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PETITIONER:

M. P. SHARMA AND OTHERS

Vs.

RESPONDENT:

SATISH CHANDRA, DISTRICT MAGISTRATE,DELHI, AND OTHERS.

DATE OF JUDGMENT:

15/03/1954

BENCH:

JAGANNADHADAS, B.

BENCH:

JAGANNADHADAS, B.

HASAN, GHULAM

BHAGWATI, NATWARLAL H.

AIYYAR, T.L. VENKATARAMA

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1954 AIR 300 1954 SCR 1077

CITATOR INFO :

D 1960 SC 756 (9)

RF 1961 SC 29 (21,22,25)

D 1961 SC1808 (1,4,8,9,11,13,14,19,21,22,31)

RF 1965 SC1251 (27,38)

E 1970 SC 940 (12,14)

D 1972 SC 591 (22)

F 1973 SC1196 (18)

F 1974 SC 348 (9,24)

RF 1976 SC1167 (3)

R 1978 SC1025 (31,38)

RF 1980 SC 185 (4)

RF 1981 SC 379 (62,66,87)

ACT:

Constitution of India, arts. 19(1)(f) and 20(3)-Search

warrant issued under s. 96(1) of the Code of Criminal

Procedure (Act V of 1898)-Whether ultra, vires art.

19(1)(f)-Search and seizure of

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documents under ss. 94 and 96 of the Code of Criminal

Procedure Whether compelled production thereof--Within the

meaning of art. 20(3).

HEADNOTE:

Held, that the provision for the search warrant under

the first alternative of a. 96(1) of the Code of Criminal

Procedure does not offend art. 19(1)(f) of the Constitution.

A search and seizure is only a temporary interference with

the right to hold the property searched and the articles

seized. Statutory recognition in this behalf is a necessary

and reasonable restriction and cannot per se be considered

to be unconstitutional.

A compelled production of incriminating documents by a

person against whom a First Information Report has been made

is testimonial compulsion within the meaning of art. 20(3)

of the Constitution. But a search and seizure of a document

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under the provisions of as. 94 and 96 of the Code of

Criminal Procedure is not a compelled production thereof

within the meaning of art. 20 (3) and hence does not offend

the said Article.

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 the fundamental right to

privacy, analogous to the American Fourth Amendment, there

is no justification for importing into it, a totally

different fundamental right by some process of strained

construction.

Scope and connotation of art. 20(3) explained.

John Lilburn's Case (3 State Trials 1315), Boyd v.

United States (116 U.S. 616), Weeks v. United States, (232

U.S. 383), Felix Gould v. United States (255 U.S. 298),

Entick v. Carrington (19 State Trials 1030), Hale v. Henkel

(201 U.S. 43), and Satya Kinkar Boy v. Nikhil Chandra

Jyotishopadhaya (A.I.R. 1951 cal. 104) referred to.

JUDGMENT:

ORIGINAL JURISDICTION PETITIONS Nos. 372 and 375 of 1953.

Original petition under article 32 of the Constitution of

India for the enforcement of fundamental right.

Veda Vyas, and Daulat Ram Kalia (S. K. Kapur and Ganpat

Rai, with them) for the petitioners.

C. K. Daphtary, Solicitor General for India (Porus A. Mehta

and A. M. Chatterjee, with him) for the respondents.

1954 March 15. The Judgment of the Court was

delivered by JAGANNADHADAS J.

1079

JAGANNADHADAS J.-These two applications are for relief

under article 32 of the Constitution arising out of similar

and connected set of facts and are dealt with together.

