Report No. 37
Note on Section 94 and the accused
It has been held by the Supreme Court,1 that section 94(1), does not apply to the accused person. The decision was not based on the constitutionality of section 94 (regarding the constitutional provision relating to the privilege against self-incrimination), but on a construction2 of section 94.
The reasoning behind the Supreme Court decision was, that the Indian Legislature was aware of the principle of English law that the accused person could not be compelled to "discover" that which would tend to subject him to any punishment etc. The Supreme Court noted, that one consequence of this holding would be, that section 96 (i.e., the first two paragraphs) would be useless (in relation to the accused). But it pointed out, that a "general" search or inspection could still be ordered, [under section 96(1), last para.] and that, so far as police officers were concerned, section 165, Code of Criminal Procedure, could be resorted to.
[As to section 94 and Article 20(3) the undermentioned cases may be seen.]3
In a recent decision of a special Bench of the Court of the Judicial Commissioner, Goa, Daman & Diu,4 the various Supreme Court decisions were summarised. It was observed (obiter), that section 96 does not offend Article 20(3), as neither the search nor the seizure are acts of the accused,-they are acts of another person and not the testimonial acts of the accused, that if a person not accused of an offence is compelled to give evidence, and the evidence ultimately leads to an accusation against him, that would not attract Article 20)(3).
Certain introductory observations may be made.
Section 96 is supplementary to sections 94 and 95. The general provisions of Chapter 7 are based on the law of England, where an Englishmen's house is his castle and cannot be easily invaded even by forces of the State.5
1. State of Gujarat v. Shyamlal, AIR 1965 SC 1257 (1259), paras. 29 to 32 (affirming, of this point, AIR 1963 Guj 178). (Majority judgment).
2. For history of section 94, see Ahmed (in re:), ILR 15 Cal 110 (137) (Ghose J.) and also M.P. Sharma v. Satish, AIR 1954 SC 300 (306), para. 18.
3. Decisions as to sections 94 and 96 and Article 20(3)
(i) State v. Prabhu Singh, AIR 1964 Punj 325.
(ii) Swaranlingam v. Asstt. Inspector of Labour, AIR 1955 Mad 716 (717), para. 2 (Somasundaram J.) (Section 94 considered).
(iii) Sornalingam (in re:), AIR 1955 Mad 685, para. 3 (Balakrishna Aiyer J.) (sections 98 and 165 considered).
(iv) R.C. Gupta v. State, AIR 1959 All 219,
(v) Madan Lal v. State, AIR 1958 Ori 1.
(vi) Satya Kinkar v. Nikhil Chandra, AIR 1951 Cal 101 (FB).
(vii) State v. Nagpur Electric Co., AIR 1961 Bom 242.
(viii) Babu Ram v. State, (1961) 2 Cr LJ 55 (57) (All).
(ix) Ranchhoddas v. Tempton, AIR 1961 Guj 137.
(x) State v. Shyamlal, AIR 1963 Guj 178,
(xi) Swarnalingam v. Assistant Labour Inspector, AIR 1956 Mad 165 (DB) (section 94 considered).
4. Melicio Fernandez v. Mohan Nair, AIR 1966 Goa 23 (26), para. 5.
5. See Emp. v. Mohammad Shah, AIR 1946 Lah 456 (458), para. 6.
Any analysis of provisions relating to search1 in the Code would be as follows:-
Image tag 2
1. M.P. Sharma v. Satish, 1954 SCR 1077: AIR 1954 SC 300.
The practical question now to be considered is,-
(i) What changes are necessary in the language of section 94, to make section 94 conform to the Supreme Court's decision in State of Gujarat v. Shyamlal AIR 1965 SC 1257 (1259), paras. 29-30.
(ii) Would a resort to the last part of section 96(1) "general search", be sufficient for practical purpose, having regard to the fact, that such searches are not very usual, and the law relating to them is also somewhat ill-defined?
(iii) Does the Supreme Court's decision necessitate any change of substance or wording in section 96?
(iv) What is the effect of the Supreme Court's decision on analogous sections-e.g., sections 51, 98, 99A(1) latter half, 165 etc.-having regard to the reasoning on which the decision is based
These points are dealt with below:
As to the first point, the question is whether section 94 is to be amended to exclude the accused by specific words; thus codifying the interpretation placed by the Supreme Court.
