# SBYAMLAL MOBANLAL v. STATE OF GUJARAT

- **Citation:** [1965] 2 S.C.R. 457
- **Court:** Supreme Court of India
- **Decided:** 1964-12-14
- **Case number:** Criminal Appeal No. 135-139 of 1963
- **Bench:** P. B. Gajendragadkar, M. H!Dayatullah, J. c. SBAB. B S. M. Snw, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sbyamlal-mobanlal-v-state-of-gujarat-3423
- **Pages:** 20

## Headnote

Code of Criminal Procedure (Act S of 1898), 1. 94(1)->-lf applla to
tll!CUSed persons.
The respondent, who wu a registered mooey-lender, wu proeecuted
for failure to maintain boob in accordance with the Moaey-"enden' Act
and Rules made thereunder.
An application under 1. 94(1) Criminal
C
Procedure Code, was filed before the Magistrate by tho prosecution for
orderins the reapondent to produce certain aCCOUllt boob. The Magistrate,
relying on Art. 20( 3) of the Cooatitution refused to do ao.
The State
filed a revision before the Sessions Judge, who disagreed with the Magistrate and made a reference to tho High Court with a recommendation that
tho matter be referred back to tho Magistrate with . auitable directions.
The High Court came to the conclusion that a. 94 doea not apply to m
accused penon and agreed with tho Magistrate in rejecting tho application.
D
On appeal to the Supremo Court.
HELD (Per P. B. Gajendragadkar,
CJ., Hidayatullah,
Silai and
Badlawat, JJ.) : The High Court wu right in ita construction of L 94,
that it does not apply to an accuaed peraon. (465 F]
Having regard to the general acheme of tho Codo and tho bulc concept of criminal law, tho generality of the word "person" used in the
aection is of no significance. If the legislature were minded to make the
E ~
applicable to an accused penon, it would have said so in spocillc
words. If the section is construed ao as to include an accused peraon)t
ii likely to lead to grave hardship for the accused and make investigation
unfair to him, f6r, if he refused to produce the document before the
police oflicer, he would be faced with a Prosecution under 1. 17S, Indian
Pcml Code.
[462 F-0; 463 C. B-F]
The words "atteiid and produce" wed in the sectioo are in~ to c:over
l
the case of an accused peraon, especially when the order ia mued by a,
police officer to an accused peraon in his custody. [464 Bl
It cannot be said that the thing or document produced would not be
admitted in evidence if on examination it is found to incriminate tho
accused, because, on most occasions the yo,wer under the section would
be resorted to omy when it is likely to incriminalo tho accused and support
the prosecutioo. [464 F·Hl
G
Even if tho construction that tho section doea not apply to accused'
penoos renders a. 96 useless because, no search warrant collld be issued
for documenta known to be in the poaesaion of tho accuaed, atill, u
far u the police officer is concerned, he can mo a. 165 of the Codo of
Criminal Procedure and order a general search or inspection.
(464 H;
465 A]
H
Stuya Kin/car Ray v. NlkhR Chandra lyottrhopodhaya, I.LR. (1952] Z
Cal. 106, F.B., overruled.
Per Shah, J. (DiSllellting) : The words in 1. 94( 1) are ~
: they
cootain no express limitation, nor do they imply any restriction es.eluding the penon accused of an offence from its operation, The scheme of·
the Codo a1ao appears to bo coasistent with that ~lion. If L 94( l)
458
SUPREME
COURT
REPORTS
[1965) 2 S.C.R.
•
does not authodse a Magistrate to issue a summons to a person accused
A
of an offence for the production of a document or thing in bis possession,
no warrant may be issued under s. 96(1) to search for a document or
thing in bis possession.
To assume that the police officer in charge of
investigation may, in the course of investigation, exercise powers under
s. 165, which cannot be exercised where the court issues a warrant, would
be wholly illogical. [465 A, C; 474 A, GJ
The use of the. words "requiring him to attend and produce it" inJiB
cates the nature of the command to be contained in the sununons .ind
does not imply that the person to whom the summons is directed r.iust
necessarily be possessed of unrestricted freedom to physically attend and
produce the document or thing demanded. [467 J>..EJ
The pbservations madt by the Supreme Court in the State of Bambay v.
Kathi Ka/u Oghad, [1962J 3 S.C.R. 10, that an accused may be called
upon. by the couft to produce documents in certain circumstances, relate
to t

## Text

_Characters 0–39,863 of 52,883. This is a partial read: ask again with offset=39863 for what follows._

A
SBYAMLAL MOBANLAL
v.
STATE OF GUJARAT
December 14, 1964
[P. B. GAJENDRAGADKAR, c. J., M. H!DAYATULLAH, J. c. SBAB.
