“PROCESSES TO COMPELL THE PRODUCTION OF

THINGS”

Submitted by:
Utkarsh Raj
BBA.LLB(Hons.)
2264
Submitted to:
Ms. Preety Anand
Assistant Professor
Criminal Law - II
This final draft is submitted in the partial fulfilment for the
completion of BBA L.L.B course.

April 3, 2021

Chanakya National Law University, Patna

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 DECLARATION BY THE CANDIDATE

I, hereby, declare that the work reported in the BBA.LLB (Hons.) Project Report entitled
“PROCESSES TO COMPELL THE PRODUCTION OF THINGS” submitted at
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of our
work carried out under the supervision of Ms.Preety Anand Ma’am. I have not submitted this
work elsewhere for any other degree or diploma. We are fully responsible for the contents of
our Project Report.

(Signature of the Candidate)

Utkarsh Raj (2264)

B.B.A. L.L.B., 2nd year

SEMESTER -4th

CNLU, Patna

Dated: April 3rd , 2021

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 ACKNOWLEDGEMENT

I would like to show our gratitude towards our guide Ms. Preety Anand Ma’am, Asst.Prof.,
Criminal Law -II, under whose guidance, I structured my project.

I owe the present accomplishment of our project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have completed
it in the present way.

I would also like to extend our gratitude to my friends and all those unseen hands that helped
me out at every stage of our project.

THANK YOU,

SINCERELY

UTKARSH RAJ
SEMESTER -4th
CNLU, PATNA

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Table of Contents

1. DECLARATION BY THE CANDIDATE................................................................................ 2

2. ACKNOWLEDGEMENT ......................................................................................................... 3

3. INTRODUCTION………………………………………………………………………….…5

4. PROCEDURE TO COMPEL PRODUCTION OF THINGS………….………………………7

5. CONSTITUTIONAL VALIDITY OF SECTION 91……………………...…………………11

6. CONFLICT WITH ARICLE 20(3)…………………………………………….…………….15

7. CONCLUSION……………………………..………………………………………………...16

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 I. INTRODUCTION

A summon is a document issued either for the appearance or for producing a document or an
item which may be issued to an accused person or witness. Section 61 of the Criminal
Procedure Court states that every summons issued by the Court shall be in writing, in duplicate
along with the signature of the Presiding Officer of such Court or by such an officer as is
authorised by the High Court and shall bear the seal of the High Court. The summons should
be specific and clear in its terms regarding information such as the title of the Court, the place
at which, the day and time of the day when the attendance of the person summoned are required

For the purpose of investigation and prosecution, the process of comparing the production of
documents or a thing is necessary. it is because unless and until the document or a thing that is
required to be presented before the court is presented the trial may be delayed.

Whenever a requirement is thereby the court or any officer in charge of the police station of
the production of any document of thing that is necessary for the investigation trial enquiry or
any other proceedings of the quote then someone may be issued or written order by an officer
may be directed towards a person in whose position the document writing lies and require him
to be present with the document or produced it any which ways.

It is necessary to the court for a compulsion to produce the things. It follows the principle of
natural justice that the accused of any offence should be given an equal chance to be heard and
to defend himself. The law regarding processes to compel the production of documents or
things are laid down in section 91 to section 105 of the CrPC,1973. The court when thinks fits
or is of opinion that the production of such a thing is necessary then the court may issue
summons to produce the same. The police officer or authorized person is required to be work
efficiently according to the rules and regulations.

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.

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 1. OBJECTIVE OF STUDY

I. To study the section 91of Criminal Procedure Code

II. To find out whether aforementioned Section is Constitutionally Valid

III. To find out Cases Related to this Section

2. HYPOTHESIS

The researcher believes that Section 91 of CrPC 1973 is unconstitutional.

3. SOURCES OF DATA COLLECTION

Primary – Criminal Procedure Code, Indian Penal Code, Indian Evidence Act

Secondary- Books, Journals, News Articles, Websites etc.

4. RESEARCH METHODOLOGY

The researcher will do doctrinal type of research in which he will go through the primary as
well secondary sources. The researcher through this methodology will be able to get an
accurate picture of the problem in question. The doctrinal method helps in doing a
comparative study of the topic. This helps in getting the bird’s eye view of the subject. This
methodology will be the most effective way in preparing the project.

