# M. P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi, and Others

- **Citation:** [1954] 1 S.C.R. 1077
- **Court:** Supreme Court of India
- **Decided:** 1952-06-13
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-p-sharma-and-others-v-satish-chandra-district-magistrate-delhi-and-others-241
- **Pages:** 21

## Headnote

S.C.R.
SUPREME COURT REPORTS
1077
rendering services which the
State considers beneficial
in the public interests and which the
people
have to
accept whether they are willing or not.
Our conclusion,
therefore, is that section 58 is not ultra vires
of the
State
Legislature by reason of the fact
that it is not a
tax but a fee
which
comes
within
the purview
of
entry 47 of List III in
Schedule VII of the
Constitution.
The result, therefore, is that in our
opinion
the
appeals are allowed only in part and a mandamus
will
issue
in each of
these cases
restraining
the
State
Government and
the
Charity
Commissioner
from
enforcing against the appellants the following provisions
of the Act to wit :-
( i) Section 44 of
the
Act to the extent
relates to
the appointment of the
Charity
s10ner as a
trustee of religious public trust
court,
that it
Commisby the
(ii) the provisions
of
clauses (3)
to
(6)
of
section 47, and
(iii) clause (c) of section 55 and
the
part
of
clause ( 1) of section 56 corresponding thereto.
The other prayers of the appellants stand dismissed.
Each party will bear
his own costs
m
both
the
appeals.
M. P. SHARMA AND OTHERS
tJ.
SATISH CHANDRA, DIS1'RICT MAGISTRATE,
DELHI, AND OTHERS.
[MEHR CHAND MAHAJAN c. J., MDKHERJEA,
S. R. DAs, V1vIAN BosE, GHDLAM HASAN,
BHAGWATI, JAGANNADHADAS and
VENKATARAMA AYYAR JJ.J
Constitution
of India, arts.
19(1)(!) and 20(3)-Search
warrant issued under s. 96(1) of the Code of Criminal Procedure (Act V
of 1898)-Whether ultra vires art. 19(1~(!)-Search and seizure of
1954
Ratilol
Panackarul
Gandhi
V,
Tiet Stat. ef
Bombay atlld
Others.
Mukherjeo].
1954
March 15.
1954
M. P. Sharma
and Others
v.
Satish Chandra,
District
Magistrate,
Delhi,
and Others.
1078
SUPREME COURT REPORTS
[19541
documents under :s. 94 and 96 of the Code of Criminal ProcedureT:Vhether compelltd production thereof-Within the meaning of art.
20(3).
Held, that the provision for the search warrant under the first
alternative of s. 96( 1) of the Code of Crin1inal Procedure does not
offend art. 19(1)(£) of the Constitution.
A
search and seizure is only a temporary
interference
with
the right to hold the property searched and tht:
articles
seized.
Statutory recognition in this behalf is a
necessary
and reasonable
restriction and cannot per se be
considered
to
be
unconstitutional.
A compelled production of incriminating documents
by a person against whom a First Information
Report has been made is
testimonial compulsion within the meaning
of art. 20(3)
of the
Constitution.
But a search and seizure of a document under the
provisions of ss. 94 and 96 of the Code of Criminal
Procedure is
not a compelled production thereof within the meaning
of art. 20
( 3) and hence does not offend the said Article.
A power of search and seizure is, in any
system of jurisprudence, an overriding power of the State for the protection of social
security and
that power is
necessarily regulated by law. When
the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition
of the
fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for in:o.porting into
it,
a totally
different fundamental right by some process of
strained construction.
Scope and connotation of art. 20(3) explained.
fohn Lilburn"s Case (3
State Trials 1315),
Boyd
v. United
States (116 U.S. 616), Weeks v. United States, (232 U.S. 383), Feliz
Gould v. United States (255 U.S. 298), Entick v. Carrington (19
State Trials 1030), Hale v. Henkel (201 U.S. 43), and Satya Kinkar
Roy v. Nikhil
Chandra
fyotis!iopadhaya (A.LR. 1951 Cal.
104)
referred to.
ORIGINAL
JuR1so1cT10N PETITIONS Nos. 372 and 375
of 1953.
Original petition under article 32 of the Constitution
of India for the enforcement of fundamental right.
Veda Vyas and Daulat Ram Kalia (S. K. Kapur and
Ganpat Rai, with them) for the petitioners.
C. K. Daphtary, Solicitor General for
India (Porus
A. Mehta and A. M. Chatterjee,
with him)
for the
respondents

## Text

_Characters 0–39,687 of 46,682. This is a partial read: ask again with offset=39687 for what follows._

S.C.R.
SUPREME COURT REPORTS
1077
rendering services which the
State considers beneficial
in the public interests and which the
people
have to
accept whether they are willing or not.
Our conclusion,
therefore, is that section 58 is not ultra vires
of the
State
Legislature by reason of the fact
that it is not a
tax but a fee
which
comes
within
the purview
of
entry 47 of List III in
Schedule VII of the
Constitution.