B
S. M. Snw AND R. S. BACHAWAT, JJ.)
Code of Criminal Procedure (Act S of 1898), 1. 94(1)->-lf applla to
tll!CUSed persons.
The respondent, who wu a registered mooey-lender, wu proeecuted
for failure to maintain boob in accordance with the Moaey-"enden' Act
and Rules made thereunder.
An application under 1. 94(1) Criminal
C
Procedure Code, was filed before the Magistrate by tho prosecution for
orderins the reapondent to produce certain aCCOUllt boob. The Magistrate,
relying on Art. 20( 3) of the Cooatitution refused to do ao.
The State
filed a revision before the Sessions Judge, who disagreed with the Magistrate and made a reference to tho High Court with a recommendation that
tho matter be referred back to tho Magistrate with . auitable directions.
The High Court came to the conclusion that a. 94 doea not apply to m
accused penon and agreed with tho Magistrate in rejecting tho application.
D
On appeal to the Supremo Court.
HELD (Per P. B. Gajendragadkar,
CJ., Hidayatullah,
Silai and
Badlawat, JJ.) : The High Court wu right in ita construction of L 94,
that it does not apply to an accuaed peraon. (465 F]
Having regard to the general acheme of tho Codo and tho bulc concept of criminal law, tho generality of the word "person" used in the
aection is of no significance. If the legislature were minded to make the
E ~
applicable to an accused penon, it would have said so in spocillc
words. If the section is construed ao as to include an accused peraon)t
ii likely to lead to grave hardship for the accused and make investigation
unfair to him, f6r, if he refused to produce the document before the
police oflicer, he would be faced with a Prosecution under 1. 17S, Indian
Pcml Code.
[462 F-0; 463 C. B-F]
The words "atteiid and produce" wed in the sectioo are in~ to c:over
l
the case of an accused peraon, especially when the order ia mued by a,
police officer to an accused peraon in his custody. [464 Bl
It cannot be said that the thing or document produced would not be
admitted in evidence if on examination it is found to incriminate tho
accused, because, on most occasions the yo,wer under the section would
be resorted to omy when it is likely to incriminalo tho accused and support
the prosecutioo. [464 F·Hl
G
Even if tho construction that tho section doea not apply to accused'
penoos renders a. 96 useless because, no search warrant collld be issued
for documenta known to be in the poaesaion of tho accuaed, atill, u
far u the police officer is concerned, he can mo a. 165 of the Codo of
Criminal Procedure and order a general search or inspection.
(464 H;
465 A]
H
Stuya Kin/car Ray v. NlkhR Chandra lyottrhopodhaya, I.LR. (1952] Z
Cal. 106, F.B., overruled.
Per Shah, J. (DiSllellting) : The words in 1. 94( 1) are ~
: they
cootain no express limitation, nor do they imply any restriction es.eluding the penon accused of an offence from its operation, The scheme of·
the Codo a1ao appears to bo coasistent with that ~lion. If L 94( l)
458
SUPREME
COURT
REPORTS
[1965) 2 S.C.R.
•
does not authodse a Magistrate to issue a summons to a person accused
A
of an offence for the production of a document or thing in bis possession,
no warrant may be issued under s. 96(1) to search for a document or
thing in bis possession.
To assume that the police officer in charge of
investigation may, in the course of investigation, exercise powers under
s. 165, which cannot be exercised where the court issues a warrant, would
be wholly illogical. [465 A, C; 474 A, GJ
The use of the. words "requiring him to attend and produce it" inJiB
cates the nature of the command to be contained in the sununons .ind
does not imply that the person to whom the summons is directed r.iust
necessarily be possessed of unrestricted freedom to physically attend and
produce the document or thing demanded. [467 J>..EJ
The pbservations madt by the Supreme Court in the State of Bambay v.
Kathi Ka/u Oghad, [1962J 3 S.C.R. 10, that an accused may be called
upon. by the couft to produce documents in certain circumstances, relate
to the power exercisable under s. 94(1) only. [468 BJ
C
The rule of protection against self-incrimination prevailing in the
. U.K. or as interp~ed by courts in the U.S.A. has never been accepted
in India. Scattered through the main body of the Statute law of India are
provisions which establish that the rule has received no countenance in
India, To hold, notwithstanding the apparently wide power conferred,
that a person accused of. an offence may not in the exercise of the power
under s. 94( 1) be called upon to produce document or things in his possesD
sion, on the asumption that the rule of protection against self-incrimination has been introduced into India is to ignore the history of legislation
and judicial interpretation for.upwards of 80 years. [469 F-G; 475 BJ
It is for the first time by the Constitution, under Art. 20(3), that a
limited protection has been conferred upon a person charged with the
cominis.§ion of an offence against self-incrimination by affording him protection against testimonial compulsion.
