Processes to Compel the Production of things under the Code of Criminal Procedure, 1973

Processes to compel the production of things

Scope & Object

• Akin to the provisions requiring personal attendance of persons, the code also provides for provisions enabling the Court or the officer in charge of the Police Station to require production of documents and things essential for investigation, trial or inquiry.
• The first step taken towards securing production of such things and documents is issuance of Summon to produce.
• In case the summons to produce are not complied with, then more coercive method of search and seizure can be used.
• The Code also empowers the Court to issue general search of any place for the purposes of inquiry or trial.
• Such search may lead to encroachment upon someone’s right therefore it shall only be permitted in the larger interests of the society.
• A balance has to be necessary stuck between the interest of the society and the individuals.
• Such search or seizure shall only be resorted to under the authority of law.

Procuring evidence from and for foreign investigating agencies

• At its inception, the Criminal Procedure Code had no provisions pertaining obtaining evidence from the foreign investigating agencies when the trial was going in India.
• However, by way of an amendment, the Code has been added with Section 166-A & S.166-B, which provide for letters of request to and from the foreign investigating agencies regarding obtaining relevant evidence.

A. – Summons to Produce

Sec. 91 – Summons to Produce document or other thing.

Scope & Application

• S.91 enables the Court or the Police Officer in charge of the Police Station to issue summon to produce a document or a thing for assistance in a trial, investigation or trial.
• The sine qua non of issuing a summon u/s. 91 is the necessity to obtain such documents or things in the larger interest of Society.
• Power of the Court u/s. 91 for summoning and production of documents is one of the absolute discretion.
• The only condition for exercising the discretion u/s. 91 is that the Court must be of the opinion that production of document is necessary or desirable.

‘Reason to believe’

• The Court must have a reason to believe the production of documents is necessary in the interest of justice.
• The application for summoning production of documents can only be rejected by assigning some justified reasons to it.
• The wording of S.91 gives vide powers to the Court to summon documents and things.

‘Document or other thing’

• The word thing refers to a physical object or a material thing and does not refer to an abstract thing.
• On such documents can be summoned which would have some bearing upon the facts and circumstances of the case.
• Therefore, the Officer or the Court summoning the documents must ensure whether there is a prime facie case for supposing that the documents are relevant.

Whether Summon of Production can be issued to an Accused Person

• The language of S.91 is wide enough to include an accused within the those to whom a summon can be issued for producing documents in his control.
• However, such practice would not be conformity with the constitutional mandate in this regard which is governed by Article 20(3).
• Such production of documents at the instance of the accused would amount to self-incrimination and it would make the investigation unfair qua the accused.
• The Court in plethora of cases have taken the view that on a close consideration of section 91, it becomes clear that it should not be used against the accused as it would amount to self-incrimination and unnecessary hardship to the accused.
• Such act would amount to testimonial compulsion.

Compliance & Non – Compliance

• Any person who is required to produce a document or a thing shall be deemed to have complied with such summons if:
• He brings them to the Court; or
• Sends them through somebody instead of attending the Court personally.
• If a person fails to comply with the summons without any reasonable excuse he will expose himself to penal consequences contemplated by Sec. 349 of the Code.

Summoning records in possession of the Prosecution

• To claim such documents in possession of the prosecution is within the rights of the accused.
• As contemplated by a joint reading of S.91, 207, 243 and 173.

Personal inconvenience that may be caused due to production of document, is not a ground to curtail the power granted u/s. 91.

The expression ‘person’ u/s. 91 does not include an accused.

B. – Search Warrant

Meaning

• A written authority given to the police officer or other authorized person;
• By a magistrate or a court;
• For search of any place either generally or for specified things or documents or for persons wrongfully confined or detained.
• A search carried out on basis of a search warrant is a coercive method, as it invades the privacy of a person’s residence/home.
• Therefore, a search warrant shall be executed with full care and circumspection.

Scope

• Sec. 93 provides for three circumstances and the remaining three are provided by the successive sections i.e., 94, 95 and 97.
• Such six circumstances wherein the Court may issue a search warrant in the following cases:
• Noncompliance of summons u/s. 91;
• When such document is not known to the Court to be in the possession of the person;
• When such document is necessary for inquiry, trial or other proceedings or for general inspection or search;
• Search of place u/s. 94;
• Search of persons u/s. 95;
• Compel restoration of abducted females u/s. 98.

