Shyamlal Mohanlal vs State Of Gujarat

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal Nos. 135-139 of 1963

Decision Date: 14 December, 1964

Coram: P. B. Gajendragadkar, Hidayatullah, Sikri, Bachawat, Shah

In this case the petitioner Shyamlal Mohanlal filed a petition against the State of Gujarat. The judgment was delivered on 14 December 1964 by a bench of the Supreme Court of India. The matter concerned the operation of section 94(1) of the Code of Criminal Procedure, 1898, and whether that provision could be applied to a person who was already an accused. The respondent, who was a registered money‑lender, had been prosecuted for failing to maintain account books required under the Money‑Lenders’ Act and the rules made thereunder. The prosecution filed an application under section 94(1) before the magistrate, seeking an order that the respondent produce certain account books. The magistrate, relying on article 20(3) of the Constitution, refused to issue such an order. The State then filed a revision before the Sessions Judge. The Sessions Judge disagreed with the magistrate’s refusal and referred the matter to the High Court, recommending that it be sent back to the magistrate with suitable directions. The High Court held that section 94 does not apply to an accused person and agreed with the magistrate in rejecting the application. The State appealed to the Supreme Court. The Supreme Court, speaking for a bench comprising Chief Justice P. B. Gajendragadkar and Justices Hidayatullah, Sikri and Bachawat, affirmed the High Court’s construction that section 94 does not apply to an accused. The Court observed that, considering the general scheme of the Code and the basic concepts of criminal law, the generic use of the word “person” does not extend the provision to an accused unless the legislature had expressly said so. Extending the provision to an accused would cause grave hardship and render investigations unfair, because a refusal to produce the document could expose the accused to prosecution under section 175 of the Indian Penal Code. The expression “attend and produce” was deemed unsuitable when the order is issued by a police officer to an accused who is in custody. Moreover, documents produced under such an order would likely be admissible in evidence, and the power would be invoked mainly when it is expected to incriminate the accused, thereby undermining fairness. Even assuming that the construction renders section 96 ineffective because no search warrant could be issued for documents known to be in the accused’s possession, the police officer can still rely on section 165 of the Code of Criminal Procedure to order a general search or inspection. The Court also referred to the earlier decision in Satya Kinkar Ray v Nikhil Chandra Jyotishopodhaya, I.L.R. 1952 2, in support of its reasoning.

In the dissenting opinion, Justice Shah observed that the language of section 94(1) of the Code was broad and did not contain any express limitation that would exclude a person accused of an offence from its operation. He argued that the overall scheme of the Code supported this reading, because if section 94(1) could not be used to require an accused to attend and produce a document or thing in his possession, then a magistrate would also be unable to issue a warrant under section 96(1) for the purpose of searching for such a document or thing. Justice Shah considered it illogical to presume that a police officer conducting an investigation could rely on the powers granted by section 165, which are not available when a court issues a warrant. He noted that the phrase “requiring him to attend and produce it” described the nature of the command contained in the summons and did not imply that the person served with the summons possessed an unrestricted right to appear in person and produce the demanded document or thing. The Justice further referred to the Supreme Court’s observations in State of Bombay v. Kathi Kalu Oghad, [1962] 3 S.C.R. 10, stating that those observations related only to the power exercisable under section 94(1). He rejected the notion that the rule of protection against self‑incrimination, as recognised in the United Kingdom or interpreted in the United States, had ever been adopted in India. He pointed out that various provisions scattered throughout Indian statutory law demonstrated that the rule had never been given effect in the country. Consequently, Justice Shah held that to claim, despite the apparently wide authority conferred by section 94(1), that an accused could not be called upon to produce documents or things in his possession on the basis that the rule against self‑incrimination had been introduced into India would disregard more than eight decades of legislative history and judicial interpretation. He explained that for the first time the Constitution, through Article 20(3), afforded a limited protection to a person charged with an offence, protecting him against testimonial compulsion in court proceedings. Apart from this specific protection, Justice Shah asserted that there was no implied reservation in the application of section 94(1). He concluded that a refusal to produce a document or thing on the ground that it would infringe the protection guaranteed by Article 20(3) would constitute a reasonable excuse for non‑production under section 485 of the Code of Criminal Procedure, and that an order violating Article 20(3) would not be lawful within the meaning of section 175 of the Indian Penal Code. However, he clarified that the protection against testimonial compulsion under Article 20(3) applied only to court proceedings and not to orders that might be made by a police officer during the course of an investigation.