But ~art from this protection
E
there is no reservation which has to be implted in the application of
s. 94(1).
Refusal to produce a document or .thing on the ground that
the protection guaranteed by Art. 20( 3) would be infringed would be a
reasonable excuse for non-production within the meaning of s. 485 of
the Procedure Code and such an order in violation of the Article would not
be regarded as lawful within the meaning of s. 175, of the Indian Penal
Code. But protection against what is called testimonial compulsion under
the Article is against proceedingo .. in Court: it does not apply to orders
which may be made by a police officer in course of investigation. [475 F;
F
476 A-B, BJ
Case law considered.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
135-139 of 1963.
Appeals from the judgment and order dated October 11, 1962
of the Gujarat High Court in Criminal Reference Nos. 106 to 113
of 1961.
N. S. Bindra and B. R. G. K. Achar, for the appellant (in all
the appeals).
T. V. R. Tiztachari, for the respondents (in all the appeals).
G
The Judgment of Gajendragadkar, C.J., Hidayatullah, SikJ:i
H
and Bachawat JJ. was delivered by Sikri J. Shah J. delivered a
dissenting Opinion.
SHYAM LAL V. STATE (Sikri, /.)
459
A
Sikri, J. These are appeals by the State of Gujarat against the
judgment of the High Court of Gujarat in Criminal References
Nos. 106-110 of 1961 (in Criminal Appeals Nos. 135-139
of 1963) and Criminal References Nos .. 111-113 of 1961
(in Criminal Appeals Nos. 140-142 of 1963) on a· certificate
granted by the High Court under Art. 134(1) (c) of the ConstiB
tution of India.
These raise a common question of law, namely,
whether s. 94 of the Criminal Procedure Code applies to an
accused person. Facts in one appeal need only be set out to
appreciate how the question.arose.
The respondent in Criminal Appeal No. 135 of 1963, ShyamC la! Mohanlal, is a registered moneylender doing business as
moneylender at Umreth.
He is required to maintain books
according to the provisions of the Moneylenders' Act and the Rules
made thereunder.
He was prosecuted for failing to maintain the
books in accordance with the provisions of the Act and the Rules,
in the Court of the Judicial First Class Magistrate, Umreth. The
D Police Prosecutor in charge of the prosecution presented an application on July 20, 1961, praying that the Court be pleased to
order the respondent to produce daily account book and ledger
for the Samvat year 2013-2014.
It was alleged in the application that the: prosecution had already taken inspection of the said
books and made copies from them, and that the original books
E
were returned to the accused, and they were in his possession. The
learned Magistrate, relying on Art. 20 ( 3) of the Constitution,
refused to accede to the prayer on the ground that the accused
. could not be compelled to produce any document.
He followed
the decision in Ranchhoddas Khimji Ashere v.
Tempton
lehangir(').
F
The State filed a revision before the learned Sessions Judge
of Kaira at Nadiad.
Basing himself on the decision of this Court
in State of Bombay v. Kathi Ka/u Oghad(') he held "that the
documents which are sought to be got produced by the prosecution in the case under my consideration can be allowed to be proG duced by compulsion if they do not contain any personal knowledge of the accused concerned.'' He felt that it was first necessary to ascertain whether the documents contained any personal
statement of the accused person.
He eoncluded that the matter
will have to be referred back to the learned Magistrate to ascer·
tain this first and then to decide the matter in the light of the
H observations made by the majority in Kalu Oghad's(') case.
Accordingly, a reference was made to the High Court with the
(I) 2 Guj. L.R. 415.
(2) [1962] 3 S.C.R. 10.
460
SUPREME
COURT
REPORTS
(1965] 2 S.C.R.
recommendation that the matter be referred back to the learned A
Magistrate with suitable directions.
The High Court, agreeing
with the Sessions Judge, held that it was clear from the decision
of this Court in Kalu Oghad's(') case "that if an accused produces a document that would not offend Art. 20(3) of the Constitution unless the document contains statements based on the personal knowledge of the accused."
But the High Court went on B
to consider another question, that being whether the Court had
power to compel an accused person to produce a document. The
High Court, after reviewing the authorities bearing on this point,
came to the conclusion that s. 94 of the Criminal Procedure Code
did not apply to an accused person. It accordingly agreed with C
the Magistrate that the application of the Police Prosecutoc be
rejected.
Sections 94 and 96 of the Code of Criininal Procedure read
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 and produce
it, or to produce it, at the Q
and pface 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.
(3) 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.
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, sub-section (1),
(I) [1962] 3 S.C.R. 10.
D
E
F
G
H
c
n
SHYAM LAL v. STATE (Sikri, 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
Coun to be in the possession of any person, or where
the Coun considers that the purposes 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.