They'arise under the following circumstances. The Registrar

of the Joint Stock Companies, Delhi State, lodged

information with the Inspector General, Delhi Special Police

Establishment, to the following effect. Messrs. Dalmia

Jain Airways Ltd. was registered in his office on the 9th

July, 1946, with an authorised capital of Rs. 10 crores and

went into liquidation on the 13th June, 1952. An

investigation into the affairs of the company was ordered,

by the Government and the report of the inspector appointed

under section 138 of the Indian Companies Act indicated that

an organised attempt was made from the inception of the

company to misappropriate and embezzle the funds of the

company-and declare it to be substantial loss, and to

conceal from the shareholders the true state of affairs by

submitting false accounts and balance-sheets. Various

dishonest and fraudulent transactions were also disclosed

which show that false accounts with fictitious entries and

false records were being maintained and that dishonest

transfers of moneys had been made. It was accordingly

alleged that offences under sections 406, 408, 409,'418,

420, 465, 467, 468, 471 and 477(a) of the Indian Penal Code

had been committed. It was also stated that Seth R. K.

Dalmia who was the Director and Chairman of Dalmia Jain

Airways Ltd. has been controlling certain other concerns,

viz., (1) Dalmia Cement & Paper Marketing Co., Ltd., (2)

Dalmia Jain Aviation Ltd. now known as Asia Udyog Ltd., and

(3) Allen Berry & Co., Ltd., through his nominees- and that

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all these concerns were utilised in order to commit the

frauds. It was further stated therein by the Registrar of

Joint Stock Companies that to determine the extent of the

fraud, it was necessary to get hold of books not only of

Dalmia Jain Airways Ltd. but also of the allied concerns

controlled by the Dalmia group, some of which are outside

the Delhi State. Lists of the offices and places in which

and of the persons in whose custody the records may be

available were furnished. Speedy

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1080

investigation was asked for. This information was recorded

by the Special Police on the 19th November, 1953, as the

First Information Report. On the basis thereof an

application was made to the District Magistrate, Delhi,

under section 96 of the Criminal Procedure Code, for the

issue of warrants for the search of documents and in the

places, as per schedules furnished. Permission to

investigate in respect of some of the non-cognisable

offences mentioned in the First Information Report was also

asked for. On the same day, the District Magistrate ordered

investigation of the offences and issued warrants for

simultaneous searches at as many as 34 places. The searches

were made on the 25th November, 1953, and subsequent days

and a voluminous mass of records was seized from various

places. The petitioners pray that the search warrants may

be quashed as being absolutely illegal, and ask for return

of the documents seized. In Petition No. 372 of 1953 there

are four petitioners of whom the second is the Delhi Glass

Works Ltd., and the first the Deputy-General Manager

thereof, the third its Secretary and the fourth a

shareholder therein. In Petition No. 375 of 1953 there are

five petitioners of whom the first is Messrs. Allen Berry &

Co., Ltd., second Asia Udyog Ltd., the third Shri R. K.

Dalmia, the fourth the Secretary and General Attorney of the

third and the fifth a shareholder of petitioners Nos. I and

2, and an officer of petitioner No. 2. It will be seen that

the petitioners in both the petitions belong to the four

concerns, namely, (1) Delhi Glass Works Ltd' , (2) Messrs.

Allen Berry & Co., Ltd., (3) Asia Udyog Ltd., and (4) Dalmia

Jain Airways Ltd. The last three are stated- to be Dalmia

concerns but it does not appear from the records placed

before us what exact connection Delhi Glass Works Ltd. has

with them. However, it is admittedly one of the places for

which a search warrant was asked for and against which the

First Information Report appears to have been lodged. In

the petitions various questions were raised. But such of

them which raise only irregularities and illegalities of the

searches and do not involve any constitutional violation are

matters which may

be more appropriately canvassed before the High Court on

applications under article 226 of the Constitution and we

have declined to go into them. The petitioners have,

therefore, confined themselves before us to two grounds on

which they challenge the constitutional validity,of the

searches. The contentions raised are that the fundamental

rights of the petitioners under article 20(3) and article

19(1)(f) have been violated by the searches in question.

