Author: Mahima Sharma Co-author: Deepraj Bhaumik
Brief facts of the Case
Ramakrishnan (Respondent/Complainant) had filed a case against V. S Kuttan Pillai (petitioner) and 5 others under section 403, 409, 420 and 477A read with section 34, Indian Penal Code. The complainant made an application on 4th January 1977 requesting the magistrate to issue a search warrant to search the office of premises of the Rajya Sabha to seize the books, documents etc. as described in the application. The magistrate on the same day issued a search warrant and certain books, vouchers and papers were seized and presented before the court. The petitioner requested the magistrate to recall the warrant and to return the books and documents seized under the authority of the search warrant. The magistrate relying on the case of Shyamlal Mohan V state of Gujrat was of the opinion that no search warrant could be issued under section 91 of the CrPC and accordingly directed that anything recovered by the virtue of the issued warrant to be returned. The respondent filed a revision application to the High Court of Kerala questioning the correctness of the decision and the claim to constitutional immunity of the accused from search and seizure of books, documents, etc. directed with a view to collecting evidence against him, being violative of Art. 20(3) of the Constitution. The High Court held that the provisions contained in s. 93(1) of the CrPC. were not hit by Art. 20(3) of the Constitution. The petitioner by the virtue of Special leave petition filed the case in the Supreme Court.
Whether the provisions contained in Section 93(1) of the CrPC are violative of Art.20(3) of the Indian Constitution.
Ans- No, the court held that a search warrant issued would not be violative of the constitutional guarantee enshrined in the Article 20(3).
Sections- Code of Criminal Procedure, 1973:
Section-91-“(1) Whenever any Court or 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 m 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.”
Section-93 -“(l)(a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section ( 1 ) of section 92 has been, or might, be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or
(b) where such document or thing is not known to the Court to be in the possession of any person, or
(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained".
Constitution of India
Article 20(3) “No person accused of any offence shall be compelled to be a witness against himself.”
In this case the court held that a search warrant issued would not be violative of the constitutional guarantee enshrined in the Article 20(3). The court relied on the case of M.P. Sharma & others v. Satish Chandra, District Magistrate Delhi & Ors.- The court in that case observed that "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches". By the virtue of this case it was concluded that a search under the enabling provisions of the Criminal Procedure Code cannot be challenged as illegal on the ground of violation of Article 20(3). However the Court explored the aspects of the case of Shyamlal Mohanlal V. State of Gujrat. In this case the magistrate rejected the request to issue warrants on the ground that in so doing the guarantee of immunity from self- incrimination would be violated. The matter was brought before the court and the question put forth was whether the expression person S.94(1)( the old code, now S.91(1) comprehends a person accused of an offence and if it does, whether an issue of summons to produce a document in his possession or power would violate the immunity against self-incrimination guaranteed by Article 20(3). By the majority in this case it was held by the Court that S.94(1) does not apply to an accused person. However, the Court later relied upon the case of The state of Bombay V Kathi Kalu Gohad & ors which had a dissenting opinion of the above said statement and a similar opinion to the M.P Sharma case. In that case it was observed that Art. 20(3) would be no bar to the summons being issued to a person accused of an offence to produce a thing or document.
The court further elaborated that if a summon cannot be issued to an accused person under S.91(1) then ipso facto a search warrant cant be issued under section 93(1)(a) as a search warrant can be issued only when a summon could be served. The court further emphasized that section 93 considers other situations as well other than S.93(1) a. The court said that it is clear that the current search warrant is not issued under s. 93 (1)(a). In light of Section 93(1)(b) a general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it and it was not known to the Court that the person from whose possession it was found was in possession of it. In the present case the search warrant was to be executed at the office of the Sabha and it can be said that office bearers of the Sabha were the persons who were in possession of the documents in respect of which the search warrant was issued. Therefore, clause (b) of s. 93(1) would not be attracted.
Under Section 93(1) (c) of the new Code the court elaborated that the court may issue a search warrant for the purpose of an inquiry, trial or other proceeding under the Code. The court explained that when such a general search warrant is issued then the accused may be searched and the documents found therein can be seized irrespective of the fact that the documents may contain some statement made by the accused upon his personal knowledge and which when proved may have the tendency to incriminate the accused. The court explained that merely the accused is occupying the premise which is to be searched it can’t be remotely said that the search and seizure would violate the constitutional guarantee under Article 20(3) against self- incrimination because he is not compelled to do anything.
In this case it was held that the Magistrate clearly led to non-application of mind. The order tended to be laconic in nature. An issue of search warrant under Section 93(1)(c) could be sustained and there is no illegality in issuance of a search warrant. However, the discretion to issue the warrant shall be on the magistrate and nothing contained in the provision of Section 91 and Section 93(1)(c) would lead to the violation guaranteed under Article 20(3) of the constitution of India.
In this case the biggest question was to understand the phrase “nemo teneteur prodre accussare seipsum”, which essentially means “no man is bound to accuse himself.” Article 20(3) safeguards a person against self-incrimination. Whereas the question in this case was whether issuing a warrant to search by virtue of section 91 and 93(1) of the CrPC violates the guarantee enshrined under article 20(3) of the Indian constitution. By the virtue of this case it has been understood that merely issuing a warrant for search does not lead to violation of article 20(3). It is seen that under section 93(1) a search and seizure does not even show a remotest tendency to compel the accused to incriminate himself. A passive submission to search cannot be said as a compulsion to the accused and if anything, which is recovered during such search which may provide incriminating evidence against the accused it cannot be styled as compelled testimony. Hence, nothing contained in the provision of Section 91 and Section 93(1)(c) would lead to the violation guaranteed under Article 20(3) of the constitution of India.