Author Name:   shishir shrivastava

Article 20(3)states that no person accused of any offence shall be compelled to be a witness against himself....

Section 91(1) CrPc: An analysis of Constitutional validity

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

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

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

This paper deals with the power of search and seizure of the court and police authorities particularly the power to issue summons or notice by the court or officer in charge of the police station under section 91(1) of CrPc. The issue has been dealt in detail by the apex court of this country in case of M.P Sharma and others vs Satish Chandra, State of Bombay vs Kathi Kalu Oghad and State of Gujrat v Shyamlal Mohanlal Choksi. After going through all the three case laws it is felt that the matter has been wrongly taken up by the court. The Supreme Court in Kalu Oghad’s case has narrowly interpreted the expression “to be a witness” which has created situation where a very narrow space is available for the actual protection of this right in respect of production of documents.

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

General Provision regarding search and seizure

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

(1) Whenever any Court or any officer in charge of a police station consider that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring hm 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.

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

(1)(a) Where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such thing or document is not known to the court to be in the possession of any person, or (c) where the Court consider that the purpose of any inquiry, trial or other proceeding under this code will be served by a general search or inspection, it may issue a search- warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and provisions hereinafter contained.

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

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

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

“It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in procedure Code of 1882 and even there the issue of general warrants is not based on non compliance with a previous summons for production. It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his productions in compliance therewith constitute a testimonial act by him within the meaning as explained above. But search warrant is addressed to an officer of the government, generally a police officer. Neither the search nor the seizures are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense.”

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

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

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

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

Whoever, being legally bound to attend in person or by agent at a certain place and time in obedience to a summon, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same,

Intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart,

Shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both,

Or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with a simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

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

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

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

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

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

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

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

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

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

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

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

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

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

“to be a witness means imparting knowledge in respect of relevant facts, by means of oral statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority to come to a decision, by testifying to what he has seen, or something which he has heard which is capable of being heard and is not hit by rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy.”

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

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

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

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

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

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

“If after a thing or document is produced, its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person, the order to produce the thing or document would seem to serve no purpose; it cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasion the power under section 94(1) would be resorted to, so that on the alternative view which seeks to exclude incriminating document or things, the working of section 94(1) would yield no result.”

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

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

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

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

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

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

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

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

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

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

Bibliography
Statutes referred
(1) Code of Criminal Procedure, 1973
(2) Indian Penal Code, 1860
(3) Indian Evidence Act, 1872

Books referred
(1) Basu D.D. Introduction to the Constitution Of India, Lexis Nexis Butter Worth Wadhwa, Nagpur
(2) Basu D.D, Commentary on the Constitution Of India, 8th Edition 2008, Vol 3, Lexis Nexis Butterworth Wadhwa, Nagpur
(3) Datar Arvind P; Commentary on the Constitution Of India, Vol 1, Wadhwa Nagpur
(4) Ratanlal Dheerajlal; Code of Criminal Procedure, 17th Edition reprint 2009, Lexis Nexis Butterworth Wadhwa, Nagpur
(5) Ratanlal Dheerajlal; Indian Penal Code, 1860, 30th Edition reprint 2009, Lexis Nexis Butterworth Wadhwa, Nagpur

Dictionaries referred
(1) Aiyar P. Ramanath; Concise Law Dictionary; 3rd Edition reprint, 2009, Lexis Nexis Butterworth Wadhwa, Nagpur

The author is a IIIrd year student of law @MATS LAW SCHOOL, MATS University and can be reached at shishir@legalserviceindia.com

It is completely based on principle of natural justice that the parties in dispute should be given equal chance to be heard and the final decision must be completely based on the merits of the arguments presented by both the parties.

[3] Provided in Chapter XVI: Commencement of Proceeding Before Magistrate, of which section 207 provides that before any proceeding be instituted the accused shall be provided with the police report filed by police after completion of investigation under section 170, First Information Report lodged by the complainant under section 154, all the statements of witnesses and accused recorded during course of investigation under section 162 (which also includes statements under course of examination under section 161), any confessional or non confessional statement recorded under section 164, all the documents and material forwarded to magistrate under sub section (5) of section 173. Also this section provides that if magistrate deems fit that he can also order the investigating officer to forward all those excerpts as well, which in the opinion of investigating officer, under sub section (6) of section 173, should not be disclosed to the accused ex delito justice.

