The article has been written by Ashish Sharma, a student of the Rajiv Gandhi National University of Law. The author has given the insights of section 91 Crpc along with its constitutional validity.
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.
It is in harmony to these principles that there are certain provisions in Code of Criminal Procedure, 1973 (CrPC) related 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.
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). Article 20(3) states, “No person accused of any offence shall be compelled to be a witness against himself”.
Section 91 of the Code of Criminal Procedure deals with the power of the courts and police authorities regarding search and seizure of document or thing.
In our discussion, our main focus will be particularly upon the power of the courts or officer in charge to issue a summons or summon notice in section 91(1) of the Code of Criminal Procedure. The issue of power under section 91(1) has been dealt in detail by the apex court of the country in case of M.P. Sharma & others v Satish Chandra, State of Bombay v Kathi Kalu Oghad and State of Gujarat v Shyamlal Mohanlal Chowksi.
Section 91 of CrPC with headnote Process to Compel Production of things states as follows.
“(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”.
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”.
The expression “to be a witness” is of much concern as it will determine the extent to which there is a complete umbrella against self- incrimination. The Honourable Supreme Court in M.P. Sharma v Satish Chandra stated that “to be a witness” means to become a witness but not to appear as a witness thus the protection of self-incrimination not only extends to compelled testimony but also to pre-trial investigation and interrogation.
The similar interpretation of the phrase had been followed by the apex court in Shyamlal Mohan Choksi v State of Gujrat and State of Bombay v Kathi Kalu Oghad.
However apart from the similar interpretation, apex court made another interpretation in Kalu Oghad’s case where the majority stated that “to be a witness means providing knowledge in respect of relevant facts, by means of oral statements in writing, by the person who has personal knowledge of the facts to be communicated to the court or to any officer holding investigation.
A person is considered to be a witness to certain facts which has to be required by a court or any authority to come to a decision, by testifying to what he has seen or something he has heard which is capable of being heard.
Therefore even if any person is accused of any offence and if he has any document which has the tendency to expose his guilt or something by which he will himself confirm the criminal charges against him, he can be summoned by any competent court of any police authority to produce the document or thing and that the summoned issued will not be considered as against protection of self-incrimination.
The only requirement is that the content of the document should not reveal any information based on the personal knowledge of the accused. This interpretation is criticized by various jurists and scholars and said that “such acts will amount to self- incrimination”. For example, if an accused person has in his possession a letter, to be written by a person alleged to be his co-conspirator having reference to their common intention for committing an offence.
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 implicit in section 91(1) that an accused will not be called for any document which will be self-incriminating.
Summons and Conflict With Article 20(3) of the Indian Constitution
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. Section 93(1) of CrpC provides that:
(1) (a) Where any court has reason to believe that a person to whom a summons or order has been issued under section 91 or a requisition under section 92 has been or might be, addressed, will not or would not produce the document or thing required by such summons or requisition, or
(b) where such thing or document is unknown to the court to be in possession of any person, or
(c) where the court considers that the purpose of any inquiry, trial under this code will be served by a general search or inspection, it may issue a search warrant: and the person to whom a search warrant is directed may inspect in accordance therewith and provisions hereinafter contained”.
It can easily be interpreted from the above sections that an in-charge office or a court can issue summons under section 91(1) to any person who the court thinks has the possession of document or thing necessary for the investigation. But if the court feels that the person to whom summons or notices is issued will not produce the document or thing, the court has the power to issue a search warrant to an officer under section 93(1)(a) of CrPC.
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 defence for himself.
From time to time constitutional validity of warrant under section 93(1) had been raised in the context of Article 20(3) of Constitution. The contentions were raised by many jurists and scholars that ‘any person’ in section 91(1) also includes the accused person with other witnesses.
Therefore 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 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”.
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.
The apex court in Shyamlal Mohanlal Choksi v State of Gujrat held that the term ‘any person’ in section 91 of CrPC does not include the person accused of any offense and no notice can be issued to accused. However, the judgement in Shyamlal’s case does not absolutely restrict the accused person. The ratio decidendi of the judgement of the court in case of State of Bombay v Kathu Kalu Oghad kept open the doors for some amount of flexibility.
To be a witness
The protection against self-incrimination under the 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 defence for himself.
The entire discussion clearly establishes 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.
On the contrary, present law violates the equal protection of the law under Article 14 of the accused. So to maintain justness it was observed that, “it does not matter how much substantive the document is or how much is relevant for proving the fact without reasonable doubt, if it is incriminating then it should be inadmissible”.