5. LIMITATIONS OF STUDY

Since the researcher is a student of law, he has access to a limited area. The researcher has
limited time for the project. The historical need and background are also necessary for having
a bird’s eye view of the particular topic and it gets developed only by effective and extended
reading over a long period of time. But the required materials are not available in our library.
But still researcher with his hard work will manage to take out the best possible work.

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 II. PROCEDURE TO COMPEL PRODUCTION OF THINGS

The complete procedure of Code of Criminal Procedure is based upon the principle of justice
and fairness. One of the fundamental principles of legal jurisprudence and natural law is that
any person who is accused of any offence should be given an equal chance to be heard and to
defend himself in the Court of justice.

Code of Criminal Procedure, 1973 (CrPC) relates to the process of proceedings, provisions
in section 161(3) and provision in section 162 of the code specify that any statement recorded
by the police officers during the course of investigation, shall not be signed by the person
making the statement.1

Similarly supporting provisions upholding the proposition of legal jurisprudence against the
protection of self- incrimination has been provided as a fundamental right, under Part III of our
Constitution of India in Article 20(3) stating, “No person accused of any offence shall be
compelled to be a witness against himself”

Similarly, Section 91 of CrPC states that:

“(1) Whenever any Court or any officer in charge of a police station considers that the
production of any document or other thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceedings 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”.

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

1
https://blog.ipleaders.in/constitutional-validity-section-91-crpc/

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

This means that an officer in charge of a police station can send a notice or a court can issue a
summon under section 91(1) to any person within whose possession the officer or court thinks
is the document or a thing necessary for the purpose of investigation. But if the court or officer
feels that the person to whom the summons or notice is issued, will not produce the document
or thing, the court can issue a warrant of search to the officer, under section 93(1) (a).2

For the purpose of investigation and prosecution, the process of comparing the production of
documents or a thing is necessary. it is because unless and until the document or a thing that is
required to be presented before the court is presented the trial may be delayed.

Whenever a requirement is thereby the court or any officer in charge of the police station of
the production of any document of thing that is necessary for the investigation trial enquiry or
any other proceedings of the quote then someone may be issued or written order by an officer
may be directed towards a person in whose position the document writing lies and require him
to be present with the document or produced it any which ways. 3

Another important weapon in the Criminal Procedure Code for production of things or
documents is the search warrant. This warrant is issued only when there are reasonable grounds
for the court to believe that the person to whom it is to be issued will not or may not produce a
particular document or thing. These warrants include a particular place or a part to be searched.

2
http://www.legalservicesindia.com/article/675/Section-91(1)-CrPc:-An-analysis-of-Constitutional-
Validity.html
3
https://blog.ipleaders.in/process-compel-appearance-production-things/

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Permission of issuing warrant at pre-enquiry stage is allowed and can be given. The search
warrant cannot be exercised in a mechanical manner and search powers to issue the warrants
cannot be given and the court is required to record the reasons for issuing such orders.4

The court has the power to direct the search of the places where suspension regarding stolen
property and forged documents are present and prove that process if any persons are found to
be wrongfully seizing documents for a thing he may be called upon by the court.5

The court may issue search warrant if:

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.
• 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.

Search-warrant should issue on application in Form No. 10 in Schedule II of the Code. The
Magistrate may amend the warrant dispensing with the production of the articles before him.
The warrant must:
▪ Be in writing
▪ Contain all the matters that the law requires it to stated therein.6

4
Ibid.
5
Sec 97, The Code of Criminal Procedure, 1973
6
Sec 93, The Code of Criminal Procedure, 1973

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 If the document or thing is in the custody of a postal or telegraph authority, a District
Magistrate, Chief Judicial Magistrate, the High Court or Court of Sessions may require the
postal or telegraph authority to deliver such document, parcel or thing to such person as
such Magistrate or court directs. 7

There needs to be a direct connection between the offence and the subject matter. In the
case of Lloyds Bank,8 there were charges of acquiring money by forging a cheque.
Therefore, the obtained money was deposited by the accused into the bank and there was a
warrant issued for the seizure of money in the bank which was held to be improper. The
bank was the owner of the money and only the accused possessed an actionable claim
against the bank that cannot be produced in the court.