So far as the contention based on article 19(1)(f) is

concerned we are unable to see that the petitioners have any

arguable case. Article 19(1)(f) declares the right of all

citizens to acquire, hold and dispose of property subject to

the operation of any existing or future law in so far as it

imposes reasonable restrictions, on the exercise of any of

the rights conferred thereby, in the interests of general

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public. It is urged that the searches and seizures as

effected in this case were unreasonable and constitute a

serious restriction on the right of the various petitioners,

inasmuch as their buildings were invaded, their documents

taken away and their business and reputation affected by

these largescale and allegedly arbitrary searches and that a

law (section 96(1), Cr.P.C.) which authorises such searches

violates the constitutional guarantee and is invalid. But,

a search by itself is not a restriction on the right to hold

and enjoy property. No doubt a seizure and carrying away is

a restriction of the possession and enjoyment of the

property seized. This, however, is only temporary and for

the limited purpose of investigation. A search and seizure

is, therefore, only a temporary interference with the right

to hold the premises searched and the articles seized.

Statutory regulation in this behalf is necessary and

reasonable restriction cannot per se be considered to be

unconstitutional. The damage, if any caused by such

temporary interference if found to be in excess of legal

authority is a matter for redress in other proceedings. We

are unable to see how any question of violation. of article

19(1) (f) is involved in this case in respect of the

warrants in question which purport to be , under the first

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alternative of section 96(1) of the Criminal Procedure Code.

The only substantial question, therefore, that has been

raised is the one relating to article 20(3) which runs as

follows:

"No person accused of any offence shall be compelled to

be a witness against himself."

The argument urged before us is that a search to obtain

documents, for investigation into an offence is a compulsory

procuring of incriminatory evidence from the accused himself

and is, therefore, hit by article 20(3) as unconstitutional

and illegal. It is not disputed that, prima facIe, the

article in question has nothing to indicate that it

comprehends within its scope, the prohibition of searches

and seizures of documents from the custody of an accused.

But it is urged that this is necessarily implied therein by

certain canons of liberal construction which are applicable

to the interpretation of constitutional guarantees. In

support of this line of argument great reliance has been

placed upon American decisions in which similar questions

were canvassed. The argument on behalf of the petitioners

is presented in the following way. The fundamental

guarantee in article 20(3) comprehends within its scope not

merely oral testimony given by an accused in a criminal case

pending against him, but also evidence of whatever character

compelled out of a person who is or is likely to become

incriminated thereby as an accused. It, therefore, extends

not only to compelled production of documents by an accused

from his possession, but also to such compelled production

of oral or documentary evidence from any- other person who

may become incriminated thereby as an accused in future

proceedings. If this view of the content of article 20(3)

is accepted, the next step in the argument presented is that

a forcible search and seizure of documents is, for purposes

of constitutional protection of this guarantee, on the same

footing as a compelled production of the said documents by

the person from whom they are seized. This chain of

reasoning, if accepted in its entirety, would render

searches and seizures of documents and any

1083

statutory provisions in that behalf illegal and void, as

being in violation of the fundamental right under ArtiCle

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20(3). The question thus raised is of farreaching

importance and requires careful consideration.

Article 20(3) embodies the principle of protection

against compulsion of self-incrimination which is one of the

fundamental canons of the British system of criminal

jurisprudence and which has been adopted by the American

system and incorporated as an article of its Constitution.

It has also, to a substantial extent, been recognized in the

Anglo Indian administration of criminal justice in this

country by incorporation into various statutory provisions.

In order, therefore, to arrive at a correct appraisal of the

scope and content of the doctrine and to judge to what

extent that was intended to be recognised by our

Constitution-makers in article 20(3), it is necessary to

have a cursory view of the origin and scope of this doctrine

and the implications thereof as understood in English law

and in American law and as recognized in the Indian law.

