V. S. KUTIAN PILLAI v. RAMAKRISHNAN & ANR (2)

Citation: [1980] 1 S.C.R. 673

Court: Supreme Court of India

Bench: D.A. DESAI, O. CHINNAPPA REDDY

Case summary

Constitution of India-Article 20(3)-Right if violated by issue of search warrant under s. The High Court after an exhaustive review of the decisions of this Co11rt as well as those bearing on the Fifth Amendment to the American Constitution held that the provisions relating...

Judgment text

V. S. KUTIAN PILLAI v. RAMAKRISHNAN & ANR. September 18, 1979 [D. A. DESAI AND 0. CHINNAPPA REDDY, JJ. ] • Code of Criminal Procedure, 1973 Sections 91 and 93(1)(c)-Scope of -Appellants office bearers of a Sabha-Warrant under s. 93(1)(c) issued for search and seizure of documents-Search warrant if violates fundan1ental right under Article 20(3) of Constitution . • t Constitution of India-Article 20(3)-Right if violated by issue of search warrant under s. 93(1)(c) of Cr. P. C. , 1973.

Section 91 of the Code of Criminal Procedure, 1973 confers power on the court or an officer in charge of a police station to issue a summons or written order to any person in whose possession or power a document the production of which the court or the officer considers necessary or desirabla for the purposes of any investigation, inquiry, trial or other proceeding under the Code calling upon him to produce the document Section 93 of the Code contemplates three situations in which the court may issue a search warrant : (a) where the Court has reason to believe that a person to whom the summons or order under s.

91 has been or might be addressed will not or would not produce the document or thing as required b¥ such summons or requisition or (b) where such document or thing is not known to the court to be in the possession of any person or (c) where the CO'tlrt considers that the purposes of any enquiry, trial or other proceeding under this code will not be served by a general search or inspection, then 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 contained in the Code. p The complainant (respondent no. 1) made 'an application before magistrate for the issue of a warrant fi;>r the search and seizure of certain books and documents of a Sabha of which the accused were offlce·beare1s. After the seizure of the books and documents, on the application of one of the accused persons, the magistrate directed their return to the persons from whom they were recovered.

In the respondent revision petition the High Court held that the provisions contained in s. 93(1) of the Cr. P. C. were not • hit by Art. 20(3) of the Constitution. Dismissing the appeal, HELD : The High Court was right in sustaining the general search warrant under s. 93(1)(c) of the Code. [682 HJ 1. The immunity against self incrimination extends to any incriminating evidence which the accused may be compelled to give but does· not extend to cover a situation where evidence which may have tendency to incrinate' the accused is being coUected without' compelling him to be a party to the collection of the evidence. The search of the premises occupied by the accused, without compelling the accused to be party to such search, would not be violative of Art. 20(3) of the Constitution. [682 CJ 2. A search and seizure pursuant to a search warrant under s. 93(1)(c) of the Code wou1d not have the remotest tendency to 'Compel an accused to incriminate himself.

He is not required to participate in the search. He may remain a passive spectator or may even be absent. Merely because the accused is occupying the premises to be searched it cannot be said that by such search and consequent seizure of documents, including the documenti; which may contain statements attributable to the personal knowledge of the accused and which may have a tendency to incrimina-te him, would violate • 1 the constitutional guarantee against self-incrimination because he is not compelled to do anything. A passive submission to search cannot be styled as compulsion on the accused to submit to search. If anything is recovered during the search which may provide . incriminating evidenc. e against the accused it cannot be called a compelled testimony. [681 G·HJ 3.

Section 93(1)(c) comprehends a situation where a search warrant can be issued as the court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. Therefore, power of the court ·under this clause cannot be cut down by importing some of the requirements of cl. (b) of the s. 93(1). [682 F-G] In the instant case although the order of the . magistrate was laconic certain important aspect. ;; could not be over-looked. The objects of the Sabh~ t; were of a general charitable nature. An earlier search warrant was quashed by the High Court. When the complainant made more serious allegation! search warrant wM issued to conduct a search of the institution. The office premises, the books and other documents of the Sabha could not be said to be in possession of any individual accused. Tuey were in the possession o1 the institution.

