1. On the 20th August, Hadjee Jackariah Mahomed & Co., through Mr. Hume, their attorney, applied to the Presidency Magistrate of the Northern Division of Calcutta for warrants for the arrest of Ahmed Mahomed and Topun Ramchore on charges of cheating and abetment thereof.
2. In support of the application, Noor Mahomed, a member of the prosecutor's firm, was examined on solemn affirmation. His deposition was as follows:
I am a member of Hadjee Jackariah and Co. I have been a member of that firm since 1874. I know the first defendant Ahmed Mahomed. He is a boat owner. He has had business with us since 1879. He kept a floating account with us. The first defendant's ledger was kept by Topun Ramchore in my office. He used to make entries in the cash-book occasionally. When defendant No. 1 came to my office for money I used to ask defendant No. 2 to look at the ledger and say whether No. 1 had a credit balance. No. 2 always said he had credit balance. Day before yesterday No. 1 came to my office and asked for Rs. 300. We sent for his ledger. After examining it we found Rs. 800 on the debit side. No. 1 said 'this is not correct; I have to get money from you.' We got suspicious and examined his accounts from 1882 up to date. The result was that the first defendant had overdrawn upwards of a lac of rupees. On the 30th April 1887, the ledger, as written up by Topun the defendant No. 2, showed a balance of nearly Rs. 5,000 in favor of the first defendant, but this was not correct. The correct account showed nearly Rs. 8,000 against him. On the 13th of May 1887, we paid him (first defendant) Rs. 1,200. This is the entry for the Rs. 1,200. On the 19th May 1887, we paid him Rs. 800. On the 28th June last we paid him Rs. 3,000 in notes. These first and third payments were made in Topun's presence. I handed over the money to Topun, and he paid them to the first defendant. I made these payments on the belief that there was a balance in his favour. If I knew that there was no balance in his favour I would not have made any payment. Defendant No. 2 made a statement to Mr. Hume. This is it (produced and marked A).
3. Topun Ramchore's statement to Mr. Hume was made in answer to questions put by that gentleman. The statement, question and answer, is as follows:
Q.-I am going to ask you some questions; you can answer them or not as you like.
A.-Whatever you ask I will give truthful answers to.
Q -Whose servant were you A.-Hadjee Jackariah Mahomed & Co's. I was their writer.
Q.-What books did you keep?
A.-I kept the nund, the ledger, and sometimes the cash-book; the ledger for 1887 is all in my writing.
Q.-Messrs. Hadjee Jackariah Mahomed & Co. have examined the ledger for five years past from which they have discovered that much cheating has been going on. Do you know anything about the cheating, and are you willing to tell me about it?
A.-I am willing to tell you what I know about it, and the whole truth. I know everything about it.
Q.-Very good, what you know tell me.
A.-In 1882 Ahmed Mahomed said to me I will give you Rs. 20 in every Rs. 100 if you will make a goolmal in my account with the firm, so that I can get (zaida) more money. I agreed to this, and I commenced to make a goolmal.
Q.-What sort of a goolmal?
A.-If he took Rs. 2,000 from cash, I omitted to write it in ledger, and out of the Rs. 2,000 I will get Rs. 400 from Ahmed Mahomed at his house. I used also to do as follows (asia bhee kia). If he took Rs. 2,000 from the cash, I used to credit him with this sum in the ledger. In February 13th 1887, Ahmed Mahomed took from the cash in my presence from the hands of Noor Mahomed Rs. 1,500. This Rs. 1,500 I never entered in the khatyon, but I did in the cash-book. On the 6th March 1887, he took Rs. 1,500. I entered this in the cash-book, but not in the ledger. I did this intentionally (sumuj he chordia). On the 7th April 1887, he took from cash Rs. 2,000. This amount I credited him within the khatyon. On the 24th April 1887, he took Rs. 4,000, and I wrote in the khatyon Rs. 400. On the 10th January 1887, I credited in the khatyon Rs. 1,500 in the name of Ahmed Mahomed, but I received from him that day only Rs. 500, which I credited in cash-book. On the 30th January 1887, I received from Ahmed Mahomed Rs. 900, but in the khatyon I credited Rs. 1,900. On the 30th April I credited him with Rs. 1,000, but on that day I received nothing from him. When Ahmed Mahomed used to come for money a man used to come with him. Ahmed Mahomed is blind for the last two years. He used to ask Noor Mahomed for money, and he, Noor Mahomed, used to ask me. 'Ahmed Mahomed he hisab kaisa hai ;' and I used to say 'Usko juma hai.' I always used to say there was a credit, but it was not true. When I used to be asked about the account of Ahmed Mahomed by Noor Mahomed, I used always to tell him from the khatyon. I have been falsifying the account of Ahmed Mahomed since 1882 till now (abhee tuk),'then says' till 30th April, 1887.
Q.-Aooording to your khatyon in what state is Ahmed Mahomed's account for 1887 on 30th April 1887, that is, from January to 30th April 1887 ?
A.-He has to receive a little more than Rs. 5,000, but this account is false. Hadjee Jackariah Mahomed & Co. in truth ought to receive from Ahmed Mahomed Rs. 8,500.
Since 1882 up to 30th April 1887, I have falsified Ahmed Mahomed's account to the extent of Rs. 70,000.
At 2 P.M. to-day I went to Hadjee Jackariah Mahomed's office and asked the servants for the books of 1886-1887; they said the books were upstairs. I said bring them down. They said saheb logue have gone out; the books (duftur bund hai). I asked where the sahebs were. By sahebs I mean my masters. I went upstairs and saw the books being looked at by one Tyub. He is a writer. I saw him looking at the account of Ahmed Mahomed. I then got suspicious (humara dil mai shuk paida. hua) that whatever goolmal was in the account would be discovered (khubber malum hoga). I went to Ahmed Mahomed at his house at Nibbotollah Gully. He was asleep. I asked his wife to wake him. She did so. I went, and said to him: The saheb logue are looking at your account, on that; account (yihsubab se), you go to them and tell them you have taken all the money, and that whatever money you have got you will give them and ask them to forgive you. He then said to me, don't take or mention my name (humara nam mut lo); you take it all upon yourself (tumara oopar sub lo) and say you did it all, and if afterwards they do anything I will spend money to defend you (rupia khuruch karag e tumko bhachane ke waste) ; you say the cash was with Noor Mahomed, and that if. you made mistakes (bhoolkya) Noor Mahomed knows it all. I then said I will not tell all these lies. If you don't go, they will be angry, and will take out warrants against us and arrest us, and then your izzut (respect) will not remain. He then said you go; I am getting fever; go home and lie down and say you are not well (tubeeat accha nahi). 1 said I would not tell these lies; that I was going to the sahebs. I left Ahmed Mahomed, and as I was going to office I met with Hadjee Vydanah, one of my masters, in the street and told him everything, and he took me to you (Mr. Hume.) I have got Rs. 1,500 or Rs. 1,600 in notes, and Rs. 700 or 800 in jewellery left from this fraud, and if my masters will take this property, 1 will give it up. I have received in this fraud from Ahmed Mahomed about Rs. 9,000.
