At, Supreme Court of India
By, THE HONORABLE JUSTICE: P.B. GAJENDRAGADKAR THE HONORABLE CHIEF JUSTICE: M. HIDAYATULLAH
By, THE HONORABLE JUSTICE: J.C. SHAH
By, THE HONORABLE JUSTICE: S.M. SIKRI AND THE HONORABLE JUSTICE: R.S. BACHAWAT
1. The question which falls to be determined in these appeals is whether in exercise of the power under Section 94(1) of the Code of Criminal Procedure a Court has authority to summon a person accused of an offence before it to produce a document or a thing in his possession. The words of the clause are general: they contain no express limitation nor do they imply any restriction excluding the person accused of an offence from its operation. In terms the section authorises any Court or any officer in charge of a police-station to issue a summons or written order to the person in whose possession or power such document or thing is believed to be requiring such person to attend and produce it at the time and place indicated in the summons or order. The scheme of the Code also appears to be consistent with that interpretation. Chapter VI of the Code deals with process to compel appearance. A Court may under Section 68 issue a summons for the attendance of any person whether a witness or accused of an offence vide Forms Nos. 1 and 31: Schedule V). Section 75 and the succeeding sections deal with the issue of warrants of arrest of witnesses and persons accused of offences. Chapter VII of the Code deals with process to compel the production of documents and other moveable property and to compel appearance of the persons wrongfully confined and general provisions relating to searches. Section 94 confers on a Court power to issue summons and on a police officer to make an order to any person demanding Production of document or thing believed to be in possession of that person. Indisputably the person referred to in Sub-section (2) of Section 94 is the same person who is summoned or ordered to produce a document or thing. Sections 96 to 99 deal with warrants to search for documents or things. The first paragraph of Section 96 authorises the issue of a search warrant in respect of a place belonging to any person whether he be a witness or an accused person. The inter-relation between Section 94 and the first paragraph of Section 96(1) strongly indicates that the power to issue a search warrant under paragraph one of Section 96(1) is conditional upon the person who it is apprehended will not or would not produce a thing or document being compellable to produce it in pursuance of a summons under Section 94(1). If under Section 94(1) a summons cannot be issued against a person accused of an offence a search warrant under Section 96(1) paragraph 1 can evidently not be issued in respect of a document or thing in his possession. The second and the third paragraphs of Section 96(1) confer power to issue general warrants. The generality of the terms of Section 98 which enable specified Magistrate to issue warrant under search places used for certain purposes also indicates that the power may be exercised in respect of any palace whether it is occupied by an accused person or not. The terms of Section 103 which provide for the procedure for search of any place apply to the search of the house of a person accused of an offence or any other person.
2. Raju J. against whose judgment these appeals are filed opined that Section 94(1) confers no power to issue a summons against an accused person to produce a document or thing in his possession principally on two grounds (i) that Chapters XX to XXIII of the Code do not authorise the issue of a summons or a warrant against a person accused of an offence and (ii) that a direction to attend and produce a document or thing cannot appropriately be made against the person accused. The first ground has no validity and has not been relied upon before us for good reasons.
3. The scheme of the Code clearly discloses that the provisions of Chapters VI and VII which fall in Part HI intituled General provisions are applicable to the trial of cases under Chapter XX to XXIII. Specific provisions with regard to the issue of a summons or warrant to secure attendance of witnesses and accused and production of documents and things are not found in Chapters XX to XXIII because they are already made in Chapters VI and VII. Again the use of the words requiring him to attend and produce it indicates the nature of the command to be contained in the summons and does not imply that the person to whom the summons is directed must necessarily be possessed of unrestricted freedom to physically attend and produce the document or thing demanded.
4. In cases decided by the High Courts of Calcutta and Madras it appears to have been uniformly held that the word person in Section 94(1) includes a person accused of an offence: vide S. Kondareddi and another v
Please Login To View The Full Judgment!
