CrPC 1

Constitutional Aspects of Validity

Of Search and Seizure
Proceedings

Submitted To: Submitted

By:

Dr. Sangita Bhalla Harkiran Singh

Brar

87/10
 CrPC 2

Vth Semester

ACKNOWLEDGEMENT
I owe a great many thanks to a great many people who helped and supported me during the
writing of this project.

My deepest thanks to my CrPC Lecturer, Dr. Sangita Bhalla, the Guide of the project for
guiding me and correcting various documents of mine with attention and care. She has taken
pain to go through the project and make necessary corrections as and when needed.

I would also thank my Institution and my faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.
 CrPC 3

Table of Contents
Constitutional Aspects of Validity of Search and Seizure Proceedings.................................................4
General Provision regarding search and seizure....................................................................................4
“To be a witness” real meaning.............................................................................................................7
Historical Background...........................................................................................................................7
Correcting the flaw................................................................................................................................9
Conclusion...........................................................................................................................................10
Bibliography........................................................................................................................................11
 CrPC 4

Constitutional Aspects of Validity of

Search and Seizure Proceedings
The entire procedure specified in the Code of criminal procedure, 1973 is based on principle
of justice and fairness. One of the fundamental principles of legal jurisprudence is that a
person accused of any offence should be given equal chance to be heard and to defend
himself. It is in consonance with this theory only that there are provisions in Code of
Criminal Procedure, 1973 (CrPC) related to issue of process, provisions in section 161 (3),
provision in section 162 of the code that any statement recorded during the course of
investigation, shall not be signed by the person making the statement, has been specified.

Similarly upholding the similar proposition, the protection against self-incrimination has
been provided as a special fundamental right, under Part III of the Constitution of India.
Article 20(3) states that:

“No person accused of any offence shall be compelled to be a witness against himself.”

The issue has been dealt in detail by the apex court of this country in case of M.P Sharma
and others v Satish Chandra, State of Bombay v Kathi Kalu Oghad and State of
Gujarat v Shyamlal Mohanlal Choksi. After going through all the three case laws it is felt
that the matter has been wrongly taken up by the court. The Supreme Court in Kalu Oghad’s
case has narrowly interpreted the expression “to be a witness” which has created situation
where a very narrow space is available for the actual protection of this right in respect of
production of documents.

This has been done by dealing with the general provisions of search and seizure and then
analysing the Shyamlal Choksi as well as Kalu Oghad’s case.

General Provision regarding search and seizure

Section 91 with the head note Process to Compel Production of Things of the Code of
Criminal Procedure, 1973 states that:

(1) Whenever any Court or any officer in charge of a police station consider that the
production of any document or other thing is necessary or desirable for the purpose 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.
 CrPC 5

(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.

Whereas Section 93 When search warrant may be issued; in sub section (1) provides that:

(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 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 thing or document is not known to the court to be
in the possession of any person, or (c) where the Court consider that the purpose 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 provisions hereinafter contained.

This means that an officer in charge of a police station can send a notice or a court can issue
a summon under section 91(1) to any person within whose possession the officer or court
thinks is the document or a thing necessary for the purpose of investigation. But if the court
or officer feels that the person to whom the summons or notice is issued, will not produce the
document or thing, the court can issue a warrant of search to the officer, under section 93(1)
(a).

From time to time the constitutional validity of the warrant issued under Section 93(1) (a), in
context of Article 20(3) has been raised. The contentions were raised that the term “any
person” in section 91(1) not only includes witnesses and other persons, but also includes the
accused. Therefore if the accused person do not obeys the summons, he will have to face a
compelled search in his house, and this itself shows the compulsion put on the accused.
Further, the compelled search made will be an intrusion into the privacy. Also there will be a
prosecution for the offence committed under section 174 of the Indian Penal Code, 1860.
Therefore in light of all this the summons issued is a compulsion on the accused person to
produce self-incriminating evidences, thereby completely violating his fundamental right
guaranteed under Article 20(3).

With regard to the first proposition about the process of issue of search warrant under section
93(1) (a), the Honourable Supreme Court in the leading case of M.P Sharma and Others v
Satish Chandra, District Magistrate, Delhi and Others, through Jaghandadas J. stated
that:

“It may be mentioned in passing that the provision for the issue of general search warrants
appears for the first time in procedure Code of 1882 and even there the issue of general
warrants is not based on non-compliance with a previous summons for production. 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 is 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.
 CrPC 6

A notice to produce is addressed to the party concerned and his productions in compliance
therewith constitute a testimonial act by him within the meaning as explained above. But
search warrant is addressed to an officer of the government, generally a police officer.
Neither the search nor the seizures 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.”

Which in whole means that the search conducted by the police officer or any investigating
officer will be valid only if it has been conducted without any help (involuntary help) from
the person, only if any formal accusation has been levelled against the person.