The result, therefore, is that in our
opinion
the
appeals are allowed only in part and a mandamus
will
issue
in each of
these cases
restraining
the
State
Government and
the
Charity
Commissioner
from
enforcing against the appellants the following provisions
of the Act to wit :-
( i) Section 44 of
the
Act to the extent
relates to
the appointment of the
Charity
s10ner as a
trustee of religious public trust
court,
that it
Commisby the
(ii) the provisions
of
clauses (3)
to
(6)
of
section 47, and
(iii) clause (c) of section 55 and
the
part
of
clause ( 1) of section 56 corresponding thereto.
The other prayers of the appellants stand dismissed.
Each party will bear
his own costs
m
both
the
appeals.
M. P. SHARMA AND OTHERS
tJ.
SATISH CHANDRA, DIS1'RICT MAGISTRATE,
DELHI, AND OTHERS.
[MEHR CHAND MAHAJAN c. J., MDKHERJEA,
S. R. DAs, V1vIAN BosE, GHDLAM HASAN,
BHAGWATI, JAGANNADHADAS and
VENKATARAMA AYYAR JJ.J
Constitution
of India, arts.
19(1)(!) and 20(3)-Search
warrant issued under s. 96(1) of the Code of Criminal Procedure (Act V
of 1898)-Whether ultra vires art. 19(1~(!)-Search and seizure of
1954
Ratilol
Panackarul
Gandhi
V,
Tiet Stat. ef
Bombay atlld
Others.
Mukherjeo].
1954
March 15.
1954
M. P. Sharma
and Others
v.
Satish Chandra,
District
Magistrate,
Delhi,
and Others.
1078
SUPREME COURT REPORTS
[19541
documents under :s. 94 and 96 of the Code of Criminal ProcedureT:Vhether compelltd production thereof-Within the meaning of art.
20(3).
Held, that the provision for the search warrant under the first
alternative of s. 96( 1) of the Code of Crin1inal Procedure does not
offend art. 19(1)(£) of the Constitution.
A
search and seizure is only a temporary
interference
with
the right to hold the property searched and tht:
articles
seized.
Statutory recognition in this behalf is a
necessary
and reasonable
restriction and cannot per se be
considered
to
be
unconstitutional.
A compelled production of incriminating documents
by a person against whom a First Information
Report has been made is
testimonial compulsion within the meaning
of art. 20(3)
of the
Constitution.
But a search and seizure of a document under the
provisions of ss. 94 and 96 of the Code of Criminal
Procedure is
not a compelled production thereof within the meaning
of art. 20
( 3) and hence does not offend the said Article.
A power of search and seizure is, in any
system of jurisprudence, an overriding power of the State for the protection of social
security and
that power is
necessarily regulated by law. When
the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition
of the
fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for in:o.porting into
it,
a totally
different fundamental right by some process of
strained construction.
Scope and connotation of art. 20(3) explained.
fohn Lilburn"s Case (3
State Trials 1315),
Boyd
v. United
States (116 U.S. 616), Weeks v. United States, (232 U.S. 383), Feliz
Gould v. United States (255 U.S. 298), Entick v. Carrington (19
State Trials 1030), Hale v. Henkel (201 U.S. 43), and Satya Kinkar
Roy v. Nikhil
Chandra
fyotis!iopadhaya (A.LR. 1951 Cal.
104)
referred to.
ORIGINAL
JuR1so1cT10N PETITIONS Nos. 372 and 375
of 1953.
Original petition under article 32 of the Constitution
of India for the enforcement of fundamental right.
Veda Vyas and Daulat Ram Kalia (S. K. Kapur and
Ganpat Rai, with them) for the petitioners.
C. K. Daphtary, Solicitor General for
India (Porus
A. Mehta and A. M. Chatterjee,
with him)
for the
respondents.
1954. March 15.
The Judgment of the
Court was
delivered by JAGANNAD!cLD.\S J.
S.C.R.
SUPREME COURT REPORTS
1079
JAGANNADHADAS
J.-These two applications are for
relief under article 32 of the Constitution arising
out
of similar and connected set of facts
and are
dealt
with together.
They arise under the
following circumstances. The Registrar of the Joint Stock Companies,
Delhi State, lodged information with
the
InspectorGeneral, Delhi Special Police Establishment, to
the
following effect.
Messrs.
Dalmia Jain Airways Ltd.
was registered in his office on the 9th July, 1946, with
an authorised capital of Rs. 10
crores
and went into
liquidation
on the 13th June, 1952.
An investigation
into the affairs of the
company was ordered
by the
Government and the report of the inspector
appointed
under section 138 of the
Indian
Companies
Act indicated that an organised attempt was made from the
inception of the company to misappropriate
and
embezzle the funds of the company and declare
it to
be
substantial loss, and to conceal from
the
shareholders
the true state of affairs by submitting false
accounts
and balance-sheets.
Various dishonest
and fraudulent
transactions were also disclosed which show that false
accounts with fictitious entries and false records
were
being maintained
and
that
dishonest
transfers
of
moneys had been made.
It was accordingly
alleged
that offences under sections 406, 408,
409, 418,
420,
465, 467, 468, 471 and 477(a) of the Indian Penal Code
had been committed.
