PROCESSES TO COMPEL THE PRODUCTION OF THINGS

A Submission made by Shubham Kumar

Roll-1765 B.A.LL.B

A Submission submitted to DR.FR.PETER LADISF

A research submission submitted in fulfilment for the course (Criminal law II) for
obtaining the degree B.A.LL.B(Hons.) during the Academic year 2018-19.

March, 2019

Chanakya National Law University, Nyaya nagar, Mithapur Patna-800001

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report
entitle “PROCESSES TO COMPEL THE PRODUCTION OF THINGS”

Submitted at Chanakya National Law University, Patna is an authentic record of

my work carried out under the supervision of Dr. FR. PETER LADIS F. I have not
submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

(Signature of the Candidate)

SHUBHAM KUMAR
ROLL NO- 1765
B.A.LL.B.(Hons.), 4th SEMESTER
Chanakya National Law University, Patna

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 ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by me,
is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor Dr. FR.
PETER LADIS F. for, helping me in making the project on “PROCESSES TO COMPEL
PRODUCTION OF THINGS” for his valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who did a lot of help
for the completion of this project. The contributions made by my classmates and friends are,
definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also like
to thank the persons asked for help by me without whose support this project would not have been
completed.

I would like to express my gratitude towards the Almighty for obvious reasons. Moreover, thanks
to all those who helped me in any way be it words, presence, Encouragement or blessings.

SHUBHAM KUMAR

ROLL NO- 1765

B.A.LL.B(Hons.), 4th SEMESTER

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 TABLE OF CONTENTS

SERIAL PAGE
NAME OF CHAPTERS
NO. NO.

1. AIMS AND OBJECTIVES 6

2. HYPOTHESIS 6

3. LIMITATION 7

4. SOURCES OF DATA 7

CHAPTERISATION
1. INTRODUCTION…………….5
2. PROVISIONS RELATED TO PROCESSES
OF COMPELLING PRODUCTION OF
THINGS…….8-15
5. 3. CONSTITUTIONAL VALIDITY OF
SEARCH WARRANT……16-17
4. CONCLUSION AND SUGGESTIONS..18-
19

BIBLIOGRAPHY……..20

1. INTRODUCTION
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Administration of criminal justice involves a number of essential processes which are partly
administrative and partly judicial in nature. The pre-trial activity in a criminal proceedings is
largely an administrative process undertaken to initiate judicial action. The necessary phases in
this process are arrest and detention of the suspects, apprehending of the offenders, search of
person and premises for collecting material evidences so as to present the offenders in the court of
law for the prosecution. These activities are to be conducted in accordance with the legal norms
and directions set by law of the land for enforcement of criminal justice and such law must be in
consonance with the constitutional principles.

The powers of search and seizure in the executive authorities of the state came to be recognised in
the interest of community at large and for the sake of safety of the society in particular. This power
of search vested in the executive. The processes to compel the production of things are dealt under
sections 91 to 105 of the Code of Criminal Procedure, 1973. For the purposes of proper
investigation, enquiry or trial, the relevant documents and other material objects should be
available to the law enforcing agencies conducting such proceedings. If any person possessing
such relevant documents or things fails to produce the things required by the police for
investigation purposes, coercive methods are employed for obtaining these material objects. The
Code of Criminal Procedure, therefore, provides initially for summons to produce any documents
or things but if it is apprehended that this method will not suffice or the person to whom the
summons are issued fails to produce the documents or things required. The court has no option but
to issue orders to the police for the search and seizure of such documents and things. If the
exigency of the investigation requires the immediate search of a place, the police officer making
the investigation is empowered to search even without obtaining a warrant from a magistrate.

In State v. Bhawani Singh1, it has been observed,” An Indian citizen’s house, it must always be
remembered, it is his castle, because next to his personal freedom comes the freedom of his house.
Just as a citizen cannot be deprived of his personal liberty except under authority of law, similarly,
no officer of the state has a prerogative right to forcibly enter a citizen’s house except under the
authority of law.

OBJECTIVE OF THE STUDY

1
AIR 1968 Delhi, 208.
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The researcher intends to find out provisions related to the processes for compelling the production
of things

HYPOTHESIS:

The researcher presumes that search warrant is unconstitutional.