It was held that the provision of section ninety‑four of the Criminal Procedure Code does not extend to an order that may be made by a police officer in the course of an investigation. [475 F; 476 A‑B, E] The Court then turned to the case law that was considered. The matter before the Court was a criminal appellate jurisdiction involving Criminal Appeals numbered one‑three‑five to one‑three‑nine of the year nineteen‑sixty‑three. These appeals arose from the judgment and order dated October eleven, nineteen‑sixty‑two of the Gujarat High Court in Criminal References numbered one‑zero‑six to one‑one‑three of the year nineteen‑sixty‑one. Counsel N. S. Bindra and B. R. G. K. Achar appeared for the appellant in all of the appeals, while counsel T. V. R. Tatachari appeared for the respondents in all of the appeals. The judgment of Chief Justice Gajendragadkar, accompanied by Justices Hidayatullah, Sikri and Bachawat, was delivered by Justice Sikri, while Justice Shah delivered a dissenting opinion. The appeals were filed by the State of Gujarat against the judgment of the Gujarat High Court in Criminal References one‑zero‑six to one‑one‑zero of the year nineteen‑sixty‑one (corresponding to Criminal Appeals one‑three‑five to one‑three‑nine of the year nineteen‑sixty‑three) and Criminal References one‑one‑one to one‑one‑three of the same year (corresponding to Criminal Appeals one‑four‑zero to one‑four‑two of the year nineteen‑sixty‑three) on a certificate granted by the High Court under article one‑three‑four sub‑section one clause c of the Constitution of India. All of the appeals raised a common question of law, namely whether section ninety‑four of the Criminal Procedure Code applies to an accused person. To appreciate how the question arose, the factual matrix of one appeal was set out. The respondent in Criminal Appeal number one‑three‑five of nineteen‑sixty‑three, Shyaralal Mohanlal, was a registered moneylender carrying on business at Umreth. He was statutorily required to keep books in accordance with the Moneylenders’ Act and the Rules made thereunder. He was prosecuted for failing to maintain such books before the Judicial First Class Magistrate of Umreth. On July twenty, nineteen‑sixty‑one, the police prosecutor presented an application praying that the Court order the respondent to produce the daily account book and ledger for the Samyat year two‑zero‑one‑three to two‑zero‑one‑four. The application alleged that the prosecution had already inspected the books, made copies, and returned the original books to the accused, which remained in his possession. The learned magistrate, relying on article twenty sub‑three of the Constitution, refused the prayer on the ground that the accused could not be compelled to produce any document, following the decision in Ranchhoddas Khimji Ashere v. Tempton Jehangir (1). The State then filed a revision before the learned Sessions Judge of Kaira at Nadiad. Relying on the Supreme Court’s decision in State of Bombay v. Kathi Kalu Oghad (2), the Sessions Judge held that documents sought by the prosecution could be produced by compulsion provided they did not contain any personal knowledge of the accused. He observed that it was necessary first to ascertain whether the documents contained any personal statement of the accused and concluded that the matter should be referred back to the magistrate for that determination.

The Court directed that the learned Magistrate should first determine whether the documents in question contained any personal statements made by the accused, and only after that determination should the Magistrate decide the issue in accordance with the observations made by the majority in Kalu Oghad’s (2) case. Accordingly, the matter was referred to the High Court together with the recommendation, cited in 2 Guj. L.R. 415 and [1962] 3 S.C.R. 10, that it be sent back to the learned Magistrate with appropriate directions. The High Court, agreeing with the Sessions Judge, held that the decision of this Court in Kalu Oghad’s (1) case made it clear that a document produced by an accused would not offend Article 20(3) of the Constitution unless that document contained statements based on the personal knowledge of the accused. The High Court, however, examined another question: whether the Court possessed the power to compel an accused person to produce a document. After reviewing the authorities on this point, the High Court concluded that section 94 of the Criminal Procedure Code did not apply to an accused person. Consequently, the High Court concurred with the Magistrate that the application of the Police Prosecutor should be rejected. The Court then reproduced the relevant portions of sections 94 and 96 of the Code of Criminal Procedure. Section 94(1) provides: “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 investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.” Sub‑section (2) states: “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.” Sub‑section (3) adds: “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.” Section 96(1) then reads: “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), 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.” The High Court therefore held that section 94 could not be invoked to compel the accused to produce documents, and it affirmed the Magistrate’s refusal to order such production.

The provision allows a search warrant to be issued, and the person to whom the warrant is addressed may conduct a search or inspection in accordance with the warrant and the provisions that follow. The provision further states that only a District Magistrate or a Chief Presidency Magistrate is empowered to issue a warrant for searching a document, parcel or any other thing that is in the custody of the Postal or Telegraph authorities. Before interpreting section ninety‑four, it was necessary to recall the background of article twenty, paragraph three of the Constitution. One of the fundamental principles of the British criminal jurisprudence and the American jurisprudence has been that an accused person should not be compelled to incriminate himself. The principle arose from a strong revulsion against the inquisitorial methods and the harsh sentences imposed by the Court of the Star Chamber in exercising its criminal jurisdiction. The issue came to prominence in the case of John Lilburn, which led to the abolition of the Star Chamber and to the firm recognition that an accused should not be placed under oath and that no evidence should be taken from him. Over time, this principle expanded into its logical extensions, giving rise to the privilege of witnesses against self‑incrimination when they are called to give oral testimony or to produce documents. (M.14. P. Sharma v. Satish Chandra, District Magistrate, Delhi). One early extension of the doctrine related to the production of documents or chattels by an accused in response to a subpoena or other legal process. In 1749, Lee C.J. observed in R. v. Purnell that “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, Lord Mansfield remarked that in civil causes the court will compel parties to produce evidence that may be adverse to them or may treat a refusal, after proper notice, as a strong presumption to the jury; however, in a criminal or penal cause the defendant is never forced to produce any evidence even though he may possess it in court. In Redfern v. Redfern, Bowen, L.J., stated that it is an inveterate principle 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 this fundamental canon of criminal jurisprudence, and it gave effect to it in various sections of the Criminal Procedure Code. For example, section one‑seventy‑five provides that every person summoned by a police officer in a proceeding under section one‑seventy‑four shall be bound to attend and to answer truthfully all questions, except those whose answers would have a tendency to expose him to a criminal charge, penalty or forfeiture.