4. After hearing the application the Magistrate granted a summons against the defendant No. 1, Ahmed Mahomed, and a warrant against defendant No. 2, Topun Ramchore.
5. On the same day, after grant of process against the defendants Mr. Hume, upon the same materials upon which he had applied for warrants, applied 'for a search warrant to search the premises No. 13, Pollock Street, Calcutta, the place of the business of the accused Ahmed Mahomed for the books of his business for the years 1882 to 1887 inclusive.' This application was made in the presence of Ahmed Mahomed who happened to be in the Magistrate's Court as a oomplainant in a case, and the Magistrate called his attention to the fact that such application was being made.
6. The Magistrate order upon this application was 'issue search warrants.' The search warrant was in the following terms:
To Inspector Merriman--
Whereas Ahmed Mahomed and another has been charged before me of the commission, or suspected commission, of the offence of cheating, and it has been made to appear to me that the production of khatta books for the years 1882 to 1887 is essential to the inquiry now being made, or about to be made, into the said offence or suspected offence;
This is to authorize and require you to search for the said property in the house of Ahmed Mahomed, No. 13, Pollock Street, and if found to produce the same forthwith before this Court; returning this warrant with an endorsement certifying what you have done under it immediately upon its execution.
Given under my hand and seal of the Court, dated this 20th day of August 1887. (Sd.) Syud Ameer Hossein,Presidency Magistrate,Calcutta, N. Division.
8. The search warrant was executed on the 21st August. What was done in pursuance of the search warrant appears by an endorsement thereon, which is as follows:
Warrant executed in the presence of the following gentlemen by Inspectors Merriman and Hefferman on the 21st August 1887, vis.: Mr. Upton, Attorney-at-law, Mr. Manuel, Attorney-at-law, Hadjee Yusuff Mahomed, Hadjee Abdoola Dagrna, Hadjee Noor Mahomed, Hadjee Abdoola Zackariah Solyman, Mahomed Moosa and defendant Ahmed Mahomed.
The following books and papers were found at No. 13, Pollock Street.
Room on ground floor.
1. Nine khattas, one marble paper cover book, and some loose papers.
2. On a wooden almirah, 11 khattas, four marble paper cover books.
3. Inside the same almirah, three khattas.
4. On a wooden tucktapose, one khatta.
5. On the wall, three files of papers.
6. One wooden box, locked, containing some khattas and papers. The box after being locked is taken over by the Police, and the key kept with Moosa, defendant's son.
7. Inside a large wooden box, three small bundles of manuscript.
8. In an adjoining godown in a wooden box with brass damps some loose papers.
9. In an inner godown, the door of which was locked, inside a roll of canvas, six khattas.
At this stage Hadjee Osman arrived.
10. In a wooden chest on a table, one khatta and four press copy letter books.
Upstairs bed room.
11. In an almirah, glass panes, two envelopes containing manuscript.
12. On the top of a box, nine khattas and 1 torn khatta.
13. On the top of another almirah, four small khattas.
14. Three files of papers.
15. On an iron safe, eight English bound books.
16. On the top of another almirah, one khatta and one bundle of papers.
17. Inside a Bombay carved almirah, six small khattas. In the drawer thereof, two khattas, one bundle of papers. In another drawer thereof, one bundle of papers.
18. In a wooden almirah a bundle of letters.
19. One wooden box, looked, containing papers, the key with Hadjee Mahomed Yusuff.
20. Inside the small iron safe opened by Hadjee Yusuff Mahomed, 3 G.C. notes of Rs. 100 each, R/91 26200, 26199, 26198 not taken. One Bengali document on Re. 1 stamp paper which is kept inside wooden box No. 19.
21. In a glass case adjoining, two small khattas and two letters.
At this stage Babu Mohendro Nath Dutt, pleader for defendant, came in. In the adjoining room Hadjee Ahmed Ismail here comes with the keys of the two safes.
The one in this room is opened; only jewellery found. In the large safe opened in the first room nothing found except some title-deeds, &c;, not taken.
22. In the office room, in a tiled shed outside the house, a large chest full of books.
23. In the upper shed, over the coach-house, two khatta books, one file of old papers, one account book.
All the above are contained in three wooden boxes and two gunny-bags which were sealed by defendant's people before taken away by the police.
9. On 22nd August, Mr. Pittar, an attorney, appeared before the Magistrate on behalf of Ahmed Mahomed and applied that the warrant might be set aside, and that the prosecutors might not be allowed to inspect the books found by the Police on the premises No. 13, Pollock-Street, on the previous day. Mr. Hume opposed the application, and it was refused.
10. On Mr. Hume's application the Magistrate ordered that the prosecutors should have inspection of the books on notice to the accused Ahmed Mahomed.
11. On the same day the following notice was served upon Ahmed Mahomed:
Take notice that we, on behalf of the prosecutors above named, propose tomorrow, Tuesday, the 23rd day of August instant, at 12 o'clock, at noon, with the permission of the Magistrate of the Northern Division of Calcutta, and in company with a member of prosecutors' firm, to inspect in the Court of the said Magistrate the several books and documents, now lying there and belonging to you. This notice is given you in order that you may, if so advised, attend at the said inspection either personally or by solicitor or some other representative.
11. On 23rd August, Mr. Wheeler, an attorney, appeared before the Magistrate on behalf of Ahmed Mahomed, and applied to have the search warrant set aside; the Magistrate refused the application. Mr. Wheeler then applied for a postponement of the inspection of the books for four days to allow him to get complete instructions; but the Magistrate declined to grant a longer postponement than 24 hours, and directed the inspection to take place at the Court House in the presence of the accused or his agent, and an officer of the Court, on the following day. On 24th August, Mr. Chatterjee, counsel for the accused, applied to the Magistrate to set aside the search warrant, which he refused to do, and directed that the inspection should take place in the Court House, in the presence of Ahmed Mahomed or his agent, and an officer of the Court, The inspection of the books thereupon commenced in the Magistrate's office, in the presence of a pleader on behalf of Ahmed Mahomed, of Mr. Hume, of Noor Mahomed, and of two officers of the Court.
12. During the progress of the inspection an account of Topun Ramchore with Ahmed Mahomed was discovered in the books for the year 1882, showing payments of various sums of money by Ahmed Mahomed to Topun Ramchore amounting to Rs. 4,158; and certain entries in one of the khatta books were initialled by Mr. Hume, who brought the fact of the alleged discovery to the notice of Ahmed Mahomed's pleader, and requested him to go and see the book, which the pleader declined to do, saying, 'what is the use of my going.'
