Bakshi Ishwar Singh, J.
1. This is a revision by the accused against the order of the Additional Sessions Judge, Jammu. dated 14.2.1972 whereby he dismissed the revision petition and affirmed the order of the Chief Judicial Magistrate. Jammu, issuing a warrant under Section 96 of the Code of Criminal Procedure.
The facts which are relevent for the disposal of this petition are very short and are set out hereunder:
2. Sat Paul, respondent, filed a complaint against the petitioner with the allegations that Ram Rakha, Petitioner, along with Shrimati Ram Piari, was the owner of Bus No. JKN 5635. As the accused petitioner and his partner Ram Piari wanted to dispose of the said vehicle so the petitioner persuaded the complainant to purchase the said bus and enter into a transaction of sale. It was alleged further that the petitioner had handed over the possession of the said bus to the complainant respondent on 18.8.1971 even before an advance of Rupees 28,000/- had been made to the accused-petitioner on 13.11.1971 The allegation with regard to the commission of an offence as made by the respondent in the complaint was that the bus had been parked in the New Adda on 26.11.1971 from where the accused committed the theft and took away the bus into his possession. The learned Magistrate after recording the statement of the complainant and perusing the documents filed with the complaint issued a bailable warrant against the accused petitioner on 2.12.1971.
3. On 3.12.1971 Sat Paul, respondent, moved the trial Magistrate by means of a petition wherein he alleged that the service on the petitioner had been effected by means of the warrant issued by the Court and after the same the petitioner accused is trying to take away the bus in dispute somewhere outside the State and thereby wants to destroy the prosecution evidence. The respondent prayed that the said bus may be confiscated. The trial Magistrate after hearing the applicant ordered a search warrant under Section 96 of the Code of Criminal Procedure to be issued and sent the same to the S.H.O. Police Station, Saddar. for compliance.
4. It appears that after this order had been passed the accused petitioner that very day moved the learned Magistrate by means of a petition that the warrant under Section 96 may not be issued. He submitted therein that the dispute between the parties was of a civil nature and the petitioner had ample evidence in his possession to show that he is the owner of the vehicle. He further stated that he could produce the vehicle before the Court whenever required. From another detailed order passed on that very day it appears that the Court heard this petition in presence of the parties and came to the conclusion that as warrant under Section 96 had already been issued the learned Magistrate felt that he had no jurisdiction to revise his previous order. He also said that after the seizure he will hear the parties again in detail and pass order regarding the disposal of the property and at that stage he may consider the advisability of keeping the vehicle with the petitioner.
5. It is against this second detailed order of 3.12.1971 that the petitioner filed a revision before the Additional Sessions Judge which as stated earlier was dismissed by him giving rise to the present revision petition.
6. This petition came up for hearing before the Hon'ble Chief Justice on 30.3.1972 when his Lordship was pleased to refer this case to a larger 'bench as. according to his Lordship, the points of law involved in this case as to the scope and effect of Section 96 of the Criminal Procedure Code (hereinafter called the 'Code') more Bo after Section 94 of the Code having been struck down by the Supreme Court was to be considered. Hence this revision came up before us.
7. Mr Thakur, appearing for the petitioner, vehemently argued that Section 94 has been struck down as ultra vires the Constitution of India so far as the accused persons are concerned. He contended that the accused cannot be ordered to produce a document or a thing as it violates the guarantee given by Article 20(3) of the Constitution. In face of the above pronouncement Section 96 did not apply to the facts of the present case. According to Mr. Thakur the first part of Section 96(1) of the Code in terms does not apply because no requisition to produce a document or a thing can be made from the accused under Section 94 of the Code. Similarly Part 2 of Section 96(1) of the Code does not apply because that part only applies when it is not known as to in whose possession the document or property is. He further contended that Part 3 which pertains to the general search or inspection also does not apply in the present case as according to the application of the respondent himself, it was stated therein that the petitioner accused was intending to take away the vehicle outside the State and it should be presumed that the vehicle is in the possession of the accused. As the accused could not be ordered under Section 94(1) of the Code to produce the vehicle so no general warrant could be issued under Section 96(1) part three. On the above premises Mr. Thakur wanted to conclude that the warrant under Section 96 was wrongly issued.
8. Mr. Sehgal. appearing on behalf of the respondent, although conceded that according to the Supreme Court decision an order for production of a document or a thing cannot be made against the accused but parts 2 and 3 of Section 96(1) of the Code do apply to the present case. He contended that in the petition the respondent had alleged that the petitioner wants to remove the said vehicle outside the State. He as a matter of fact did not admit that the vehicle was actually in the possession of the petitioner accused. As such according to Mr. Sehgal parts 2 and 3 of Section 96(1) did apply in the present case and the warrant was rightly issued.
9. In order to appreciate the respective contentions of the parties it is necessary to reproduce the relevant parts of Sections 94 and 96 of the Code.
94. (1) Whenever any Court, or any officer in charge of a Police-station considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings 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.
96. (1) 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, Sub-section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or where such document or 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.