Section 343 of the Criminal Procedure Code states that, except as provided in sections 337 and 338, no influence in the form of a promise, a threat, or any other manner may be used to compel an accused person to disclose or to withhold any matter that is within his knowledge. When an accused is examined under section 342, the law provides that the accused does not incur liability for punishment if he declines to answer any questions placed before him. Although the accused is a competent witness, he may be called as a witness only upon his own written request. Section 342A further provides that a failure by the accused to give evidence shall not be the subject of any comment by any party or by the court, nor shall it give rise to any presumption against the accused or against any other person charged in the same trial. In the view of the Court, given this statutory background, if the legislature had intended to make section 94 applicable to an accused person, it would have expressed that intention in explicit language. The words of section 94 are indeed broad enough to encompass an accused, but it is well‑recognised, as noted in Craies on Statute Law, that wide terms of a statute may be limited in construction. Moreover, the rule of interpretation for general words in a statute requires that, wherever possible, they be construed so as not to alter the common law, a principle also set out in Craies on Statute Law. Another important consideration is the constitutional protection under article 20(3), which this Court has interpreted in Kalu Oghad’s case to prohibit compelling an accused to disclose incriminatory documents based on his knowledge. Section 94 of the Criminal Procedure Code permits the production of all documents, including those that are incriminatory. If section 94 were read to include an accused person, several undesirable consequences would follow. For example, a police officer, who possesses the same powers as a court in directing an accused to attend and produce a document, might issue such a direction. The accused, relying on article 20(3), would refuse to produce the document. If he refused, he could be prosecuted under section 175 of the Indian Penal Code, and he could not argue that he was not legally bound to produce the document because the order would be valid if section 94 applied to him. This difficulty becomes clearer when the language of section 175 is compared with that of section 485 of the Criminal Procedure Code, where a reasonable excuse for refusing to produce a document is recognised as a defence.

In the situation where the accused takes possession of the document and objects to being required to produce it, the legislation does not contain any mechanism that would enable the police officer to conduct a preliminary enquiry before forcing production. The police officer could therefore contend, on the basis of the wording of the section, that he is not obliged to listen to the accused or to the accused’s counsel. Even assuming that the officer were inclined to listen, the officer would still have to decide whether to take evidence and to hear arguments in order to determine whether the forced production of the document would be prohibited by Article 20(3) of the Constitution. Whatever the officer’s decision, the Code makes that decision final because no appeal or revision lies against the officer’s order. Consequently, the Court observed that interpreting section 94 to include an accused person would almost certainly cause serious hardship to the accused and would render the investigation unfair to him. The Court further noted that the question of the constitutionality of section 94(1) of the Criminal Procedure Code had not been raised before it, because at the conclusion of the hearing on the construction of section 94 the Court had indicated to counsel that it was inclined to adopt a narrow construction of the provision, and therefore the constitutional issue did not arise. During the arguments, counsel suggested that even if section 94(1) were given a broad construction, the Court could still hold that any document or thing required to be produced by the accused could not be admitted into evidence if it were found to be incriminating, and that, in that sense, section 94(1) would not conflict with Article 20(3). Nonetheless, because the Court believed that section 94(1) ought to be given a narrow construction, it did not require the counsel to pursue the constitutional question further. Keeping these considerations in mind, the Court examined the language of the section. The wording is general and at first glance appears capable of encompassing an accused person. However, there are indications that the Legislature did not intend to include an accused within its scope. The expression “attend and produce” is ill‑suited to describe a situation involving an accused. It would be an odd procedure for a court to issue a summons to an accused who is already present in court directing him “to attend and produce a document.” It would be still more odd for a police officer to issue a written order to an accused who is in police custody to “attend and produce” a document. The argument that the term “person” in the latter part of section 94(1) is broad enough to cover an accused fails to recognise that the “person” referred to in that part must be the same individual who can be directed to produce the thing or document. If, in view of the overall scheme of the Code and the fundamental concepts of criminal law, the production of a thing or document cannot be ordered against an accused, then the generality of the word “person” loses any significance.

