1. Facts giving rise to the present petition of revision are as follows:
The Provident Fund Inspector for Madhya Bharat lodged three different complaints against the petitioners Mohammad Hussain and Akbarali bearing numbers 413, 414 and 415 of 1954. The first two were in respect of offences under Section 14 of the Employee's Provident Funds Act 1952 and Clause 76 of the scheme framed thereunder and third was under Section 406 I.P.C. All these cases were consolidated by an order dated 14-1-1955. On 27-11-1954, the Provident Fund Inspector had moved the Court for an order directing the accused to produce certain Registers and Account-books of the Nazarali Mills. This application was allowed and an intimation of this was given to the learned Counsel for the accused about the order.
On 30-4-1955 the accused Mohammad Hussain applied stating that he received the intimation of the order pertaining to production of registers and account books through his counsel late and did not know of the order personally as he was exempted from appearance. It was further stated that he wanted to raise some legal objection in respect of the complainant's application for production of documents. He therefore prayed for adjournment particularly as his counsel had gone out. The court thereupon passed an order directing the accused to produce the documents and intimating that if this were not done search-warrant would be issued. This order was passed on 30-4-1955.
2. On 9-5-1955 certain registers were produced and a prayer was made by the accused Mohammad Hussain by an application that he may be allowed to raise legal objections regarding the intended issue of search-warrant.
3. On 16-5-1955 an application was submitted raising two preliminary objections to the maintainability of these complaints. Firstly it was contended that the said Nazarali Mills were not a controlled industry and secondly the complaints do not set out the fact specifically that the said Mills were a controlled industry. The learned- Magistrate by his order dated 18-7-1955 overruled both these objections. He then directed an issue of search-warrant by an order in the proceeding.
4. A petition for revision was filed in the Court of Session raising questions determined by the order dated 18-7-1955 and also regarding the production of documents. As regards the latter, aid was sought to be taken of Article 20 of the Constitution.
5. It appears from the copies filed in the Court of Sessions regarding the impugned order that both the orders of 18-7-1955 were sought to be assailed.
6. From the order passed by the learned Sessions Judge however it appears that the propriety of the direction for issue of search-warrant was not assailed before him. He considered the points raised, as regards the other order and rejected the petition.
7. In the present petition to this Court the only point raised is as regards the direction of the court to issue search-warrant under the circumstances of this case after calling upon the accused to produce the documents. However while submitting the copies of the impugned order the copy of the material order for the point raised was not submitted, instead of this copies of the other orders were submitted.
8. It is clear from these facts that the applicant has failed to attach along with his petition for revision copy of the material order he wanted to challenge. In the copies filed by him there is no reference to production of documents or search-warrant. Rule 13, Part 1, Chapter 2 of the Rules of this Court requires the production of copy of the order the correctness or propriety of which is to be challenged before the court. This is not done in this case. The application is liable to be dismissed merely on this ground.
9. Even apart from this the contention raised by Mr. Sanghi based on Article 20(3) of the Constitution has no force.
10. Mr. Sanghi assailed the order of the Magistrate dated 30-4-1955 whereby he gave time to the applicant Mohammad Hussain on his application for production of the documents in question and further directed that in case the same are not produced a search-warrant would be issued. He contends that the order amounts to testimonial compulsion which cannot be done by reason of guarantee contained in Article 20(3) of the Constitution. He in this connection relied upon the decision in M, P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) , Swarnalingam v. Assistant Inspector of Labour : AIR1955Mad716 and Swarnalinagam v. Assistant Labour Inspector (S) AIR 1956 Mad 165 (O.
11. It is clear from the copies filed in the court of Sessions regarding the impugned orders that order dated 30-4-1951 was not sought to be assailed even before that court. It was the order in the proceeding dated 18-7-1955 which directed issue of search-warrant which was assailed. It is therefore in the light of the later order dated 18-7-1955 that the matter will have to be judged.
12. In AIR 1945 SC 300 (A) their Lordships of the Supreme Court considered the scope of Article 20(3). In that case the question raised was that searches to obtain documents for investigation into an offence is a compulsory procurement of incriminatory evidence from the accused person himself and is therefore hit by Article 20(3). Their lordships of the Supreme Court with a view to analyse the Implications of this contention and to consider possible arguments both for and against made a historical retrospect with reference to Indian Law bearing on the question of what may be styled as compulsion of self-incrimination. Their lordships in Para 1 Page 303 of the report observed as follows:
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.
13. Their Lordships then analysed the terms in which the right is declared in Article 20(3) of the Constitution as follows:
(1) It is a right pertaining to a person 'accused of an offence'.
(2) It is a protection against compulsion as a witness.
(3) It is a protection against such compulsion resulting in his giving evidence against himself.
