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PETITIONER:

SHYAMLAL MOHANLAL

Vs.

RESPONDENT:

STATE OF GUJARAT

DATE OF JUDGMENT:

14/12/1964

BENCH:

ACT:

Code of Criminal Procedure (Act 5 of 1898), s. 94(1)-If

applies to accused persons.

HEADNOTE:

The respondent, who was a registered money-lender, was

prosecuted for failure to maintain books in accordance with

the Money-lenders' Act and Rules made thereunder. An

application under s. 94(1) Criminal Procedure Code, was

filed before the Magistrate by the prosecution for ordering

the respondent to produce certain account books. The

Magistrate, relying on Art. 20(3) of the Constitution

refused to do so. The State filed a revision before the

Sessions Judge, who disagreed with the Magistrate and made a

reference to the High Court with a recommendation that the

matter be referred back to the Magistrate with suitable

directions. The High Court came to the conclusion that s. 94

does not apply to an accused person and agreed with the

Magistrate in rejecting the application.. on appeal to the

Supreme Court.

Held (Per P. B. Gajendragadkar, C.J., Hidayatullah, Sikri

and' Bachawat, JJ.) : The High Court was right in its

construction of s. 94, that it does not apply to an accused

person. [465 F]

Having regard to the general scheme of the Code and the

basic concept of criminal law, the generality of the word

"person" used in the section is of no significance. If the

legislature were minded to make the section applicable to an

accused person, it would have said so in specified words.

If the section is construed so as to include an accused

person it is likely to lead to grave hardship for the

accused and make investigations unfair to him, for, if he

refused to produce the document before the police officer,

he would be faced with a prosecution under 3. 175, Indian,

Penal Code. [462 F-G; 463 C, E-F]

The words "attend and produce" used in the section are inept

to cover the Case Of an accused person, especially when the

order is issued by a police officer to an accused person in

his custody. [464 B]

It cannot be said that the thing or document produced would

not be admitted in evidence if an examination it is found to

in ate the accused, because, on most occasions the power

under the section would be resorted to only when it is

likely to incriminate the accused and support the

prosecution. [464 F-H]

Even if the construction that the section does not apply to

accused' renders s. 96 useless because, no search warrant

could be issued for documents known to be in the possession

of the accused, still, a.% far as the police officer is

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concerned, he can use a. 165 of the Code of Criminal

Procedure and order a general search or inspection. [464 H;

465 A]

Satya Kinkar Ray v. Nikhil Chandra Jyotishopodhaya, I.L.R.

[1952] 2, Cal. 106, F.B, overruled.

Per Shah, J. (Dissenting) : The words in s. 94(1) are

general : they contain no express limitation, nor do they

imply any restriction excluding the person accused of an

offence from its operation. The scheme of the Code also

appears to be consistent with that interpretation. If s.

94(1)

458

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 no warrant may be issued

under s. 96(1) to search for a document or thing in his

possession. To assume that the police officer in charge of

investigation may, in the course of investigation, exercise

powers under s.165, which cannot be exercised where the

court issues a warrant, would be wholly illogical.[465 A,

C;474 A,G]

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. [467 D-E]

The observations made by the Supreme Court in the State of

Bombay v. Kathi Kalu Oghad, [1962] 3 S.C.R. 10, that an

accused may be called upon by the court to produce documents

in certain circumstances, relate to the power exercisable

under s. 94(1) only. [468 B]

The rule of protection against self-incrimination prevailing

in the U.K. or as interpreted by courts in the U.S.A. has

never been accepted in India. Scattered through the main

body of the Statute law of India are provisions which

establish that the rule has received no countenance in

India. To hold, notwithstanding the apparently wide power

conferred, that a person accused of an offence may not in

the exercise of the power under s. 94(1) be called upon to

produce document or things in his possession, on the

assumption that the rule of protection against self-incrimi-

nation has been introduced into India is to ignore the

history of legislation and judicial interpretation for

upwards of 80 years. [469 F-G; 475 E]

It is for the first time by the Constitution, under Art.

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. But apart from this protection

there is no reservation which has to be implied in the

application of s. 94(1). Refusal to produce a document or

thing on the ground that the protection guaranteed by Art.