In English law, this principle of protection against

self-incrimination had a historical origin. It 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(1) 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. A change was introduced by the Criminal Evidence

Act of 1898 By making an accused a competent witNess on his

own behalf, if he applied for it. But so far as the oral

testimony -of witnesses and the production of documents are

concerned, the protection against

(1) 3 State Trials 1315,

self-incrimination continued as before. (See Phipson on

Evidence, 9th Edition, pages 215 and 474).

These principles, as they were before the statutory

change in 1898, were carried into the American legal system

and became part of its common law. (See Wigmore on Evidence,

vol. VIII, pages 301 to 303). This was later on

incorporated into their Constitution by virtue of the Fifth

Amendment thereof. The language of the Fifth Amendment was

considered by the American Courts as being wide enough to

cover all the aspects of the principle of protection against

self incrimination as administered under the English common

law including oral testimony of witnesses and production of

documents. (See Willis on Constitutional Law, pages 518 and

519). In course of time further extensions of that

privilege were recognised by the courts relating to searches

and seizures. It came to be held that unreasonable searches

and seizures of documents fell equally within the mischief

of the Fourth and the Fifth Amendments [Boyd v. United

States(1)]and that documents or other evidence so obtained

were inadmissible in evidence [ Weeks v. United States(2)].

In the Indian law the extent to which this protection is

recognised appears from the various relevant statutory

provisions from time to time. Section III of Act XV of 1852

recognised that an accused in a criminal proceeding was not

a competent or compellable witness to give evidence for or

against himself This provision was repealed by the Evidence

Act I of 1872. But meanwhile the Criminal Procedure Code of

1861 in sections 204 and 203 thereof respectively provided

that no oath shall be administered to the accused and that

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it shall be in the discretion of the Magistrate to examine

him. The Criminal Procedure Code of 1872 by section 250

thereof made a general questioning, of the accused, after

the witnesses for the prosecution had been examined,

compulsory and section 345 thereof provided that no oath or

affirmation shall be

(1) 116 U.S. 6i6.

(2) 232 U.S. .383.

1085

administered to the accused person These features have been

continued in the later Codes of Criminal Procedure and have

been incorporated into section 342 of the present Criminal

Procedure Code of 1898. The only later statutory change, so

far, in this behalf, appears to be that brought about by

section 7 of the Prevention of Corruption Act, 1947. By

virtue of that section an accused is a competent witness on

his own application in respect of offenses under that Act.

So far as witnesses are concerned, section III of Act XV of

1852 also declared the protection of, witnesses against

compulsion to answer incriminating questions. Shortly

thereafter in 1855, this protection was modified by section

32 of Act II of 1855 which made him compellable to answer

even incriminating questions but provided immunity from

arrest or prosecution on the basis of such evidence or any

other kind of use thereof in criminal proceedings except

prosecution for giving false evidence. This position has

been continued under section 132 of the Evidence Act I of

1872 which is still in force. So far as documents are

concerned, it does not appear that the Indian statutory law

specifically recognised protection against production of

incriminating documents until Evidence Act I of 1872 was

enacted which has a provision in this behalf in section 130

thereof. It is not quite clear whether this section which

excludes parties to a suit applies to an accused. 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.

Since the time when the principle of protection against

self-incrimination became established in English law and in

other systems of law which have followed it, there has been

considerable debate as to the utility thereof and serious

doubts were held in some quarters that this principle has a

tendency to defeat justice. In support of the principle it

is claimed that the protection'

1086

of accused against -self-incrimination promotes active

investigation from external sources to find out the truth

and proof of alleged or suspected crime instead of extortion

of confessions on unverified suspicion. (See Wigmore on

Evidence, Vol. VIII, page 309). It is also claimed that

that privilege in its application to witnesses as regards

oral testimony and production of documents affords to them

in general a free atmosphere in which they can be persuaded

to come forward to furnish evidence in courts and be of

substantial help in elucidating truth in a case, with

reference to material within their knowledge and in their

possession. (See Wigmore on Evidence, Vol. VIII, page 307).