It was recommended by the law commission of India in its 37th report that the provisions
of Bankers Book Evidence Act 1891 was not overridden by the sections compelling the
production of things or documents9. Two provisions of this Act provides that in case of any
legal proceedings where the bank is not a party, the officer of the bank cannot be called to
produce any accounts or books of the bank except by the order of the court.

According to Section 97 of Criminal Procedure Code, the court has the power to direct the
search of the places where suspension regarding stolen property and forged documents are
present and prove that process if any persons are found to be wrongfully seizing documents
for a thing he may be called upon by the court.

The power to seize property is also in the hands of the police officer. The property has to
be a list or suspected to have been stolen or suspicious of some offences. Magistrate under
the jurisdiction has to be informed of such seizure.

In case of DB Thakur v. State of Gujarat10 1995, it was held by the Gujarat High Court that
whenever there is a recovery from the possession of the accused on the search of narcotics

7
Sec 92, The Code of Criminal Procedure, 1973
8
AIR 1930 Cal 22, 121
9
37th National Law Commission Report
10
1995 CriLJ 3751, (1996) 1 GLR 219

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 substances the search cannot be vitiated because it did not cause prejudice by calling
panchas. Here it is not a mandatory requirement of the presence of panchas.

III. CONSTITUTIONAL VALIDITY OF SECTION 91

The principle supporting the legal jurisprudence first mentioned in the Fifth Amendment
of American Constitution which states that “no person shall be compelled in any criminal case
to be a witness against himself”. The same principle has been embodied in the Indian
Constitution under Article 20(3) but with some different words. Article 20(3) states that “No
person accused of any offense shall be compelled to be a witness against himself”.11

The protection against self-incrimination as has been provided in Article 20(3) is based on the
following principle: “nemo tenetur prodere or nemo tenetur scripsum accusare” which means
that an accused should not be compelled to furnish any evidence against him. It is the duty of
the State/ prosecution to prove him guilty, beyond reasonable doubt. This is just to give proper
equal opportunity to accused to know what charges has been levelled against him, what case
the prosecution has prepared and then on the basis of which he will prepare a proper defence
for himself.12

The expression “to be a witness” here needs some special consideration as the soul of the entire
provision lie in this expression. The interpretation of this expression will determine the extent
up to which whether there is a complete umbrella against self-incrimination or not13.

In 1969, the Law Commission of India in its 41st Report on the subject -“The Code of Criminal
Procedure, 1898 - Vol-1”, in its 16th chapter - „Complaints to Magistrate‟, observed that
everyday experience of the courts shows that many complaints are ill founded and it is
necessary therefore that they should at the very beginning be carefully considered and those
which are not on their face convincing should be subjected to further scrutiny so that only in
substantial cases should court summon the accused person. With this view and objective

11
https://blog.ipleaders.in/constitutional-validity-section-91-crpc/
12
http://www.legalservicesindia.com/article/675/Section-91(1)-CrPc:-An-analysis-of-Constitutional-
Validity.html
13
Ibid

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Chapter XV of the Code of Criminal Procedure (hereinafter referred to as CrPC/Code)” came
into being i.e., calling the accused in the Court of law which entails wider consequences for
him including abridging freedom of the accused should only be ordered with backing of clearly
laid down law and used as sparsely as possible.14

The Supreme Court in case of Sharma v Satish stated that “to be a witness” means to become
a witness and not to appear as a witness and thus the protection not only extends to compelled
testimony in court but extend even to pretrial investigation and interrogation. This
interpretation of the phrase has been even followed by the same court in State of Bombay v
Kathi Kalu Oghad15 and State of Gujrat v Shyallal Mohanlal Choksi.16

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

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

The accused may have documentary evidence in his possession which may throw some light
on the controversy. 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”

Therefore, even if an accused has any document which has the tendency to expose the guilt of
the accused, or by which he will himself confirm the criminal charges against him, he can be
summoned to produce the document and that the summoned issued will not be considered to

14
41st National Law Commission Report, 1969, Vol-I
15
1961 AIR 1808, 1962 SCR (3) 10
16
AIR 1965 SC 1251

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be against self-incrimination. The only requirement is that the content of the document should
not disclose any information based on the personnel knowledge of the accused.