20(3) would be infringed would be a reasonable excuse for

non-production within the meaning of s. 485 of the Procedure

Code and such an order in violation of the Article would not

be regarded as lawful within the meaning of s. 175, of the

Indian Penal Code. But protection against what is called

testimonial compulsion under the Article is against

proceedings in Court : it does not apply to order,which may

be made by a police officer in course of investigation. [475

F;476 A-B, E]

Case law considered.

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JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.135-

139 of 1963.

Appeals from the judgment and order dated October 11, 1962

of the Gujarat High Court in Criminal Reference Nos. 106 to

113 of 1961.

N. S. Bindra and B. R. G. K. Achar, for the appellant (in

all the appeals).

T. V. R. Tatachari, for the respondents (in all the

appeals).

The Judgment of Gajendragadkar, C.J., Hidayatullah, Sikri

and Bachawat JJ. was delivered by Sikri J. Shah J. delivered

a dissenting Opinion.

459

Sikri, J. These are appeals by the State of Gujarat against

the judgment of the High Court of Gujarat in Criminal

References Nos. 106-110 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 Art. 134(1) (c)

of the Constitution of India. These raise a common question

of law, namely, whether s. 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.

The respondent in Criminal Appeal No. 135 of 1963, Shyaralal

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 Samyat 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 Art. 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(1).

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 (2 ) 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 Oghad's (2) case.

Accordingly, a reference was made to the High Court with the

(1) 2 Guj. L.R. 415.

(2) [1962] 3 S.C.R. 10.

460

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

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clear from the decision of this Court in Kalu Oghad's(1)

case "that if an accused produces a document that would not

offend Art. 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 s. 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.

Sections 94 and 96 of the Code of Criminal Procedure read

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 investiga-

tion, 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. (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, sub-section (1),

(1) [1962] 3 S.C.R. 10.

461

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

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 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,

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parcel or other thing in the custody of the

Postal or Telegraph authorities."

Before construing s. 94, it is necessary to recall the back-

ground of Art. 20(3) of the Constitution. One of the funda-

mental 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

sentence, 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." (M.14. P. Sharma v. Satish Chandra, District

Magistrate, Delhi(2)

One of the early extensions of the doctrine was with regard

to the production of documents or chattel by an accused in

response to a subpoena or other form of legal process. In

1749, Lee C.J. observed in R. v. Purnell (3) : "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,(4) Lord Mansfield observed "that in civil causes

the Court will force

(1) 3 State Trials 1315.

(2) [1954] S.C.R. 1077. at p. 1083,

(3) 1 W. Bl. 37.

(4) 4 Buff. 2484.

462

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 though he should hold it in his hands

in Court." In Redfern v. Redfern(1) 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."

The Indian Legislature was aware of the above fundamental

canon of criminal jurisprudence because in various sections

of the Criminal Procedure Code it gives effect to it. For

example, in s. 175 it is provided that every person summoned

by a Police Officer in a proceeding under S. 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

ss. 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 S.

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 S. 342A that his ailure

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.

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It seems to us that in view of this background the

Legislature, if it were minded to make s. 94 applicable to

an accused person, would have said so in specific words. It

is true that the words of S. 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 mean-

ing 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).

There is one other consideration which is important. Art.

20(3) has been construed by this Court in Kalu Oghad's(2)

case to mean that an accused person cannot be compelled to

disclose

(1) [1891] P. 139.

(2) [1962] 3 S.C.R. 10.

463

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 s. 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 Art. 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 s. 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 s. 94 applies to an accused person. This becomes

clearer if the language of s. 175 is compared with the

language employed in s. 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 Art. 20(3). At any rate, his

decision would be final under the Code for no appeal or

revision would lie against his order. Thus it seems to us

that if we construe s. 94 to include an accused person, this

construction is likely to lead to grave hardship for the

accused and make investigation unfair to him.

We may mention that the question about the constitutionality

of s. 94(1), Cr. P.C., was not argued before us, because at

the end of the hearing on the construction of s. 94 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 S.. 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 S. 94(1) would not contravene Art. 20(3). Even so,

since we thought that S. 94(1) should receive a narrow

construction, we did not require the advocates to pursue the

constitutional point any further.