It was also
stated that
Seth
R. K. Dalmia who was the Director and
Chairman
of
Dalmia Jain Airways Ltd. has been controlling certain
other concerns, viz., ( 1)
Dalmia
Cement
& Paper
Marketing Co., Ltd., (2)
Dalmia
Jain
Aviation
Ltd.
now known as Asia Udyog Ltd., and (3) Allen Berry &
Co., Ltd. through his nominees and that
all these
concerns were utilised in order to
commit
the frauds.
It was further stated therein
by the
Registrar of Joint
Stock Companies that to determine the extent
of the
fraud, it was necessary to get hold of books not
only
of Dalmia Jain
Airways Ltd. but also of the allied concerns controlled by the
Dalmia group, some of
which
are outside the
Delhi State. Lists of the offices
and
places in which and of the persons
in whose custody
the records may be available were furnished.
Speedy
4-36 S. C. !ndia.(59
1954
M. P. Sharma
and Others
v.
Satish Chandra,
District Magistrate, Delhi, and
Othtrs
Jagannadha·
das].
1954
M. P. Sharma
and Others.
v.
Satish Chandra,
District Magistrate, Delhi, arid
Others.
jagannadhadas J.
1080
SUPREME COURT REPORTS
[1954]
investigation was asked for.
This information
was
recorded by the Special Police on the 19th November,
1953, as the First Information
Report.
On the basis
thereof an application
was made
to
the
District
Magistrate, Delhi, under section % of the
Criminal
Procedure Code,
for the issue
of warrants
for the
search of documents and in the places, as per schedules
furnished.
Permission to
investigate
in
respect
of
some of the non-cognisable offences mentioned
in the
First
Information
Report was also asked for.
On the
same day, the District Magistrate ordered investigation
of the offences and issued
warrants
for
simultaneous
searches at as many as 34 places. The searches were
made on the 25th November,
1953,
and subsequent
days and a voluminous
mass of
records
was
seized
from various places.
The
petitioners
pray
that
the
search warrants
may be quashed
as being
absolutely
illegal, and ask for return of the
documents seized.
In
Petition No. 372 of 1953 there are four petitioners
of
whom the second is the Delhi
Glass Works Ltd.,
and
the
first the
Deputy-General
Manager
thereof,
the
third its Secretary and the fourth a
shareholder
therein.
In Petition No. 375 of 1953 there are five petitioners
of whom the first is Messrs.
Allen
Berry & Co., Ltd.,
second Asia Udyog Ltd., the third Shri R. K.
Dalmia,
the fourth the
Secretary and General Attorney
of the
third and the fifth a shareholder of petitioners
Nos. 1
and 2, and an officer of petitioner No. 2.
It will be
seen that
the petitioners in both
the petitions belong
to the four concerns, namely,
( 1) Delhi Glass Works
Ltd., (2) Messrs. Allen Berry
& Co., Ltd., (3)
Asia
Udyog Ltd., and (4) Dalmia Jain
Airways
Ltd.
The
last three are stated to be Dalmia concerns but
it does
not appear from the records placed before
us
what
exact connection Delhi Glass Works Ltd. has with
them.
However, it is admittedly
one of
the
places
for which a search warrant
was asked
for and against
which the
First
Information
Report appears to have
been lodged.
In the petitions various
questions
were
raised.
But such of them which raise only irregularities and illegalities of the searches
and do not involve
any consitutional
violation are matters
which
may
S.C.R.
SUPREME COURT REPORTS
1081
be more appropriately canvassed before the High Court
on applications under article
226
of the
Constitution
and we have declined to go into them.
The petitionen
have, therefore, confined themselves before us to two
grounds
on which they challenge
the
constitutional
validity of the searches. The contentions raised
a:-e
that the fundamental rights of the petitioners
under
article 20(3) and article 19(l)(f) have been violated by
the searches in question.
So far as the contention based on article 19(1) (f) is
concerned we are unable to see that the petitioners
have any arguable case.
Article 19(1) (f) declares
the
right of all citizens to acquire, hold and
dispose
of
property subject
to the operation
of any existing
or
future law in so far as it imposes
reasonable
restr'.ctions, on the exercise of any of the rights conferred
thereby, in the interests of general public.
It is urged
that the searches and seizures
as effected in this
case
were unreasonable
and constitute
a serious restnct1on
on the
right of the various petitioners,
inasmuch as
their buildings were invaded, their
document<
taken
away and their business
and reputation affected
by
these largescale and allegedly arbitrary
searches
and
that a law (section 96(1), Cr.P.C.)
which authorises
such searches violates the
constitutional guarantee
and
i> involved
in this case in respect of the wauant.•
on the right to hold and enjoy
property.
No doubt a
seizure and carrying away is a restriction of the possession and
enjoyment of
the
property
seized.
This,
however, is only temporary and for the limited
purpose of investigation.
A search
and seizure is, therefore, only a temporary interference with
the
right
to
hold the
premises
searched
and the articles
seized.
Statntory
r~gulation
m
this
behalf
1s
necessary
and
reasunable
restriction
cannot
per
se
be
considered
to
be
unconstitutional.