13. On the 25th August Mr. Bonnerjee applied to us for a rule calling upon the prosecutors to show cause why the order granting the search warrant and the order granting inspection of the books should not be sen aside. We took time to consider whether we should grant a rule, and intimated that, in the meantime, the inspection should not be proceeded with.
14. On 29th August we granted a rule 'to show cause why the Magistrate's order of 23rd August granting inspection of all books, papers, and documents found by the police at the premises of the accused Ahmed Mahomed and seized and brought away by them to his Court should not be set aside, and such other order made on the premises as to this Court may seem meet.'
15. The rule was argued before us on the 7th, 8th and 9th September ; Mr. Hill and Mr. Palit appearing in support of it; the Advocate-General Mr. Garth showing cause.
16. Mr. Hill's first argument was that the issue of a search warrant by a Magistrate is a judicial act; that before he can have 'reason to believe' within the meaning of Section 96 of the Criminal Procedure Code, be must be satisfied by judicial inquiry; and he urged that this warrant had been granted without a proper judicial inquiry and upon insufficient materials.
17. In support of the first branch of his argument, he cited a passage from 2 Hale's P.C. 15, and Queen v. Hossein Ali Chowdhry 8 W.R. Cr. 74.
18. I agree with Mr. Hill that the issue of a search warrant is a judicial act, and that it ought only to be issued after judicial inquiry, and upon proper materials. But assuming the point taken by the learned Counsel to be open to him upon argument of the rule as granted, upon which I entertain the gravest doubt, I can see nothing to lead me to the conclusion that this search warrant has been issued without a judicial inquiry or upon improper materials.
19. Mr. Hill's second objection was that the warrant was bad on the face of it. Here again I must say that I have considerable doubt whether this point is open to argument upon this rule. But assuming that it is, I am of opinion that the warrant is good.
20. Mr. Hill argued that, by virtue of Section 554 of the Criminal Procedure Code, the forms in Schedule V are to be taken as integral parts of the Act; that, therefore, the words 'specify clearly' in Form VIII of Schedule. V are an integral part of the Act, and that the recital in the warrant 'that the production of khatta books for. the years 1882 to 1887 is essential to the inquiry now being made or about to be made,' was not a clear specification. No doubt, it would have been better if the warrant had recited 'that the production of the khatta books of the said Ahmed Mahomed for the years 1882 to 1887 is esseatial.'
21. But I think that the warrant must be looked at as a whole.
22. It recites that a charge has been made against Ahmed Mahomed, that the production of khatta books for the years 1882 to 1887 is essential to the inquiry, and then it authorizes the officer to whom it is directed 'to search for the said property in the house of Ahmed Mahomed' (it would have been better if it had said 'the said Ahmed Mahomed' 'No. 13, Pollock Street.' I think the warrant sufficiently clearly shows that it was the accused's khatta books for the years 1882 to 1887 that had been made to appear to be essential to the inquiry, and that it was those khatta books which the officer to whom the warrant was directed was to search for. In support of his argument, Mr. Hill referred to Entick v. Carrington 19 Howell's State Trials, 1030. The facts of this case are so familiar to every lawyer and every student of the constitutional history of England, that it would be affectation and waste of time to give even the briefest outline of them. The cas6 decided, amongst other things, that general warrants were bad. The warrant in this case is not a general warrant, but as I have already pointed out, a warrant to search for and seize certain specified documents.
23. Mr. Hill's next argument was that there was no power under the Criminal Procedure Code to issue a search warrant for documents at all. Again calling in aid the provisions of Section 554 of the Criminal Procedure Code, and reiterating the argument; that by virtue there of Form VIII in Schedule V was an integral part of the Act, he contended that a document was not 'a thing.'
24. Now assuming that the forms in Schedule V of the Criminal Procedure Code are by virtue of Section 554 of that Code to be taken as integral parts of the Act (a very large assumption I think), they clearly cannot over-ride and render nugatory the enabling sections.
25. Section 94 of the Criminal Procedure Code, so far as is material to this case, bays: 'Whenever any Court considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings under this Code by or before such Court, such Court may issue a summons 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.' Section 96 of the Criminal Procedure Code says, so far as is material to this argument: 'When any Court has-reason to believe that a person to whom a summons under Section 94 has been or might be addressed will not or would not produce the document or other thing as required by such summons, 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.' The words of Section 94 are of the widest possible character. Any person in whose possession or power a document or other thing, which the Court considers necessary or desirable for the purposes of any investigation, inquiry or trial, is, may be summoned to produce it. The words of Section 96 are equally wide. Any person to whom a summons under Section 94 has been or might be addressed, and who, the Court has reason to believe, will not or would not produce the document or other thing, is liable to have his premises searched; searched for what? Surely for the document or other thing which the Court has reason to believe he will not or would not produce. The whole object of Section 96 would be frustrated if we were to hold that because Form VIII, Schedule V, says, 'specify the thing clearly' and not 'specify the document or other thing clearly,' there was DO authority to issue a search warrant for a document. I do not think it would serve any useful purpose to consider as Mr. Hill invited us to do, whether a search warrant for documents in the premises of an accused person could be lawfully issued in England. The judgment in the Court of Common Pleas as delivered by Lord Camden in Entick v. Carrington 19 Howell's State Trials 1030, is no doubt a great, almost an overwhelming, authority against the legality of such a proceeding; and it may be that the issue of a search warrant in the case of Reg. v. Colucci 3 F. and F. 103 was illegal; see the note of Mr. Graves, the learned author of Russell on Crimes, at p. 433 of Vol. III, 5th Edition.
26. The judgment of Lord Camden was based upon the fact 'that there was no written law giving any Magistrate powers to issue a search warrant for papers.' The absence of such statutory authority, which continues, as far as I know, up to the present time, is no doubt the reason for Mr. Graves' query. Amongst the many astonishing legislative enactments of this country, there is one authorizing under certain circumstances the issue of a search warrant for documents not only in the premises of an accused person, but also in the premises of any other person in the world, using the word 'world' in a somewhat restricted sense.
27. I don't think I do Mr. Hill's able and exhaustive argument any, serious injustice when I say that the points to which I have alluded were in the nature of preliminary skirmishes, attacks upon his enemies' outpost, preparatory to the real combat which was waged upon the right claimed by the prosecution to inspect the books.
28. Mr. Hill urged that any right on the part of the prosecution to inspect these books must depend upon the statutory law of the land. Section 5 of the Criminal Procedure Code, he pointed out, enacts that 'all offences under the Indian Penal Code shall be inquired into and tried according to the provisions hereinafter contained;' and if he said, the Criminal Procedure Code is silent, as the Advocate-General admitted it is as to any, right of inspection of documents seized under a search warrant, they cannot be inspected, at any rate not by the prosecution.