A search of such a public place under the authority of a p-eneral search \Varrant can easily be sustained under s. 93(1) (c). Viewed f' this way there was no illegality in the Magistrate's order. · Shyamlal Molwn/al v. State of Gujarat. [1965] 2 SCR 457, M. P. Sharma & Others v. Satis! t Chandra District Magistrate, Delhi & Ors. , [1954] SCR 1077, The State of Bombay v. Kathi Kohr Gohad & Ors. • [1962] 3 SCR 10, explained. • CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 178 of 1979. Appeal by Special Leave from the judgment and Order dated 16-3-1978 of the Kerala High Conrt in Cr!. M. P. No. 124/77. II T. C. Raghavan and N. Sudhakara11 for th~ Appellant. Nemo for the Respondent. V. s. KUTTAN PILLAI V. RAMAKRISHNAN & ANR. (Desai, J. ) 67 5 The Judgment of ! He Court was delivered by I DESAI, J.

-Nemo tenetu prodere-no man is bound to accuse himself-which finds constitutional recognition in Article 20(3) of the Constitution, conferring immunity from compelljng an accused person to be a w:tness against himself by giving self-incriminating evidence, has been put into forefront to support a prayer for quashing the search warrant issued by the Sub-Divisional Magistrate, AJwaye, on 4th January 1977 directing the Deputy Superintendent of Police, Alwaye, to search the premises stykd as the Office of H. M. D. P. Sabha ('Sabha' for short), Moothakunam, and to seize the books, • on the connotation of the word 'witness' is not entirely well-founded in law. Immunity from self-incrimination as re-enacted in Art. 20 (3) was held to mean conveying information based upon the personal knowledge of the person giving the information and could not include merely the mechanical process of producing documents in • court which may throw a light on any of the points in controversy, .

but wl1ich do not contain any statement of the accused based on "'-) his personal knowledge. It was concluded that to be a witness is , not equivalent to furnishing evidence in its wid~ significance; that . ,Js to say, as including not merely making of oral or written statement 1 but also production of document or giving materials which may be relevant at trial to determine the innocence or guilt of the accused. What was kept open in Sharma's case (supra) whether . _ person accused of an offence could be served with a summons to produce documents was decided when it was observed that immunity from > t, compelled testimony and would be violative of the constitutional immunity against self-incrimination. There appears to be Stlll11e conflict between the observations in M. P. , Sharma's case (supra) as reconsidered in Kothi Kala Oglui:d's case (supra) and the one in the case of Shyamlal Mohanlal (supra). However, as this case is not directly relatable to a summons issued under s.

91(1), we do not consider it necessary to refer the matter rr· to a larger Bench to resolve the conflict. In view of the decision in Shyamlal Mohanlal's case (supra) one must proceed on the basis that a summons to produce a thing or document as contemplated by s. 91 (1) cannot be issued to a person I' accused of an offence calling upon him to produce document or thing considered necessary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under the Code of Criminal ,_ Procedure. , ~ If summons :is hereinbefore discussed cannot be. issued to an accused person under s. 91 (1), ipso facto a search warrant contem- ,. plated by s. 93 (1 )(a) cannot be issued by the Court for the obvious reason that it can only be issued where the Court could have issued a ~ summons but would not issue the same under the apprehension thai the person to whom such summons js issued will not or would not produce the thing as required by such summons or requisition. A .. J..

search warrant under s. 93(1) (a) could only be iSsued where ~. a summons could have been issued under s. 91 (1) but the same would not be issued on an apprehension that the pen;on] to whom· v. s. KUTTAN PILLAI v. RAMAKRISHNAN & ANR. (Desai,!. ) 681 the summons is directed would not comply with the same and, therefore, in order to obtain lhe document or thing to produce which the summons was to be issued, a search warrant may be issued under s. 93(1)(a). Section 93, however, also envisages situations other than one "' contemplated by s. 93(1) (a) for issuance of a search warrant. It must be made distinctly clear that the present search warrant is not issued under s. 93(1) (a). Section 93 (1) (b) comprehends a situation where a search warrant may be issued to procure a document or thing not known to the Court to be in the possession of any person.

In other words, a general search warrant may be issued to procure the document or thing and it can be recovered from any ~rson who may be ultimately found in possession of it and it was not known to the Court that the person from whose possession it was found was in possession of it. In the present case the search warrant was to be executed at the ' office of the Sabha and it can be said that office bearers of the Sabha were the persons who were in possession of the documents in respect of which the search warrant was issued. Therefore, clause (b) of s. 93 (1) would not be attracted. Section 93(1)(c) of the new Code comprehends a situation where the Court may issue a search warrant when it considers . that the purpose of an inquiry, trial or other proceeding under the Code will be served by a general search or inspection to search, seize and produce the documents mentioned in the list.