The
damage,
if
any,
caused
by
such
temporary
interference if
found to be
in excess of legal authority is a matter
for redress in other proceedings.
We are unable
to
sec how any question of violation of article 19(1) (f)
is invalid.
But, a search by itself is not a restriction
m question which purport to be under the Erst
1954
M. P. Sharma
and oth rs
v.
- Salish Chandra
District Magistratt, Delhi, and
Others.
Jagannadhadaa ].
1954
M.P. Sharma
and Others
v.
Satish Chandra,
District Magistrate, Delhi, and
Others.
Jagannadha·
das].
1082
SUPREME COURT REPORTS
[19541
alternative of section 96(1) of the
Criminal
Procedure
Code.
The only substantial question,
therefore,
that
has
been raised is the one relating to article 20(3)
which
runs as follows :
"No person accused of any offence shall be
COffif
pelled to be a witness against himself."
The argument urged before us is that a search to
obtain documents, for investigation into an offence is
a compulsory procuring of
incriminatory
evidence
from the accused himself and is, therefore, hit
by article 20(3) as
unconstitutional and illegal. It
1s
not
disputed that, prima facie, the article in
question
has
nothing to indicate
that it comprehends
within
its
scope, the prohibition of searches and seizures of documents from the custody of an accused.
But it is urged
that this
is necessarily
implied
therein
by
certain
canons of liberal construction which are applicable
to
the interpretation
of constitutional
guarantees.
In
suppqrt of this line of argument
great
reliance
has
been placed upon
American deci~ions in which similar
questions were canvassed.
The argument
on
behalf
of the petitioners is presented in the
following wav.
The fundamental guarantee
in
article 20(3)
comprehends within
its scope
not merely
oral
testimony
given by an accused in a criminal case
pending against
him, but also evidence of whatever character
compelled
out of a person who is or is likely to become incriminated thereby as an accused.
It,
therefore,
extends
not only to
compelled production
of documents
by
an accused from his possession,
but also
to such compelled
production of oral or documentary
evidence
from any other person who may become incriminated
thereby as an accused
in future
proceedings. If this
view of the content of article 20(3) is
accepted,
the
next step in the argument presented is that a forcible
search and seizure of documents is, for purposes
of
constitutional protection of
this
guarantee,
on
the
same footing as a compelled production of the
said
documents by the
person from whom they are seized.
This chain of reasoning, if accepted in its entirety, would
render searches and seizures
of
documents
and any
SC.R.
SUPREME COURT REPORTS
1083
statutory provisions in that behalf illegal and
void, as
being in violation of the fundamental
right
under
article 20(3).
The question thus
raised
is
of
farreaching importance
and
reqmres
careful
consideration.
Article 20(3) embodies the principle · of
protection
against compulsion of self-incrimination
which is one
of the fundamental canons of the British system of
criminal 'jurisprudence
and which has been adopted
by the American system and incorporated
as
an article
of its
Constitution.
It has
also,
to a
substantial
extent, been recognised in the
Anglo-Indian
administration of criminal justice in this country by incorporation into various statutory provisions.
In order, therefore, to arrive at a correct appraisal of the scope and
content of the doctrine
and
to judge
to
what
extent that
was intended to
be
recognised
by our
Constitution-makers in article 20(3),
it is necessary
to
have a cursory view of the origin
and scope
of this
doctrine and the implications thereof as understood in
English law and in American law and as
recognised in
the Indian law.
In English law, this
principle of protection against
self-incrimination had a historical origin.
It
resulted
from a feeling of revulsion
against the inquisitorial
methods adopted and the barbarous
sentences
imposed, by the
Court of Star Chamber, in the exercise
of
its criminal jurisdiction.
This· came to a head
in the
case of John Lilburn(') which brough~ about the abolition of the Star Chamber and the firm:
recognition
of
the principle that the accused should
not
be put on
oath and that no evidence should be taken from him.
This principle, in course of time, developed
into
its
logical extensions,
by way of privilege of witnesses
against self-incrimination, when
called for giving
oral
testimony or for production of documents.
A change
was introduced by the Criminal Evidence
Act of 1898
by making an accused a competent witness· on his own
behalf, if he applied for it.
But so far as
the oral
testimony of witnesses
and
the
production
of
documents
are concerned,
the
protection
against
(1) 3 State Trials 1315.
M. P. Sharma
and Others
v.
Satish Chandra,
District Magi.strait, Delhi, and
Otl1'Ts.
J agannai/ha-
. das].
1954
M. P. Sharma
and Others
v.
Satish Chandra,
District Magis·
trate, Delhi, and
Otliers.
Jagannadhadas J.
1084
SUPREME COURT REPORTS
fl954]
self-incrimination
continued
as before. (See Phipson
on Evidence, 9th Edition, pages 215 and 474).
These principles, as the·y were before
the statutory
change in 1898, were carried into the
American
legal
system and became part of its
common law.
(See
Wigmore on Evidence, Vol. VIII, pages 301 to
303).