RESEARCH QUESTIONS

1) How and when summons are to produce documents or other things may be issued by
Court?
2) When search warrant is issued? How search warrant is issued by the Court? What are
essentials of a warrant?
3) Discuss the constitutional validity of search warrant?
4) What procedure is followed for searching suspicious places containing stolen property,
forged documents are done by Court?
5) What are search warrants? Which provision empowers Court to give directions?
6) What are the powers given to a police officer to seize a certain property? Who has the
power to seize property?

RESEARCH METHODOLOGY:

The researcher will be relying on Doctrinal method of research to complete the project. These
involve various primary and secondary sources of literature and insights.
SOURCES OF DATA

 PRIMARYSOURCES

o CASE LAW.

o CONSTITUTION OF INDIA.

o CODE OF CRIMINAL PROCEDURE,1973.

o INDIAN PENAL CODE, 1860

 SECONDARYSOURCES

o BLOGS

o BOOKS

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 o CASECOMMENTARIES.

o JOURNALS

REVIEW OF LITERATURE

RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, (22ndEd., 2014,Lexis

Nexis).

This legal classic has served the legal profession and everyone associated with it for almost a
century. Learned yet simple in its approach, it allows readers to quickly grasp the principles of
Criminal Procedure and Criminology. All technical rules of procedure have been illustrated and
explained in a lucid, comprehensive and systematic manner. The 22nd edition of this work has
been painstakingly updated to include the latest case law, legislative amendments and current
developments in the law relating to criminal procedure in India. Case law decided under the old
Code of 1898 which continue to remain relevant has been retained under the corresponding
provisions of the new Code of 1973.

Authenticity, originality and reliability have always been the hallmarks of this publication and
every possible care has been taken in this edition to maintain the original excellence, style and
quality of the work. As has been the hallmark of previous editions, the current edition too offers a
great help to students and professionals, when they require a quick overview, in the form of
summary at the end of the work. The book is an invaluable source of reference for the widest
possible range of readers including students, academics, legal practitioners, judges,
administrators, public prosecutors, police officers and police trainees.

LIMITATIONS OF THE STUDY:

The researcher has territorial, monetary and time limitations in completing the project.

2. PROVISIONS RELATED TO PROCESSES OF COMPELLING

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 PRODUCTION OF THINGS
Documents and the other material objects relevant for any investigation, inquiry or trial should be
available to the agencies conducting such proceedings. If any person in possession or control of
any such relevant documents or things does not co-operate with these agencies and fails to produce
the things required, the law will have the devise coercive methods for obtaining these material
objects for the purpose of proper investigation, inquiry, or trial. The code therefore provides
initially for a summons to produce any documents or things; but if this method fails or is
apprehended to fail, the court can issue orders to the police for the search and seizure of the
documents or things.

The code of criminal procedure has divided the production of things before the court under chapter
VII into four parts that are like in A. summons to produce, B. search-warrant, C. general provisions
relating to searches, D. miscellaneous.

Part A- (Summons to Produce)

The law regarding processes to compel the production of documents and other movable property is
laid down in Sections 91 to 94 of the Code of Criminal Procedure. Such processes are of two
kinds, viz., a summons and a search warrant.

How and when summons are to produce document or other thing may be issued by Court? If a
court or any officer in charge of a police station is of the opinion that the production of any
document or other thing is necessary for the purposes of the investigation, inquiry, trial of the case
or other proceeding before such Court or Officer, Such Court may issue summons, or such Officer
a written order, under section 91 to the person in whose possession such document or thing is
believed to be, requiring him to attend and produce the same before the court at the time and place
mentioned in the summons. An order or summons can be issued under section 91 to any person.
Wow a question may arise whether summons or an order under this section could be issued to an
accused person. The language of the section is general and prim a-facie apt to include an accused
person but there are indications that the Legislature did not intend to include an accused person.

