14 December 1964
Supreme Court


Case number: Appeal (crl.) 135-139 of 1963






DATE OF JUDGMENT: 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-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.



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



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,



             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.



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.



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  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



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   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)..



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



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.



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



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



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.



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