In this case, counsel for the petitioner drew the Court’s attention to section 139 of the Evidence Act, which provides that a person who is summoned to produce a document does not become a witness merely by producing that document and that such a person may be cross‑examined only after being formally called as a witness. The Court observed that this provision does not apply to a police officer issuing a direction under section 94 of the Criminal Procedure Code. Section 94 contains two alternative commands: the first requires the person to “attend and produce” a document, while the second simply commands the person to “produce” a document. The Court noted that when a police officer issues a direction to “attend and produce,” the person cannot satisfy the direction merely by causing the document to be produced; personal attendance is required. The Court further explained that if, after a document or thing is produced, its admissibility is to be examined and the document would be excluded from evidence because it incriminates the accused, then the order to produce would appear to have no practical effect. However, the Court emphasized that the reason section 94 is invoked in most cases is precisely because the document or thing is expected to be relevant and material to the prosecution’s case; therefore, the power under section 94(1) is normally exercised to obtain such evidence. The petitioner's counsel argued that interpreting section 94 in this way would render section 96 ineffective, since a search warrant could not be issued to obtain documents that are already in the accused’s possession. The Court acknowledged that this argument has some merit, but held that a general search or inspection may still be ordered even when the specific documents are known to be with the accused. Regarding the police officer’s powers, the Court pointed out that the officer may also rely on section 165 of the Criminal Procedure Code. The Court stated that it was unnecessary to revisit every case cited before it and that it would suffice to consider the Full Bench decision of the Calcutta High Court in Satya Kinkar Ray v. Nikhil Chandra Jyotishopadhya, which had already examined the earlier authorities. The High Court had set out three principal considerations: first, that a plain grammatical reading of section 94 would extend its operation to accused persons as well as to other persons; second, that there is no conflict between section 94 and other provisions of the Code; and third, that this construction would not render the provision ultra vires because requiring an accused person to produce a document does not compel the accused to give evidence against himself. The Court observed, however, that these reasons did not settle the issue. It noted that the High Court had not addressed the significance of the words “attend and produce” in section 94, nor had it considered the protection afforded by Article 20(3) of the Constitution. Moreover, the Court pointed out that the third reason was inconsistent with its own earlier decision in M. P. Sharma v. Satish Chandra, and suggested that the learned Chief Justice might have reached a different conclusion had he accepted that calling an accused person to produce a document amounts to compelling him to give evidence against himself.

In this case the Court observed that requiring an accused person to produce a document does not amount to forcing him to give evidence against himself. The Court noted that the interpretation it had adopted for Section 94 had previously been applied in the decisions of Ishwar Chandra Ghoshal v. The Emperor, Bajrangi Gope v. Emperor, and Rai Chandra Chakravati v. Hare Kishore Chakravarti. Accordingly, the Court agreed with the High Court’s view that, when properly construed, Section 94 does not apply to a person who is accused of an offence. As a consequence, the appeal before this Court was dismissed. The Court further held that it was unnecessary to set out the facts in the other appeals because no issue in those appeals depended on those facts, and the same legal question arose in each. Accordingly, the remaining appeals were also dismissed. The Court expressed its gratitude for the assistance supplied by Mr. Tatachari, who participated in the proceedings as amicus curiae, and attributed the opinion to Justice Shah, J.

The remaining question to be decided in these appeals was whether, under the power granted by Section 94(1) of the Code of Criminal Procedure, a Court may summon a person who is accused of an offence to produce a document or other thing in his possession. The Court listed the authorities cited on this point, namely the reports of [1952] I·L·R·2 Cal. 1066, [1954] S·C·R 1077, 12 C·W·N 1016, I·L·R 38 Cal. 304, and 9 I·C 564. The language of the clause was described as general, containing no express limitation and implying no restriction that would exclude an accused person from its operation. In the Court’s view, the provision authorises any Court or any police officer in charge of a police‑station to issue a summons or written order to the person who is believed to have the document or thing, directing that person to attend and produce it at the time and place specified in the summons or order. The Court found that the overall scheme of the Code supports this interpretation.

Chapter VI of the Code, which governs the process for compelling appearance, allows a Court, under Section 68, to issue a summons for the attendance of any person, whether a witness or an accused, as shown in Forms 1 and 31 of Schedule V. Section 75 and the subsequent sections deal with the issuance of arrest warrants for witnesses and accused persons. Chapter VII, which deals with the process for compelling the production of documents and other movable property and for ordering the appearance of persons who are wrongfully confined, also contains general provisions relating to searches. Section 94 therefore confers on a Court the power to issue summonses and on a police officer the authority to make an order to any person demanding the production of a document or thing that is believed to be in that person’s possession. The Court emphasized that the person mentioned in sub‑section (2) of Section 94 is the same person who is summoned or ordered to produce the document or thing. Sections 96 to 99, which govern warrants for searching documents or things, begin with the first paragraph of Section 96, which expressly authorises the issue of a search warrant.