In England, no person can be compelled to produce evidence against him, and, consequently, no
order can be made on him to produce documents or other things. In India, because of the general
words used in section 91 the courts were of the opinion that a magistrate can issue summons
against an accused requiring him to produce the documents or things in his possession or power. A
different view was also taken in some cases and it was held that the provisions of the section does
not apply in case of an accused person.

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In the Case of Vimalben Ajit Bhai Patel vs. Vatslaben Ashok Bhai Patel 2, the very purpose of
issue of summon, warrant and attachment was challenged and the court held that when the purpose
is achieved then the property should be returned.

Can Court compel postal or telegraph authority to produce letters and telegrams? Section 92 of
The Code of Criminal Procedure,1973 empowers District Magistrate, Chief Judicial Magistrate,
Court of Session or High Court can compel telegraph or postal authority to produce any document,
parcel or thing over which authority is having custody. Under this Code, Magistrate or Court for
the purpose of any investigation, inquiry, trial or other proceeding may require the postal or
telegraph authority to deliver those documents, parcel or thing to such person as per the direction
given.

In the Case of State of Gujarat vs. Shyam Lal3, The Supreme Court had interpreted Article 20(3)
of the Constitution of India, 1950 that the court cannot compel an accused person for production of
document as it is against this Article 20(3).

If a person other than accused fails to produce a document then he will be punished under Section
175 of Indian Penal Code,1860 which talks about omission to produce (document or electronic
record) to public servant by person legally bound to produce.

Part B – (Search Warrants)

When search-warrant is issued? How search-warrant is issued by the Court? What are essentials of
a warrant?

The court may issue search warrant if:

• If Court has reason to believe that a person to whom a summons or order given will not or would
not produce the documents or things as required by such summons or requisition,

• where such document or things in the possession of any person and also not known to the Court,
or

• where the Court considers that general search and inspection is required for purposes of any
inquiry, trial or other proceeding under this Code, The search warrant is directed to a person. He
may search or inspect in accordance therewith and the provisions hereinafter contained.

• The Court should specify in the warrant the particular place and till what part to which search and
also inspection extends. The person charged with the execution of such warrant, then search or
inspect as specified.

2
(2008) 4 SCC 649
3
AIR 1965 1251
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• Any Magistrate other than a District Magistrate or Chief Judicial Magistrate is authorized to grant
a warrant to search for document, parcel or other thing which is in custody of the postal or
telegraph authority.4

The warrant must:

• Be in writing

• Contain all the matters that the law requires it to stated therein.

What procedure is followed for searching suspicious places containing stolen property, forged
documents are done by Court?

According to Section 94 of The Code of Criminal Procedure,1973 If a District Magistrate, Sub-

divisional Magistrate or Magistrate of the first class, upon information received and also after such
inquiry has reason to believe that any place used :

• for the deposit or • sale of stolen property, or • for the deposit, sale or production of any
objectionable article, or • for the deposit of any such objectionable article. The Magistrate may by
warrant authorize any police officer above the rank of a constable to: • To enter such place with
assistance as required, • To search the place in the manner specified in the warrant, • To take
possession of any property or article therein found which he reasonably suspects as stolen property
or also objectionable article, • To convey such property or article before a Magistrate or guard the
same on the spot until the offender presented before a Magistrate, or otherwise to dispose of it in
some place of safely,

• To take into custody and also present before a Magistrate every person found in such place who
appears to have been privy to the deposit, sale or production of any such property or article
knowing or having reasonable cause to suspect it to be stolen property or, as the case may be,
objectionable article to which this section applies. The objectionable articles to which this section
applies are- • counterfeit coin;

• pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into
India in contravention of any notification for the time being in force under section 11 of the
Customs Act, 1962 (52 of 1962); • counterfeit currency note; counterfeit stamps; • forged
documents; • false seals; • obscene objects referred to in section 292 of the Indian Penal Code (45
of 1860); • instruments or materials used for the production of any of the articles mentioned in
clauses (a) to (f).
4
Dinesh Auto Finance vs. State of Andhra Pradesh, 1998 CrLJ 1876(AP)
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Who is having power to declare certain publications forfeited and how search warrants are issued
for the same?