. Emperor; Bissar Misser v. Emperor; and Satya Kinkar Ray v. Nikhil Chandra Jyotishopadhaya. The observations in Ishwar Chandra Ghoshal v. The Emperor to the contrary in dealing with a conviction for an offence under Section 175 Indian Penal Code for failing to comply with an order under Section 94(1) suffer from the infirmity that the Court had not the assistance of counsel for the State. This Court also has expressed the same view in The State of Bombay v. Kathi Kalu Oghad and others. Sinha C.J. delivering the judgment of the majority of the Court observed:
The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him he may be called upon by the Court to produce that document in accordance with the provisions of Section 139 of the Evidence Act...
The learned Chief Justice did not expressly refer to the source of the power but apart from Section 94(1) of the Code of Criminal Procedure there is no other provision which enables a Magistrate to summon a person to produce a document or thing in his possession. The observations made by the Court therefore only relate to the power exercisable under Section 94(1).
5. Mr. Tatachari says that since it is a fundamental principle of the common law of England which has been adopted in our Criminal jurisprudence that a person accused of an offence shall not be compelled to discover documents or objects which incriminate himself a reservation that the expression person does not include a person charged with the commission i.e. of an offence though not expressed implicit in Section 94(1). But the hypothesis that our Legislature has accepted wholly or even partially the rule of protection against self-incrimination is based on no solid foundation.
6. In Phipson on Evidence 10 Edn. p. 264 Paragraph 611 the limit of the principle of protection against self-incrimination as applicable in the United Kingdom and the policy thereof are set out thus:
No witness whether party or stranger is except in the cases hereinafter mentioned compellable to answer any question or to produce any document the tendency of which is to expose the witness (or the wife or husband of the witness) to any criminal charge penalty or forfeiture.
In Paragraph 612 it is stated:
The privilege is based on the policy of encouraging persons to come forward with evidence in courts of justice by protecting them as far as possible from injury or needless annoyance in consequence of so doing.
At common law a person accused of an offence enjoyed in general no immunity from answering upon oath as to charges made against him; on the contrary such answers formed an essential feature of all the older modes of trial from the Saxon ordeal Norman combat compurgation or wager of law. Later on a reaction against the tyranny of the Star Chamber and High Commission Courts set in and the rule became general that no one shall be bound to criminate himself in any court or at any stage of any trial. The privilege was initially claimed only by the defendants but was later conceded to witnesses also. The witness was thereby protected both from answering questions and producing documents. In the case of crimes protection was accorded to questions as to the witness presence at a duel or his commission of bigamy libel or maintenance; in the case of penalties as to pound breach or fraudulent removal of goods by a tenant; and in the case of forfeiture as to breach of covenant to take beer from a particular brewery or to insure against fire or not to sub-let without licence.
(See Phipson Paragraph 613).
7. In the United States of America where the immunity against self-incrimination is constitutional the fifth Amendment provides:
No person...shall be compelled in any criminal case to be a witness against himself.
By judicial interpretation the rule has received a much wider application The privilege is held to apply to witnesses as well as parties in proceedings civil and criminal: it covers documentary evidence and oral evidence and extends to all disclosures including answers which by themselves support a criminal conviction or furnish a link in the chain of evidence and to production of chattel sought by legal process.
8. The rule of protection against self-incrimination prevailing in the United Kingdom or as interpreted by Courts in the United States of America has never been accepted in India. Scattered through the main body of the statute law of India are provisions which establish beyond doubt that the rule has received no countenance in India. Section 132 of the Evidence Act enacts in no uncertain terms that a. witness shall not be excused from answering any questions as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness or that it will expose or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind. This provision runs directly contrary to the protection against self-incrimination as understood in the common law in the United Kingdom.