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464

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. 'Me 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.

The argument pressed on us that the "person" referred to in

the latter part of s. 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 if

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.

Mr. Bindra invited our intention to s. 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 anti it will be noticed

that s. 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.

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 s.

94(1 ) would be resorted to, so that on the alternative view

which seeks to exclude incriminating documents or things,

the working of s. 94(l ) would yield no useful result.

It is urged by Mr. Bindra that this construction of s. 94

would render s. 96 useless for no search warrant could be

issued to search

465

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 S. 165, Criminal Procedure Code.

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(1), for the earlier cases are

reviewed in it. Three main considerations prevailed with

the High Court : First, that giving s.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 s. 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

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first Iwo 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 s. 94,

or the background of Art. 20(3). The third reason is

inconsistent with the decision of this Court in M. P. Sharma

v. Satish Chandra(4), 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.

We may mention that the construction which we have put on s.

94 was also placed in Ishwar Chandra Ghoshal v. The

Emperor(1), Bajrangi Gope v. Emperor(4), and Rai Chandra

Chakravati v. Hare Kishore Chakravarti(5).

Therefore, agreeing with the High Court, we hold that s. 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 curise.

Shah, J. The question which falls to be determined in these

appeals is whether in exercise of the power under s. 94(1)

of the Code of Criminal Procedure a Court has authority to

summon

(1) [1952] I.L.R. 2 Cal. 1066

(2) [1954] S.C.R. 1077.

(3) 12 C.W.N. l016.

(4) I.L.R. 38 Cal. 304.

(5) 9 I.C. 564.

466

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 s. 68 issue

a summons for the attendance of any person, whether a

witness or accused of an offence (vide Forms Nos. 1 and 31 :

Sch. 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

movable 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 a document or thing believed

to be in the possession of that person. Indisputably the

person referred to in sub-s. (2) of S. 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. 'Me first paragraph of s. 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 S. 94 and the first paragraph of

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s. 96(1) strongly indicates that the power to issue a search

warrant under paragraph one of s. 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 s. 94(1). If under S. 94(1)

a summons cannot be issued against a person accused of an

offence. a search warrant under s. 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 s.

96(1) confer power to issue general warrants. The

generality of the terms of S. 98 which enable specified

Magistrates to issue warrants to search places used for

certain purposes also indicates that the power may be

exercised in respect of any place whether it is occupied by

an accused person or not. The terms of s. 103 which provide

for the procedure for search of any place apply to,

467

the search of the house of a person accused of an offence or

any other person.

Raju, J., against whose judgment these appeals are filed,

opined that S. 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.

The scheme of the Code clearly discloses that the provisions

of Chapters VI and VII which fall in Part III entitled

"General provisions' are applicable to the trial of cases

under Chapters 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 & 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.

In cases decided by the High Courts of Calcutta and Madras,

it appears to have been uniformly held that the word

"person" in s. 94(1) includes a person accused of an offence

: vide S. Kondareddi and another v. Emperor(1); Bissar

Misser v., Emperor(3); and Satya Kinkar Ray v. Nikhil

Chandra Jyotishopadhaya(3). The observations in Ishwar

Chandra Ghoshal v. The Emperor (4) to the contrary in

dealing with a conviction for an offence under S. 175 Indian

Penal Code for failing to comply with an order under S.

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 Kulu

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 con-

(1) I.L.R. 37 Mad. 112. (2) I.L.R. 41 Cal.

261. (3) I.L. R. [1951] 2 Cal. 106. (4) 12

C.W.N. 1016.

(5) [1962] 3 S.C.R. 10.

468

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troversy. 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

S. 139 of the Evidence Act, * * *

*

The learned Chief Justice did not expressly refer to the

source of the power, but apart from s. 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 S.

94(1).

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 is

implicit in S. 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.

In 'Phipson on Evidence, 10th 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.,

469

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's

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 Phlipson Paragraph 613)..

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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.

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.