In this case, the Court examined the relationship between section 94 and the first paragraph of section 96(1). It observed that the authority to issue a search warrant under paragraph one of section 96(1) is conditioned upon the fact that the individual whose presence is required, and who is believed to be unwilling or unable to produce a document or thing, can be compelled to do so by a summons issued under section 94(1). The Court noted that if a summons under section 94(1) cannot be issued against a person who is accused of an offence, then a search warrant under paragraph one of section 96(1) cannot be issued for a document or thing in that person's possession. The second and third paragraphs of section 96(1) were described as conferring power to issue general warrants. The Court further explained that the broad language of section 98, which permits designated Magistrates to issue warrants to search places used for particular purposes, shows that the power may be exercised with respect to any place, whether or not it is occupied by an accused person. Likewise, the provisions of section 103, which lay down the procedure for searching any place, were held to apply equally to the house of an accused person and to the house of any other individual. The Court then turned to the view expressed by Justice Raju, whose judgment is the subject of the present appeals. Justice Raju had held that section 94(1) does not empower a court to issue a summons against an accused person for the production of a document or thing in his possession. He based that conclusion on two grounds. First, he argued that Chapters XX to XXIII of the Code do not authorize the issuance of a summons or a warrant against an accused person. Second, he contended that a direction to attend and produce a document or thing could not properly be made of an accused person. The Court found the first ground to be without merit and noted that it had not been relied upon in earlier decisions for sound reasons. The Court explained that the structure of the Code makes clear that the provisions of Chapters VI and VII, which are placed in Part III titled “General provisions,” are applicable to the trial of cases governed by Chapters XX to XXIII. Consequently, specific rules for issuing summonses or warrants to secure the attendance of witnesses and accused persons, and for the production of documents and things, are found in Chapters VI and VII and need not be repeated in Chapters XX to XXIII. Finally, the Court observed that the expression “requiring him to attend and produce it” in the summons does not imply that the person receiving the summons must have unrestricted freedom to appear in person and produce the demanded document or thing. The Court referred to decisions of the High Courts of Calcutta and Madras, which uniformly held that the word “person” in section 94(1) includes a person accused of an offence, citing S. Kondareddi and another v. Emperor (1); Bissar Misser v. Emperor (3); and Satya Kinkar Ray v. Nikhil Chandra Jyotishopadhaya (3).

In discussing the case of Ishwar Chandra Ghoshal v. The Emperor, the Court noted that the reasoning that upheld a conviction for an offence under section 175 of the Indian Penal Code for failure to obey an order issued under section 94(1) of the Code of Criminal Procedure was flawed because the State was not represented by counsel at the trial. The Court indicated that it had expressed a similar view in the earlier judgment of The State of Bombay v. Kathi Kulu Oghad and others. Chief Justice Sinha, delivering the opinion of the majority, observed that an accused person might possess documentary evidence that could clarify the issues in the case. If the document is not the accused’s own statement conveying personal knowledge of the charge, the Court may require the accused to produce the document in accordance with the provisions of section 139 of the Evidence Act. The Chief Justice did not specifically identify the source of the authority for such a direction, but noted that, apart from section 94(1) of the Code of Criminal Procedure, there is no other provision that empowers a magistrate to summon a person to produce a document or thing in his possession; consequently the observations of the Court pertained solely to the power exercisable under section 94(1). The counsel for the petitioner argued that, because English common‑law principle—which has been incorporated into our criminal law—protects an accused from being compelled to discover documents or objects that may incriminate him, there must be an implicit reservation in section 94(1) that the term “person” does not include a person charged with an offence, even though the statute does not state this expressly. The Court rejected this proposition, stating that the assumption that the Legislature had wholly or partially adopted the rule against self‑incrimination lacked any solid foundation. The Court then cited the authoritative treatise Phipson on Evidence (tenth edition, paragraph 611) which explains that, in the United Kingdom, the privilege against self‑incrimination prevents any witness, whether a party or a stranger, from being compelled to answer a question or produce a document that tends to expose the witness—or the witness’s spouse—to a criminal charge, penalty, or forfeiture, except in the limited situations expressly mentioned. Paragraph 612 of the same treatise adds that the policy behind the privilege is to encourage individuals to present evidence before the courts by shielding them, as far as possible, from injury or needless annoyance that might arise from doing so. The Court further observed that, at common law, a person accused of an offence generally does not enjoy immunity from giving sworn answers concerning the allegations, and that, on the contrary, such answers have historically formed an essential feature of trial procedure.

In the judgment, it was observed that the essential characteristic of the early forms of trial, including the Saxon ordeal, Norman combat, compurgation and wager of law, lay in compelling individuals to answer questions that could expose them to criminal liability. A reaction later emerged against the oppressive practices of the Star Chamber and the High Commission Courts, and a general rule developed that no person should be forced to incriminate himself at any stage of any trial. Initially, the privilege against self‑incrimination was asserted only by defendants, but over time the protection was extended to witnesses as well. Consequently, a witness became shielded both from being required to answer self‑incriminating questions and from being compelled to produce documents that might incriminate him. In cases involving crimes, the protection covered inquiries concerning the witness’s participation in a duel, involvement in bigamy, libel or maintenance; in matters of penalties, it extended to questions about breach of pound or fraudulent removal of goods by a tenant; and in forfeiture matters, it encompassed breaches of covenants such as taking beer from a particular brewery, insuring against fire, or sub‑letting without a licence, as illustrated in Paragraph 613 of the referenced commentary. In the United States of America, where constitutional immunity against self‑incrimination exists, the Fifth Amendment states: “No person … shall be compelled in any criminal case to be a witness against himself.” Judicial interpretation in that jurisdiction has given the rule a much broader reach, applying it to both witnesses and parties in civil and criminal proceedings, covering documentary and oral evidence, and extending to any disclosure that might support a criminal conviction, link evidence in a chain, or require the production of chattels under legal process. By contrast, the rule as applied in the United Kingdom and interpreted by United States courts has never been adopted in India. The Indian statutory framework contains numerous provisions that make clear the rule has no acceptance in the country. Section 132 of the Evidence Act unequivocally mandates that a witness shall not be excused from answering any relevant question in any suit or civil or criminal proceeding on the ground that the answer may incriminate, or may directly or indirectly lead to incrimination, exposure to penalty or forfeiture. This statutory requirement directly opposes the common‑law protection against self‑incrimination as understood in the United Kingdom. Further statutes compel individuals to provide information or evidence that may involve the imposition of penalties, such as Sections 45‑G and 45‑L of the Banking Companies Act, 1949 as amended by Act 52 of 1953, which provide for public examination of persons subject to inquiry, and Section 140 of the Indian Companies Act, which similarly obliges disclosure despite potential incriminatory consequences.