9. Statutory provisions have also been made which compel a person to produce information or evidence in proceedings which may involve imposition of penalties against him e.g. under Section 45-G and Section 45-L of the Banking Companies Act 1949 as amended by Act 52 of 1953 provision has been made for public examination of persons against whom an inquiry is made. Provisions are also made under Section 140 of the Indian Companies Act 1913 Section 240 of the Companies Act 1956 Section 19(2) of the Foreign Exchange Regulations Section 171-A of the Sea Customs Act 8 of 1878 Section 54 of the Calcutta Police Act Section 10 of the Medical and Toilet Preparation Act 11 of 1955 Section 8 of the Official Secrets Act 19 of 1923 Section 27 of the Petroleum Act 30 of 1934. Section 7 of the Public Gambling Act 3 of 1867 Section 95(1) of the Representation of the People Act 43 of 1951-to mention only a few-compelling persons to furnish information which may be incriminatory or expose them to penalties. Provisions have also been made under diverse statutes compelling a person including an accused to supply evidence against himself. For instance by Section 73 of the Evidence Act the Court is authorised in order to ascertain whether a signature writing or seal is that of the person by whom it purports to have been written or made to direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. It has been held that this power extends to calling upon an accused person to give his writing in Court and make it available for comparison by an expert: King Emperor v. Tun Hlaing and Zahuri Sahu v. King Emperor.
10. Section 4 of the Identification of Prisoners Act 1920 obliges a person arrested in connection with an offence punishable with rigorous imprisonment if so required by a police officer to give his measurements. Section 5 of the Act authorises a Magistrate for the purposes of any investigation or proceeding under the Code of Criminal Procedure 1898 to order any person to be produced or to attend at any time for measurement or photograph to be taken by a police officer. Similarly under Section 129-A or the Bombay Prohibition Act 1949 the Prohibition Officer is authorised to have a person suspected to be intoxicated medically examined and have his blood tested for determining the percentage of alcohol therein. Offer of resistance to production of his body or the collection of blood may be overcome by all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test. Section 16 of the Arms Act 11 of 1878 requires a person possessing arms ammunition or military stores when such possession has become unlawful to deposit the same at the nearest police station and Section 32 of that Act requires all persons possessing arms of which a census is directed by the Central Government to furnish to the person empowered such information as he requires. There are also provisions in the Motor Vehicles Act 4 of 1939 like Sections 87(1) and 2 88 and 89 which require a person to furnish information even about his own complicity in the commission of an offence. It is unnecessary to multiply instances of statutory provisions which impose a duty to give information even if the giving of information may involve the person giving information to incriminate himself. These provisions are prima facie inconsistent with the protection against self-incrimination as recognised under the common law of the United Kingdom or in the constitutional protection conferred by the Fifth Amendment of the American Constitution.
11. The Evidence Act and the Code of Criminal Procedure were enacted at a time when the primary aim of the Government was to maintain law and order. The Legislature was merely a branch of the executive government and was not in the very nature of things concerned with the liberty of the individual. It would therefore be difficult to assume that the rules of the time incorporated in the Indian system of law every principle of the English common law concerning individual liberties which was developed after a grim fight in the United Kingdom. In the matter of incorporation of the rule of protection against self-incrimination both authority and legislative practice appear to be against such incorporation.
12. In this connection it is pertinent to point out that the provisions relating to the production of documents were for the first time introduced in the Code of Criminal Procedure by Act 10 of 1872. These special provisions were presumably thought necessary to be introduced because of the severe criticism made by the Calcutta High Court of the Collector and Magistrate of a District in Bengal in Queen v. Syud Hossain Ali Chowdry It was intended thereby to state in words which were clear the extent of powers which were conferred upon criminal courts and police officers in respect of search of documents or other things. The history of the provisions relating to orders for production and searches is set out in In re Ahmed Mahomed I.L.R. 15 Cal. 110 by Ghose J. at pp. 137-138. After observing that the party referred to in Section 365 (which invested a Magistrate with power to issue a summons to produce documents) might be as it is obvious either the accused himself or a third party and the Legislature in 1872 thought it right to lay it down in clear terms that any party may be compelled to produce documents for the purpose of any investigation or judicial proceeding the learned Judge quoted from the record of the speech of the Lieutenant Governor a passage of which the following is material:
The prevailing ideas on the subject of criminal law had been somewhat affected by the English law; and the departures from the rules of the English law which the Committee recommended were founded on this ground that many of the prominent parts of the English law were based on political considerations the object of those familiar rules of criminal law being not to bring the criminal to justice but to protect the people from a tyrannical Government Not only were those provisions now unnecessary in England but they were especially out of place in a country where it was not pretended that the subject enjoyed...liberty...and it was not intended to introduce rules into the criminal law which were designed with the object of securing the liberties of the people. That being so ... they might fairly get rid of some of the rules the object of which was to secure for the people that jealous protection which the English law gave to the accused. It seemed ... that they were not bound to protect the criminal according to any Code of fair play but that their object should be to get at the truth and anything which would tend to elicit the truth was regarded by the Committee to be desirable for the interests of he accused if he was innocent for those of the public it he was guilty....