(2) Nothing herein contained shall authorise any
Magistrate other than a District Magistrate or Chief
Presidency Magistrate to grant a warrant to search for
a document, parcel or other thing in the custody of the
Postal or Telegraph authorities."
461
Before construing s. 94, it is necessary to recall the background of An. 20 ( 3) of the Constitution. One of the fundamental canons of the British system of Criminal Jurisprudence
and the American Jurisprudence has been that the accused should
not be compelled to incriminate himself.
This principle "resultE ed 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 Li/bum(') which brought
about the abolition of the Star Chamber and the firm recognition
of the principle that the accused should not be put on oath and
T 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." (M. P.
Shanna v. Satish Chandra, District Magistrate, Delhi) (2)
G
One of the early extensions of the doctrine was with regard
to the production of documents or chattel by an accused in response to a subpeona or other form of legal process. In 1749,
Lee, C.J., observed in R. v. Pume/1(1) : "We know of no instance
wherein this Court has granted a rule to inspect books in a criminal prosecution nakedly considered." In Roe v. Han>ey,(•)
H
Lorcl Mansfield observed "that in civil causes the Coun will force
(I) ' Slfto Trials 1315.
(3) I W. Bl. 37.
(2) [19'4] S.C.R. 1077. at p. 1083,
(4) 4 Burr. 2484.
462
SUPREME
COURT
REPORTS
(1965] 2 S.C.R.
parties to produce evidence which may prove against themselves
A
or leave the refusal to do it (after proper notice) as a strong
presumption to the jury. . . . But in a criminal or penal cause the
defendant is never forced to produce any evidence though he
should hold it in his hands in Court." In Redfern v. R.edfern(')
Bowen, L.J., stated : "It is one of the inveterate principles of
English Law that a party cannot be compelled to discover that
B
which, if answered, would tend to subject him to any punishment,
penalty, forfeiture or ecclesiastical censure."
The Indian Legislature was aware of the above fundamental.
canon of criminal jurisprudence because in various sections of the
Criminal Procedure Code it gives _effect to it.
For example, in c
s. 17 5 it is provided that every person summoned by a Police
Officer in a proceeding under s. 174 shall be bound to attend and
to answer truly all questions other than questions the answers to
which would have a tendency to expose him to a criminal charge
or to a penalty or forfeiture.
Section 343 provides that except
as provided in ss. 337·and 338, no influence by means of any proD
mise or threat or otherwise shall be used to an accused person
to induce him to disclose or withhold any matter within his knowledge.
Again, when the accused is examined under s. 342, the
accused does not render himself liable to punishment if he refuses
to answer any questions put to him. Further, now although the
accused is a competent witness, he cannot be called as a witness
E
except on his own request in writing.
It is further provided in
s. 342A that his failure to give evidence shall not be made the
subject of 'any comment by any parties or the court or give rise
to any presumption against himself or any person charged together with him at the same trial.
It seems to us that in view of this background the Legislature,
if it were minded to make s. 94 applicable to an accused person,
would have said so in specific words.
It is true that the words
l'
of s. 94 are wide enough to include an accused person but it is
well-recognised that in some cases a limitation may be put on the
construction of the wide terms of a statute ( vide Craies on Statute
G
Law, p. 177). Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be, if possible, construed as not to alter the common law (vide Craies on
Statute Law, p. 187).
There is one other consideration which is important.
Art.
20(3) has been construed by this Court in Kalu Oghad's( 2 ) case
H
to mean that an accused person cannot be compelled to disclose
(I) us9t]i>-.-1~----- --
(2) [1962J 3 S.C.R. IO.
SHYAM LAL v. STATE (Sikri, J.)
463
A documents which are incriminatory and based on his knowledge.
Section 94, Criminal Procedure Code, permits the production of
all documents including the above-mentioned class of documents.
Jf '· 94 is construed to inciude an accused person, some unfortunate consequences follow.
Suppose a police officer-' and here
it is necessary to emphasize that the police officer has the same
B r-0wers as a Court--directs an accused to attend and produce
or produce a document.
According to the accused, he cannot
be. compelled to produce this document under Art. 20 ( 3) of the
Constitution.
What is he to do ? If he refuses to produce it
before the Police Officer, he would be faced with a prosecution
under s. 17 5, Indian Penal Code, and in this prosecution he could
C not contend that he was not legally bound to produce it because
the order to produce is valid order if s. 94 applies to an accused
person. This becomes clearer if the language of s. 175 is compared with the language employed in s. 485, Cr. P.C. Under the
latter section a reasonable excuse for refusing to produce is a good
0
defence. If he takes· the document and objects to its production,
there is no machinery provided for the police officer to hold a
preliminary enquiry.