Now it is well settled that the accused cannot be called upon under Section 94 to produce a document or a thing. This provision of the Code has been struck down as violating Article 20(3) of the Constitution of India so far as the accused are concerned. The earliest Supreme Court decision on this point is M.P. Sharma v. Satish Chandra District Magistrate. Delhi : 1978(2)ELT287(SC) . In this case the Hon'ble Supreme Court dealt with the scope and extent of the fundamental right Guaranteed by this Article and Hon'ble Justice Jagannadhadas who delivered the judgment of the court observed:
Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of its Constitution. It has also, to a substantial extent, been recognised in the Anglo-Indian administration of Criminal justice in this country by incorporation into various statutory provisions.
xxx xxx xxx xxxSo 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.
xxx xxx xxx xxxAnalysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components: (1) It is a right pertaining to a person 'accused of an offence;' (2) It is a protection against 'compulsion to be a witness;' and (3) It is a protection against such compulsion resulting in his giving evidence 'against himself.'
xxx xxx xxx xxxBroadly stated the guarantee in Article 20(3) is against 'testimonial compulsion.' But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness-stand. The protection afforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.
xxx xxx xxx xxxConsidered in this light, the guarantee under Article 20(3) would be available to persons against whom a First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.
Further dealing with Sections 94 and 96 of the Code his Lordship held as under-
Even assuming that Section 94 Criminal P.C. is applicable to an accused and also that there is an element of compulsion implicit in the process contemplated by Section 94, Sections 94 and 96(1) of the Criminal Procedure Code cannot be read as importing any statutory recognition of a theory that search and seizure of documents is compelled production thereof. Section 96(1) has three alternatives; and the requirement of previous notice or summons and the non-compliance with it or the likelihood of such non-compliance is prescribed only for the first alternative and not for the second or the third. A 'general search' and 9 '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 eases covered by the second alternative such a requirement cannot even be contemplated as possible. It would therefore, follow 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.
xxx xxx xxx xxxxThere is no basis in the Indian Law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. 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 29(3). 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.
A power of search and seizure is in any system of jurisprudence an averring 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, there is 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 searches.
10. In the light of the above discussion the conclusions which can be drawn from this decision are:
(i) It is a right of a person accused of an offence and protection for him against compulsion to be a witness and protection against such compulsion resulting in his giving evidence against himself.
(ii) Issue of a search warrant which is issued to a third party, ordinarily a Police Officer does not amount to testimonial compulsion, as such constitutional protection under Article 20(3) would not be defeated by the statutory provisions for searches. This case came up for consideration of the Full Court of the Supreme Court in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 . The following two points were directly under consideration of the Court:
(i) What is meant by the words 'to be a witness' as used in Article 20(3); and
(ii) Whether a statment made before a Police under Section 27 of the Evidence Act infringes Article 20(3). While dealing with the first proposition Hon'ble Sinha C.J. who spoke for the Majority consisting of eight Hon'ble Judges held as under:
'To be a witness' may be equivalent to 'furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. 'Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that-though they may have intended to protect an accused person from the hazards of sell-incrimination, in the light of the English law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.' Elaborating it further his Lordship observed:
The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking is not 'to be a witness.' 'To be a witness' means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. A person is said 'to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capaple of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy.
We are not concerned with the second part in this case.
11. The last cited case came up for consideration before the Hon'ble Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi AIR 1965 SC 1251 : 1965 (2) Cri LJ 256. In this case although there was some difference of opinion but the majority of the Honble' Judges constituting the bench held that an accused cannot be asked to produce a document or a thing and this provision is ultra vires. While dealing with this proposition the Hon'ble Justice Sikri (as his Lordship then was) who spoke for Majority held as under:
There is one other consideration Which is important. Article 20(3) has been construed by this Court in Kalu Oghad's case. : 1961CriLJ856 to mean that an accused person cannot be compelled to disclose documents which are Incriminatory and based on his knowledge. Section 94, Criminal Procedure Code, permits the production of all documents including the above-mentioned class of documents. If Section 94 is construed to include an accused person, some unfortunate consequences follows. Suppose a police officer - and here it is necessary to emphasize that the police officer has the same powers as a court - directs an accused to attend and produce or produce a document. According to the accused, he cannot be compelled to produce this document under Article 20(3) of the Constitution. What is he to do? If he refuses to produce it before the Police Officer, he would be faced with a prosecution under Section 175, Indian Penal Code, and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid order if Section 94 applies to an accused person. This becomes clearer if the language of Section 175 is compared with the language employed In Section 485. Cr.P.C. Under the latter section a reasonable excuse for refusing to produce is a good defence. If he takes foe document and objects to its production, there is no machinery provided for the Police Officer to hold a preliminary enquiry. The Police Officer could well say that on the terms of the section he was not bound to listen to the accused or his counsel. Even if he were minded to listen, would he take evidence and hear arguments to determine whether the production of the document is prohibited by Article 20(3). At any rate, his decision would be final under the Code for no appeal or revision would lie against his order. Thus it seems to us that if we construe Section 94 to Include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him.
As to what will be the effect if Section 96(1) is deemed to cover the case of an accused His Lordship observed:
Keeping the above considerations in mind, let us look at the terms of the section It will be noticed that the language is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words 'attend and produce' are rather inapt to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court 'to attend and produce' a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to 'attend and produce' a document.