In the same case, Das Gupta J‟s speaking for the minority criticized the above proposition in
following words: “Suppose, for example, an accused person has in his possession, a letter
written to him by an alleged coconspirator in reference to their common intention in connection
with the conspiracy for committing a particular offence. Under s. 10 of the Evidence Act this
document is the relevant fact as against the accused himself for the purpose of proving the
existence of the conspiracy and also for the purpose of showing that any such person was a
party to it. By producing this, the accused will not be imparting, any personal knowledge of
facts; yet it would certainly be giving evidence of a relevant fact. Again, the possession by an
accused of the plan of a house where burglary has taken place would be a relevant fact under
s.8 of the Evidence Act as showing preparation for committing theft. By producing this plan is
he not giving evidence against himself?”17

Although Section 91 of CrPC is not mentioned in the above observation, it can be assumed
from the phrase “accused may have documentary evidence in his possession which may throw
some light on controversy” that reference was made to Section 91 of CrPC. Being eleven judge
bench judgement, it left the scope open for the complainant to seek documents from the custody
of the accused and only those are not going to be taken which are „incriminating and based
upon personal knowledge of the accused‟ which is actually a subjective question to be decided
either by the magistrate or by the police officer. Relying on this observation, applications to
seek documents from the custody of the accused are still being filed and subjectivity involved
to decide if that document is based upon personal knowledge of the accused so barred under
Article 20(3) of the Constitution of India or if documents have some kind of bearing over
subject matter of the complaint which can throw some light in trial, allows accused to become
active participant at the stage of „inquiry‟ stated under section 202 of CrPC which also allows
him to argue content of the complaints, whereas as shown in the above-mentioned judgements,
presence of accused was never intended. It‟s also harassment for the accused to be „compelled‟
to be part of the preissuance of process proceedings on the basis of notice issued by the
magistrate on an application under section 91 of CrPC.

17
1961 AIR 1808, 1962 SCR (3) 10

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This ambiguity was dealt by a Constitution bench of the Supreme Court in „Shyamlal Mohanlal
v State of Gujarat‟18which observed – “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 u/s. 94(1) (Old Code) 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”. Further in the very same case the Supreme Court majority
held the High Court correct which had stated that Section 94 of CrPC (Old Code) doesn't
include accused.

In State of Bombay v Kathi Kalu Oghad‟ , applications to seek documents from the custody
of the accused are still being entertained which, as righty observed in the Shyamlal case, gives
scope to the accused to become part of inquiry being conducted under section 202 of CrPC and
further contest on nature of the documents in his custody and content of complaint of the
complainant, which was never the intention of the legislature. In „Smt. Nagawwa v Veeranna
Shivalingappa Konjalgi and Othr‟ 19 , the Supreme Court observed- “..the scope of the enquiry
under section 202 of the CrPC is extremely limited - limited only to ascertainment of the truth
or falsehood of the allegations made in the complaint - (i) on the materials placed by the
complainant before the court, (ii) for the limited purpose of finding out whether a prima facie
case for issue of process has been made out; and (iii) for deciding question from purely point
of view of the complainant without at all adverting to the defense that accused may have”.

Under the Indian Evidence Act, 1872 the document is relevant fact against the accused himself
of the purpose of proving conspiracy and also showing that he was the party to such conspiracy.
By providing such document accused is not providing any personal knowledge, yet it would
certainly be giving evidence of relevant facts. This is the practical application provided by the
majority.
However, Honourable Supreme Court in its later decision held that the term ’person’ does not
include the accused person. However, the reason of judgement of the court states that it is

18
AIR 1965 2 SCR 457
19
1976 AIR 1947, 1976 SCR 123

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implicit in section 91(1) that an accused will not be called for any document which will be self-
incriminating.

IV. CONFLICT WITH ARTICLE 20(3) OF THE INDIAN

Section 91 of CrPC provides the powers to the courts and officer in charge of the police station
to issue a summon for document or someone which is necessary or desirable for purpose of
any investigation. Whereas section 93 in its sub-section (1) gives powers to issue search
warrants.