This was later on incorporated into ·their
Constitution
by virtue
of
the
Fifth
Amendment thereof. The
language of the Fifth
Amendment was considered
by
the American Courts as being wide enough to cover all
the aspects of the principle of protection
against
selfincrimination as administered under the
English
common law including oral
testimony
of
witnesses
and
production of documents. (See Willis on
Constitutional
Law, pages 518 and 519).
In course of
time further
extensions of that privilege were
recognised
by the
courts relating to searches
and seizures.
It
came
to
be held that unreasonable
searches
and seizures
of
documents fell
equally within
the mischief
of the
Fourth and the
Fifth Amendments fBoyd v. United
States(') ] , and that documents or other evidence so
obtained were inadmissible
in evidence
[Weeks v.
United States(')].
In the Indian law the extent to which this
protection is recognised appears from
the various relevant
statutory provisions . from time
to time.
Section
III
of Act XV of 1852 recognised that
an
accused
in a
criminal proceedings was not a competent
or compellable witness to give evidence
for or against
himself.
This provision was repealed by the Evidence
Act I of
1872. But meanwhile the Criminal Procedure Code of
1861 in sections 204 and 203 thereof
respectively
provided that no oath shall be administered to the accused
and that it shall be in the discretion of the
Magistrate
to examine him.
The Criminal Procedure Code of 1872
by section 250 thereof made a general questioning
of
the accused,
after
the witnesses
for the prosecution
had been examined, compulsory and section 345
thereof provided
that
no
oath
or
affirmation
shall be
(•) II6 U.S. 616.
(2) 232 U.S. 383.
S.C.R.
SUPREME COURT REFCJ:'/,TS
1085
administered to the accused
person.
These
features
have been continued in the later Codes of Criminal
Procedure and have been incorporated into section 342
of the present Criminal Procedure Code of 1898. The
only later statutory change, so
far, in
this behalf,
appears to be that brought
about
by section 7 of the
Prevention
of
Corruption Act,
1947.
By virtue of
that section an accused is a competent
witness
on his
own application in respect of offences under that
Act.
So far as witnesses are concerned,
section · III of
Act
XV of 1852 also declared
the protection
of witnesses
against compulsion to answer incriminating
questions.
Shortly thereafter in 1855, this protection
was modified
by section 32 of Act II of 1855 which made
him compellable to answer even
incriminating
questions
but
provided immunity from arrest
or prosecution . on the
basis of such evidence or any other kind of use
thereof
in criminal proceedings except
prosecution
for giving
false evidence.
This position has
been continued under
section 132 of the Evidence Act I of 1872 which. is still
in force.
So far as documents are concerned,
it
does
not appear that the
Indian statutory law
specifically
recognised protection. against
production
of
incriminating documents until
Evidence Act I of 1872
was
enacted which has a provision in this bel;@lf
in section
130 thereof.
It is not quite clear whether
this section
which excludes parties to a suit applies
to an accused.
Thus so far as the
Indian law is concerned it may be
taken that
the
protection
against
self-incrimination
continues more or less as in the
English
common
law,. so far as the accused and production of documents
are concerned, but that it has been modified as regards
oral testimony of witnesses, by introducing compulsion
and providing immunity from
prosecution on the basis
of such compelled evidence.
Since the time when
the principle of
protection
against self-incrimination became established in
English
law and in other systems of law which have
followed
it, there has been considerable debate as
to the
utility
thereof and serious doubts were held in some quarters
that this principle has a tendency to d>feat justice.
In
support of the principle it is .claimea that the protection
1954
M. P. Sharma
and Others
V,
Satish Chandra,
District Magistrate, Delhi, and
Others.
Jagannadha·
dtisJ.
1954
M. P. Shanna
and Others
v.
Satish Chandra,
District Magistrate, Delhi, and
Others.
Jagannadhadas ].
1086
SUPREME COURT REPORTS
[1954]
of
accused
against
self-incrimination
promotes
active investigation
from external sources
to find out
the truth and proof of alleged or suspected crime
instead of extortion of confessions on unverified
suspicion.
(See Wigmore on Evidence, Vol. VIII, page 309).
It is also claimed that that privilege in its application
to witnesses as regards oral testimony
and
production
of documents affords to them in general a free atmosphere in which they can be persuaded to come
forward
to furnish evidence in courts and be of substantial help
in elucidating truth in a case,
with reference to material
within their knowledge
and in their
possession.
(See
Wigmore on Evidence, Vol. VIII, page 307).
On
the
other hand, the opinion has been strongly held in some
quarters
that this rule has
an undesirable
effect
on
social interests and that in the· detection
of crime,
the
State is confronted with overwhelming difficulties as a
result of this privilege. It is said this has become
a
hiding place of crime
and has outlived its
usefulness
and that· the rights of accused persons are amply protected without this privilege and that no innocent person is in need of it. (See Wigmore on Evidence, Vol. VIII.
pages 314 and
315).
Certain passages
at pages 441
and 442 of Vol. 1 of Stephen's History of the Criminal
Law of England are also instructive
in this
context
and show a similar divergence of opinion.
In view
of the above
background,
there is no
inherent reason to construe
the ambit.
of this fundamental right as comprising a very wide range.