In the judgment the Court enumerated a number of legislative provisions that compel individuals to supply information which may be incriminating or may expose them to penalties. These provisions include section 240 of the Companies Act, 1956; section 19(2) of the Foreign Exchange Regulations; section 171‑A of the Sea Customs Act, 1878; section 54‑A of the Calcutta Police Act; section 10 of the Medicinal and Toilet Preparation Act, 1955; section 8 of the Official Secrets Act, 1923; section 27 of the Petroleum Act, 1934; section 7 of the Public Gambling Act, 1867; and section 95(1) of the Representation of the People Act, 1951. The Court noted that these statutes, taken together, illustrate the legislative tendency to oblige persons to furnish information even when such information could be self‑incriminatory.

The Court further observed that the law contains other statutes that compel a person, including an accused, to produce evidence against himself. As an illustration, the Court referred to section 73 of the Evidence Act, which authorises a court, for the purpose of ascertaining whether a signature, writing or seal belongs to a particular person, to direct any person present in court to write any words or figures. This direction enables the court to compare the newly written material with the material allegedly written by the same person. The Court cited judicial pronouncements that this power extends to calling upon an accused to produce his own writing in court for expert comparison, referring to the cases of King Emperor v. Tun Hlaing and Zahuri Sahu v. King Emperor.

In addition, the Court mentioned section 4 of the Identification of Prisoners Act, 1920, which obliges a person arrested in connection with an offence punishable with rigorous imprisonment, if a police officer so requires, to provide his physical measurements. Section 5 of the same Act empowers a magistrate, for any investigation or proceeding under the Code of Criminal Procedure, 1898, to order any person to appear for measurement or for a photograph to be taken by a police officer. The Court also referred to section 129‑A of the Bombay Prohibition Act, 1949, which authorises a prohibition officer to medically examine a person suspected of intoxication and to have his blood tested for alcohol content. Resistance to the production of the body or to the collection of blood, the Court explained, may be overcome by all means reasonably necessary to secure the examination or the collection of blood required for the test.

The Court then turned to section 16 of the Arms Act, 1878, which requires a person possessing arms, ammunition or military stores, when such possession has become unlawful, to deposit the items at the nearest police station. Section 32 of the same Act obliges any person possessing arms, when a census is directed by the Central Government, to furnish to the authorised officer any information that the officer may require. The Court noted that the citation accompanying this provision reads “(1) [1923] 1 Tan. 759, F.B. (2) [1927] 6 Pat. 623.” Finally, the Court indicated that similar compulsory information‑giving duties are found in the Motor Vehicles Act, 1939, for example in sections 8 and the following provisions, thereby reinforcing the pattern of legislative mandates that may conflict with the principle of protection against self‑incrimination.

In the judgment, the Court observed that sections 7 (1) and (2), 88 and 89 of the Code required a person to supply information even when that information disclosed the person’s own participation in an offence. The Court held that it was unnecessary to repeat several statutory provisions that imposed such a duty, because the very act of providing information could force the informer to incriminate himself. The Court noted that, on their face, these provisions conflicted with the principle of protection against self‑incrimination that was recognised under the common law of the United Kingdom and that was embodied in the Fifth Amendment of the United States Constitution. Turning to the historical background, the Court explained that the Evidence Act and the Code of Criminal Procedure were enacted at a time when the primary objective of the Government was to preserve law and order. The legislature then functioned essentially as an arm of the executive and was not primarily concerned with safeguarding individual liberty. Consequently, the Court found it difficult to assume that the law‑makers of that era had incorporated every principle of English common law relating to personal freedoms, especially those principles that had evolved after a protracted struggle in Britain. The Court further stated that both judicial authority and legislative practice of the period appeared to oppose the incorporation of the rule protecting a person from self‑incrimination. In support of this view, the Court pointed out that provisions dealing with the production of documents were first introduced into the Code of Criminal Procedure by Act 10 of 1872. These special provisions, according to the Court, were introduced in response to strong criticism by the Calcutta High Court of a Collector and Magistrate in a Bengal district in the case of Queen v. Syud Hossain Ali Chowdry. Their purpose, the Court said, was to express in clear language the extent of powers that criminal courts and police officers possessed concerning the search of documents or other items. The Court referred to the historical analysis given in In re Ahmed Mahomed, authored by Justice Ghose, where it was observed that the term “party” in section 365 – which empowered a magistrate to issue a summons for the production of documents – could refer either to the accused or to a third party. The legislature of 1872, the Court explained, deliberately stipulated that any party could be compelled to produce documents for any investigation or judicial proceeding. Quoting from the Lieutenant Governor’s speech, the Court highlighted that contemporary ideas on criminal law had been influenced by English law, yet the Committee that drafted the provisions sought to depart from English rules because many of those rules were rooted in political considerations rather than purely criminal justice objectives.