Points (ii) and (iii)
So far as section 96 is concerned, the last part of sub-section (1) of that section speaks of "general search", and requires consideration. Since search warrants are a species of process exceedingly arbitrary in characters, and are resorted to only for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness.1
The main question that has arisen is, whether a general warrant under section 96 can be issued during investigation. It is not necessary that the authority issuing a warrant must be acting as a "court" 2. But the omission of the word "investigation" from section 96(1) seems to indicate, that a Magistrate etc. cannot order search under that section for the purposes of investigation. He can order search only if the seizure will serve the purpose of an inquiry etc.3
The true principle seems to be, that the phrase "for the purpose of" in section 96(1) is to be construed as not, in itself, implying either the pendency of the specified proceedings or the immediate or imminent initiation thereof: What is necessary is that the Magistrate should be reasonably satisfied that the search is likely to be a link in the chain which, in the normal course, will lead to an "inquiry", if the expected material is found on the search, and that he should also be satisfied that there is reasonable ground for the expectation.4
The inquiry etc. must, of course, be under the Code, and not under some other Act.5
An investigation that is being made is not the same thing as an inquiry about to be made. Therefore, an order under section 96 cannot, it seems be made to further a police investigation, which may or may not result is an inquiry.6
A wider view has, however, been taken in a Mysore case.7-8
Another point on which a difficulty might arise in practice is, what is meant by a "general search". In England, a "general warrant" (to search premises) that is, a warrant in which either the person or the property is not specified), is illegal.9 Such "general warrants" have figured in cases well-known in the English Constitutional law.10-11
(In England, a general warrant meant a warrant issued by the Secretary of State for the arrest of such persons as were, for instance, the authors of a seditious libel. No persons were named in such a warrant, and such a warrant left it to the person entrusted with the warrant to decide who it was that should be arrested. Such warrants were held to be illegal at common law.12
What section 96 refers to, however, is a warrant wherein, a particular document or thing is not specified.
In practice, it is difficult to draw the line and to come to a clear conclusion as to whether warrants issued in a particular case are to be considered as warrants for a particular search or for a general search.13
Another point which might arise is relating to the form of the warrant under section 96(1), last para. The form given in the Code of the Criminal Procedure14 provides, that the warrant must "specify the things clearly". Forms in the Criminal Procedure Code are, however, to be used with variations wherever necessary:15 The Form will, therefore, have to be modified when a general search is contemplated.
In a Calcutta case,16 the warrant was in this form:-
"To (1) Assistant Commissioner of Police, Detective Department.
Whereas (2) information has been received before me of the (3) commission of the offence of (4) Sea Customs Act and conspiracy to cheat Government and it has been made to appear to me that the production of (5) documents, account books and other papers for the year 1936-37, 1937-38, 1938-39 is essential to the enquiry (6) now being made into the said (7) offence. This is to authorise and require you to search for the said (8) documents etc. in the (9) firm of Merrs. Toyo Menka Maisha Ltd.,17 Clive Ghat Street, and if found to produce the same forthwith before this Court, returning this warrant with an endorsement certifying what you have done under it immediately upon its execution. Given under my hand the seal of the Court, this 4th day of April, 1939.
Sd / -
Chief Presidency Magistrate, Calcutta.
Calcutta, 4th April, 1939."
This was regarded as a "general warrant".18
It may be noted, that so far as section 165 is concerned, that section does not authorise a general search. A "general" search means a search not in respect of specific documents or things which the officer considered were necessary or desirable for the purpose of the investigation in hand, but a roving enquiry for the purpose of discovering documents or things which might involve persons in criminal liability.
(iv) Sections 51, 98, 99A(1) and 165 etc. do not seem to need any change with respect to the point under consideration
1. Walvekar v. King Emperor, AIR 1926 Cal 966 (969), (Case under section 46, Calcutta Police Act, 1866).
2. Clarke v. Brojendra Kishore Roy, (1912) ILR 39 Cal 953 (964, 965) (PC). For comment, see (1912) 16 CWN (Journal) 221, 229.
3. Hoshide v. Emperor, AIR 1940 Cal 97 (105) (Khundkar and Sen JJ.).
4. Cf. Jagannath Das C.J. in Kalinga Tubes Ltd. v. D. Suri, AIR 1953 Ori 153 (155), para. 10.
5. Mahomed Tahir (in re:), AIR 1934 Bom 104.
6. Cf the observations of Ashutosh Chaudhary J. in Jagannath v. Emperor, ILR 47 Cal 597: AIR 1920 Cal 352 (353).
7. Kaverappa v. Sankannayya, AIR 1965 Mys 214, paras. 32 to 42.
8. For a review of case-law, see Melliceo Fernandez v. Mohan Nair, AIR 1966 Goa 23 (26), para. 5 (November 1966).
9. See Hood Phillips Constitutional Law, (1957), pp. 509, 510; Wilkes v. Wood, (1763) 9 State Trials 1193; Phillips Leading cases, (1957), p. 195.
10. See also E.C.S. Wade Police Search, (1934) 50 LQR 354 (367).
11. Eatick v. Carringon, (1765) 19 State Trials 1029; Phillips Leading Cases, (1957), p. 196.
12. Jowitt Dictionary of English Law, (1959), Vol. 1, p. 862.
13. Cf. the difficulty felt by Jagannathdas C.J. in Kalinga Tubes Ltd. v. D. Suri, AIR 1953 Ori 153 (155), para. 6.
14. Schedule V, form No. VIII, Code of Criminal Procedure.
15. See section 555.
16. Hoshide v. Emp., AIR 1940 Cal 97 (99, 102, 104).
17. Jowitt Dictionary of English Law, (1959), Vol. 1, p. 862.
18. Paresh Chandra v. Jogendra, AIR 1927 Cal 93 (95) (Cuming and Page JJ.).