On the other hand, the opinion has been strongly held in

some quarters that this rule has an undesirable effect on

social interests and that in the detection of crime, the

State is confronted with overwhelming difficulties as a

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result of this privilege. It is said this has become a

hiding place of crime and has outlived its usefulness and

that the rights of accused persons are amply protected

without this privilege and that no innocent person is in

need of it. (See Wigmore on Evidence, Vol.VIII, pages 314

and 315) Certain passages at pages 441 and 442 of Vol. I of

Stephen's History of the Criminal Law of England are also

instructive in this context and show a similar divergence of

opinion.

In view of the above background, there is no inherent

reason to construe the ambit of this fundamental right as

coprising a very wide range. Nor would it be legitimate to

confine it to the barely literal meaning of the words used,

since it is a recognized doctrine that when appropriate a

constitutional provision has to be liberally construed, so

as to advance the intendment thereof and to prevent its

circumvention. Analysing the terms in which this right has

been declared in our Constitution, it may be said to consist

of the following components. (1) It is a right pertaining to

a person " accused of an offence (2) It is a protection

against compulsion to be a witness"; and (3) It is a

protection against such compulsion resulting in his giving

evidence " against himself ". The oases with which we are

concerned have been

1087

presented to us on the footing that the persons against

whom the search warrants were issued, were all of them

persons against whom the First Information Report was lodged

and who were included in the category of accused therein and

that therefore they are 'persons" accused of an offence"

within the meaning of article 20(3) and also that the

documents for whose search the warrants were issued, being

required for investigation into the alleged offences, such

searches were for incriminating material. It may be noticed

that some of the accused enumerated in the First Information

Report are incorporated companies. But no question has been

raised before us that the protection does not apply to

corporations or to documents belonging to them '-a question

about which there has been considerable debate in the

American Courts. On the above footing, therefore, the only

substantial argument before us on this part of the case was

that compelled production of incriminating documents from

the possession of an accused is compelling an accused to be

a witness against himself. This argument accordingly raises

mainly the issue relating to the scope and connotation of

the second of the three components above stated

Broadly stated the guarantee in article 20(3) is against

"testimonial compulsion ". It is suggested that this is

confined to the oral evidence of a person standing his trial

for an offence when called to the witness-stand. We can see

no reason to confine the content of the constitutional

guarantee to this barely literal import. So to limit it

would be to rob the guarantee of its substantial purpose and

to miss the substance for the sound as stated in certain

American decisions. The phrase used in article 20(3) is "

to be a witness." A person can " be a witness " not merely

by giving oral evidence but also. by producing documents or

making intelligible gestures as in the case of a dumb

witness (see section 119 of the Evidence Act) or the like.

" To be a witness " is nothing more than " 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. So far as

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1088

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production of documents is concerned, no doubt section 139

of the Evidence Act says that a person producing a document

on summons is not a witness. But that section is meant to

regulate the right of cross-examination. It 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. Indeed, every positive

volitional act which furnishes evidence is testimony, and

testimonial compulsion connotes coercion which procures the

positive volitional evidentiary acts of the person, as

opposed to the, negative attitude of silence or submission

on his part. Nor is there any reason to think that the

protection in respect of the evidence so procured is

confined to what transpires at the trial in the court room.

The phrase used in article 20(3) is "to be a witness" and

not to "appear as a witness": It follows that the protection

afforded to an accused in so far as it is related to the

phrase "to be a witness' is not merely in respect of

testimonial compulsion in the court room but may well extend

to compelled testimony previously obtained from him. It is

available therefore to a person against whom a formal

accusation relating to the commission of an offence has been

levelled which in the normal' course may result in

prosecution. Whether it is available to other persons in

other situations does not call for decision in this case.