When an argument was made before the court that the above construction will render Section 96 of the Code useless His Lordship observed:
It is urged by Mr. Bindra that this construction of Section 94 would render Section 96 useless for no search warrant could be issued for documents known to be in the possession of the accused. This may be so, but general search or inspection can still be ordered. As far as the police officer is concerned, he can use Section 165. Criminal Procedure Code.
This point came up for decision before the Punjab and Haryana High Court in Shiv Dayal v. Sohan Lal Bassar . Following Mohan Lal Choksi's case AIR 1965 SC 1251 : (1965) (2) Cri LJ 256 Manmohan Singh Gujral J. observed:
A general search or a search for a document not known to be in possession of any particular person is not controlled by the requirements of Section 94(1). In AIR 1965 SC 1251 : 1965 (2) Cri LJ 256, the Supreme Court has taken the view that no search warrant could be issued to search for documents known to be in the possession of the accused. This result followed from the view that Section 94 did not apply to an accused under trial.
Dealing with third part of Section 96 of the Code Hon'ble Judge held as under:
Where the documents and things are known to be in the possession of the accused and their location and place of storage are also known the warrant would not be a general warrant for search and inspection and would be covered by the first part of Section 96(1) of the Criminal P.C. The words 'the document or thing' occurring in the first part of Section 96(1) envisages that specific documents and articles which could be required by person could be obtained by the issue of a warrant under Section 96(1) of the Criminal P.C. Where, therefore, what is required is specific documents or articles including books of accounts, etc. alleged to be in the custody of the accused the warrant would be one under the first Part of Section 96(1) and not the third part.
Section 94 of the Code and. how it was effected by Article 20(3) came under consideration of Hon'ble Justice S.M. Fazl Ali (as His Lordship then was) in Gurpurab Singh v. S. Autar Singh AIR 1960 J. & K. 55 : 1960 Cri LJ 470 wherein His Lordship held as under:
Ah order passed by a Magistrate under Section 94 Cr.P.C. calling upon the accused to produce the documents which are incriminating against them is absolutely without jurisdiction, as it violates the protection given to the accused under Article 20(3) of the Constitution. There is a clear distinction between an order of the Court by which the accused himself is directed to produce the documents and an order of the court by which the police is directed to search or seize the documents in possession of the accused. The former case amounts to testimonial compulsion which comes within the ambit of Article 20(3) whereas in the latter case Article 20(3) has no application.
The Hon'ble Judge held that Article 20(3) is not violated by a search and seizure to be ordered but Shyamlal Mohanlal's case AIR 1965 SC 1251 : 1965 (2) Cri LJ 256 which came later has held that if the document or thing is in possession of an accused then no order under Section 94 or a warrant under Section 96(1) part one can be issued.
12. From the above discussion and the quotations it will be clear that Section 94 has been held not to include the accused and first part of Section 96(1) also becomes inapplicable but a warrant of search can be issued under parts 2 and 3 of Section 96 (1) if the documents or things are not known to be in possession of the accused.
13. In order to apply the above principles to the facts of the present case it will have to be seen whether the warrant issued falls under part 2 or 3 of Section 96(1) of the first Dart. As rightly argued by Mr. Sehgal the petition of the respondents nowhere indicated that a warrant of search should be issued against the accused. It simply said that accused had an intention to take away the vehicle outside the State which would destroy the proof of the offence. Neither the place where the vehicle was nor the person in whose possession the vehicle was, has been shown in the petition. This conclusion is further strengthened by a perusal of the original warrant of search issued by the trial Magistrate on 3.12.1971. The said warrant is a general warrant of search wherein the S.H.O. Police Station Saddar was directed to seize the vehicle in dispute according to the Nishandehi of the respondent complainant. As such the trial Magistrate had the power under Section 96(1) parts 2 and 3 to issue such a warrant.
14. There is another aspect of this case to be gone into and the same is that in compliance to the order of the trial Magistrate the vehicle was seized and brought before the court. The court has passed certain consequential orders also regarding the preservation of the said vehicle which has been kept on Supardnama with one Shri Girdhari Lal. of Bhasin,. Bus Service. The property having been seized, warrant having been executed now the legality of the said warrant loses all its weight. The court had to make arrangement for the proper custody and preservation of the property which the trial Magistrate has done.
15. Mr. Thakur argued on merits that there were no grounds for issue of a warrant of search. According to him, when the vehicle was with the petitioner accused and he was prepared to undertake to produce it if and when required then the warrant should not have been issued. It was apparent from the petition moved by the respondent that the accused petitioner had intended to take away the vehicle outside the State and destroy the whole evidence. Furthermore he had alleged that the petitioner might remove the parts of the vehicle and thereby change the condition and shape of the same. In order to preserve the property which could have been handed over to the respondent in case his complaint succeeded, the court was well within its right to pass the impugned order.
16. So viewed from every angle the impugned order is a legal and just one which does not require to be set aside.
17. For the foregoing reasons this revision petition is dismissed.