29. It was urged that the only object of Sections 94 and 96 of the Criminal Procedure Code was to procure the production of documents. It was pointed out that the heading of the chapter in which these sections find a place is 'Of process to compel the production of documents and for the discovery of persons wrongfully confined ;' that in Act X of 1875, which contains in Sections 86 and 87 provisions similar to those in Sections 94 and 96 of the Criminal Procedure Code, the chapter in which those sections are to be found is headed 'Of securing attendance of witnesses and production of documents;' that in Act IV of 1877, which in Sections 144 and 145 also contains provisions similar to those of Sections 94 and 96 of the present Code , the chapter in which those sections occur is headed 'Of evidence,' and the subdivision of the chapter containing Sections 144 to 147 is headed 'Of securing documentary evidence.'
30. It was admitted by the Advocate-General, as contended for by Mr. Hill, the word 'inspect' in Clouse 3 of Section 96 of the Criminal Procedure? Code applies only to locality or place, not to 'document or other thing.' A reference to Section 97 of the Criminal Procedure Code shows that this view is correct.
31. Mr. Hill then entered into an elaborate history of the law of discovery. He pointed out that at common law there was DO right to discovery in civil cases; he traced the action of the Courts of Equity in aiding discovery in civil actions, and stated the main principles upon which those Courts acted in granting discovery to be three in number, viz., 1st, that the documents sought to be discovered should be specifically mentioned; 2nd, that discovery should only be granted as against the parties to a suit; 3rd, that it should only be granted in aid of civil rights; and he cited authorities to show that these were the principles upon which Courts of Equity had acted. These principles, he contended, found legislative sanction in the statute law of this country. The first principle was embodied in Section 163 of the Civil Procedure Code; the second in the provisions of Chap. X of the Civil Procedure Code; and the third in Section 132 of the Evidence Act. Having traced the history of discovery in relation to civil actions, Mr. Hill pointed out that there were no provisions in the Criminal Procedure Code similar to those contained in Chap. X of the Civil Procedure Code, and this he said was because the common law with regard to discovery had never been modified by statute with reference to criminal cases; nor had the second of the three principles upon which Courts of Equity acted in aid of the common law ever been applied to criminal cases. There was, urged Mr. Hill, no right of discovery at all in criminal cases. In support of this proposition the following authorities were cited, viz., Bacon's Abridgment, Vol. 2, p. 286, title 'Evidence'; 3 Russell on Crimes p.433 (5th Ed.); Reg. v. Mead 2 Ld. Kaym 927; Rex v. Purnell 1 Wilson 239; Rex v. Cornelius 2 Str. 1210; Roe d. Haldane v. Harvey 4 Burrows 2484; Rex v. Justices of Buckingham 8 B. & C. 375; and Rex v. Earl of Cadogan 5 B. & AId. 902. I have examined all these authorities, and no doubt they establish very clearly the proposition that the English Courts, from an early date,down to the year 1828, have constantly refused to compel discovery in criminal cases.
32. With great respect to the learned Counsel, I must take leave to say that this argument, able and captivating as it was, is beside the mark. The Legislature in this country has authorized the production, and, under certain circumstances, the compulsory production, of an accused person's documents in Court. The question is, what are the rights of the prosecution with regard to them now they are in Court Mr. Hill's answer to the question, which I put to him during the course of the argument, is this : They may, upon the chance that a certain entry in one of the books will support their case, call for the entry and examine it, and if they do this they must put it in, whether it tells for them or against them. If this is so the prosecution would be in a worse position than a plaintiff in a civil suit, for though a party calling for a document which he has given the other party notice to produce is bound, if the document is produced and inspected, to put it in if required to do so, yet as a matter of practice notice to a party to produce documents is not given unless the party giving it has obtained a knowledge of their contents, either from answers to interrogatories or by inspection before trial, or from some private source.
33. When once an accused person's documents are in the possession of the Court by virtue of the due execution of a search warrant issued under the provisions of Section 96 of the Criminal Procedure Code. I can see no distinction between such documents and those of any description found upon his person at the time of his arrest or on his premises at the time of, or subsequent to, his arrest. I asked Mr. Hill in the course of the argument if he could point to any distinction and he admitted that he could not. Nor can I see any distinction between such documents and any other things found upon a prisoner when arrested, or upon his premises at the time of or after his arrest. That documents or other things found upon a prisoner at the time of his arrest, or upon his premises at the time of, or subsequent to, his arrest, may be used in evidence against him if material to the issue, is too plain for argument. The books are full of reports of cases where this has been done; it is a matter of daily occurrence at every Criminal Assize, at every Quarter Sessions.
34. Now can it be argued with any show of reason that the police or the solicitor for the prosecution are not to have an opportunity of inspecting and examining documents or other things found upon a prisoner when arrested, or upon his premises at the time of, or subsequent to, his arrest, before tendering them as evidence? A man is charged with burglary. The evidence shows that he was found in a counting-house where there was a safe, that the windows of the counting-house had been forced upon, and the safe unlocked. Upon the prisoner, when arrested, or at his premises at the time of, or subsequent to, his arrest, are found house-breaking instruments and a bunch of keys; the prosecution allege that the window was forced open with one of the house-breaking instruments, and the safe opened with one of the keys; must they produce the frame of the window before the Court and the house-breaking instruments, call for the latter one by one, and try each separately to see if it fits the lock of the safe? If this is the law it is consistently and persistently broken every day, and if it is the law one would expect to find some trace of an expression of opinion by some Judge that it is so; and we should expect to find that amongst the thousands of learned Counsel who have defended prisoners an objection was taken, that the police had no right to ascertain before they came to Court, whether any of the house-breaking instruments fitted the window frame, or whether any one of the keys fitted the lock, or, in other words, that the police had no right to inspect the house-breaking instruments or the keys. I might multiply illustrations, but I will take a reported case. In Reg. v. Bernard v, which was a trial under a special commission before Lord Campbell, C.J., Pollock, C.B., Erle and Crowder, JJ., a sergeant of police stated that after the prisoner was in custody he had searched a room at his residence and there found a letter from one Allsop which he had handed to the solicitor for the Treasury; the Attorney-General, Sir Fitz Roy Kelly, proposed to have the letter read, and this before any evidence had been given to connect Allsop with the prisoner. Now can it be conceived that the letter had not been read by the solicitor to the Treasury when he was preparing his briefs and by the Attorney-General before he proposed to have it read? How else could they have known whether or not it was relevant to the enquiry The prisoner was defended by Mr. Edwin James, Q.C., Mr. Simon, Mr. Hawkins (now Mr. Justice Hawkins), Mr. Sleigh, Mr. Brewer and Mr. Scobell; they objected to the admission of the letter, not upon the ground that the Court or the Treasury had no right to its custody, or to inspect it, but upon the ground that the charge against the prisoner being one of murder, the principle upon which, upon a charge of treason, documents found after the arrest have been held, admissible did not apply. Admitting that the letter was shown to have been in the prisoner's possession, there was no evidence, beyond the receipt of the letter, which was a passive act, to connect him with the writer. The Court was unanimously of opinion that the letter was admissible 'not on the ground that the writer of the letter was a co-conspirator with the prisoner, but on the ground that it was found in the prisoner's possession, and that its contents were relevant to the present inquiry.'