As per Section 95 of The Code of Criminal Procedure,1973 – If State government is of opinion

that any newspaper, or book or any document, wherever printed whose publication does contain
matters which are punishable under Section 124A or Section 153A or Section 153B or Section 292
or Section 293 or Section 295A of Indian Penal Code then State government can forfeit such
matters by issuing notification stating the grounds to declare every copy of issue of newspaper and
every copy of such book or other document. And as result any Police Officer can seize the same
wherever it is found in India and Magistrate can authorize through a warrant any police officer not
below the rank of sub-inspector to enter and search those premises where any copy of such issue or
any such book or other document can be found or is reasonably suspected to be found. • As Sub-
section (3) no action or order can be passed under this section or can be questioned in any Court
otherwise in accordance with the provisions of Section 96.

Who can file an application to High Court to set aside declaration of forfeiture? How application
is set aside in High Court regarding declaration of forfeiture?

According to Section 96 of The Code of Criminal Procedure,1973 Any person can file an
application in High Court who is having any interest in any newspaper, book or other document
regarding which declaration of forfeiture has been made under Section 95 to set aside such
declaration on a ground that it does not contain any matter as per sub-section (1) of section 95.
Time period is of two months from the date of publication of such declaration in Official Gazette.

Procedure for setting aside such declaration: • Every such application shall be heard by High Court
consisting three or more judges, and will be determined by Special bench of High Court
composing three judges and where High Court consists less than three judges then such Special
bench shall be composed of all the judges of that High Court. • During hearing of such application
reference must be made by any newspaper, any copy of such newspaper to give as an evidence in
aid to prove nature or tendency of the words, signs or visible representations which are there in
newspaper against whom declaration of forfeiture was made. • The High Court shall set aside the
order if it is not satisfied that the issue of newspaper or the book or other document does contain
such matter mentioned under sub-section (1) of section 95 in respect of which application was
made. • When there is difference on opinion among the Judges of Special bench , then decision
shall be done with majority opinion of those Judges.

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How wrongfully confined persons are searched? Who can issue search-warrant regarding persons
wrongfully confined? Section 97 of The Code of Criminal Procedure,1973 empowers any District
Magistrate, Sub-divisional Magistrate or Magistrate of first class to issue a search-warrant when
there is a reason to believe that any person is wrongfully confined. The person upon whom warrant
is directed will search such person and if found he shall be immediately taken before a Magistrate.
Then Magistrate will make order as per the circumstances of case which seems to be proper in
nature.

How restoration of abducted females is done? Who is having the power to compel?

According to Section 98 of The Code of Criminal Procedure,1973 a District Magistrate, Sub-

divisional Magistrate or Magistrate of the first class are empowered to pass an immediate
restoration order upon a complaint made and on which oath of abduction or unlawful detention of
a woman, or a female child of less than eighteen years is abducted for any unlawful purpose.
Magistrate will order to restore liberty of such woman or of such female child to her husband,
parent, guardian or other person having lawful charge of such child and also has power to compel
compliance of such order even using force as it may be necessary to do so.

Part C – (General Provisions relating to searches)

What are search-warrants? And which provision empowers Court to give directions? Search-
warrant is a legal document issued by a competent Court to a police officer giving permission to
search any person or a thing or seize specific items. Court is empowered as per provisions of
sections Section 93,94,95 or 97 to issue search-warrant which will apply to all these provisions
under Section 38,70,72,74,77,78 and 79 of The Code of Criminal Procedure,1973.

How permission to search is granted to a person in charge of a closed place?

According to Section 100 of The Code of Criminal Procedure,1973 permission regarding search or
inspection of a place is granted which is closed as per the Chapter VII. This section applies to both
the kinds of searches- with and without warrant. • Sub-section (1) states person in charge of a
closed place shall allow on demand of Officer or other person for execution of warrant and after
showing such warrant to enter any place which is liable to be searched or to be inspected and he
should be given all reasonable facilities for a search. • Sub-section (2) gives power to Officer or
other person under sub-section (2) of section 47 to execute the warrant in a manner prescribed,
when right to entrance is not obtained.