For instance ... did not see why they should not get a man to criminate himself if they could; why they should not do all which they could to get the truth from him; why they should not cross-question him and adopt every other means short of absolute torture to get at the truth.
In construing the words used by the Legislature speeches on the floor of the Legislature are inadmissible. I do not refer to the special for the purpose of interpreting the words used by the Legislature but to ascertain the historical setting in which the statute which is parent to Section 94(1) came to be enacted. The judgment of the High Court of Calcutta was followed by the somewhat violent reaction of the executive expressed through the head of the Government and enactment of the statute which prima facie reflected the sentiments expressed. It appears that the Legislature of the time which was nothing but the executive sitting in a solemn chamber set its face against the rule against self-incrimination being introduced in the law of India.
13. Opinion has for a long time been divided on the question whether the principle of self-incrimination which prevailed in the United Kingdom the reason of the original source of the rule having disappeared tends to defeat justice. On the one hand it is claimed that the protection of an accused against self-incrimination promotes active investigation from external sources to find out the truth and proof of alleged or suspected crime. It is claimed that the privilege in its application to witnesses as regards oral testimony and production of documents affords to them in general a freedom to come forward to furnish evidence in courts and be of help in elucidating the truth in a case with materials known to them or in their possession. On the one hand there are strong advocates of the view that this rule has an undesirable effect on the larger social interest of detection of crime and a doctrinaire adherence thereto confronts the State with overwhelming difficulties. It is said that it is a protector only of the criminal. I am not concerned to enter upon a discussion of the relative merits of these competing theories. The Courts function is strictly to ascertain the law and to administer it. A rule continuing to remain on the statute book whatever the reason which induced the Legislature to introduce it at the inception may not be discarded by the Courts even if it be inconsistent with notions or a later date: the remedy lies with the Legislature to modify it and not with the Courts.
14. There is one more ground which must be taken into consideration. The interpretation suggested by Mr. Tatachari interferes with the smooth working of the scheme of the related provisions of the Code of Criminal Procedure. Section 94 prima facie authorises a Magistrate or a police officer for the purposes of any investigation inquiry trial or other proceeding to call upon any person in whose possession or power a document or thing is believed to be to direct him to attend and produce it at the time and place stated in the summons or order Paragraph 1 of Section 96(1) provides that where any Court has reason to believe that a person to whom a summons or order under Section 94 has been or might be addressed will not produce the document or thing as required by such summons or requisition the Court may issue a search warrant. If Section 94 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 Section 96(1) no warrant may be issued to search for a document or thing in his possession. Paragraphs 2 and 3 are undoubtedly not related to Section 94(1). But under paragraph 2 a Court may issue a search warrant where the document or thing is not known to the Court to be in the possession of any person; if it is known to be in the possession of any person paragraph 2 cannot be resorted to. Again if the interpretation of the first paragraph that a search warrant cannot issue for a thing or document in the possession of a person accused be correct issue of a general warrant under the third paragraph which may authorise the search of a place occupied by the accused or to which he had access would in substance amount to circumventing the restriction implicit in paragraph one.