Constitutional Validity of Search Warrants

• Fundamental rights always outweigh the legal rights; therefore, any search procedure shall only be carried where there is absolute necessity to do so as it breaches the right to privacy of an individual, which is guaranteed under article 21.
• The provision regarding search warrants have been questioned when it comes to summoning the accused for production of a document or title in his possession.
• Therefore, the Courts have held that such production would lead to self-incrimination and violation of Article 20(3) of the Constitution.
• However, search of premises occupied by the accused does not amount to self-incrimination, thus it is not violative of Article 20(3).

Sec. 93 – when a search warrant may be issued.

Scope & Application.

• S.93 not only applies when the inquiry is pending, but also when an inquiry is about to be made.
• The search warrant may be general or restricted in its scope as to place or part thereof.

Three cases in which search warrant can be issued u/s. 93.

1. Where the Court has a reason to believe that the person summoned to produce a document or thing will not produce a document or thing;
2. Where the document or thing is not known to be in the possession of any person;
3. Where a general search or inspection is necessary.

Reasons for allowing search shall be recorded.

• There must be sufficient/ judicious cause or reason to allow search under a warrant;
• The Court authorizing such search must record such reasons in writing;
• This step ensures that the provision is not misused or abused.
• While issuing a search warrant, if reasons are not recorded, the search is illegal, as it vitiates the search.

General Search Warrant

• A general search warrant can be issued only in the case where a document or a thing is not known to the Court to be in the possession of any person.
• In case it is known where the thing lays or in whose possession it is, then a general search warrant cannot be issued.

Passive Submission

• A passive submission to search cannot be termed as compulsion on the accused to submit to search;
• If anything is recovered during such search which may provide incriminating evidence against the accused cannot be held to be violative of Article 20(3).

Sec. 94 – Search of place

Application of Sec. 94 (Objectionable articles)

Section 94 applies to the following objectionable articles:

1. Counterfeit coins;
2. Counterfeit currency notes;
3. Counterfeit stamps;
4. Forged documents;
5. False seals;
6. Obscene material (u/s. 292, IPC)
7. Instruments used is production of anything mentioned from (1) to (6).

Who can exercise the power u/s. 94

1. District Magistrate; or
2. Sub Divisional Magistrate; or
3. Magistrate of the First Class
4. The persons mentioned from (a) to (c) may authorize a person above the rank of a constable to carry out search.

Requirements

• The magistrate should have information regarding such objectionable material.
• He shall conduct an inquiry as he thinks necessary.
• The inquiry must disclose a reason to believe that the place is used for deposit of any objectionable material.

Powers and Duties of the Police Officer

• Power to enter the premises;
• Carry out search;
• Take possession of such objectionable material;
• Take into custody and carry before a Magistrate such person found in the place where such objectionable material was found.
• To convey the property to the Magistrate.

Sec. 97 – Search of Persons

Scope & Application

• This section comes to the rescue of persons who are wrongfully confined.
• The provisions of S.97 are in para materia to the writ of habeas corpus.
• Therefore, a person wrongfully confined can be rescued with the intervention of Police by virtue of provisions of Sec. 97.

Requirements/ Conditions u/s. 97

• The sine qua non of Sec. 97 is that the confinement has to be wrongful in the eyes of law.
• Therefore, such wrongful confinement shall amount to an offence under the law.

The Supreme Court held that section 97 is not prima facie attracted in a case where the child was living with his own father.

In other such case the Apex Court turned down husband’s request for a search warrant u/s. 97 for his children who were with his wife, as the mother is the natural guardian of her children, and such act does not amount to wrongful confinement under any law.

Sec. 98 – Power to compel restoration of abducted females

Scope & Application

• Sec. 98 only applies to:
• A woman; or
• Female child below the age of 18;
• Who has been abducted or unlawfully detained for an unlawful purpose.
• The exclusion of male children u/s. 98 shows that it has been framed with some definite purpose of safeguarding the interests of the female members of our society who more vulnerable to abduction for unlawful purposes.
• The provisions of Sec. 98 cannot be used by one parent even if he is the legal guardian, to obtain the custody of his minor children from the other parent.

Competent Authorities u/s. 98

District Magistrate; or Magistrate of the First Class; or Sub – Divisional Magistrate

Sec. 95 – Power to declare certain publications forfeited, and to issue search warrants for the same.