35. If I am right in holding that documents and other things seized upon the premises of an accused person by virtue of a search warrant issued under Section 96 of the Criminal Procedure Code stand upon precisely the same footing as documents and other things found in his possession upon a lawful arrest for an offence under the Indian Penal Code, which, as I have already pointed out, it is not denied by Mr. Hill, and which I think is the case, it seems to me to follow as a matter of course that there must be a right of inspection.
36. The question of the legality of the seizure of chattels, including documents in the possession of persons charged with an offence, was considered very lately in the case of Dillon v. O'Brien 20 Irish L.R. 300. The facts of that case were as follows: The plaintiff was engaged in carrying out the notorious 'Plan of the campaign' (the modus operandi of which I need not describe), which was admitted to amount to a conspiracy at common law. Whilst so engaged ho was arrested upon a warrant, and certain Bank notes, gold and silver coins, paper books, paper documents and writings then in his possession were seized. The plaintiff brought an action of the over in respect of the chattels seized; the defendant justified getting out the warrant for the arrest of the plaintiff, and justified the seizure of the chattels 'for the purpose of producing the same as evidence on the prosecution of the plaintiff,' averring that the same was and are material and necessary evidence in the said prosecution; the plaintiff demurred, and the demurrer was argued before Palles, C.B., Dowse, B., and Andrews, J. In delivering the judgment of the Court, Palles, C.B., says: 'I, therefore, treat it as clear and beyond doubt that, at least in cases of treason and felony, constables (and probably also private persons) are entitled, upon a lawful arrest by them of one charged with treason or felony, to take and detain Droperty found in his possession which will form material evidence in his prosecution for that crime; and I take the only real question upon this defence as being whether this right extends to cases of misdemeanour.
Although no case has been cited (nor have I myself found any) in which the right has (in reference to misdemeanours) been judicially decided to exist, or any text-book which draws the distinction here attempted to be taken, the circumstances of one case at least, viz., that so much relied on for the plaintiff Entick v. Carrington 19 Howell's State Trials, 1029, were such that, if there was any trace of such a distinction, it could hardly fail to have been referred to either at the Bar or by the Bench. The absence, however, of express or direct authority entitles the defendants to have the matter determined on principle.
For this purpose I must first ascertain the reason of the rule as applicable to felony. The characteristic by which felony is distinguished from misdemeanour is that at common law the goods of the felon were forfeited upon conviction. The only right, however, to these goods which the books mention as being in the Crown before conviction, by reason of the possible future conviction, is that of taking (and detaining them for a reasonable time) for the purpose of making an inventory. Such a right has nothing in common with that of taking for the purpose of evidence. Forfeiture in felony, therefore, cannot be the origin of the right. To what then is it to be referred Its purpose and object, viz., to produce in evidence in a judicial proceeding, appears to me to show that it must be derived from the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice, and in a prosecution, once commenced, being determined in due course of law. On the existence of this interest in the state many of the most important principles of our jurisprudence depend. It is this which renders illegal an agreement to compromise a prosecution, whether for felony or, [with one possible exception Keir v. Leeman 9 Q.R. 371, for misdemeanour. It is this, too, which prevents even a malicious prosecution against an innocent person constituting a cause of action if there be reasonable and probable cause for its institution. The paramount nature of this interest is well illustrated by the power which, for the purpose of enforcing it, the law gives to the officer in whose custody a person charged with a crime lawfully is. There is no doubt that he may kill his prisoner in case of resistance if he cannot otherwise secure his custody; and this as well when the charge is misdemeanour as felony. But the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the obstruction or destruction of this evidence, without which a trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it can be enforced otherwise than by capture.
If material evidences of crime are in the possession of a third party, production can be enforced by the Crown by subpcena duces tecum. But no such writ can be effective in the case of the person charged.
It appears to me to be clear that this must be the origin of the right in felony, and that, being derived from the common law, it ought, prima facie at least, to be deemed to exist in all cases in which that interest of the State exists, and cannot (at least without express authority) be so confined as to be inapplicable in cases of custodies of such value in the eyes of the law as to justify, for their preservation, the taking of life.
Let me, however, assume for a moment that the rule does not extend to misdemeanours, and see whether the results which necessarily would flow from this distinction would be those reasonable ones which usually are found to spring from the application of rules having their origin in the common law. All attempts to commit felonies are, at common law, misdemenours only, and therefore inflicting a mortal wound was, at common law, until the actual death of the victim, no more than a misdemeanour; and if we are to confine the rule in question to felonies, we must face this absurdity, that in oases of murder, by firing at, wounding, or poison, the right of the constable to take the instrument of the crime and the evidence of guilt would depend, not upon the commission of the act which results in death, but upon the victim having actually ceased to breathe. All reason is against such an implication; and I can be no party to it unless coerced by authority.
This brings me to the only case relied on by the plaintiff-Entick v. Carrington 19 Howell's State Trials at pp. 1063 (1064). The question there was as to the legality of a warrant; not only to seize and apprehend the plaintiff and bring him before a Secretary of State, but also to seize bis books and papers. In that case there was no allegation of the plaintiff's guilt, nor that there was a reasonable and probable cause for believing him to beguilty, nor that a crime had, in fact, been committed by any one, nor that he had in his possession anything that was evidence of (or that there were reasonable grounds for believing might be evidence of) a crime committed by him or any one else. The nature of the question there is shown by the statement of Lord Camden (1),that, 'if this point should be determined in favour of the jurisdiction, the secret cabinets and bureaux of every subject in this kingdom will be thrown open to the search and inspection of a messenger whenever the Secretary of State shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' Lord Camden takes pains to show that the word 'papers' in the warrant could not, in point of law, be restrained to libelous papers only; and he adds: 'All the papers and books, without exception, if the warrant be executed according to its tenor, must be seized and carried away, for it is observable that nothing is left either to the discretion or to the humanity of the officer.' It was, of course, decided that that warrant was illegal; but the case as a decision is not in point here. The right here claimed is not to take all the plaintiff's papers, but those only which are evidence of his guilt; and the claim is based, not as in Entick v. Carrington 19 Howell's State Trials, at pp. 1063 (1064) upon a warrant issued upon mere suspicion, but upon an allegation of actual guilt and a lawful apprehension of the guilty person. If (by the law as then understood) the right to seize evidences of guilt in the possession of the person charged was confined to cases of treason and felony, the judgment would have been rested on that simple ground; the care which was taken to show that the warrant embraced all papers  would have been thrown away, and the entire of the elaborate judgment of Lord Camden would have been unnecessary. For myself I am satisfied that, in pronouncing that judgment, Lord Camden had not before his mind cases of seizure of evidences of guilt upon lawful apprehension as distinguished from general warrants to seize all papers.