The Police Officer could well say that on
the terms of the section he was not bound to listen to the accused
or his counsel. Even if he were minded to listen, would he take
evidence and hear arguments to determine whether the producE
ti on of the document is prohibited by Art. 20 ( 3). At any rate,
his decision would be final under the Code for no appeal or revision would lie against his order. Thus it seems to us that if we
comtrue s. 94 to include an accused person, this construction is
likely to lead to grave hardship for the accused and make investigation unfair to him.
F
We may mention that the question about the constitutionality of s. 94(1 ), Cr. P.C., was not argued before us, because
at the e'ld of the hearing on the ;:onstruction of s. 94 (1 ) , we
indicated to the counsel that we were ·inclined to put a narrow
construction on the said section, and so the question about its
G constitutionality did not arise.
In the course of arguments. b!)Wevcr, it was suggested by Mr. Bindra that even if s. 94( 1) received
a broad construction, it would be open to the Court to take the
view that the document or thing required to be produced by the
accused would not be admitted in ·evidence if it was found to
incriminate him, and in that sense s. 94 ( 1) would not contravene
H Art. 20 ( 3). Even so, since we thought that s. 94 (l ) should
receive a narrow construction, we did not require the advocates
to pursue the constitutional point any further.
464
SUPREME
COURT
REPORTS
[1965] 2 S.C.R.
Keeping the above considerations in mind, let us look at the
A
terms of the section.
It will be noticed that the language is general, and prima facie apt to include an accused person.
But there
are indications that the Legislature did not intend to include an
accused person. • The words "attend and produce" are rather
inept to cover the case of an accused person.
It would be an
odd procedure for a court to issue a summons to an accused perB
son present in court "to attend and produce" a document.
It
would be still more odd for a police officer to issue a written order
to an accused person in his custody to "attend and produce" a
document.-
The argument pressed on us that the "person" referred to in
C
the latter part of s. 94( 1) is broad enough to include an accused
person does not take into account the fact that the person in the
latter part must be identical with the person who can be directed
to produce the thing or document; and if the production of the
thing or document cannot be ordered against an accused person
having regard to the general scheme of the Code and the basic
D
concept of Criminal Law, the generality of the word "the person"
is of no significance.
Mr. Bindra invited our intention to s. 139 of the Evidence
Act, which provides that a person summoned to produce a document does not become a witness by the mere fact that he produces
E
it, and cannot be cross-examined unless and until he is called as a
witness.
But this section has no application to the police officer
and it will be noticed that s. 94 provides for two alternative directions; the first is 'attend and produ~e· and the second 'produce' a
document. If a police officer directs him to attend and produce
he cannot comply with the direction by causing a document to F
be produced.
If, after a thing or a document is produced, its admissibility
is going to be examined and the document or thing in question is
not going to be admitted in evidence if it incriminates the accused
person, the order to produce the thiiig or document would seem
G
to serve no purpose; it cannot be overlooked that it is because
the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasions the power
under s. 94( 1) would be resorted to, so that on the alternative
view which seeks to exclude incriminating documents or things,
the working of s. 94( 1) would yield no useful result.
H
It is urged by Mr. Bindra that this construction of s. 94 would
render s. 96 useless for no search warrant c<;>μ)d be issued to. search
SHYAM LAL v. STATE (Shah, J.)
465
A for documents known to be in the possession of the accused.
This
may be so, but a general search or inspection can still be ordered.
As far as the police officer is concerned, he can use s. 165, Criminal Procedure Code.
It is not necessary to review all the cases cited before us. It
B will be sufficient if we deal with the Full Bench decision of the
Calcutta High Court in Satya Kinkar Ray v. Nikhil Chandra
Jyotishovadhya ( 1), for the earlier cases are reviewed in it. Three
main considerations prevailed with the High Court : First, that
giving s. 94 its ordinary grammatical construction it must be held
that it applies to accused persons as well as to others; secondly,
c that there is no inconsistency between s. 94 and other provisions
of the Code, and thirdly, that this construction would not make
the section ultra vires because calling upon an accused person to
produce a document is not compelling the accused to give evidence against himself.
Regarding the first two reasons, we may
point out that these reasons do not conclude the matter.
The
D High Court did not advert to the importance of the words "attend
and produce" ins. 94, or the background of Art. 20(3). The
third reason is inconsistent with the decision of this Court in M. P.
Sharma v. Satish Chandra('), and the learned Chief Justice might
well have arrived at a different result if he had come to the conclusion that to call an accused person to produce a document
I: does amount to compelling him to give evidence against himself.
We may mention· that the construction which we have put on
s. 94 was also placed in lshwar Chandra Ghoshal v. The
Emperor( 8 ), Bajrangi Gope v. Emperor('), and Raj Chandra
Chakravati v. Hare Kishore Chakrdvarti(").
F
Therefore, agreeing with the High Court, we hold that s. 94,
on its true construction, does not apply to an accused person. The
result is that the appeal is dismissed.