However with regard to intrusion into the privacy, it has been settled that the right to privacy
is not an absolute right and is subject to reasonable restriction whenever there are
contravelling interest, which requires much weight age than the right to privacy of the
person, for the sake of justice.

Now the only question which is left, is: whether the accused will be penalized under section
174 of the IPC, 1860 if he does not comply with the notice or summons is issued to him?

Section 174 with head note Non- attendance in obedience to an order from public servant,
states that:

Whoever, being legally bound to attend in person or by agent at a certain place and time in
obedience to a summon, notice, order or proclamation proceeding from any public servant
legally competent, as such public servant, to issue the same, Intentionally omits to attend at
that place or time, or departs from the place where he is bound to attend before the time at
which it is lawful for him to depart, Shall be punished with simple imprisonment for a term
which may extend to one month, or with fine which may extend to five hundred rupees, or
with both, Or, if the summons, notice, order or proclamation is to attend in person or by
agent in a Court of Justice, with a simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.

With regard to the above proposition, the apex court in case of State of Gujarat v Shyamlal
Mohanlal Choksi has held that the term “any person” in section 91 of CrPC does not include
the person accused of any offence and therefore no notice can be issued to the accused.

However the judgment of the court in the above case does not absolutely restrict the accused
person. The ratio decidendi of the judgment has kept open the doors for the same amount of
flexibility (which will be dealt in detail), which is strictly within the boundaries constructed
by the same Supreme Court in case of State of Bombay v Kathi Kalu Oghad.

In the above case one of the absurd decision was made by the Supreme Court (majority
bench) where a narrow interpretation of the phrase “to be a witness” specified in Article
20(3) was made. Therefore this interpretation along with the decision in Shyamalal’s case
raises two issues:
 CrPC 7

(1) Whether the proposition stated by the majority bench in the Kathi Kalu Oghad case is
practically applicable, in light of the protection against self-incrimination?

(2) Whether still there is a scope that the person accused of any offence can be summoned to
produce any document or other thing for the purpose of investigation?

“To be a witness” real meaning

The protection against self-incrimination as has been provided in Article 20(3) is based on
the following principle: “nemo tenetur prodere or nemo tenetur scripsum accusare” which
means that an accused should not be compelled to furnish any evidence against him. It is the
duty of the State/ prosecution to prove him guilty, beyond reasonable doubt. This is just to
give proper equal opportunity to accused to know what charges has been levelled against
him, what case the prosecution has prepared and then on the basis of which he will prepare a
proper defence for himself.

Historical Background
This principle has been embodied in the statutes first in the fifth amendment of the American
Constitution which states that:

“No person……… shall be compelled in any criminal case to be a witness against himself”

The same principle has been embodied in the Indian Constitution, but with some different
words:

Article 20(3): No person accused of any offence shall be compelled to be a witness against
himself.

The difference between the two provisions has been dealt in detail in the previous chapter.
The expression “to be a witness” here needs some special consideration as the soul of the
entire provision lie in this expression. The interpretation of this expression will determine the
extent up to which whether there is a complete umbrella against self-incrimination or not.

The Supreme Court in case of Sharma v Satish stated that “to be a witness” means to
become a witness and not to appear as a witness and thus the protection not only extends to
compelled testimony in court but extend even to pre-trial investigation and interrogation.
This interpretation of the phrase has been even followed by the same court in State of
Bombay v Kathi Kalu Oghad and State of Gujarat v Shyallal Mohanlal Choksi.

However apart from this interpretation, one another interpretation made by the apex court in
Kalu Oghad’s case where the majority through Sinha, Bhuvneshwar P, (CJ) stated that:

“To be a witness means imparting knowledge in respect of relevant facts, by means of oral
statements in writing, by a person who has personal knowledge of the facts to be
communicated to a court or to a person holding enquiry or investigation.
 CrPC 8

A person is said to be a witness, to a certain state of facts which has to be determined by a

court or authority to come to a decision, by testifying to what he has seen, or something
which he has heard which is capable of being heard and is not hit by rule excluding hearsay
or giving his opinion, as an expert, in respect of matters in controversy.”

Therefore even if an accused has any document which has the tendency to expose the guilt of
the accused, or by which he will himself confirm the criminal charges against him, he can be
summoned to produce the document and that the summoned issued will not be considered to
be against self-incrimination. The only requirement is that the content of the document
should not disclose any information based on the personnel knowledge of the accused.

With regard to this Das Gupta J: speaking for the minority in the same case, criticized the
above proposition in following words:

“We have to remind ourselves that while on the one hand that Constitution - makers could
not have intended to stifle legitimate modes of investigation we have to remember further
that quite clearly they thought that certain things should not be allowed to be done, during the
investigation or trial, however helpful they might seem to be the unfolding of truth and an
unnecessary apprehension of disaster to, the police system and the administration of justice,
should not deter us from giving words their proper meaning.”