• Sub-section (3) provides power to search any person in or about any place who is suspected to be
concealing about his person any article. In case of a woman, the search will be made by another

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woman with strict regard to decency. • Sub-section (4) provides that before making a search the
officer or other person shall call upon two or more independent and respectable inhabitants of the
locality. If no such inhabitant of said locality is not available or is willing to be witness and to
attend search process then Officer can issue an order in writing to them or any of them to do so. •
Sub-section (5) provides that the police officer or other person making the search shall prepare a
list of articles and things seized in the course of the search and it shall be signed by the witnesses

but they are not required to attend the Court as a witness unless specially summoned by it. • Sub-

section (6) provides that occupant of some other person on his behalf shall be given permission to
attend the search and a copy of list signed by said witnesses shall be delivered to him or person. •
Sub-section (7) provides that any person who is searched under sub-section (3), list of all things
taken into possession shall be done and a copy shall be delivered to such person. • Sub-section (8)
provides that any person who without reasonable cause refuses or neglects to attend and witness a
search even after order in writing is tendered to him then he shall be deemed to have committed an
offence under section 187 of The Indian Penal Code.

What is the criteria of disposing off things which are found beyond jurisdiction?

Under Section 101 of The Code of Criminal Procedure,1973 searched things and list of the same
shall be immediately taken before the Court who has issued warrant to search a place beyond the
local jurisdiction or it will be taken to other Court which is nearer having jurisdiction, than such
Magistrate unless there be a good cause shall make an order authorizing them to be taken to such
court.

Part D – (Miscellaneous)

What are the powers given to a police officer to seize a certain property? Who has the power to
seize property?

According to Section 102 of the Code of Criminal Procedure, 1973 Any police officer is
empowered to seize any property which has been alleged or suspected to have been stolen or
which is found in such circumstances that creates suspicion of commission of any offence. • If
such police officer is subordinate to the officer in charge of a police station then he shall forward
report of seizure to that officer. • Every police officer who is acting under sub-section (1) shall
forward report of seizure to the Magistrate, who is having jurisdiction and where the property is
seized is such that it cannot be conveniently transported to the Court, or where difficulty is there in
securing proper accommodation for the custody of such property, or where the continued retention

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of the property in police custody is not considered necessary for the purpose of investigation, he
may give custody to any person on his executing a bond undertaking to produce the property
before the Court as and when required and to give effect to the further orders of the Court as to the
disposal of the same.

Provided that when seized property is perishable in nature and the person entitled to the possession
of such property is unknown or absent, in that situation property having less than 500 rupees value
will be sold by auction under the orders of the Superintendent of Police and the provisions of
section 457 and 458 will be applicable nearly and also apply to the net proceeds of such sale.

Who has the power to give directions regarding search in his presence?

Under Section 103 of The Code of Criminal Procedure, 1973 Any Magistrate can direct a search to
be made in his presence regarding any place of which he is competent to issue a search warrant.

Who has the power to impound produced documents? As per Section 104 of The
Code of Criminal Procedure, 1973 Any Court can impound any document or thing
produced before the court as it thinks fit to do so.

What reciprocal arrangements are taken by Court regarding processes? Section 105
of The Code of Criminal Procedure, 1973 speaks of reciprocal arrangements to be
made by central government with foreign governments in regards to the service of
summons or warrants or judicial processes. • Sub-section (1) provides that a Court
can exercise its power where the Code extends by issuing following that will be
served or will be executed at any place

1. A summon to an accused person

2. A warrant for the arrest of an accused person

3. A summons to any person requiring him to attend and produce such document or
other thing or to produce it

4. A search warrant,

• A Court having local jurisdiction is also empowered in any state or area in India outside the said
territories to send summons or warrants in duplicate form through post or otherwise, to the
presiding officer of that Court to serve or execute; and where any summons referred to clause (a)
or clause (c) has been so served, the provisions of the section 68 shall apply to all those summons
as if the presiding officer of the Court to whom it has been sent was a Magistrate in that said
territory.