It is not necessary to give facts in the other appeals because
nothing turns on them.
As stated above, the same question arises
G in them.
The other appeals also fail and are dismissed.
H
We would like to express our appreciation of the assistance
which Mr. Tatachari gave us in this case as amicus curise.
Shah, J. The question which falls to be determined in these
appeals is whether in exercise of the power under s. 94( I) of
the Code of Criminal Procedure a Cow:t has authority to summon
(tl [1952] l.L.R. 2 Cal. 106.
(3) 12 C.W.N. 1016.
(SJ 9 LC. 564.
(2) [1954] S.C.R. 1077.
(4) I.L.R. 38 Cal. 304.
466
SUPIU!ME
COURT_ REPORTS
(1965] 2 S.C.R.
a person accused of an offence before it to produce a document
A
or a thing in his possession.
The words of the clause are general:
they contain no express limitation, nor do they imply any restriction excluding the person accused of an offence from its operation.
In terms the seetion authorises any Court, or any officer
-in charge of a police-sta,tion, to issue a summons or written order
to the person in whose possession or power such document or
Bthing is believed to be, requiring such person to attend and produce it, at the time and olace indicated in the summons or order.
The scheme of the Cod~ also appears to be consistent with that
interpretation.
Chapter VI of the Code deals with process to
compel appearance. A Court may under s. 68 issue a summons
for the attendance of any person, whether a witness or accused of C
an offence ( vlde Forms Nos. 1 and 31 : Sch. V). Section 75
and the succeeding sections deal with the issue of warrants of
arrest of witnesses and persons accused of offences.
Chapter
VII of the Code deals with process to compel the production of
documents and other movable property and to compel appearD-
ance of the persons wrongfully confined, and general provisions
relating to searches. Section 94 confers on a Court power to issue
summons and on a police officer to make an order to any person
demanding production of a document or thing believed fo be in
the possession of that person.
Indisputably the person referred
to in sub-s. (2) of s. 94 is the same person who is summoned or---x
ordered to produce a document or thing. Sections 96 to 99
deal with warrants to search for documents or things.
The first
paragraph of s. 96 authorises_ the issue of a search .warrant in
respect of a place belonging to any person whether he be a Witness
or an accused person.
The inter-relatio1Lhetween s. 94 ana the
first paragraph of s. 96 (1) strongly indicates that the power to-'--F"-
issue a search warrant under paragraph one of s. 96 ( 1) is conditional upon the person, who it is apprehended will not or would
nqt ·produce a thing or document, being compellable to produce
it.in pursuance of a summons under s. 94(1). If under s. 94(1)
_ a summons cannot be issued against a person accused of an
- offence, a search warrant under s. 96 (1) paragraph .1 can eviG
dently not be issued in respect of a document or thing in his
possession.
The second and the third paragraphs of s. 96(1)
confer power -to issue general warrants.
The generality of the
terms of s. 98 which enable specified Magistrates to issue warrants
to search places used for certain purposes also indicates that the
power may be exercised in respect of any place whether it is
H
occupied by an accused person or not.
The terms of s. 103
which provide for the procedure for search of any place apply to
SHYAM LAL V. STATE (Shah, J.)
467
A the search of the house of a person accused of an otience or any
other person.
Raju, J ., against whose judgment these appeals are filed, opined that s. 94( l) confers no power to issue a summons against
an accused person to produce a document or thing in his possesB sion-principally on two grounds : (i) that Chapters XX to XXIII
of the Code do not authorise the issue of a summons or a warrant
against a person accused of an otience, and (ii) that a direction
to attend and produce a document or thing cannot appropriately
be made against the person accused.
The first ground has no
validity and has not been relied upon before us for good reasons.
c
The scheme of the Code clearly discloses that the provisions
of Chapters VI and VII which fall in Part III entitled "General
provisions" are applicable to the trial of cases under Chapters XX
to XXIII. Specific provisions with regard to the issue of a
summons or warrant to secure attendance of witnesses and accusD ed and production of documents and things are not found in
Chapters XX to XXIII because they are already made in Chapters VI & VII. Again the use of the words "requiring him to
attend and produce it" indicates the nature of the command to
be contained in the summons and does not imply that the person
to whom the summons is directed must necessarily be possessed
E
of unrestricted .'freedom to physically attend and produce the
document or thing demanded.
In cases decided by the High Courts of Calcutta and Madras,
it appears to have been uniformly held that the word "person"
in s. 94( 1) includes a person accused of an otience : vide S.
Kondareddi and another v. Emperor('); Bissar Misser v ..
F Emperor( 2 ); and Satya Kinkar Ray v. Nikhil Chandra Jyotishopadhaya('). The observations in lshwar Chandra Ghoshal v.