This states that any person called for the purpose of examination under section 161 shall answer all questions truly except the answer to which would have tendency to expose the person to criminal charges. This provision is completely in consonance with the fifth amendment of the American constitution which states that:”No person……. shall be compelled in any criminal case to be a witness against himself”. It is the principle only which has been derived in Article 20 (3) specified in Part III of the Constitution Of India, but there is a wide difference between this very provision of the code and article 20 (3) is that while the protection against the later can be claimed only when a formal accusation has been leveled against the person as for e.g. lodging of FIR, and thus the protection cannot be afforded to any person who is a witness in that very case. But as per the provision of section 161 (3) as well as fifth amendment of the American Constitution, the protection even extend to the witness.

[5] The legislative intention of this provision has been rightly observed by the apex court of this country, is to protect the accused from overzealous police officer or untruthful witnesses; Tehsildar Singh v State of U.P;

[6] AIR 1954 SC 300
[7] AIR 1961 SC 1808
[8] AIR 1965 SC 1251
[9] AIR 1954 SC 300

Govind v State of M.P; (1975) 2 SCC 148. It has also been held by the learned author Dr. D.D Basu that: Intrusion into the privacy may be by, (1) legislative provision, (2) administrative or executive orders, and (3) judicial orders. The legislative intrusion must be tested on the touchstone of the reasonableness as guaranteed by the Constitution and for that purpose the court can go into the proportionality of the intrusion vis-à-vis the purpose sought to be achieved. So far as executive or administrative action is concerned, it is again to be reasonable having regard to the fact and circumstances of the case. As to judicial warrants, the court must have sufficient reason to believe that the search or seizure is warranted while keeping in mind the extent of search or seizure necessary for the protection of particular State interest .Warrantless searches, whenever permitted, must be in good faith intended to preserve evidence or intended to prevent sudden danger to person or property; D.D Basu; Commentary on the Constitution of India, 8th Edition 2008, Vol 3, Lexis Nexis Butterworth Wadhwa, Nagpur.

[11] AIR 1965 SC 1251
[12] Infra note no; 19
[13] Infra note no; 20
[14] AIR 1961 SC 1808
[15] Infra note no; 18
[16] Supra not no; 2
[17] Supra note no;4

[18] The main issue raised in the case was whether thumb impression, palm impression, specimen signatures etc given during the course of investigation is a compelling any person to be a witness against himself, if the person refuse to give the same. It was in this context the interpretation was made by the majority bench regarding what the phrase “to be a witness” should mean. However the practical application of the same interpretation will be completely violating the right of the accused.

Though speaking for the minority Das Gupta J. also arrived at the same conclusion (with regard to the giving of thumb impression, signatures etc, which was the main question in issue in this case) but with some different logic than those of the majority. However still the opinion and views expressed by the judge needs special attention as it has completely and clearly shown what could be the disastrous consequences of the majority decision.

In this case the constitutional validity of Section 91(1) of the code of Criminal Procedure was challenged. It was contended that if the any officer or any court issue any notice or summon to any person accused of any offence, to produce any document which would have tendency to expose the person to criminal charges, the summon or order issued will be against the fundamental right of self incrimination. Therefore the term ‘any person’ in section 91(1) does not include the accused person as if he will not obey the summon or order still he can be prosecuted under section 174 of the IPC, 1860, which is nothing but a compulsion being put upon the accused to incriminate himself.

[21] This could be attributed from the judgment made in the same case by Shah J. stating that: If by summoning a person who is accused before the court to produce document or things, he is compelled to be a witness against himself, the summons and all proceedings taken thereon by the court will be void. This protection must undoubtly be made effective, but within the sphere delimited by the judgment of this court in Kalu Oghad’s case.

[22] It is in light of theory of interrelationship of fundamental right developed by the Honorable Supreme Court in Menka Gandhi v Union Of India, AIR 1978 SC 597, that all other fundamental rights are now subject to the procedure established by law under Article 21 of the Constitution Of India. Article 21 states that: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

The  author can be reached at: shishir@legalserviceindia.com

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