15. Nature of the power reserved to investigating officers by Section 165 of the Code of Criminal Procedure must also be considered. That section authorises a police officer in charge of an investigation having reasonable grounds for believing that anything necessary for purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station and that such thing cannot be otherwise obtained without undue delay to record in writing the grounds of his belief and specify in such writing the thing for which search is to be made and to search or cause search to be made for such thing in any place within the limits of such station. Section 94(1) authorises a police officer to pass a written order for the production of any document or thing from any person in whose possession or power the document or thing is believed to be. If Section 94(1) does not extend to the issue of an order against an accused person by a police officer would the police officer in charge of the investigation be entitled to search for a thing or document any place occupied by the accused or to which he has access for such document or thing? To assume that the police officer in charge of the investigation may in the course of investigation exercise power which cannot be exercised when the Court issues a search warrant would be wholly illogical. To deny to the investigating officer the power to search for a document or thing in the possession of a person accused is to make the investigation in many cases a farce. Again if it be held that a Court has under the third paragraph of Section 96(1) power to issue a general search warrant exercise of the power would make a violent infringement of the protection against self-incrimination as understood in the United Kingdom because the Courts in that country frowned upon the issue of a general warrant for search of a document or thing: Entick v. Carrington 19 Howell, St. Tr. 1029.
16. On a review of these considerations in my view the rule of protection against self-incrimination as understood in the United Kingdom has not been accepted in India. It does not apply to civil proceedings or to proceedings which involve imposition of penalties or forfeitures. By express enactments witnesses at trials are not to be excused from answering questions as to any relevant matter in issue on the ground that the answer may incriminate such witness or expose him to a penalty. It is open to the State to call for information which may incriminate the person giving information and under certain statutes an obligation is imposed upon a person even if he stands in danger of being subsequently arraigned as accused to give information in respect of a transaction with which he is concerned. Provision has been made requiring a person accused of an offence to give his handwriting thumb marks finger impressions to allow measurements and photographs to be taken and to be compelled to submit himself to examination by experts in medical science. To held notwithstanding the apparently wide power conferred that a person accused of an offence may not in exercise of the power under Section 94(1) be called upon to produce documents or things in his possession on the assumption that the rule of protection against self-incrimination has been introduced in our country is to ignore the history of legislation and judicial interpretation for upwards of eighty years.
17. It was for the first time by the Constitution under Article 20(3) that a limited protection has been conferred upon a person charged with the commission of an offence against self-incrimination by affording him protection against testimonial compulsion. The fact that in certain provisions like Sections 161, 175, 342 and 343 of the Code of Criminal Procedure limited protection in the matter of answering questions which might tend to incriminate or expose him to a criminal charge or to penalty or forfeiture has been granted may indicate that in the interpretation of other provisions of the Code an assumption that the protection against self-incrimination was implicit has no place.
18. Failure to comply with an order under Section 94 of the Code of Criminal Procedure may undoubtedly expose a person to penal action under Section 485 of the Code and he may be prosecuted under Section 175 of the Indian Penal Code. In my judgment refusal to produce a document or thing on the ground that the protection guaranteed by Article 20(3) would since the enactment of the Constitution be infringed thereby would be a reasonable excuse for non-production within the meaning of Section 485 of the Code of Criminal Procedure and an order which is in violation of Article 20 requiring the person to produce a document would not be regarded as lawful within the meaning of Section 195 of the Indian Penal Code. But apart from the protection conferred by Article 20(3) there is no reservation which has to be implied in the application of Section 94(1).
19. I must mention that in this case we are not invited to decide whether Section 94(1) infringes the guarantee of Article 20(3) of the Constitution. That question has not been argued before us and I express no opinion thereon. Whether in a given case the guarantee of protection against testimonial compulsion under Article 20(3) is infringed by an order of a Court acting in exercise of power conferred by Section 94(1) must depend upon the nature of the document ordered to be produced. If by summoning a person who is accused before the Court to produce documents or things he is compelled to be a witness against himself the summons and all proceedings taken thereon by order of the Court will be void. This protection must undoubtedly be made effective but within the sphere delimited by the judgment of this Court in Kathi Kalu Oghads case. It needs however to be affirmed that the protection against what is called testimonial compulsion under Article 20(3) is against proceedings in Court: it does not apply to orders which may be made by a police officer in the course of investigation. The Court cannot therefore be called upon to consider whether the action of a police officer calling upon a person charged with the commission of an offence to produce a document or thing in his possession infringes the guarantee under Article 20(3) the Constitution.
