Can police carry search with copy of search warrant issued by court

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In M. P. Sharma And Others vs Satish Chandra, District ... on 15 March, 1954
following observation laid down by SC;
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 Inspector General, 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 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 96 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. I 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 constitutional violation are matters which may 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 petitioners have, therefore, confined themselves before us to two grounds on which they challenge the constitutional validity,of the searches. The contentions raised are that the fundamental rights of the petitioners under article 20(3) and article 19(1)(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 restrictions, 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 restriction on the right of the various petitioners, inasmuch as their buildings were invaded, their documents 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 is invalid. But, a search by itself is not a restriction 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. Statutory regulation in this behalf is necessary and reasonable 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 see how any question of violation. of article 19(1) (f) is involved in this case in respect of the warrants in question which purport to be , under the first 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:

In view of the above background, there is no inherent reason to construe the ambit of this fundamental right as coprising 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 recognized 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 giving evidence " against himself ". The oases with which we are concerned have been 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 in article 20(3) is against "testimonial compulsion ". It is 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 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 so 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 merely 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. Whether 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 and a compelled production thereof on notice or summons serve the same purpose of being 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(1). 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 circumstances. 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, involving 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.

Boyd's case(2) 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(1), 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) 253 U.S. 298; 65 Law. Edn. 647 at 651 and 653. (2) 116 U.S. 616.

The Magistrate issuing such warrant may, if he sees fit, specify in his warrant the house or place, or part thereof, to which only the search or inspection shall extend; and the officer charged with the execution of such warrant shall then search or inspect only the house, place or part so specified. "

It will be noticed that even when the procedure of summons for production of documents was introduced, as above in section 365 the provision for the issue of a search- warrant in section 368 had absolutely nothing to do with the question of non-compliance by the concerned person with the summons for production. It is only in the next. Criminal Procedure Code, Act X of 1882 that the provisions, sections 94 and 96, appear which correspond to the present sections 94 and 96 of Act V of 1898, linking up to some extent the issue of search warrants with non-compliance or likelihood of non- compliance .with a summons to produce. It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in the Procedure Code of 1882 and even there the issue, of such general warrants is not based on noncompliance with a previous summons for production. it is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party , concerned and his production in compliance Therewith constitutes a testimonial act by him within the' meaning of article 20(3) as above explained. But search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are 'acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense. Even in the American decisions there is a strong current of judicial opinion in support of this distinction.

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Advocate Siddharth Dev LawRato