme Court in M. P. Sarma's (1954 Cri LJ 865) case held that the protection afforded to an accused under Art. 20(3) in so far as it related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but means furnishing evidence. But the Supreme Court is not prepared to give a wide interpretation to the section as is clear from the decision in State of Bombay v. Kathi Kalu (AIR 1961 SC 1808) : (1961 (2) Cri LJ 856). Sinha C.J. speaking for the majority said (at p. 861-62 of Cri LJ) : ""To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice." 17. Likewise, it was observed in Sarma's case that S. 139 of the Evidence Act which says that a person producing a document on summons is not a witness, is not a guide to the connotation of the word "witness" which must be understood in its natural sense, i.e. as referring to a person who furnishes evidence. Regarding this Sinha C.J. observed in Kathi Kalu's case at p. 862 of 1961 (2) Cri LJ) : "In our opinion, therefore, the observation of this Court in Sharma's case, 1954 SCR 1077 : (AIR 1954 SC 300) : (1954 Cri LJ 865) that Section 139 of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely well-founded in law. It is well established that Cl. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot 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." 18. Reference may be made at this stage to Parmeshwari Devi v. State (1977 SCC (Cri 74) : (1977 Cri LJ 245) where the Supreme Court had to consider the scope of S. 94(1) of the Cr.P.C. 1973 (Chapter VII) vis-a-vis S. 139 of the Evidence Act. The decision states (at p. 248 of Cri LJ): "There is nothing in the chapter to provide that the person who appears in the court, in pursuance of its summons under sub-section (1) of S. 94, thereby becomes a witness and can be examined and cross-examined by the court although he has not been cited as a witness in the proceedings. Even if a person products the document for which a summons has been issued to him. S. 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that he produces it, and he cannot be cross-examined unless and until he is called as a witness." 19. Article 20(3) has been held to be not a bar for the admission in evidence of a tape-recorded conversation of the accused on the ground that there was no element of duress, coercion or compulsion employed in the process. See Yusufalli v. State of Maharashtra, (AIR 1968 SC 147) : (1968 Cri LJ 103) and R. M. Malkani v. State of Maharashtra (AIR 1973 SC 157) : (1973 Cri LJ 228). So also the decision are to the effect that there is no violation of Art. 20(3) in questioning an accused person under S. 342 of the Cr.P.C. 20. Reference is often made to the decision of the American Courts for the purpose of interpreting the scope and applicability of Art. 20(3). The IVth and Vth Amendments to the American Constitution read : Amendment IV "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Amendment V No person ................ shall be compelled in any criminal case to be a witness against himself ..............." The provisions as they stand bar only unreasonable searches and seizures. Unlike Section 93(1)(c) of the Cri.P.C. (1974), IVth Amendment does not favour a general search. Commenting on the Fourth Amendment, Kailasam, C.J. Observed in State of Tamil Nadu v. Kandasamy Pillai (1977 Cri LJ 1690 (Mad) : (at p. 1697) : "The Fourth Amendment under the American Constitution assures the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. "The amendment was primarily a reaction to the evils associated with the use of the General warrant in England and the writs of assistance in the Colonies and was intended to protect the "sanctity of a man's home and the privacies of life. "In order to protect the right conferred by the Fourth Amendment. The judiciary created what is known as the exclusionary rule. The exclusionary rule excluded the evidence which may be made available to the Court in an illegal search. The rule is calculated to deter and to compel respect for the constitutional guarantee by denying the policemen the evidence which they were able to secure as a result of an illegal search. The primary justification for the exclusionary rule is stated to be the deterrence of police conduct that violated the Fourth Amendment rights. The courts have held that the right is not a personal or constitutional right, but is intended to deter the police. The rule was described by Burger C.J. in his dissenting judgment in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1971) 403 US 388, 441. He was of the view that the exclusionary rule had been operative lone enough to demonstrate its flaws. He observed : "Over the years, the strains imposed by reality, in terms of the costs to society and the bizarre miscarriages of justice that have been experienced because of the exclusion of reliable evidence when 'constable blunders' have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the fact finding process." 21. The observation of Burger C.J. extracted by Kailasam C.J. in the above decision also deserve consideration. "From its genesis in the desire to protect private papers, the exclusionary rule has now been carried to the point of potentially excluding from evidence the traditional corpus delicti in a murder or kidnaping case ...... Expansion of the reach of the exclusionary rule has brought Cardozo's grim prophecy in People v. Defore (1926) 242 N.Y. 12 : 150 N.E. 585, 588 nearer to fulfillment : A room is searched against the law and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed and the murderer goes free." 22. In India the Constitution does not in terms render protection against search or seizure of articles as is done by the Fourth Amendment. On the other hand the fact that the provisions of the pre-Constitution Code are repeated in the new Code is an indication to show that Parliament did not consider that any privilege should be conferred on the accused in the matter of search and seizure. 23. In my view the provisions relating to search contained in S. 93(1) of the Cr.P.C. (Act 2 of 1974) are not hit by Art. 20(3) of the Constitution. 24. The learned Sub Divisional Magistrate has relied upon the order in Cr.M.P. 249 of 1976 of this Court wherein Khalid J. quashed a search warrant relying on Shiv Dayal's case AIR 1970 Punj and Har 468 : (1970 Cri LJ 1517). But the learned counsel for the petitioner referred me to the order in Cr.M.P. No. 1022 of 1976 (Ker) wherein the learned Judge stated that the principle enunciated by him was on the basis of the peculiar facts of that case and "is not of general application". In fact, it was because of the above observations that I did not refer the issue involved to a Division Bench. 25. I may also state here that the search and seizure in the instant case were from the office of H.M.D.P. Sabha. It is not clear whether the accused were the persons who had the sole control of the premises. If they were not or if the articles seized did not belong to them personally, I doubt very much whether there is scope for any objection for the search based on violation of Art. 20(3) of the Constitution. In any case, the order passed by the learned Sub Divisional Magistrate declaring the search warrant as without jurisdiction is unsustainable. It is, therefore, set aside. 26. The petition is allowed. Petition allowed.
"1979 CrLJ 0177 KER"