20. In my view the appeals should be allowed and the reference made by the Sessions Judge should be accepted.
In Criminal Appeals Nos. 140 to 142 of 1963.
21. Shah J. These appeals raise the same question which has been raised in the principal appeals Nos. 135-139 of 1963. The respondent in these appeals was prosecuted for breach of provisions of Section 52(1)(a) read with Section 92 of the Factories Act 1948 by the Junior Inspector of Factories Nadiad before the Judicial Magistrate First Class Borsad. An application was submitted under Section 94 of the Code of Criminal Procedure requesting the Court to summon the respondent to produce the factories inspection book containing the remarks made by the Junior Inspector and factories muster Roll signed by the Junior Inspector. The Magistrate declined to pass an order holding that the respondent was protected under Article 20(3) of the Constitution. A reference made by the Sessions Judge recommending that the order of the Magistrate be set aside was rejected by the High Court.
22. In my view for reasons which have been set out in the principal appeals Nos. 134-139 of 1963 these appeals should be allowed and the order of the Magistrate be set aside.
In Criminal Appeals Nos. 135 to 142.
23. Sikri J. (on behalf of himself and Gajendragadkar C.J. Hidaytullah and Bachawat JJ.). These are appeals by the State of Gujarat against the judgment of the High Court of Gujarat in Criminal References Nos. 106110 of 1961 (in Criminal Appeals Nos. 135-139 of 1963) and Criminal References Nos. 111-113 of 1961 (in Criminal Appeals Nos. 140-142 of 1963 on a certificate granted by the High Court under Article 134(1)(c) of the Constitution of India. These raise a common question of law namely whether Section 94 of the Criminal Procedure Code applies to an accused person. Facts in one appeal need only be set out to appreciate how the question arose.
24. The respondent in Criminal Appeal No. 135 of 1963 Shyamlal Mohanlal is a registered moneylender doing business as moneylender at Umreth. He is required to maintain books according to the provisions of the Moneylenders Act and the Rules made thereunder. He was prosecuted for failing to maintain the books in accordance with the provisions of the Act and the Rules in the Court of the Judicial First Class Magistrate Umreth. The Police Prosecutor in charge of the prosecution presented an application on July 20 1961 praying that the Court be pleased to order the respondent to produce daily-account book and ledger for the Samvat year 2013-2014. It was alleged in the application that the prosecution had already taken inspection of the said books and made copies from them and that the original books were returned to the accused and they were in his possession. The learned Magistrate relying on Article 20(3) of the Constitution refused to accede to the prayer on the ground that the accused could not be compelled to produce any document. He followed the decision in Ranchhoddas Khimji Ashere v. Tempton Jehangir.
25. The State filed a revision before the learned Sessions Judge of Kaira at Nadiad. Basing himself on the decision of this Court in State of Bombay v. Kathi Kalu Oghad he held that the documents which are sought to be got produced by the prosecution in the case under my consideration can be allowed to be produced by compulsion if they do not contain any personal knowledge of the accused concerned. He felt that it was first necessary to ascertain whether the documents contained any personal statement of the accused person. He concluded that the matter will have to be referred back to the learned Magistrate to ascertain this first and then to decide the matter in the light of the observations made by the majority in Kalu Oghads case. Accordingly a reference was made to the High Court with the recommendation that the matter be referred back to the learned Magistrate with suitable directions. The High Court agreeing with the Sessions Judge held that it was clear from the decision of this Court in Kalu Oghads case that if an accused produces a document that would not offend Article 20(3) of the Constitution unless the document contains statements based on the personal knowledge of the accused. But the High Court went on to consider another question that being whether the Court had power to compel an accused person to produce a document. The High Court after reviewing the authorities bearing on this point came to the conclusion that Section 94 of the Criminal Procedure Code did not apply to an accused person. It accordingly agreed with the Magistrate that the application of the Police Prosecutor be rejected.