In the passage quoted, the statement was made that the purpose of criminal law was not to bring the offender to justice but to protect the people from a tyrannical government. It was observed that the provisions that existed in England were no longer necessary there, and they were especially out of place in a country where it was not pretended that the subject enjoyed liberty, and where it was not intended to introduce rules into criminal law designed to secure the liberties of the people. Because of this, the legislators considered that they might fairly repeal some of the rules whose object had been to give the accused the jealous protection that English law afforded. The view expressed was that the law was not bound to protect the criminal according to any code of fair play; rather, its object should be to discover the truth, and any measure that would elicit the truth was regarded by the Committee as desirable for the interests of the accused if he were innocent, and for the public if he were guilty. For example, the Committee did not see why a man should not be compelled to incriminate himself if it were possible, why all means should not be employed to obtain the truth from him, why he should not be cross‑examined, and why every method short of absolute torture should be used to reach the truth.

In interpreting the words used by the Legislature, the Court held that speeches made on the floor of the Legislature are inadmissible. The Court did not refer to the speech for the purpose of interpreting the legislative language, but only to ascertain the historical setting in which the statute that forms the basis of section 94(1) was enacted. The judgment of the High Court of Calcutta had been followed by a somewhat violent reaction of the executive, expressed through the head of the Government, and by the enactment of a statute that, on its face, reflected the sentiments expressed at that time. It appears that the Legislature of that era, essentially the executive sitting in a solemn chamber, set its face against the rule against self‑incrimination being introduced into Indian law.

The Court noted that opinion has long been divided on whether the principle of self‑incrimination that prevailed in the United Kingdom, whose original source of the rule had disappeared, tends to defeat justice. On one side it was argued that protecting an accused person from self‑incrimination encourages external investigation to uncover the truth and to prove an alleged or suspected crime. It was further claimed that the privilege, when applied to witnesses with respect to oral testimony and the production of documents, generally gives them freedom to come forward and furnish evidence in courts, thereby assisting in elucidating the truth in a case with materials known to them or in their possession. On the other side, there were arguments questioning this view, which the Court set aside to focus on the statutory interpretation.

There are strong advocates who argue that the rule in question produces an undesirable impact on the broader social interest of detecting crime, and that a rigid, doctrinaire adherence to the rule creates overwhelming difficulties for the State. These commentators assert that the rule functions merely as a shield for the criminal, and they do not wish to engage in a detailed discussion of the relative merits of the competing theoretical positions. The Court observed that its role is confined strictly to ascertaining the law and applying it. Accordingly, a provision that remains on the statute book, regardless of the original motive that led the Legislature to enact it, cannot be discarded by the Courts even if it appears inconsistent with later‑developed notions; the appropriate remedy for amendment lies with the Legislature, not with the judiciary. The Court noted an additional ground that must be taken into consideration. It observed that the interpretation proposed by Mr. Tatachari interferes with the smooth operation of the scheme of the related provisions of the Code of Criminal Procedure. Section 94, on its face, authorises a Magistrate or a police officer, for the purpose of any investigation, inquiry, trial or other proceeding, to summon any person who is believed to be in possession of or have power over a document or thing, and to direct that person to attend and produce the item at the time and place specified in the summons or order. Paragraph 1 of section 96(1) provides that if any Court has reason to believe that a person to whom a summons or order under section 94 has been or might be addressed will not produce the document or thing as required, the Court may issue a search warrant. The Court explained that if section 94(1) does not empower a Magistrate to issue a summons to an accused person for the production of a document or thing in his possession, then, by the same reasoning, the powers under section 96(1) cannot be invoked to issue a warrant to search for a document or thing in the accused’s possession. Paragraphs 2 and 3 of section 96 are clearly not related to section 94(1). Under paragraph 2, a Court may issue a search warrant where the document or thing is not known to be in the possession of any person; if it is known to be in someone’s possession, paragraph 2 cannot be applied. Furthermore, if the interpretation of paragraph 1 that a search warrant cannot be issued for a thing or document in the possession of an accused is correct, then issuing a general warrant under paragraph 3, which would permit the search of a place occupied by the accused or to which he had access, would effectively circumvent the restriction implied in paragraph 1. The Court also indicated that the nature of the powers reserved to investigating officers by section 165 of the Code of Criminal Procedure must be taken into account. Section 165 authorises a police officer in charge of an investigation, having reasonable grounds, to believe that any item necessary for the investigation may be found within the limits of the police station and cannot be obtained without undue delay, to record those grounds in writing, to specify the item to be searched for, and to conduct or cause to be conducted a search for that item in any place within the limits of the station.