37. In this country there is no distinction between felony and misdemeanour. Now, if the right to seize and detain property of any description in the possession of a person lawfully arrested for treason, felony, or misdemeanour rests 'upon the interest which the State has on a person guilty or reasonably believed to be guilty of a crime being brought to justice, and on a prosecution, once commenced, being determined in the due course of law,' how can such interest be protected unless there is a right to inspect as well as to seize and detain? The latter would be almost useless without the former, Mr. Hill admitted that, though there was no express legislative enactment authorizing him to do so, the
38. Magistrate might inspect these books, but he said he could not delegate his authority.
39. Now the Magistrate is not conducting the prosecution: it is no part of his duty to suggest or dictate what evidence shall be put in.
40. I am fully conscious of the dangers to which Mr. Hill and Mr. Palit alluded as possibly resulting from this view of the law. I admit that, if the right of inspection claimed here exists, it exists equally with regard to the books of third parties. There is nothing, except the discretion of the Magistrate, to prevent the seizure of the books of any merchant or banker in this city. There is nothing except the discretion of an officer in charge of a police-station to prevent the seizure of the books and plant of an indigo concern in the mofussil.
41. But as Maule, J., said in the well-known bigamy case, 'that is no business of mine.' All I have to do is to interpret the law of this country to the best of my ability.
42. If the dangers to which attention was called are real, and I think 'they are not only real but forcible, the Legislature must be invoked to remove them.
43. I am of opinion that the Magistrate had a right to allow inspection of these books, and that consequently this rule should be discharged ; but the inspection must be limited to the books named in the search warrant.
44. This rule arises out of an order made by the Presiding Magistrate of the Northern Division of Calcutta on the 23rd August last, granting inspection of all the books and papers found in the premises of one Ahmed Mahomed, and seized and brought up by the police under a search warrant issued by the said Magistrate on the 20th idem. The circumstances of the case are shorty as follow:
On the 20th August last Mr. Hume, on behalf of the firm of Messrs. Jackariah & Co., laid an information before the Magistrate against two individuals, Ahmed Mahomed and Topun Eamohore, charging them with the offence of cheating in a large sum of money; and in support of the application that Mr. Hume made, one Noor Mahomed, a member of the aforesaid firm, was examined, and a statement made before Mr. Hume by Topun Ramchore on the previous day, i.e., on the 19th idem, was produced before the Magistrate. The evidence of Noor Mahomed was shortly to the effect that both the accused had cheated the Company in the sum of about a lac of rupees between the years 1882 to 1887; and the statement of Topun Ramchore was that he entered into a conspiracy with Ahmed Mahomed in defrauding the Company in the manner in which they did. The Magistrate, upon the materials that were laid before him, ordered a summons to issue against Ahmed Mahomed, and a warrant of arrest against the other accused, Topun Ramchore. Later on the same day, it would appear that an application for a search warrant was applied for on behalf of the prosecutor for the purpose of searching the premises of Ahmed Mahomed, No. 13, Pollock Street, for the books of his business from 1882 to 1887. The order that was passed upon this application was, that a search warrant do issue; and, in accordance with this order, a warrant was drawn up in the form prescribed by No. 8, Schedule V of the Criminal Procedure Code. The warrant was as follows : (Reads warrant; see 15 C. pp. 116, 117).
45. The police on the authority of this warrant went to the premises, No. 13, Pollock Street, and seized not only certain khatta books found on the premises, but also various other papers as detailed in the return of the police: and in due course forwarded the same to the Court of the Magistrate. It also appears that, subsequent to the issue of the order of the 20th of August for a search warrant, several applications were made on behalf of Ahmed Mahomed for the purpose of withdrawing. . the said order, but they were refused ; and on the 23rd of August the order, which is the subject-matter of this rule, was made by the Magistrate, viz., granting to the prosecutor inspection of the books and papers found in the house of the accused and brought up by the police.
46. The application that was made to us on behalf of Ahmed Mahomed questions the legality of the order granting a search warrant, as also that of the order granting inspection of the books and papers, but the rule that was granted was, rightly or wrongly, confined to the order of inspection. This rule has now been heard before us, and discussed at considerable length, and with great ability, by the learned Counsel on either side.
47. Mr. Hill on behalf of Ahmed Mahomed, in the first place, contended that there were no materials whatever before the Magistrate, properly so called, upon which he could grant under Section 96 of the Criminal Procedure Code the order for a search warrant. If the matter was open before us, speaking for myself, I should be inclined to hold that the said order of the Magistrate was bad in law, for it would appear that no summons under Section 94 of the Criminal Procedure Code was in the first instance issued upon Ahmed Mahomed for the production of any particular documents ; and there was nothing to indicate upon the evidence of Noor Mahomed that there was any reason to believe that the said documents would not be produced upon summons being served. And as regards the statements made before Mr. Hume by Topun Eamchore, I need hardly say that they were no evidence whatever against Ahmed Mahomed; and besides, there was also nothing even upon those statements to justify the grant of a search warrant. Search warrants are judicial acts, and must be granted upon proper materials. But, as I have already said, the matter is not open before us, and the order itself having been executed, and the books and papers having been brought up before the Magistrate, the question does not now really arise.
48. The next point that was raised by Mr. Hill was that the warrant that was issued was bad, because it was not specific, but too wide and general in its character. As to this matter it seems to me that, although it would have been desirable, nay proper, for the Magistrate to specify the books of what particular business, and whose books were to be brought up, still there can he no doubt what the warrant really meant ; and it does not appear that any such objection, as is now raised, was raised before the Magistrate. I think that the accused has not been prejudiced by reason of the specification of the documents required to be seized being somewhat indistinct ; and on this ground, and also on the ground that upon the rule as granted the matter is not properly open before us, I agree with my learned colleague in disallowing the objection.
49. The next matter that was urged by Mr. Hill was that in granting an order for a search warrant, and also in granting inspection of all the documents brought up, the Magistrate has in effect compelled the defendant to make a discovery as against himself in aid of the criminal prosecution. He contended, quoting many authorities, that in England no man could be compelled to produce evidence so as to criminate himself, and that discovery was only granted in equity in aid of civil rights, and never in aid of a criminal prosecution; and he argued that the law in this country ought to be administered in the same way as in England.