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• Central government with the Government of any country or place outside India can make
arrangements for the service or execution of summons or warrant in relation to criminal matters, it
can summons or warrant in duplicate form directed to such Court, Judge or Magistrate and Central
Government can also send notification on his behalf to search authority for transmission. • Sub-
section (2) provides the procedure when the Court in the said territories has received notification
issued by (i) a Court in any state or any area in India outside the said territories, (ii) a Court, Judge
or Magistrate in a contracting state, regarding service or execution containing following things:

1. A summons to an excused person, 2. A warrant for the arrest of an accused person, 3. A

summons to any person requiring him to attend and produce such document or other thing or to
produce it,

A search warrant, Then it shall serve or execute the same as if it were issued from another Court in
the said territories for service or execution within its local jurisdiction. • Accordingly where a
warrant of arrest has been executed, the arrested person shall be dealt with in accordance with the
procedure prescribed under Section 80 and 81 so far as possible, • Or where search warrant has
been executed the things found during the course shall be dealt with in accordance with the
procedure prescribed by section 101 so per as possible. • Proviso to Section 105 provides that in a
case where summons or search warrant has been received from a contracting state which has been
duly executed and the documents or things produced or things found in the search shall be
forwarded to the Court who has issued the summons or search warrant through such authority as
per the notification on the behalf of Central Government.

In the Case of Ganga Ram vs. Habib Ullah5, it was held that the court has inherent jurisdiction to
call upon a person present in the court to produce a document which is in his possession at that
time, and it is in such cases unnecessary to insist on the strict compliance with the conditions of
section 91 of the code.

3. CONSTITUITIONAL VALIDITY OF SEARCH WARRANT

5
AIR 1936 All 212, 159 Ind Cas 525
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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.
The question arises as to whether the search conducted under the provisions of the criminal law is
hit by article 20(3) of the Constitution of India? In M.P.Sharma vs. Satish Chandra6 it was held
by their Lordships that, having regard to the historical background regarding Indian criminal
procedural law; concerning searches, interposition of the judicial functions while ordering searches
and the person to whom the orders regarding searches are made, such searches were not
tantamount to testimonial compulsion to the accused person and for that reason there was no
invasion of fundamental right guaranteed by article 20(3) of the Constitution of India.
Article 20(3) of the Constitution again came up for consideration before the Supreme Court in
State of Bombay v. Kathj Kalu Oghad.7 It was pointed out that ' to be a witness' is not
equivalent to 'furnishing evidence’ in its widest significance so as to include also production of
documents or giving of materials which-may be relevant at a trial to determine the guilt or
innocence of the accused, that the observations in M.P. Sharma v. Satish Chandra that section 139
of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely well
founded in law, and that ‘to be a witness' means imparting knowledge in respect of relevant facts
by an oral statement or a statement in writing made or given in Court or otherwise. "To be a
witness' bears a wider meaning than its ordinary grammatical sense, and means bearing testimony
in court or out of court by a person accused of an offence, orally or in writing. 8 It is thus not
enough that he should become accused any time after the statement has been made. For invoking
the constitutional right against testimonial compulsion guaranteed under this clause, it must appear
that a formal accusation has been made against the party pleading the guarantee, and that it relates
to the commission of an offence which in the normal course may result in prosecution. 9 The nature
of the accusation and its probable sequel or consequence are regarded as important.

Whether or not the order requiring the production of a document by an accused person is hit by the
prohibition contained in Article 20(3) of the Constitution would depend upon the nature of that
6
A.I.R.1954 S.C. 300
7
AIR 1961 SC 1806
8
State .of Bombay v. Kathi- Kalu Qghad A.I.R. I96l S.C. 18,08.
9
Raja..Iteravan..Lai Bansl Lai vs. Maneek feroz mistry A.I.R.196I S.C.29 at p.38
16 | P a g e
document. If the document is such as 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.
But if the order relates to a document which contains ‘any statement of the accused based on his
personal knowledge’ the order for its production will attract the constitutional bar against
testimonial compulsion.

Article 20(3) of the Constitution will come into play only when two facts are established:

(i) the individual concerned was a person accused of an offence, and

(ii) he was compelled to be a witness, against himself.