Article 20(3) states that “No person should be accused to be a witness against himself”. The
protection against self-incrimination under Indian Constitution is based on the principle, “nemo
tenetur prodere or nemo tenetur scripsum accusare” which means that an accused cannot be
compelled to be a witness against himself. It is the State’s duty to prove accused guilty without
any reasonable doubt. The principle is just based on giving equal opportunity to accused to
know what charges are levelled against him and then on the basis of that he will prepare a
proper defense for himself.20

if an accused person does not obey the summons, he will have to face the compelled search in
his house, which shows the compulsion put on accused. This compulsion put on the accused
not only completely violates the fundamental right guaranteed under Article 20(3) but also is
an intrusion to privacy. In light of these sections, there will be a prosecution for the offence
committed under section 174 of the Indian Penal Code.

Section 174 of Indian Penal Code with headnote ‘Non-attendance in obedience to an order from
public servant’ states that:
“ Whoever, being legally bound to attend in person or by agent at a certain place and time in
obedience to a notice, summon, order or any proclamation proceeding from any public servant
legally competent, as such public servant, to issue the same, intentionally omits to attend at that
place or departs from the place where he is bound to attend before the time at which it is lawful

20
https://blog.ipleaders.in/constitutional-validity-section-91-crpc/

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for him to depart, shall be punished with simple imprisonment for a term which may extend to
one month or with fine which may extend to five hundred rupees or with both, or if the
summons, order or notice is to attend in person or by agent in a Court of Justice, with a simple
imprisonment for a term which may extend to six months or with a fine which may extend to
one thousand rupees or with both”.21

With regard to the proposition of process of the search warrant, Honourable Supreme Court in
its leading case of M.P. Sharma and Others v Satish Chandra stated that:
“There is no basis in Indian law for the assumption that a search or seizure of document or
thing in itself is a compelled production of the same. The court observed that provisions
of Article 20(3) and search warrants are essentially different matters. A notice to produce
addressed to the party concerned and its compliance constitutes a testimonial act by a person
to whom an order was issued but search warrant is issued to a government officer. The search
or seizures are not acts of the occupier but acts of another. Hence does not amounts to self-
incrimination under Article 20(3)”.

In the whole, the search conducted by a police officer or any investigating authority will be
valid only if it is conducted without any help of the person against whom a search warrant has
been issued.22

V. CONCLUSION

It is well established that the right against self-incrimination is not an absolute right provided
to the accused but its interpretation laid down in Menka Gandhi case states that procedure
established by law is to be just, fair and reasonable. The Court observed that any procedure
will ensure justness and fairness only when it respects the rights of both victims and accused
equally.

Since time it has been stated that the right against self-incrimination is actually a privilege
provided to an accused and is the major factor in defeating the justice. This is not the first time
when such an attempt has been made to change the nature of what has actually been stated in

21
Sec 174, CrPC ,1973
22
https://blog.ipleaders.in/constitutional-validity-section-91-crpc/

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Article 20(3). Malimath Committee Report titled “Reforms in Criminal Justice system” has
even held that though the accused has right to remain silent an inference could be well drawn
from the silence of the accused, which is also contrary to the principle of the right to remain
silent of the accused.

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

Till the time the SC clarifies the ambiguity surrounding the interpretation of section 91 because
of the conflicting judgements in Oghad15 and Shyamlal16 , the application under section 91
calling an accused to bring any document should not be entertained while the inquiry under
section 202 of the CrPC is on because the Supreme Court judgements with regard to Section
202 makes it categorically clear that there should be no role of accused in the inquiry
proceedings in the pre issuance of summons stage. Such an interpretation will be a balancing
act too as the bar for such an application will just be in the pre-issuance of summons stage
during which time the Magistrate will need to form his opinion only on the basis of the
complaint and statements of complainant & his witnesses, if any. Post issuance of summon
under section 204 CrPC, such an application can be entertained till the time a larger bench of
the SC gives a clearer ruling regarding the ambit of section 91 CrPC with respect to the accused.

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BIBLIOGRAPY:

1. Code of Criminal Procedure 1973

Websites;
1. Manupatra.com
2.ssc-online.com
3. oecd.org
4. IndianKanoon.org
5. iPleaders.com

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