50. There can, I think, be no doubt, upon the authorities which have been laid before us, that in England the law is as it has been contended for; but it seems that the law in this country is not the same. With a view to see how the law which we have to administer stands, it may be ' necessary shortly to refer to the history of the legislation on the subject, and in doing so, it is not necessary to refer back further than the year 1861. In that year an Act, No. XXV of 1861, was passed. Section 114 of that Act ran as follows:
When a Magistrate shall consider that the production of anything is essential to the conduct of an inquiry into an offence known or suspected to have been committed, he may grant his warrant to search for such thing, and it shall be lawful for the officer charged with the execution of such warrant to search for such thing in any house or place within the jurisdiction of such Magistrate. In such case the Magistrate may specify in his warrant the house or place or part thereof to which only the search shall extend.
51. It will be observed that the Legislature used the expressions 'anything' and 'such thing ;' the word 'document' was not specifically mentioned.
52. This Act was amended in some respects by Act VIII of 1869, but so far as the particular matter now before us for consideration is concerned, the law remained the same as in 1861. The next Act upon the subject is Act X of 1872 by which the law regulating the procedure of the Courts of Criminal Judicature other than the High Courts in the Presidency town and the Courts of Police Magistrates was consolidated and amended, and the portions of this Act which ought here to be referred to are Sections 365 to 367 and Chapter XXVII.
53. Section 365 ran as follows: 'Whenever an officer in charge of a police-station, or any Court, considers that the production of any document is necessary or desirable for the purposes of any investigation or judicial proceeding, such officer or Court may issue a summons to the party in whose keeping such document is believed to be, requiring him to attend and produce such document at the time and place stated in the summons.'
54. Section 336: 'If there appears reason to believe that the person to whom the summons is addressed will not produce it as directed in the summons, such officer or Court may issue a search warrant for the document in the first instance.'
55. Section 367: 'Any Court may, if it thinks fit, impound any document produced before it, or may, at the conclusion of the proceedings, order such document to be returned to the person who produced it.' It is not necessary to refer in detail to the several sections in Chapter XXVII. It is sufficient to say that the law upon the matter of that chapter, as it existed in 1869, was somewhat amplified.
56. On referring to Sections 365 to 367 it will, however, be observed that in 1872, for the first time, special provisions were made for the production of documents by a party either by summons or by search warrant; and this was perhaps thought necessary by reason of a decision of the High Court of Calcutta in Queen v. Hossein Ali Chowdhry 8 W.R. Cr. 74 as to the right construction to be put upon Section 114 of Act XXV of 1861, and as to the powers conferred thereby upon the Court and police officers in respect of searching for documents or any other thing. The party might be, as it is obvious, either the accused himself or a third party, and the Legislature in 1872 thought it right to lay it down in clear terms that any party might be compelled to produce documents for the purpose of any investigation or judicial proceeding.
57. It may be useful here to refer to some extent to the proceedings of the Legislative Council upon the Criminal Procedure Bill of 1872.
58. It would appear from the speech of Mr. Fitz James 8 tephen that was made on the occasion (vide pp. 393-394, Vol. XI of the Proceedings of the Legislative Council of India) that be did not quite agree with several of the provisions of the Bill; and as to the modifications upon the then existing system which had been made by the Select Committee, he referred, for the reasons thereof, to his colleagues and specially to the then Lieutenant-Governor of Bengal. The Lieutenant-Governor in his speech in pages 409 and 410 then, amongst other matters, said as follows:
The criminal law was, as the honorable member had said, a law of overwhelming importance in this country; he meant not only the law for the administration of criminal justice but the executive administration as carried on through the Magistrates. The prevailing ideas on the subject of criminal law had been somewhat affected by the English law; and the departures from the rules of the English law which the Committee recommended were founded on this ground, that many of the prominent parts of the English law were based on political considerations, the object of those familiar rules of criminal law being not to bring the criminal to justice, but to protect the people from a tyrannical Government, and the functions of juries of the people having been for many centuries principally directed to the protection of the interests of the people. Not only were those provisions now unnecessary in England, but they were especially out of place in a country where it was not pretended that the subject enjoyed that liberty which was the birthright of an Englishman, and it was not intended to introduce rules into the criminal law which were designed with the object of securing the liberties of the people. That being so, His Honour thought they might fairly get rid of some of the rules, the object of which was to secure for the people that jealous protection which the English law gave to the accused. It seemed to him that they were not bound to protect the criminal according to any Code of fair play, but that their object should be to get at the truth, and anything which would tend to elicit the truth was regarded by the Committee to be desirable for the interests of the accused if he was innocent, for those of the public if he was guilty. That being so, he would say that he bad no sympathy whatever for some of those things which his honourable friend Mr. Stephen had called superstitions. For instance, His Honour did not see why they should not get a man to criminate himself if they could; why they should not do all which they could to get the truth from him; why they should not cross-question him, and adopt every other means, short of absolute torture to get at the truth. They had already done a good deal in the direction of clearing away English prejudices, and the Committee proposed to make further concessions to common sense in the present Bill, &c;, &c;, &c.;
59. It is obvious, upon a consideration of the observations which I have just quoted, that the Legislature was quite sensible to the many important differences that existed between the English law and the law which existed in this country, and which was then being enacted.
60. One of the matters of difference which must have, as I may assume, occurred to them was as to the compelling of an accused person furnishing or producing evidence as against himself; and according to the speech of the then Lieutenant-Governor, they thought that the same protection, which an accused in England was entitled to receive, need not be extended to an accused in this country; and that 'they were not bound to protect the criminal according to any Code of fair play, but their object should be to get at the truth;' and that they 'did not see why they should not get a man to criminate himself if they could.' And I further observe, with reference to the particular matter now before us, that the Select Committee in their supplementary report, dated the 12th March, 1872, evidently referring to Sections 865 to 367 of the Bill, said that they had made 'the necessary provision for securing documentary evidence and for impounding such documents as the Court thinks fit.' The words ' securing documentary evidence,' read by the light of the remarks of the then Lieutenant-Governor, are to my mind significant as showing the intention of the Legislature.
61. Whether the policy which influenced the action of the Legislature in 1872 was right or not, it is not for me to say. But it is clear that they intended that an accused person might be compelled to furnish evidence, the production of which might have the effect of criminating him.
62. The other Act3 that may be referred to upon the same subject are Act X of 1875 (the High Courts Criminal Procedure Act), Sections 79-86; and Act IV of 1877 (the Presidency Magistrates Act), Section 144-147; wherein the law was practically the same as in the Act of 1872.
63. We then come to the present Criminal Procedure Code, Act X of 1882, whereby the previous laws in the Mofussil and in the Presidency towns were consolidated and amended; and so far as the particular matter before us is concerned, the law will be found in Sections 94 to 99.