26. Sections 94 and 96 of the Code of Criminal Procedure read as follows:
94(1). Whenever any Court or in any place beyond the limits of the towns of Calcutta and Bombay any officer in charge of a police-station considers that the production of any document 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 or 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 produce 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 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 to affect the Indian Evidence Act 1872 Sections 123 and 124 or to apply to a letter postcard telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities. 96 Where any Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under Section 95 Sub-section (1) has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition.
or where such document or thing is not known to the Court to be in the possession of any person or where the Court considers that the purposes of any inquiry trial or other proceeding under this Code will be served by a general search or inspection it may issue a sear h-warrant; and the person to whom such warrant is directed may search or inspect in accordance therewith and the provisions hereinafter contained.
(2) Nothing herein contained shall authorise any Magistrate other than a District Magistrate or Chief Presidency Magistrate to grant a warrant to search for a document parcel or other thing for the custody of the Postal or Telegraph authorities.
27. Before construing Section 94 it is necessary to recall the background of Article 20(3) of the Constitution. One of the fundamental canons of the British system of Criminal Jurisprudence and the American Jurisprudence has been that the accused should not be compelled to incriminate himself. This principle 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 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. (M.P. Sharma v. Satish Chandra District Magistrate Delhi).
28. One of the early extensions of the doctrine was with regard to the production of documents or chattel by an accused in respect to a subpoena or other form legal process. In 1749 Lee C.J. observed in R. v. Purnell: We know of no instance wherein this Court has granted a rule to inspect books in a criminal prosecution nakedly considered. In Roe v. Harvey Lord Mansfield observed that in civil causes the Court will force parties to produce evidence which may prove against themselves or leave the refusal to do it (after proper notice) as a strong presumption to the jury. But in a criminal or penal cause the defendant is never forced to produce any evidence thought he should hold it in his hands in Court. In Redfern v. Redfern Bowen L.J. stated: It is one of the inveterate principles of English Law that a party cannot be compelled to discover that which if answered would tend to subject him to any punishment penalty forfeiture or ecclesiastical censure.
29. The Indian Legislature was aware of the above fundamental canons of criminal jurisprudence because in various Sections of the Criminal Procedure Code it gives effect to it. For example in Section 175 it is provided that every person summoned by a Police Officer in a proceeding under Section 174 shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture . Section 343 provides that except as provided in Sections 337 and 338 no influence by means of any promise or threat or otherwise shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge. Again when the accused is examined under Section 342 the accused does not render himself liable to punishment if he refuses to answer any questions put to him. Further now although the accused is a competent witness he cannot be called as a witness except on his own request in writing. It is further provided in Section 342A that his failure to give evidence shall not be made the subject of any comment by any parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial.
30. It seems to us that in view of this background the Legislature if it were minded to make Section 94 applicable to an accused person would have said so in specific words. It is true that the words of Section 94 are wide enough to include an accused person but it is well-recognised that in some cases a limitation may be put on the construction of the wide terms of a statute (vide Craies on Statute Law p. 177). Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be if possible construed as not to alter the common law (vide Craies on Statute Law p. 187).
31. There is one other consideration which is important. Article 20(3) has been construed by this Court in Kalu Oghads case to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Section 94 Criminal Procedure Code permits the production of all documents including the above-mentioned class of documents. If Section 94 is construed to include an accused person some unfortunate consequences follow. Suppose a police officer-and here it is necessary to emphasize that the police officer has the same powers as a Court-directs an accused to attend and produce or produce a document. According to the accused he cannot be compelled to produce this document under Article 20(3) of the Constitution. What is he to do? If he refuses to produce it before the Police Officer he would be faced with a prosecution under Section 175 Indian Penal Code and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid order if Section 94 applies to an accused person. This becomes clearer if the language of Section 175 is compared with the language employed in Section 485 Cr. P.C. Under the latter section a reasonable excuse for refusing to produce is a good defence. If he takes the document and objects to its production there is no machinery provided for the police officer to hold a preliminary enquiry. The Police Officer could well say that on the terms of the section he was not bound to listen to the accused or his counsel. Even if he were minded to listen would he take evidence and hear arguments to determine whether the production of the document is prohibited by Article 20(3). At any rate his decision would be final under the Code for no appeal or revision would be against his order. Thus it seems to us that if we construe Section 94 to include an accused person this construction is likely to lead to grave hardship for the accused and make investigation unfair to him.