Nor
would it be legitimate to confine it to the barely literal
meaning of the words used, since
it
is a recognised
doctrine that when appropriate a constitutional
provision has to be liberally construed,
so
as to
advance
the intendment thereof and to prevent
its circumvention.
Analysing the terms in which this right has been
declared in our
Constitution, it may be said to consist
of the following components. ( 1)
It is a right
pertaining to a person "accused of an offence";
(2)
It is a
protection
against
"compulsion
to
be
a ' witness";
and
(3)
It is a protection
against
such
compulsion
resulting in
his givinir
evidence
"against
himself".
The cases with which we are concerned have been
S.C.R.
SUPREME COURT REPORTS
1087
presented to us on the footing that the persons
against
whom the search warrants were issued,
were all
of
them persons
against whom
the
First
Information
Report was lodged and who were included in the category of accused
therein and that therefore
they
are
persons "accused of an offence" within
the
meaning
of article 20 (3) and also that the documents for whose
search the warrants were issued,
being required for investigation into
the
alleged
offences,
such
searches
were for incriminating material.
It may
be noticed
that some of the accused
enumerated in
the
First
Information
Report are incorporated
companies.
But
no question has been raised before us that
the protection does not apply to corporations
or to
documents
belonging to them-a question about which there
has
been considerable debate in the American Courts. On
the above footing, therefore, the only substantial argument before us on this part of the case was that
compelled
production
of incriminating documents from
the possession of an accused is compelling an accused
to
be a witness
against himself.
This argument
accordingly raises mainly the issue
relating to the scope
and connotation of the second of the three components
above stated.
Broadly stated the guarantee
m article 20(3)
is
against "testimonial
compulsion".
It
1s
suggested
that this is confined to the oral evidence of a
person
standing his trial for an offence
when
called
to the
witness-stand.
We can see no reason
to
confine
the
content of the constitutional guarantee
to
this barely
literal import.
So to limit it would
be
to rob
the
guarantee of its substantial purpose and to miss the
substance for the sound as stated in certain
American
decisions. The phrase used in article 20(3)
is "to be
a witness."
A person can "be a witness" not
merely
by giving oral evidence but
also by producing documents or making intelligible gestures as in the case of
a dumb witness (see section 119 of the Evidence
Act)
or the like. "To be a
witness"
is
nothing
more
than "to furnish evidence",
and such evidence
can be
furnished through the lips or by production of a thing
or of a document or in other modes.
So far as
1954
M. P. Sharma
and Others
v.
Satish Chandra.
District Magistrate, Delhi, and
0th.rs.
]agannadkadas ].
1954
M. P. Sharma
and Others
v.
Salish Chandra,
Dhtrict Magistrat~, Delhi, and
Others.
Jagannadhadas].
1088
SUPREME COURT REPORTS
[1954}
production of documents is concerned, no doubt section
139 of the Evidence Act says that a person producing
a document on summons is
not a witness.
But that
section is meant to regulate
the right
of cross-examination.
It is not a guide to
the· ·connotation
of the
word
"witness'', which must be understood in its.
natural sense, i.e., as referring to a.person who furnishes evidence.
Indeed, every positive
volitional
act
which furnishes evidence is testimony,
and testimonial
compulsion connotes
coercion
which
procures
the
positive
volitional evidentiary
acts of the person,
as.
opposed to the negative attitude of silence
or submission on his part.
Nor is there any reason
to
think
that
the
protection
in respect
of the evidence se>
procured is confined to what transpires
at
the
trial
in the court room. The phrase used in article 20(3)
is "to be a witness" and not
to "appear as
a witness":-
It follows that the protection
afforded to
an accused
in so far as it is related to the phrase "to be a witness"·
is not mere1y in respect of testimonial
compulsion
in
the court room but may well . extend to
compelled
testimony previously obtained from him.
It is available therefore to a person
against
whom
a formal
accusation relating to the commission
of an
offence
has been levelled
which in the normal
course
may
result in prosecution. \Vhether it is available
to
other
persons in other situations
does not call for
decision
in this case.
Considered in this light, the guarantee under article
20(3) would be available in the present cases
to
these
petitioners against
whom a First Information Report
has been recorded as accused therein.
It would extend
to any compulsory process for production of evidentiary
documents which are reasonably likely - to
support
a
prosecution against
them.
The
question
then that
arises next is whether search
warrants for the seizure
of such documents from the custody of
these
persons
are unconstitutional and hence illegal on the ground that
in effect they are tantamount
to compelled
production
of evidence.
It is urged that both search .and seizure
of a document uand a compelled production thereof on
notice or summons serve the same · purpose
of being
S.C.R.
SuPREME COURT REPORTS
1089
available as evidence in a prosecution
against the . person concerned, and that any other view would
defeat
or weaken the protection afforded
by the
guarantee of
the fundamental right.
This line of argument
is not
altogether without force and has the apparent support
of the Supreme Court of the United States of America
in Boyd v. United States(').