A police officer could, when he believed that any item necessary for an investigation into an offence he was authorised to investigate might be found within the limits of the police station and could not be obtained elsewhere without undue delay, record his belief in writing, specify the particular item to be searched for, and then search or cause a search to be made in any place falling within those limits. Section 94(1) authorised a police officer to issue a written order for the production of any document or thing from any person who was thought to possess or control that document or thing. The question arose whether Section 94(1) extended to an order against an accused person. If it did not, the issue was whether the police officer in charge of the investigation could be entitled to search for a document or thing in any place occupied by the accused or to which the accused had access. It was observed that assuming the investigating officer could exercise a power during the investigation that the Court could not exercise when issuing a search warrant would be wholly illogical. Denying the investigating officer the power to search for a document or thing in the possession of an accused would, in many cases, render the investigation a farce. Further, if a Court were held to have, under the third paragraph of Section 96(1), the power to issue a general search warrant, such exercise would constitute a violent infringement of the protection against self‑incrimination as understood in the United Kingdom, where the courts frowned upon the issuance of general warrants for the search of documents or things, as stated in Entick v. Carrington (1). Upon reviewing these considerations, the view was expressed that the rule of protection against self‑incrimination as understood in the United Kingdom had not been adopted in India. It was noted that the rule did not apply to civil proceedings or to proceedings involving the imposition of penalties or forfeitures. By express enactments, witnesses at trials were not excused from answering any relevant question on the ground that the answer might incriminate them or expose them to a penalty. The State was held to be free to call for information that might incriminate the person giving it, and certain statutes imposed an obligation on a person, even if he faced the danger of later being arraigned as an accused, to provide information concerning a transaction in which he was involved. Provisions existed requiring an accused person to furnish his handwriting, thumb marks, finger impressions, to permit measurements and photographs to be taken, and to submit himself to examination by medical experts. The argument concluded that, despite the apparently wide power conferred, it could not be held that an accused person was barred from producing documents or things in his possession under Section 94(1) merely because of a presumed rule of protection against self‑incrimination.

In this case, the Court observed that requiring a person charged with an offence, under the authority of section 94(1), to produce documents or things in his possession cannot be justified by assuming that a rule of protection against self‑incrimination exists in our legal system, because such an assumption would disregard more than eighty years of legislative history and judicial interpretation. The Court noted that the Constitution, for the first time, introduced a limited safeguard in Article 20(3) that protects a person accused of an offence from being compelled to give testimonial evidence that may incriminate him. The Court further pointed out that certain provisions of the Code of Criminal Procedure, specifically sections 161, 175, 342 and 343, grant limited protection only with respect to answering questions that might tend to incriminate the person or expose him to a criminal charge, penalty or forfeiture, and that this limited protection should not be read into other provisions of the Code. The Court warned that failure to obey an order issued under section 94 of the Code of Criminal Procedure can unquestionably expose the person to penal consequences under section 485 of the Code, and may also lead to prosecution under section 175 of the Indian Penal Code. In the Court’s judgment, a refusal to produce a document or thing on the ground that the protection guaranteed by Article 20(3) would be infringed after the Constitution’s enactment constitutes a reasonable excuse for non‑production within the meaning of section 485 of the Code of Criminal Procedure, and an order that violates Article 20(3) by demanding production of a document would not be lawful within the meaning of section 175 of the Indian Penal Code. The Court added, however, that apart from the protection conferred by Article 20(3), no other reservation can be implied in the application of section 94(1). The Court clarified that it was not called upon to decide whether section 94(1) infringes the guarantee of Article 20(3), a question that had not been raised before the Court and on which it expressed no opinion. The Court held that whether, in a particular case, the guarantee of protection against testimonial compulsion under Article 20(3) is violated by a Court order exercised under section 94(1) depends on the nature of the document that is ordered to be produced. The Court explained that if a person accused before the Court is summoned to produce documents or things, thereby compelling him to become a witness against himself, such summons and any proceedings arising therefrom would be void. The Court affirmed that this protection must be effectively enforced, but only within the limits set by its earlier judgment in Kathi Kalu Oghad’s case(2). Finally, the Court reiterated that the protection against what is described as testimonial compulsion under Article 20(3) applies solely to judicial proceedings and does not extend to orders that may be made by a police officer during an investigation.

The judgment explained that the types of orders referred to were those that could be issued by a police officer during the course of an investigation. Accordingly, the Court held that it could not be required to examine the question of whether a police officer’s act of requesting a person who has been charged with committing an offence to produce a document or any other thing in the person’s possession would violate the protection guaranteed by Article 20(3) of the Constitution. The Court therefore declined to entertain any contention that such a police‑initiated demand might infringe the constitutional guarantee against self‑incrimination. On the merits of the matters before it, the Court expressed the view that the appeals should be allowed and that the reference made by the Sessions Judge ought to be accepted. Accordingly, the Court issued an order stating that, in accordance with the opinion expressed by the majority of the judges, the appeals were to be dismissed. The order concluded with the citation of the authority relied upon, namely (1) [1962] 3 S.C.R. 10.