If only one of these facts, and not the other is established the requirements of Art. 20(3) will not be
fulfilled. But to produce a document in a criminal case in support, of prosecution is a testimonial
act under Art. 20(3). It would prohibit a summons to be issued under this section against, an
accused person requiring him to produce documents in support of a prosecution case.

4. CONCLUSION AND SUGGESTIONS

It is concluded from the research that the hypothesis of the researcher has been disproved; it means
that section 91 of criminal procedure code, 1973 is not unconstitutional. The section 91 is so
construed as to include an accused person, such a construction is likely to lead to grave hardship
17 | P a g e
for the accused and make investigation unfair to him. 10 Moreover, the section if construed so
widely would be violative of Article 20(3) of the constitution which embodies the principle of
protection against compulsion of self incrimination. For, that article has been construed to mean
that an accused person cannot be compelled to disclose document which are incriminating and
based on the knowledge.11 The court for all these reasons, have taken the view that section 91, on
its true construction, does not apply to an accused person. 12 The court has ruled that merely
because an order made by an investigating officer to produce books of accounts and other things
would cause inconvenience to the person from whom it is summoned, it could not be said that the
order is beyond the purview of section 91.13

A person who has not been cited as a witness in the proceeding but appears in the court in
pursuance of summons under section 91(1) does not thereby become a witness and therefore
cannot be examined and cross examined by the court. Section 139 of the Evidence Act clearly
provides that even if such person produces the document he does not thereby become a witness by
the mere production of the document.

HYPOTHESIS:
The researcher presumes that search warrant is unconstitutional is proved to be false.
In the case of state of Bombay v Kathi Kalu Oghad and others, 14 constitutional validity of Article
20(3), has been challenged. i.e self incrimination, along with this , various provisions of Indian
Evidence Act has also been challenged i.e section 24, 27 and section 73. The corroboration is done
either to prove or contradict the fact.the court in his judgement held the validity of all these section
to be constitutional. They said that these provisions does not infringe Article 20(3) and these are
miscellaneous provisions. Signature or thumb is part of trial procedure. It is collection of evidence

and it does not force anybody to be a witness of himself and does not infringe fundamental rights.
These are held to be intravires and not ultravires.
The judgment related to the unconstitutionality of section 91 was held in the case of State of
Gujrat v Shyamlal15 where Supreme Court has interpreted Article 20(3) as to making it within the

10
State of Gujrat v Shyam Lal, AIR 1965 SC 1251.
11
Supra note 3 at page 7.
12
State of Bombay v Kathi kalu Oghad, AIR 1961 SC 1808.
13
Surendra Mohan v. K.P.Mani, 1986 Cr.L.J 1324 (All).
14
AIR 1961 SC 1806.
15
AIR 1965 SC 1251.
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 purview of section 91 and 93 of code of criminal procedure, i.e. court cannot compel for the
production of document which is against Article 20(3). But if any other person is asked to produce
a document before the court or police officer and if he fails to do so, the punishment is given under
section 175 of IPC.

Article 20(3) of the Constitution will come into play only when two facts are established:
(i) the individual concerned was a person accused of an offence, and
(ii) he was compelled to be a witness, against himself.

If only one of these facts, and not the other is established the requirements of Art. 20(3) will not be
fulfilled. But to produce a document in a criminal case in support, of prosecution is a testimonial
act under Art. 20(3). It would prohibit a summons to be issued under this section against, an
accused person requiring him to produce documents in support of a prosecution case.

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 BIBLIOGRAPHY

The researcher has consulted following sources to complete the rough proposal:

1. Books:

a. RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE,

(22ndEd., 2014, Lexis Nexis).

b. K. D. GAUR, THE TEXTBOOK ON THE CODE OF CRIMINAL

PROCEDURE, (2016 Ed., Universal LawPublishing).

c. DR. K.N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S CRIMINAL

PROCEDURE,(6th Ed., 2016, EBC Publication).

2. Statutes:
a. CONSTITUTION OF INDIA.
b. CODE OF CRIMINAL PROCEDURE,1973.
c. INDIAN PENAL CODE,1860.
3. Websites:
a. Academike
b. iPleaders
c. India Law Journal
d. Legal ServiceIndia
e. SCC Online Research Repositor

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