With regard to the practical application of the same proposition he further cited an example
that if an accused person has in his possession, a letter written to him by an alleged co-
conspirator in reference to their common intention in connection with the conspiracy for
committing particular offence. Under section 10 of the Evidence Act, 1872 the document is
the relevant fact as against the accused himself for the purpose of proving the conspiracy and
also for the purpose of showing that any such person was party to it. By producing this
accused will not be imparting, any personnel knowledge of facts; yet it would be certainly be
giving evidence of a relevant facts.

Though not on the basis of the personnel knowledge, but certainly the submission of
document will be self-incriminatory. But as per the ratio decidendi of the majority in this
case, this will be the practical application. Therefore this itself is evident as to what is scope
of the applicability of the protection guaranteed by Article 20(3).

However in a later decision in the case of State of Gujarat v Shyamlal Mohanlal Choksi.
Supreme Court held that the term ‘person’ under section 91(1) does not include the accused
person. However going again by the ratio decidendi of the judgment the court has stated that
it is implicit in the section 91(1) that an accused will not be called for any document which
will be self-incriminating. The Sikri J. speaking for the majority stated that:

“If after a thing or 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;
 CrPC 9

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 occasion the power under section
94(1) would be resorted to, so that on the alternative view which seeks to exclude
incriminating document or things, the working of section 94(1) would yield no result.”

So could it now be said that the person accused of any offence has been completely excluded
from the application of power under section 91(1)?

The decision of the apex court has to be looked in light of the judgment of the court in Kalu
Oghad’s case. Therefore summing up both these judgments together it could be very well
established that the accused, with due respect to his right against self-incrimination, is
definitely exempted from being summoned to produce incriminating documents but only if it
does not contain any material on the basis of his personal knowledge.

This will definitely raise a question in the mind that how the authority will come to
know that whether any document is based on the personal knowledge of the accused?

The answer to this typical question is very simple. First the authorities will call the
accused person with the documents, after which they will come to know whether the
document is incriminating or not (strictly according to the majority ruling in Kalu
Oghad’s case).

This has created a situation where both the heads and the tales are in the hand of
authorities.

Correcting the flaw

The entire discussion made above raise only one question in mind. Is this was the legislative
intention behind this protection afforded to the accused? Is this is what really should be?

This fact is clearly established that the right against self-incrimination is not an
absolute privilege provided to the accused but still the interpretation of phrase
procedure established by law as has been done by the Court in Maneka Gandhi case is
to be a just fair and reasonable procedure. Any procedure will ensure justness and
fairness only when it respects the right of victim and accused equally. On the contrary
the present law developed is violating the right to equal protection of law under Article
14 of the accused or suspect. So how is the justness and fairness ensured to the accused? It
will definitely, finally lead him to the accusation. Therefore how much substantive the
document is, how much relevant it could be for proving the fact in issue beyond reasonable
doubt, if it is incriminating it should not be called by the accused by issuing any notice or
summons. If called than it should be considered as an inadmissible document. Repeating the
Sikri J. in Shyamlal’s case the term ‘any person’ in section 91 should exclude the accused
person. Only than the real objective with which the right against self-incrimination was
included as a fundamental right, will be achieved.
 CrPC 10

Conclusion
Since time it has been stated that the right against self-incrimination is actually a privilege
provided to an accused and is the major factor in defeating the justice. This is not the first
time when such an attempt has been made to change the nature of what has actually been
stated in Article 20(3). Malimath Committee Report titled “Reforms in Criminal Justice
system” has even held that though the accused has right to remain silent an inference could
be well drawn from the silence of the accused, which is also contrary to the principle of the
right to remain silent of the accused.

After the enactment of the constitution of India in 1950 India became a sovereign socialist
secular democratic republic. It is now well competent to decide its political and economic
future. At the time of the enactment of the Constitution this humane right of the accused
that is right against self-incrimination was included in article 20 of the Constitution of India,
not to insult the right of the accused in this very manner as has been made by narrowly
interpreting it.

Therefore it is urged to the lawmakers of the country that there should be equal respect of
this very right in the manner as the other fundamental rights are respected.
 CrPC 11

Bibliography
BOOKS

 MISRA, S.N. The Code of Criminal Procedure, 1973, 18th Edition. Allahabad:
Central Law Publications, 2012

 KELKAR, R.V. Lectures on Criminal Procedure, 4th Edition. Lucknow: Eastern

Book Company, 2011

WEBSITES

 <http://legalservicesindia.com/article/article/section-91(1)-crpc-an-analysis-of-
constitutional-validity-675-1.html> last accessed on 30.10.12

 <http://crl-law.blogspot.in/2009/10/search-and-seizure.html> last accessed on

30.10.12