Shyamlal Mohanlal Vs. State of Gujarat
[1964] INSC 294 (14 December 1964)
14/12/1964
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 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-incrimination 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.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.135139 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 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 investigation,
inquiry, trial or other proceeding under this Code by or before such Court or
officer, such Court may issue. a summons, or such officer a written order, to
the person in whose possession or power such document or thing is believed to
be, requiring him to attend and produce it, or to produce it, at the time and
place stated in the summons or order.
(2) Any person required under this section
merely to produce a document or other thing shall be deemed to have complied
with the requisition, if he causes such document or thing to be produced
instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed
to affect the Indian Evidence Act, 1872, sections 123 and 124, or to apply to a
letter, postcard, telegram or other document or any parcel or thing in the
custody of the Postal or Telegraph authorities.
96. (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, parcel or other thing in the
custody of the Postal or Telegraph authorities." Before construing s. 94,
it is necessary to recall the background of Art. 20(3) of the Constitution. One
of the fundamental canons of the British system of Criminal Jurisprudence and
the American Jurisprudence has been that the accused should not be compelled to
incriminate himself.
This principle "resulted from a feeling
of revulsion against the inquisitorial methods adopted and the barbarous
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.
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 meaning of general words used in a statute that they
are to be, if possible, construed as not to alter the common law (vide Craies
on Statute Law, p. 187).
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.
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 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 policestation, 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 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 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 selfincrimination
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 sublet without licence. (See Phlipson Paragraph 613)..
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
ascertain whether a signature, writing or seal is that of the person by whom it
purports to have been written or made, to direct any person present in Court to
write any words or figures for the purpose of enabling the Court to compare the
words or figures so written with any words or figures alleged to have been
written by such person. It has been held that this power extends to calling
upon an accused person to give his writing in Court and make it available for
comparison by an expert : King Emperor v. Tun Hlaing(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 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 selfincrimination 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 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.
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 criminal law which were designed with the object of
securing the liberties of the people. That being so * * they might fairly get
rid of some of the rules, the "object of which was to secure for the
people that jealous protection which the English law gave to the accused. It seemed
* * that they were not bound to protect the criminal according to any Code of
fair play, but that their object should be to get at the truth, and anything
which would tend to elicit the truth was regarded by the Committee to be
desirable for the interests of 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 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 consideration. The interpretation suggested by Mr. Tatachari interferes
with the smooth working of the scheme of the related provisions of the Code of
Criminal Procedure.
Section 94, prima facie, authorises a
Magistrate or a police officer for the purposes of any investigation, inquiry,
trial or other proceeding to call upon any person in whose possession or power a
document or thing is believed to be, to direct him to attend and produce it at
the time and 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
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 granted. may indicate that in the interpretation
of other provisions of the Code, an assumption that the protection against
self-incrimination was implicit has no place.
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.
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