Considered in this light the guarantee under article

20(3) would be available in the present cases to these

petitioners against whom a First Information Report has been

recorded as accused therein. It would extend to any

compulsory process for production of evidentiary documents

which are reasonably likely to support a prosecution against

them. The question then that arises next is whether search

warrants for the seizure of such documents from the custody

of these persons are unconstitutional and hence illegal on

the ground that in effect they are tantamount to compelled

production of evidence. It is urged that both search and

seizure of a document and a compelled production thereof on

notice or summons serve the same purpose of being

1089

available as evidence in a prosecution against the person

Concerned, and that any other view would defeat or weaken

the Protection afforded by the guarantee of the fundamental

right. This line, of argument is not altogether without

force and has the apparent support of the Supreme Court of

the United States of America in Boyd V. United States(1).

The question there which came up for consideration was

in fact the converse, namely, whether a compulsory

production of documents on the facts of that case amounted

to search and seizure. There are dicta in that decision to

the effect that a compulsory production of a man's private

papers is a search and seizure since it affects the sole

object thereof and that by this process the court extorts

from the party his private books and papers to make him

liable for penalty. It is necessary, therefore, to examine

this decision rather closely in order to determine how far

it can be a safe guide for our purpose. The question

therein arose under the following circumstances. In an Act

to amend the, Customs Revenue Laws, there was a provision

which enabled the Government Attorney to make a written

motion to the court for the issue of a notice to the

opposite-party for production of papers in his possession.

The motion could be made if in the Attorney's opinion those

books contain materials which will prove an alleged fact in

support of a charge of defrauding the revenues, involving

penalty and forfeiture of merchandise to which the fraud

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relates. It is also provided by the said section that if

the court in its discretion allows the motion in which is

set out the fact sought to be proved and calls upon the

defendant to produce the documents, and the defendant fails

or refuses to produce them without any proper and

satisfactory explanation, the allegation of fact sought to

be proved by such production may be deemed to have been

confessed. The question that thereupon arose was whether an

order for production made by the court under that section

did not violate the constitutional rights declared by the

Fourth and Fifth Amendments of the

(1) 116 U.S. 616.

1090

American Constitution. These amendments are as follows:

Amendment IV.

"The right of the people to be secure in their persons,

houses, papers, and effects against unreason. able 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;............ "

On the facts of the above case, there was no difficulty in

holding that the production of documents in response to the

motion granted by the court was a compelled production of

incriminating evidence and that it violated the Fifth

Amendment. The minority judgment brought this out clearly

in the following passage:

"The order of the court under the statute is in effect a

subpoena duces tecum; and though the penalty for the witness

failure to appear in court with the criminating papers is

not fine and imprisonment, it is one which may be made more

severe, namely, to have the charges against him of a

criminal nature taken for confessed and made the foundation

of the judgment of the court. That this is within the

protection which the Constitution intended against

compelling a person to be a witness against himself is, I

think, quite clear. "

The majority Judges, how ever, went one step further and

said as follows:

"The compulsory production of a man's private papers is

search and seizure.

and again thus

" We have been unable to perceive that the seizure of a

man's private books and, papers to be used in evidence

against him is substantially different from compelling him

to be a witness against himself.

1091

Thus in the view. that the order for production was

tantamount to search and seizure and that in the case it was

for a purpose prohibited by the Fifth Amendment, they held

that the Fourth Amendment prohibiting unreasonable searches

was also violated. The minority Judges, however, did not

accept this view and pointed out that there was an essential

difference between the seizure of a document on search I and

the production of a document. But even otherwise, it would

appear on a careful consideration of the decision that the

majority were at pains to make out that, in the

circumstances of the case the order for production would

amount to "an unreasonable search and seizure" and is hence

unconstitutional as violating the Fourth and Fifth

Amendments. The case, therefore, does not lend support for

any general doctrine that a search and' seizure in all

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circumstances is tantamount to a compelled production in

violation of the Fifth Amendment'. That decision itself

expressly recognizes the legality of various kinds of

searches and indeed the Fourth Amendment itself shows it.