Statutory provisions have also been made which compel a

person to produce information or evidence in proceedings

which

470

may involve imposition of penalties against him, e.g., under

S. 45-G & s. 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 s. 140 of the Indian

Companies Act, 1913, s. 240 of the Companies Act, 1956, s.

19(2) of the Foreign Exchange Regulations, s. 171-A of the

Sea Customs Act 8 of 1878, s. 54-A of the Calcutta Police

Act, s. 10 of the Medicinal & Toilet Preparation Act 11 of

1955, s. 8 of the Official Secrets Act 19 of 1923, s. 27 of

the Petroleum Act 30 of 1934, S. 7 of the Public Gambling

Act 3 of 1867, s. 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 s. 73 of

the Evidence Act, the Court is authorised in order to ascer-

tain 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(l)

and Zahuri Sahu v. King Emperor(2 ).

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

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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 his measurements or photograph to be

taken, by a police officer. Similarly under S. 129-A of 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 II of 1878 requires a

(1) [1923] 1 tan. 759, F.B.

(2) [1927] 6 Pat. 623.

471

person possessing arms, ammunition or military stores, when

such possession has become unlawful to deposit the same at

the nearest police station, and s. 32 of that Act requires

all person 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 ss. 8 7 (1) & (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.

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 rulers 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.

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(1). 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(2) by Ghose, J.,

at pp. 137-138. After observing that the "party" referred

to in S. 365 (which invested a Magistrate with power to

issue a summons

(1) I.L.R. 15 Cal. 110.

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Supp./65-14

472

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 I party may be compelled to produce documents for the

purpose of any investigation or Judicial proceedings, 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 cri-

minal 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 the

accused if he was innocent, for those of the

public if 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 speech 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

s. 94(1) came to be enacted. The judgment of the High Court

of Calcutta, was followed by the somewhat

473

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.

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

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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 Court's 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 of a later date : the remedy lies

with the Legislature to, modify it and not with the Courts.

There is one more ground which must be taken into considera-

tion. 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

placer stated in the summons or order. Paragraph 1 of s.

96(1) provides that where any Court has reason to believe

that a person to whom a summons or order under s. 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.

474

If S. 94(1) does not authorise a Magistrate to issue a

summons to a person accused of an offence for the production

of a document or thing in his possession, evidently in

exercise of the powers under S. 9 6 ( 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 s. 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.

Nature of the power reserved to investigating officers by s.

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

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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 S. 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 in 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 S. 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

475

the Courts in that country frowned upon the issue of a

general warrant for search ,of a document or thing : Entick

v.Carrington (1).

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 hold, notwithstanding the

apparently wide power conferred, that a person accused of an

offence may not in exercise of the power under s. 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.

It was for the first time by the Constitution under Art.

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 ss. 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 grant-

ed. 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.

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Failure to comply with an order under s. 94 of the Code of

Criminal Procedure may undoubtedly expose a person to penal

action under s. 485 of the Code, and he may be prosecuted

under s. 175 of the Indian Penal Code. In my judgment,

refusal to produce a document or thing on the ground that

the protection

(1) 19 Howell, St. Tr. 1029.

476

guaranteed by Art. 20(3) would since the enactment of the

Constitution be infringed thereby would be a reasonable

excuse for non-production within the meaning of s. 485 of

the Code of Criminal Procedure, and an order which is in

violation of Art. 20(3) requiring the person to produce a

document would not be regarded as lawful within the meaning

of s. 175 of the Indian Penal Code. But, apart from the

protection conferred by Art. 20(3), there is no reservation

which has to be implied in the application of s. 94(1).

1 must mention that in this case, we are not invited to

decide whether s. 94(1) infringes the guarantee of Art.

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 Art. 20(3) is infringed by an

order of a Court acting in exercise of power conferred by s.

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 Oghad's case(2). It needs however to be

affirmed that the protection against what is called

testimonial compulsion under Art. 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 Art. 20(3) of the Constitution.

In my view the appeals should be allowed and the reference

made by the Sessions Judge should be accepted.

ORDER

In accordance with the Opinion of the Majority these Appeals

are dismissed.

(1) [1962] 3 S.C.R. 10.

477