The Emperor( 4 ) to the contrary in dealing with a conviction for
an otience under s. 175 Indian Penal Code for failing to comply
with an order under s. 94 (1) sutier from the infirmity that the
Court had not the assistance of counsel for the State.
This Court
G also has expressed the same view in The State of Bombay v. Kathi
Ku/u Oghad and others('). Sinha, C.J., delivering the judgment
of the majority of the Court observed :
H
"The accused may have documentary evidence in
his possession which may throw some light on the con-
(1) I.L.R. 37 Mad. 112 ..
(3) 1.L.R. (195112 Cal. 106.
(S) [1962] 3 S.C.R. 10.
(2) I.L.R. 41 Cal. 261.
(4) 12 C.W.N. )016.
-468
SUPREMB COURT
REPORTS
[1965] 2 S.C.R.
troversy. If it is a document which is not his statement
A
conveying his personal knowledge relating to the charge
against him,· he may be called upon by the Court to produce that document in accordance with the provisions
of s. 139 of the Evidence Act, •
•
•
*"
I
The learned Chief Justice did not expressly refer to the source B
of the power, but apart from s. 94(1) of the Code of Criminal
Procedure there is no other provision which enables a Magistrate
to summon a person to produce a document or thing in his possession.
The observations made by the Court therefore only relate
to the power exercisable under s. 94 ( 1) .
Mr. Tatachari says that since it is a fundamental principle of
C
the common law of England which has been adopted in our
Criminal jurisprudence, that a person accused of an offence shall
not be compelled to discover documents or objects which incriminate himself, a reservation . that the expression "person" does
not include a person charged with the commission i.e. of an D
offence though not expressed is implicit in s. 94( 1). But the
hypothesis that our Legislature has accepted wholly or even
paRially the rule of protection against self-incrimination is based
on no solid foundation.
In 'Phipson on Evidence', 10th Edn. p. 264 Paragraph 611,
the limit of the principle of protection against self-incrimination
E
as applicable in the United Kingdom and the policy thereof are
set out thus :
"No witness, whether party or stranger is, except in
the cases hereinafter mentioned, compellable to answer
any question or to produce any document the tendency
y
of which is t9 expose the witness (or the wife or
husband of the witness), to any criminal charge, penalty
or forfeiture.
•
•
*"
In Paragraph 612 it is stated :
"'Ibe privilege is baSed on the policy of encouraging persons to come forward with evidence in courts
of justice, by protecting them, as far as possible, from
injury, or needless annoyance, in consequence of so
doing."
G
At common law a person accused of an offence enjoyed in general
no immunity from answering upon oath as to charges made H
against him, on the contrary such answers formed an essential
feature of all the older modes of trial, from the Saxon ordeal,
,.
SHYAM LAL V. STATE (Shah, J.)
469
A Norman combat, compurgation or wager of law. Later on, a
reaction against the tyranny of the Star Chamber and High Commission Courts set in and the rule became general that no one
shall be bound to criminate himself in any court or at any stage
of any trial. The privilege was initially claimed only by the
defendants, but was later conceded to witnesses also.
The witB ness was thereby protected both from answering questions, and
producing documents. In )the. case odl ' crimes, protection was
accorded to questions as to the witness's presence at a duel, or
his commission of bigamy, libel, or maintenance; in the case of
penalties, as to pound-breach, or fraudulent removal 'of goods by
a tenant: and in .the case of forfeiture, as to breach of covenant
C to take beer from a particular l;lrewery or to insure against fire
or not to sub-let without licence. (See Pliipson Paragr11ph 613).
In the United States of America where the immunity against
self-incrimination is consdtutional, the Fifth Amendment provides:
D
"No person .... shall be compelled in any criminal
case, to be a witness against himself."
By judicial interpretation the rule has received a much wider
application.
Tb,e privilege is held to apply to witnesses as well
as parties in proceedings civil and criminal : it covers documentary
E evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction,
or furnish a link in the chain of evidence, and to production of
chattel sought by legal process.
The rule of protection against self-incrimination prevailing in
the United Kingdom, or as interpreted by Courts in the United
F States of America has never been accepted in India. Scattered
through the main body of the statute law of India are provisiora
which establish beyond doubt that the rule has received no countenance in India. Section 132 of the Evidence Act enacts in no
uncertain terms that a witness shall not be excused from answering any questioqs as to any matter relevant to the mattt'.r in issue
G in any suit or in any civil or criminal proceeding, upon the ground'
that the answer to -such question will criminate, or may tend directly
or indirectly to criminate, such witness, or that it will expose, or
tend directly or indirectly to expose, such witnes.s to a penalty or
forfeiture of any kind.
This provision runs directly contrary to
the protection against self-incrimination as understood in the
H common law in the United Kingdom.