• If any newspaper, document or book, contains anything which leads to an offence u/s. 124-A or 153-A or153-B or 292 or 293 or 294 or 295-A of IPC;
• The State Government, by way of a notification may declare that such publication shall be forfeited to the State Government;
• The State Government is obliged to state the grounds of opinion on basis of which the such forfeiture must take place.
• The work that is under scrutiny shall be viewed as a whole.
• Scholarly works on history and religion cannot be said to promote enmity among people and as such this provision is not attracted.
• This section does not violate the guarantees contained under Article 19(1)(a) of the Constitution.

Sec. 96 – Application to the High Court to set aside declaration of forfeiture.

• Any person having interest in such newspaper, book or document that has been forfeited by the order of State Government may file an application u/s. 96.
• Such application shall be filed within two months of publication of the notification by the State Government.
• Such application shall be heard by a special bench of the High Court containing three or more judges.
• A copy of the impugned newspaper, document or book shall be given in as evidence as a proof of its contents.

C. – General Provisions Relating to Searches

Sec. 99 – Direction etc., of Search Warrants

• The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 shall apply mutatis mutandis to the Search warrants issued under sections 93, 95 or 97.

Sec. 100 – Person in charge of closed place to allow search.

Object & Scope

• To provide a right to free ingress in cases where closed premises are to be searched.
• To ensure that searches are carried out in free and fair manner in presence of two independent witnesses.
• To provide a list of things which are recovered after such search is made.
• Sec. 100 culls out a provision by way of which the occupant of the place is permitted to witness the entire search procedure.
• The entire purpose of such exercise is to make sure that no planting of articles is done by the police.

Duty of person/occupants of the closed place. S.100(1)

• To allow free ingress into such place;
• To afford reasonable facilities for a search therein.

Procedure in case of body/personal search. S.100(3)

• When a person is reasonably suspected to have concealed anything on his person/body;
• In such case he/she can be searched.
• In case of a woman, the search shall be carried by a woman officer and with full decency.
• When any person is searched, a list of all things taken possession of shall be prepared and a copy shall be given to him/her.

Independent Witnesses S.100(4)

• Two or more independent witnesses who are respectable persons in the society shall be made witness to such search procedure.
• The object of the same is to ensure public confidence and fair procedure while the search takes place.
• Such witnesses shall be independent, uninterested, unprejudiced persons.
• Such persons are to be selected by the officer conducting search.
• Non-compliance of the provisions of Section 100(4) may be an irregularity not affecting the legality of the proceedings, but each case will have to be judged on its own merits.

Mahazar Witness S.100(5)

• Seizure is not sustainable when the witnesses who did not personally see the seizure but on being told of the same later have signed the mahazar.
• The search shall be done in presence of the panchas.
• It is not imperative that search witnesses should be called for their evidence.

Presence of the occupant of the place searched. S.100(6)

• The occupant or someone on his behalf must be present at such place when the search is carried out.
• The words ‘occupants of the place’ are not intended to cover every person who may happen to be in the place of search and seizure.
• It may refer to a person residing in it or in charge of it.
• A duplicate copy of the list of the articles seized shall be provided to the occupant of the place which is being searched.

Refusal or neglect to attend and witness a search. S.100(8)

• If person neglects or refuses to attend the search or witness it, the same shall amount to an offence u/s. 187 of the IPC.

Sec. 102 – Power of Police officer to seize certain property.

Meaning of ‘Seize’

• The word ‘seize’ means taking physical possession as in case of taking actual possession of movable property.
• Therefore, seizing the lockers and bank accounts of a person is not seizure in terms of Section 102.

Scope

• Sec. 102 is very wide in its scope and ambit and it includes any offence under IPC or any special statute.
• For instance, police officer has power to seize animals on suspicion of an offence committed under Prevention of Cruelty to Animals Act, 1960.
• However, there must be an occasion for the Police Officer to seize any property u/s. 102, and such occasion may arise in the following cases:
• If the property is stolen; or
• It is suspected to be stolen; or
• Such property has a direct link with the commission of crime.

Report of Seizure

• The Police Officer may report such seizure to his senior if his subordinate to him in a Police station.
• It is mandatory for the Police officer to forward a report of seizure to the Magistrate.

Leaving the property on executing a bond – Procedure

In the following cases the property so seized may be left with any person on executing a bond to produce the property at a given time and date before the Court:

1. When the property cannot be conveniently transported to the Court; or
2. When there is difficulty in securing proper accommodation for the custody of the property; or
3. Where continued retention of the property in police custody may not be useful for the propose of investigation.

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