When such a general search warrant is issued, in execution of it the premises even in possession of the accused can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statement made by the accused upon his personal knowledge and which when proved may have the tendency to incriminate the accused. However, such a search and seizure pursuant to a search warrant issued under s. 93 (1)(c) will not have even the remotest tendency to compel the accused to incriminate himself. He is expected to do nothing. He is not required to participate in the search. He may remain a passive spectator. He may even remain absent. Search can be conducted under the authority of such warrant in the presence of the accused.

Merely because he is occupying the premises which is to be searched under the authority of the search warrant it cannot even remotely be said that by such search and consequent seizure of documents including the documents which may contain statements attributable to the personal knowledge of the accused and which may have tendency to incriminate him, would ·-"\violate the constitutional guarantee agajnst self-incrimination because he is not compelled to do anything. A passive submission to search cannot be styled as a compulsion on the accusqd to submit to searth and if 'anything is recovered during search which may provide incriminating evidence against the accused it cannot be styled as compell- . , ed testimony. This is too obvious to need any precedent in support. The immunity against self-crimination extends to any incriminating J~ evidence which the accused may be compelled to give.

It does not • extend to cover such situation as where evidence which may have • tendency to incriminate the accused is being collected without in any ~ manner compelling him or asking him to be a party to the collection of the evidence. Search of the premises occupied by the accused without the accused being compelled to be a party to such, search would not be violative of the constitutional guarantee enshrined in Article 20(3). It was, however, urged that s. 93(1)(c) must be read in. the context of s. 93 ( 1)(b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated bys. 93(1) (c) will have to be ruled out because in such a situation s. 93(1) (a) alone would be 1lttracted.

Section 93(1) (b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document or thing is in possession of any particular person. Under clause (b) there is a definite allegation to recover certain document or thing from a certain specific place but the Court is unaware of the fact whether that document or thiug or the place is in possession of a particular person. Section 93(1) (c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the docu- . ments may be found and that a general search is necessary. One cannot, therefore, cut down the power of the Courfunder s. 93(1) (c) .. by importing into it some of the requirements of s. 93(1) (b). No canon of construction would permit such an erosion of power of the Court to issue a general search warrant.

It also comprehends not merely a genera] search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or things which the Court considers necessary or desirable for the purpose of an investigation,. inquiry, trial or other proceeding under the Code. The High Court accordingly sustained the general search warrant in this case under s. 93(1)(c). Turning to the facts of this case it was contended that the order of the Magistrate clearly disclosed an utter non-application of mind and a mere mechanical disposal of the application befcire the Court. Undoubtedly the order is of a laconic nature. But then there are certain aspects of the case which cannot be overlooked before this • Court would interfere in such mi interlocutory order. The appellant and his co-accused are office bearers of a public institution styled as H. M. D. P. Sabha.

We were informed at the hearing of this petition that this Sabha is a public institution engaged in the activit)" of running educational institutions and supporting ,, objects or activities of a· general ·charitable nature. When the first complaint was filed, the allegation therein was that criminal breach of trust in respect of funds of the public institution has been committed by the office bearers thereof. A search warrant was issued but it was quashed by the Kerala High Court. Thereafter another complaint was filed makin~ some more serious allegations and a search warrant was sought. Now, this search warrant was being issued to conduct search of the premises used as office of an institution. The place will be in possession of the institution. The office bearers of the Sabha are accused of an offence. Documents and books of accounts of the institution are required for the purpose' of the trial against the office bearers of the institution.

The office premises could not be said to be in possession of any individual accused but stricto sensu it would be in possession of the institution. Books of accounts and other documents of tlie institution could not be said to be in personal custody or possession of the office bearers of the institution but they are in possession of the institution and are lying in the office of the institution. A search of such a public place nuder the authority of a general search warrant can easily ·be sustained under s. 93(1)(c). If the order of the learned Magistrate is construed to mean this, there is no illegality committed in issuing a search warrant. Of course, issuance of a search warrant is a serious matter .. and it would 'be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order.

Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant. Having said this, we see no justification for interfering with the order of the High Court in this case. P. B. R. Appeal dismissed.