Statutory proviSions have also been made which compel a
person to produce information or evidence in proceedings whiclt
470
SUPREME
COURT
REPORTS
[1965] 2 S.C.R.
may involve imposition ·of penalties against him, e.g., under s.
45-G & s. 45-L of the Banking Companies Act, 1949 as \amended
by Act 52 of 1953 provision has been made for public examination of persons against whom an inquiry is made.
Provisions are
also made urider s. 140 of the Indian Companies Act, 1913, s.
240 of the Companies Act, 1956, s. 19(2) of the Foreign Exchange Regulations, s. 171-A of the Sea Customs Act 8 of 1878,
s. 54-A of the Calcutta Police Act, s. 10 of the Medicinal &
Toilet Preparation Act 11 of 1955, s. 8 of the Official Secrets
Act 19 of 1923, s. 27 of the Petroleum Act 30 of 1934, s. 7 of
the Public Gambling Act 3 of 1867, s. 95(1) of the R~presentaA
B
tion of the People Act 43 of 1951-to mention only a few~-
c
pelling persons to furnish information which may be incriminatory or expose them to penalties.
Provisions have also been
made under diverse statutes compelling a person including an
.accused to suppli evidence against himself.
For instance, by s.
73 of the Evidence Act, the Court is authorised in order to ascertain whether a signature, writing or seal is that-of the person by
D
whom it purports to have been written or made, to d~rect any
person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so
written with any words or figures alleged to have been written by
such person.
It has been held that this power extends to calling
upon an accused person to give his writing in Court and make it
available for comparison by an expert : King Emperor v. Tun
Hlaing(') and Zahuri Sahu v. King Emperor( 2 ).
E
Section 4 of the Identification of Prisoners Act, 1920, obliges
.a person arrested in connection with an offence punishable with
rigorous imprisonment, if so required by a police officer to give
F
his measurements.
Section 5 of the Act authorises a Magistr.ate
for the purposes of any investigation or proceeding under the Code
of Criminal Procedure, 1898, to order any person to be produced
·OT to attend at any time for his measurements Or photograph to
be taken, by a police officer.
Similarly under s. 129-A of the
Bombay Prohibition Act, 1949, the Prohibition Officer is authoG ·
rised to have a person suspected to be intoxicated, medically
!I
examined and have· his blood tested for determining the percentage of alcohol therein.
Offer of resistance to production of his
body or the collection of blood may be overcome by all means
reasonably necessary to secure the production of such person or
the examination of his body or the collection of blood necessary
H
for the test. Section 16 of the Arms Act 11 of 1878 requires a
(I) (1923] I Ran. 759, F.B.
(2) (1927] 6 Pat. 623.
SHYAM LAL v. STATE (Shah, J.)
471
A person possessing arms, ammunition or military stores, when such
possession has become unlawful to deposit the same at the nearest
p0lice station, and s. 32 of that Act requires all person possessing
arms of which a census is directed by the Central Government to
furnish to the person empowered such information as he requires.
There are also provisions in the Motor Vehicles Act 4 of 1939
B like ss. 87 (1) & (2), 88 and 89 which require a person to furnish
information even about his own complicity in the commission of
an offence. . It is unnecessary to multiply instances of statutory
provisions which im~e a duty to give information even if the
giving of infomiation may involve the person giving information
to incriminate himself.
These provisions are, prima facie, inc consistent with the protection against self-incrimination as recognised under the common law of the United Kingdom or in the
constitutional protection conferred by the Fifth Amendment of
the American Constitution.
The Evidence Act and the Code of Criminal Procedure were
D enacted at a time when the primary aim of the Government was
to maintain law and order. The Legislature was merely a branch
of the executive government, and was not in the very nature of
things concerned with the liberty of the individual.
It would
therefore be difficult" to assume that the rulers of the time incorporated in the Indian system of law every principle of the English
E common law concerning individual-liberties which was developed
after a grim fight in the United Kingdom. In the matter of incorporation of the rule of protection against self-incrimination, both
authority and le~lative practice appear to be against such incorporation.
F
In this connection it is pertinent to point out that the provisions relating to the production of documents were for the first
time introduced in the Code of Criminal Procedure by Act 10 of
1872. These special provisions were presumably thought necessary to be introduced because of ~e severe criticism made by the
Calcutta High Court of the Colleetor and Magistrate of a District
G in Bengal in Queen v. Syud Hossain Ali Chowdry(1 ). It was
intended thereby to state in words which were clear the extent of
powers which were conferred upon criminal courts and police
officers in respect of search of documents or other things. The
history of the provisions relating to orders for production and
searches is set out in Jn re Ahmed Mohomed(') by Ghose, J.,
H at pp. 137-138. After observing that the "party" referred to in s.
3.65 (which invested a Magistrate with power to issue a summons
(I) I.L.R. IS Cal.