The question there which came up for consideration
was in fact the converse, namely, whether a compulsory
production of documents on the facts of that case amounted to search and seizure. There are dicta in that decision
to the effect that a compulsory production
of a man's
private papers is a search and seizure since
it . affects
the sole object thereof
and that
by this process
the
court extorts
from the party his private
books
and
papers to make him liable for penalty. ·It is necessary,
therefore, to examine this decision
rather
closely
in
order to determine how far it can be a safe guide for
our purpose.
The question therein
arose
under
the
following circumsta)lces.
In an
Act to amend
the
Customs Revenue
Laws, there was a provision
which
enabled the
Government Attorney to make a written
motion to the court for the issue
of a notice
to the
opposite-party
for production of papers
in
his possession. The motion could be made if in the Attorney's
opinion those books contain materials which will prove
an alleged fact in support of a charge of defrauding
the
revenues,
jnvolving
penalty
and
forfeiture
of
merchandise
to
which
the
fraud
relates. It
is also provided
by
the
said
section that if the
court in its discretion
allows
the motion
in
which
is set out the fact sought to be proved and calls
upon
the defendant
to produce
the documents,
and
the
defendant fails
or refuses
to produce them without any
proper and satisfactory explanation,
the
allegation
of
fact
sought
to be proved by such production
may be
deemed
to
have
been
confessed.
The
question
that thereupon
arose
was whether an
order
for
production
made
by the court under
that
section
did not
violate
the
constitutional
rights
declared
by
the · Fourth· and
Fifth
Amendments
of
the
(1) 116 U.S. 616.
1954
M. P. Sharma
and Others
v.
Satish Chandra,
District Magis·
trate, Delhi, and
Others.
Jagannadhadas J.
1954
.MP. Sharma
and Others
v .
. Sa:ish Chandra
District Magis.
Jrate, Delhi, and
Others
7agannadhadas J.
1090
SUPREME COURT REPORTS
[1954]
American
Constitution.
follows:
These
amendments
are
as
Amendment IV.
"The right
of the people to be secure
m their
persons, houses, papers,
and effects
against
unreasonable searches
and seizures, shall not . be violated; and
no warrants
shall issue, ' but upon
probable
cause,
supported by
oath
or affirmation,
and
particularly
describing the place to be searched,
and the persons or
things to be seized."
Amendment V.
"No person ...... shall
be
compelled
in
any
criminal case, to be a witness
against himself ; ........ "
On the facts of the above case, there was no difficulty
in holding
that the
production of
documents
m
response to the
motion granted by the court was a
compelled production of incriminating
evidence
and
that it violated the Fifth Amendment. The minority
judgment brought this out clearly
m. the following
passage:
.
''The order of the court under the
statute is in
effect a subpoena duces tecum; and
though the penalty
for
the
witness' failure
to appear in court with the
criminating papers is not fine and imprisonment, it is
one which may be made more severe, namely, to have
the charges against him of a criminal nature
taken for
confessed and made the foundation of the judgment of
the court.
That this is within the protection which
the Constitution intended
against compelling a person
to
be a witness
against . himself is,
I think,
quite
clear."
The majority Judges,
however, went one step
further and said as follows :
"The compulsory production
of a man's private
papers is search and seizure."
and again thus
"We have been unable to perceive that the seizure
of a man's private books
and papers
to . be used in
evidence against him is soubstantialy
different from
compelling him to be a witness against himself."
S.C.R.
SUPREME COURT REPORTS
1091
Thus in the view that the order for production was
tantamount to search and seizure and that in the case
it was for a purpose prohibited by the Fifth Amendment, they held that the
Fourth
Amendment
prohibiting unreasonable
searches was also
violated.
The
minority Judges, however, did not accept
this
view
and pointed out that there was an essential
difference
between the seizure of a document on search
and the
production of a document.
But
even
otherwise,
it
would appear on a careful consideration of the decision
that the majority were at pains to make out that, in
the circumstances of the case the order for
production
would amount to "an unreasonable search
and seizure"
and is hence unconstitutional as violating the
Fourth
and Fifth Amendments. The case, therefore, does not
lend support for any general doctrine that a search and
seizure in all circumstances
is
tantamount to a compelled production in violation of the Fifth Amendn:1ent.
That decision itself expressly recognizes the legality of
various kinds of searches and indeed
the Fourth
Amendment itself shows it.
Thus what that
decision
really established was that the obtaining of incriminating evidence
by illegal search and seizure is tantamount to the violation of
the Fifth
Amendment.
It
was in this light that subsequent cases have also
understood this decision.
[See Felix Gouled v. United
States(')].
Boyd's case(") has relied on the famous judgment of
Lord Camden in Entick v. Carrington( 3 ), and learned
counsel for the
petitioners
has also
relied
on it
Strenuously
before
us.
Wigmore
in
his
Law
of
Evidence, Vol. VIII, page 368, has shown how some of
the assumptions relating to it in Boyd's case("), were
inaccurate
and misleading.
While
no
doubt
Lord
Camden refers to the principle
of
protection
against
self-accusation with great force, in his consideration of
the validity of general search-warrants,
that case
does
not treat a seizure on a search
warrant as
ipso facto
tantamount to self-incrimination.