64. Section 94 runs as follows: '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 time and place stated in the summons or order.
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 cause such document or thing to be produced instead of attending personally to produce the same.
Nothing in this section shall be deemed to affect the Indian Evidence Act, 1872, Sections 123 and 124, or to apply to a letter post-card, telegram, or other document in the custody of the Postal or Telegraph authority.
65. Section 96 says: '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, paragraph 1, has been or might be addressed will not or would not produce the document or other thing as required by such summons or requisition.
Or where such document or other thing is not known to the Court to be in the possession of any person.
Or 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.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 in the custody of the Postal or Telegraph authorities.
66. It will be observed that the law, so far as the immediate subject before us is concerned, is practically the same as it was in 1872; and there can, I think, be no doubt that the Legislature intended, as I have already observed, that an accused person might be compelled to produce evidence against himself; and reading the above sections with Schedule V, No. VIII of the Criminal Procedure Code, the only safeguards, as far as I can see, which the Legislature provides are: 1st, that the documents called for, or in regard to which a search warrant is issued, must 'be distinctly specified; 2nd, that the documents are necessary for the purpose of the enquiry; and, 3rd, that while granting a search warrant, the Magistrate must exercise his judicial discretion, and that he should not make such an order unless the materials before him justify him in so doing.
67. The documents when seized are, as indicated in No. VIII of the Schedule, to be brought before the Court; and then arises the question, when they are so brought before the Court, whether the Magistrate may grant to the prosecutor the liberty to insdect them. According to a strict reading of the sections themselves, referred to above, there is no power given even to the Court to inspect them; but it would be simply idle to say that the Court would not have that power. Then, again, the production of such documents is, as the learned Advocate-General has justly argued, for the purpose of their being used as evidence in the cause: and one fails to see how it is possible that this should be done unless the prosecutor has an opportunity of inspecting them. It was contended by Mr. Hill that the Magistrate, and the Magistrate alone, has the power to inspect, and that he is bound to determine by examination made by himself, or through an interpreter, as to the bearing or relevancy of any particular document. But it is obvious that the Magistrate does not prosecute the case, and he has no interest, one way or the other, in the result of the prosecution; and he cannot be expected to know and decide for himself whether any particular document is to go in as evidence.
68. Whether the documents are necessary for the enquiry is a matter which must be determined by the Magistrate at the time when he makes an order under Section 94, or issues a search warrant under Section 96; and therefore it seems to me that, when they are brought before the Court under an order duly made, the Magistrate would have the power to allow the prosecutor the inspection thereof. They stand, when they are brought to Court, precisely in the same position, as my learned brother has so forcibly pointed out, as documents or things found either upon the person of a prisoner at the time of his arrest, or at his houses upon a search made by the police, and afterwards forwarded to the Court. On referring to Chapter XIV of the Criminal Procedure Code, which deals with the power and duties of the police, it would appear that under Section 165 the police are authorised to search for any document or thing necessary for the investigation of a case; and then Section 170 provides, that if, upon an investigation under that chapter, there issufficient evidence against an accused, he shall forward him to the Magistrate with any weapon or other articles which may be necessary to produce before him, and shall require the complainant, if any, and all persons acquainted with the circumstances of the case, to appear before the Magistrate, prosecute, and give evidence in the matter of the charge. When, therefore, upon search, a police officer finds any documents which he thinks necessary for the investigation of the case, he has to forward the same to the Court; and this he does evidently under Section 170; and he requires the complainant to appear before the Magistrate and prosecute the case. Now it is obvious that, in the very nature of things, the prosecutor would have an opportunity of looking at the documents thus seized; and it is difficult to conceive that, if in the case of a search and seizure by the police, the prosecutor necessarily inspects the documents or articles seized, the Legislature intended that he should not have the same opportunity ro privilege when under the order of the Court any particular document or other thing is seized under a search warrant and brought up to the Court.
69. Mr. Hill, as also Mr. Palit, contended before us that the privilege claimed for the prosecution in this case is not enjoyed by a party to a suit in civil case when his adversary or a witness in the cause produces a document in Court; that whereas in the case of a witness, he may object to the production of a document called for from him, and in the case of a party to a suit, if his adversary inspects the document, the latter is bound to put it in as evidence; but that in the case of a criminal trial or enquiry the prosecutor would, if the contention of the learned Advocate-General was right, be entitled to inspect a document without even being compelled to put it in as evidence. They also called attention to the fact that both the Criminal Procedure Bill and the Civil Procedure Bill passed through the Legislative Council about the same time, and that it was hard to believe that the Legislature could have meant to give to a prosecutor such extraordinary privileges which they denied to a party to a civil suit. It is indeed true that the cower of inspection is not in distinct terms given in the Criminal Procedure Code to a prosecutor. In fact the Code is silent upon the matter, whereas the Civil Procedure Code clearly makes provision for such inspection under certain circumstances. If, however, the argument of the learned Counsel for the petitioner were carried to its legitimate extent, it must come to this, and indeed they did contend for that position, that a prosecutor in a criminal case can, under no circumstances, be permitted to inspect a document or thing produced by the police, unless it be at the trial after such document or thing is put in evidence. But even as to this, viz., as to its being put in evidence at the trial, the Code is silent; in fact it stops short with saving that the documents or things when seized by the police are to be brought up to Court. Then, again, who is to put the documents or things in evidence? That the Legislature intended that the Magistrate should conduct the case for the prosecution, and have the responsibility of determining by inspection as to whether any document is to go in as evidence, is a proposition which seems to me almost impossible to accept. If this is a correct view, and if we bear in mind the true purpose for which any document or thing is seized and brought up to Court, one cannot help thinking that the Legislature, while providing for the seizure and production in Court of documents, intended by implication that the prosecutor should, under the orders of the Court, have the power, to inspect and determine whether they should go in as evidence.
70. It was further contended by Mr. Hill that all that the prosecutor in this case might have called for were the particular entries in the books of the accused, and when they were brought into Court they could be pub in as evidence at the trial, and that then the prosecutor would have the liberty of inspecting them. But it seems to me that it would be simply impossible for a prosecutor in a case like this to give the precise dates of the entries in the books of the accused without inspection beforehand.
71. There is one other matter which I think it right to mention here. It is this, that the order of the Court was to search for and bring up the khatta books of the defendants' business from 1882 to 1887. The police evidently exceeded their authority and seized not only certain khatta books, but also various other papers. I think that those other papers are not properly before the Court; and it follows that no inspection can be had in respect to them. While, therefore, I agree with my learned colleague in holding that the order granting inspection in the circumstances of this-case cannot be set aside, I think that the inspection should be confined to-the documents covered by the warrant of the 21st August last.