14. They considered the implications of the terms to be a witness and held that this includes 'not only giving oral evidence but also to furnish evidence by producing a thing or a document or in any other mode.'
15. In the argument before their Lordships strong reliance was placed upon Sections 94 and 96, Criminal P. C. in support of the broad proposition that seizure of documents on search is in the contemplation of law a compelled production of documents.
16. In considering this argument their Lordships assumed without deciding that Section 94 applies to the accused and further assumed that there is an element of compulsion implicit in the process contemplated by Section 94 because according to them non-compliance results in the unpleasant consequences of invasion of one's premises and rummaging of one's private papers by the minions of law under a search-warrant. They however held notwithstanding these assumptions that Sections 94 and 96 (1), Criminal P. C. do not import any statutory recognition of the theory that search and seizure of documents is a compelled production thereof.
17. Their Lordships then observed as follows:
It is to be noticed that Section 96 (1) has three alternatives and that the requirement of previous notice or summons and the non-compliance with it or likelihood of such non-compliance 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.
Their Lordships further observed as follows:
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 a 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.
In Hale v. Henkel (1905) 201 US 43 (D), Mckenna J. in his dissenting judgment makes the following observations:
Search implies a quest by an officer of the Jaw; a seizure contemplates a forcible dispossession of the owner...The quest of an officer acts upon the things themselves, may be secret, Intrusive, accompanied by force. The service of a subpoena is but the delivery of a paper to a party is open and above-board. There is no element of trespass or force in it.
'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 a fundamental right to privacy, analogous to the American fourth Amendment, We have no justification to import it into a totally different fundamental right, by some process of strained construction. Nor is it legitimate ' to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for search. It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (excepting in the limited class of cases falling under Section 165 of the Criminal Procedure Code).
Therefore, issue of a search-warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed. We are not unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such occasional error in no ground to assume circumvention of the constitutional guarantee,'
18. They thus hold that having regard to the historical background regarding the Indian Criminal Procedural Law regarding searches, interposition of the judicial function while ordering searches and the person to whom the orders regarding searches are addressed, searches such as those which were involved in that case, were not tantamount to testimonial complusion to the accused persons and for that reason there was no invasion of any fundamental right guaranteed under Article 20(3).
19. The question regarding the application of the principle laid down in the aforesaid case came up for consideration before the Division Bench of the Madras High Court in Ramalinga Choodambikai Mills Ltd. v. Commissioner of Income-tax, Excess Profits Tax AIR 1956 Mad 145 (E).
In that case a summons was issued to the accused under Section 94 (1) of the Criminal Procedure Code to produce certain account books. The accused was being prosecuted for an offence of contravention of Shops and Establishment Act, Their lordships relied upon the observations of the Supreme Court in the aforesaid case and held the summons to the accused under Section 94 (1) amounts to compulsory process for the production of evidentiary documents in the possession of the accused.
20. In the same Madras case reported in : AIR1955Mad716 at a later stage Somasundaram J. held that a notice to the accused to show cause why his premises be not searched has the effect of compelling the accused to produce evidentiary documents against himself. According to his lordship if summons to produce the documents involves an element of compulsion then a notice of this sort also does.
21. The same case came up for consideration at a still later stage before Balkrishna Ayyar J. He held that by Article 20(3) of the Constitution a Court is precluded from issuing summons to an accused person to produce any document in his custody but no article of the Constitution prohibits searches under Section 165, Criminal P. C. What had happened in that case was that after the order of Somasundaram J., the complainant applied for a search-warrant and it was ordered by the Court. It was held by Balkrishna Ayyar J. that this did not involve any contravention of Article 20(3) in spite of the fact that initially a summons had been issued which was quashed, later a notice had been issued to show cause why search should not be made and this too was quashed. In re, Sorualingam Chettiar : AIR1955Mad685 .
22. It is thus clear from these decisions that even if before the final order had been made for search there had been initial summons to the accused to produce the document, the power to Issue search-warrant is not gone for ever.
23. No doubt in that case the summons was quashed and in this case this was not done because the accused did not move for it, but to my mind that does not make any difference because once it is assumed that the summons to produce contravenes Article 20(3) whether it is quashed or not the summons has hardly any sanction and legal efficacy behind it. Looked at the summons from that point of view it has no compelling force and can be regarded at the most as an intimation to the accused. The accused in that case can hardly say that had his premises been searched without intimation to him he would have no just ground to complain, but that if he is made aware and given opportunity to prevent rummaging of his private papers by the minions of law he has a legitimate ground to do so.
24. Thus both because the present petition is contrary to No. 13 of Part I Chapter 2 of this Court and also because on merits as discussed above there is no force in it, the same cannot succeed.
25. It is accordingly dismissed.
26. I agree.