Thus what that decision really established was that the

obtaining of incriminating evidence by illegal search and

seizure is tantamount to the violation of the Fifth

Amendment. It was in this light that subsequent cases have

also understood this decision. [See Felix Gouled v. United

States(1)].

Boyd's case(2) has relied on the famous judgment of

Lord Camden in Entick v. Carrington(3), and learned counsel

for the petitioners has also relied on it strenuously before

us. Wigmore in his Law of Evidence, Vol. VIII, page 368,

has shown how some of the assumptions relating to it in

Boyd's case(1), were inaccurate and misleading. While no

doubt Lord Camden refers to the principle of protection

against self-accusation with great force, in his

consideration of the validity of general search-warrants,

that case does not treat a seizure on a search warrant as

ipso facto tantamount to self-incrimination. All that was

said

(1) 253 U.S. 298; 65 Law. Edn. 647 at 651 and 653.

(2) 116 U.S. 616.

(3) 19 State Trials 1030.

1092

was that the legal philosophy underlying both is the same,

as appears from the following passage

"It is very certain, that the law obligeth no man to

accuse himself; because the necessary means of compelling

self-accusation, falling upon the innocent as well as the

guilty, would be both cruel and unjust; and it should seem,

that search for evidence is disallowed upon the same

principle. There too the innocent would be confounded with

the guilty."

It may be noted that Lord Camden's judgment shows, by an

elaborate dissertation, that the search warrant therein

under consideration was unauthorised and illegal. Thus even

the above dictum has reference only to an illegal search.

It is, therefore, impossible to derive from Boyd's

case(1) support for the proposition that searches and

seizures, in general, are violative of the privilege of

protection against self-incrimination. Nor is it possible

to import that doctrine with its differentiation between

legal and illegal searches into our Constitution because we

have nothing in our Constitution corresponding to the Fourth

Amendment enabling the courts to import the test of

unreasbnableness or any analogous criterion for

discrimination between legal and illegal searches.

In the arguments before us strong reliance has also been

placed on the provision of sections 94 and 96 of the

Criminal Procedure Code in support of the broad proposition

that a seizure of documents on search is in the

contemplation of law a compelled production of documents.

The sections run 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

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(1) 116 U.S. 616.

1093

and produce it, or to produce it, at the time and place

stated in the summons or order.

............................."

"96(1). 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, subsection (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 search-warrant; and the person to whom

such warrant is directed, may search or inspect in

accordance therewith and the provisions hereinafter

contained.

.........................."

It is pointed out that the procedure contemplated is that

normally there should be a summons or notice for production

under section 94 and it is only if there is no compliance

therewith or if the Magistrate is satisfied about the

likelihood of non-compliance that a search warrant is to be

issued. It is, therefore, urged that these provisions

themselves show that in law search and seizure is a

substitute for compelled production on summons. There has

been some debate before us whether section 94 applies to an

accused person and whether there is any element of

compulsion in it. For the purpose of this case it is

unnecessary to decide these points. We may assume without

deciding that the section is applicable to the accused as

held by a Full Bench of the Calcutta High Court in a recent

case in Satya Kinkar Boy v. Nikhil Chandra Jyotisho-

padhaya(1). We may also assume that there is an element of

complusion implicit in the process contemplated by section

94 because, in any case, no compliance results in the

unpleasant consequence of invasion of one's premises and

rummaging of one's

(1) A.I.R. 1951 Cal 101.

1094

private papers by the minions of law under a search warrant.

Notwithstanding these assumptions we are unable to read

sections 94 and 96(1) of the Criminal Procedure Code as

importing any statutory recognition of a theory that search

and seizure of documents is compelled production thereof.

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 noncompliance 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 article 20(3)-an anomalous

distinction for which no justification can be found on

principle.