All that
was
said
(1) 255 U.S. 298; 65 Law. Edn. 647 at 651 and 653.
(2) 116 U.S. 616.
(3) 19 State Trials 1030.
1954
M. P. Sharma
and Otbrs.
v.
Salish Chandra,
District Magistrate, Delhi, and'
Others.
Jagannadha·
das J.
1554
M. P. Sharma
and Others
v.
Satish Chandra,
District Magistrate, Delhi, and
Ot,,,,.s.
Jagannadhadas J.
1092
SUPREME COURT REPORTS
[1954]
was that the legal philosophy
underlying both is the
same, as appears from the following passage :
"It is very certain, that the law obligeth
no man
to accuse himself; because
the necessary means of compelling
self-accusation, falling
upon the
innocent as
well as the guilty, would be both cruel and unjust;
and it should seem,
that search
for
evidence is
disallowed upon the
same principle.
There
too
the
innocent would be confounded with the guilty."
It may be noted
that Lord Camden's
judgment
shows, by an elaborate dissertation,
that
the search
warrant therein
under consideration was unauthorised
and illegal. Thus even the above dictum has
reference
only to an illegal search.
It is,
therefore, impossible to derive
from
Boyd's
case (1), support for the proposition that searches and
seizures, in general, are violative
of the privilege of
protection against self-incrimination.
Nor
is it possible
to import that doctrine with its differentiation between
legal and illegal searches into our
Constitution because
we have nothing in our
Constitution
corresponding to
the Fourth Amendment enabling the courts to import
the test of unreasonableness or any analogous criterion
for discrimination between legal and illegal searches.
In the arguments before us strong reliance has also
been placed on the provision of sections 94 and 96 of
the Criminal Procedure
Code in support of the broad
proposition that a seizure of documents on search is in
the contemplation of law a compelled
production of
documents. The sections run as follows :
"94(1).
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
(l) Jl6 u. s. 616
S.C.R.
SUPREME COURT REPORTS
1093
and produce it, or to produce it, at the time and place
stated in the summons or order.
,,
"96(1). 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,
subsection ( 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 purposes
of
any inquiry, trial or other proceeding under this
Code
will be served bv 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
mntained.
,,
It is pointed out that the procedure contemplated is
that normally there should be a summons or notice for
production under section 94 and it is only if there is no
compliance therewith or if the Magistrate
is
satisfied
about the likelihood of non-compliance
that
a search
warrant is to be issued.
It is,
therefore, urged that
these provisions
themselves show
that in law search
and seizure is a substitute for compelled production on
5ummons.
There has been
some debate before
us
whether section 94 applies to an accused
person
and
whether there is any element of compulsion in it. For
the purpose of this case it is unnecessary to decide
these points.
We may assume without
deciding
that
the section is applicable
to the
accused as held by a
Full Bench of the Calcutta High Court in a recent case
in Satya Kinkar Roy v. Nikhil
Chandra
Jyotishopadhaya(' ). We may also assume
that there is
an
element of complusion implicit in the process
contemplated by section 94
because,
in
any
case,
noncompliance
results in
the unpleasant
consequence
of
invasion of one's premises
and rummaging
of · one's
(1) A.I.R. 1951 Cal. IOI.
1954
M. P. Sharma
and Others
v.
Satish Chandra,
District Magis~
trate, Delhi, and
Others.
Jagannmfha~
d"' ].
1954
M. P. Sharma
and Othtrs
V,
Satish Chandra,
District Magistrate, Delhi, and
Others.
Jagannadha·
dasJ.
1094
SUPREME COURT REPORTS
[1954]
private papers by the minions
of law
under a ·search
warrant. Notwithstanding these assumptions we
are
unable to read sections 94 and 96(1) of the Criminal
Procedure Code as importing any
statutory recognition
of a theory that
search and seizure
of documents
is
compelled production
thereof.
It is to be noticed that
section 96( l)
has
three
alternatives
and that
the
requirement of previous notice or summons
and the
non-compliance with it or the likelihood
of
such noncompliance is prescribed only
for the first alternative
and not
for
the second . or the
third.
A "general
search" and a "search for a document
or a thing
not
known to be in possession. of any particular
person"
are not conditioned by any such requirement.
Indeed
in cases
covered
by
the second
alternative such
a
requirement cannot even be contemplated as
possible.
It would, therefore, follow, on the theory
propounded,
that some at least of the searches within the scope of
the second
and
third alternatives in
section 96 ( 1)
would
fall
outside the
constitutional
protection
of
article 20(3)-an anomalous distinction
for
which no
justification can be found on principle.
A consideration of the history of
Indian statutory
legislation
relating to searches
does not support
the
theory propounded.
The provisions
for
searches
are
to be found in the successive
Codes of
Criminal Procedure. In the earliest Code, Act XXV of 1861,
there
appears no provision for issuing summons
or notices
for production of documents, but there was only a
provision
for
the
issue of a search
warrant
by a
Magistrate under section 114 thereof, which is in the
following terms :
"When a Magistrate
shall
consider
that
the
production of any thing is essential to the conduct of
an enquiry .