32. We may mention that the question about the constitutionality of Section 94(1) Cr. P.C. was not argued before us because at the end of the hearing on the construction of Section 94(1) we indicated to the counsel that we were inclined to put a narrow construction on the said section and so the question about its constitutionality did not arise. In the course of arguments however it was suggested by Mr. Bindra that even if Section 94(1) received a broad construction it would be open to the Court to take the view that the document or thing required to be produced by the accused would not be admitted in evidence if it was found to incriminate him and in that sense Section 94(1) would not contravene Article 20(3). Even so since we thought that Section 94(1) should receive a narrow construction we did not require the advocates to pursue the constitutional point any further.
33. Keeping the above considerations in mind let us look at the terms of the section. It will be noticed that the language is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce are rather inept to cover the case of an accused person. It would be an odd procedure for a court to issue a summons to an accused person present in court to attend and produce a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to attend and produce a document.
34. The argument pressed on us that the person referred to in the latter part of Section 94(1) is broad enough to include an accused person does not take into account the fact that the person in the latter part must be identical with the person who can be directed to produce the thing or document and in the production of the thing or document cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of Criminal Law the generality of the word the person is of no significance.
35. Mr. Bindra invited our intention to Section 139 of the Evidence Act which provides that a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness. But this section has no application to the police officer and it will be noticed that Section 94 provides for two alternative directions: the first is attend and produce and the second Produce a document. If a police officer directs him to attend and produce he cannot comply with the direction by causing a document to be produced.
36. If after a thing or a document is produced its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person the order to produce the thing or document would seem to serve no purpose; it cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasions the power under Section 94(1) would be resorted to so that on the alternative view which seeks to exclude incriminating documents or things the working of Section 94(1) would yield no useful result.
37. It is urged by Mr. Bindra that this construction of Section 94 would under Section 96 useless for no search warrant could be issued to search for documents known to be in the possession of the accused. This may be so but a general search or inspection can still be ordered. As far as the police officer is concerned he can use Section 165 Criminal Procedure Code.
38. It is not necessary to review all the cases cited before us. It will be sufficient if we deal with the Full Bench decision of the Calcutta High Court in Satya Kinkar Ray v. Nikhil Chandra Jyotishopadhya for the earlier cases are reviewed in it. Three main considerations prevailed with the High Court: First that giving Section 94 its ordinary grammatical construction it must be held that it applies to accused persons as well as to others; secondly that there is no inconsistency between Section 94 and other provisions of the Code and thirdly that this construction would not make the section ultra vires because calling upon an accused person to produce a document is not compelling the accused to give evidence against himself. Regarding the first two reasons we may point out that these reasons do not conclude the matter. The High Court did not advert to the importance of the words attend and produce in Section 94 or the background of Article 20(3). The third reason is inconsistent with the decision of this Court in M.P. Sharma v. Satish Chandra and the learned Chief Justice might well have arrived at a different result if he had come to the conclusion that to call an accused person to produce a document does amount to compelling him to give evidence against himself.
39. We may mention that the construction which we have put on Section 94 was also placed in Ishwar Chandra Ghoshal v. The Emperor Bajrangi Gope v. Emperor and Raj Chandra Chakravati v. Hare Kishore Chakravati.
Therefore agreeing with the High Court we hold that Section 94 on its true construction does not apply to an accused person. The result is that the appeal is dismissed.
It is not necessary to give facts in the other appeals because nothing turns on them. As stated above the same question arises in them. The other appeals also fail and are dismissed.
We would like to express our appreciation of the assistance which Mr. Tatachari gave us in this case as amicus curiae.
In accordance with the opinion of the majority these appeals are dismissed