A consideration of the history of Indian statutory

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legislation relating to searches does not support the theory

propounded. The provisions for searches are to be found in

the successive Codes of Criminal Procedure. In the earliest

Code, Act XXV of 1861, there appears no provision for

issuing summons or notices for production of documents, but

there was only a provision for the issue of a search warrant

by a Magistrate under section 114. thereof, which is in the

following terms:

"When a Magistrate shall consider that the production of

any thing is essential to the conduct of an enquiry into an

offence known or suspected to have been committed, he may

grant his warrant to search for such thing; and it shall be

lawful for the officer charged with the execution of such

warrant to search for such thing in any house or place

within the jurisdiction of such Magistrate. In such case

the Magistrate may specify in his warrant the house or

place, or part thereof, to which only the search shall

extend.

1095

There was also section 142 of the said Code which vested

in an officer in charge of police station with the power to

make a search suo moto in certain circumstances.. In the

next Criminal Procedure Code, Act I of 1872, the relevant

provisions were in sections 365, 368 and 379. Section 379

was more or less a repetition of section 142 of the previous

Code (Act XXV -of 1861) vesting power in a police officer to

make a suo moto search. Section 365 appears to be the

earliest statutory provision for the issue of a summons,

either by a police officer or by a court for the production

of a document required for investigation. This was followed

by section 368 relating to the issue of search warrants

which was in the following terms:

"When a Magistrate considers that the production of

anything is essential to the conduct of an inquiry into an

offence known or suspected to have been committed or to the

discovery of the offender,

or when he considers that such inquiry or discovery

will be furthered by the search or inspection of any house

or place,

he may grant his search-warrant; and the officer

charged with the execution of such warrant may search or

inspect any house or place witiin the jurisdiction of the

Magistrate of the District.

The Magistrate issuing such warrant may, if he sees

fit, specify in his warrant the house or place, or part

thereof, to which only the search or inspection shall

extend; and the officer charged with the execution of such

warrant shall then search or inspect only the house, place

or part so specified. "

It will be noticed that even when the procedure of

summons for production of documents was introduced, as above

in section 365 the provision for the issue of a search-

warrant in section 368 had absolutely nothing to do with the

question of non-compliance by the concerned person with the

summons for production. It is only in the next. Criminal

Procedure Code, Act X of 1882 that the provisions, sections

94 and 96, appear which correspond to the present sections

94 and 96 of Act V of 1898, linking up to some extent the

issue of

142

1096

search warrants with non-compliance or likelihood of non-

compliance .with a summons to produce. It may be mentioned

in passing that the provision for the issue of general

search warrants appears for the first time in the Procedure

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Code of 1882 and even there the issue, of such general

warrants is not based on noncompliance 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. 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

article 20(3) as above explained. But search warrant is

addressed to an officer of the Government, generally a

police officer. Neither the search nor 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. Even in

the American decisions there is a strong current of judicial

opinion in support of this distinction. In Hale v.

Henkel(1), Justice MeKenna in his dissenting judgment makes

the following observations:

"Search implies a quest by an officer of the law; a,

seizure contemplates a forcible dispossession 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 aboveboard. 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 that power is necessarily

regulated by law. When -the Constitution makers have thougt

fit not to subject such regulation to Constitutional

limitations by recognition of a

(1) 201 U.S. 43; 50 Law. Edn. 652.

1097

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. It is

to be remembered that searches of the kind we are concerned

with are' under the authority of a Magistrate (excepting,in

the limited class of cases falling under section 165 of the

Criminal Procedure Code). Therefore, issue of a search war-

rant 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 unaware 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 no 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.

As stated at the outset, we have dealt only with the

constitutional issues involved in this case leaving the

other allegations as to the high-handedness and illegality

of the searches open to be raised and canvassed before 'the

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High Court on appropriate applications. But we cannot help

observing that on those allegations and on the material that

has come within our notice, there appears to be scope for

serious grievance on the side of the petitioners, which

requires scrutiny.

We accordingly dismiss these applications but without

costs.

1098