The provisions relating to search contained in S.93 (1) of the Code of Criminal Procedure are not hit by Art.20(3) of the Constitution.

Headnote:
Search Warrant - Art.20(3) of the Constitution - S.91, S.93 of the Cr. P. C. - Summary of Acts and Sections
Fact of the Case:

The petitioner is the complainant in a case where offences punishable under S.403, 409, 420 and 477A read with S.34 IPC were alleged against the first respondent and 5 others who are the office bearers of the H.M.D.P. Sabha, Moothakunnam. A search warrant was issued under S.93 of the Code of Criminal Procedure for searching the office of the Sabha and seizing certain documents. The trial court upheld the contention that the search was without jurisdiction and ordered return of the documents. The order was challenged in the present petition.
Finding of the Court:

The court held that the provisions relating to search contained in S.93 (1) of the Code of Criminal Procedure are not hit by Art.20(3) of the Constitution. The order of the trial court declaring the search warrant as without jurisdiction was set aside.
Issues: The main issue was whether the search warrant issued under S.93 of the Code of Criminal Procedure violated Art.20(3) of the Constitution.
Ratio Decidendi: The court analyzed the legislative history of the Indian law relating to searches and concluded 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. The court also referred to various decisions and observed that the provisions of the pre-Constitution Code are repeated in the new Code, indicating that Parliament did not consider conferring any privilege on the accused in the matter of search and seizure.
Final Decision: The court set aside the order of the trial court declaring the search warrant as without jurisdiction.

Judgment :-

1. The petitioner is the complainant In C. C. 8/ 77 on the file of the Sub Divisional Judicial Magistrate, Alwaye. Offences punishable under S.403, 409, 420 and 477A read with S.34 IPC. were alleged against the first respondent and 5 others who are the office bearers of the H.M.D.P. Sabha, Moothakunnam. After the filing of the complaint, a search warrant was issued under S.93 of the Code of Criminal Procedure, Act 2 of 1974 for searching the office of the Sabha and for seizing certain documents specified therein. Pursuant to the search warrant, books, documents and papers were produced before the Court. The 2nd accused thereafter filed Crl. M.P. 50 of 1977 for recalling the search warrant and for the return of the seized documents to him. The contention put forward on his behalf was that the issue of search warrant was illegal and without jurisdiction in view of Art.20 (3) of the Constitution. Reliance was placed on the decisions in State of Gujarat v. Shyamalal (AIR 1965 SC. 1251), Shiv Dayal v Sohan Lal (AIR. 1970 Punjab and Haryana, 468) as also the order in Crl. M. P. 249/76 of this Court. The trial court upheld the contention that the search was without jurisdiction, and ordered return of the documents. The above order is sought to be set aside in the present petition.

2. It was argued on behalf of the petitioner that neither Art.20 (3) of the Constitution nor the provisions relating to search in the Code of Criminal Procedure have been contravened in the instant case and the order of the trial court directing the return of the documents is unsustainable in law.

3. Art.20 (3) of the Constitution states: "No person accused of any offence shall be compelled to be a witless against himeslf".

The relevant provisions relating to summoning, search and seizure of documents are contained in S.91 and 93 of the Cr. P. C. which are quoted below:

"91. Summons to product document or other thing

(1) Whenever any Court or any officer-in-charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other 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 time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed

(a) to affect S.123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Banker's Books Evidence Act, 1891 (13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

93. When search-warrant may be issued

(ii) (a) Where any Court has reason to believe that a person to whom a summons or order under S 91 or a requisition under sub-section (1) of S.92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or

(b) where such document or thing is not known to the Court to be in the possession of any person, or

(c) where the Court 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) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution such warrant shall then search or inspect on

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