Week 3 and 4

Overview
 Previous classes- introduction to CrPC,
Definitions, Courts, Arrest, etc.
 Now:
 Process to compel Production of things
Pre-trial Procedure
Initiation of Criminal Proceedings
Processes to compel production of
things
 Important for trial as can have evidentiary
value.
 Chapter VII
 4 parts:
1. Summons to Produce (Ss91-92)
2. Search-Warrants (Ss93-98)
3. General provisions relating to search
(Ss99-101)
4. Miscellaneous (Ss 102-105)
But first- S166 A and S166 B
 To co-ordinate investigation with foreign
agencies.
 166- A and 166-B
 Importance of Central Government

 Reciprocal arrangements- S 105

1. S91- Summons to Produce
Document or Thing
 A court or Police officer in charge of investigation can issue an
order or a summons for the production of things if such
production is necessary and desirable. 91(1)
 Deemed to have complied with requisition if person causes
such document or thing to be produced instead of attending
personally to produce the same. 91(2)
 Nothing in this section affects Indian Evidence Act or Banker’s
Books Evidence Act. This act also does not apply to a letter,
postcard, telegram or other document or any parcel in the
custody of the postal or telegraph authority. 91(3)
Elements in 91
 1. Possession (Contrast Ss 165 where search
can be even if possession unknown) (Lotan
Bhoji, (1974) Bom LR)
 2. Necessary and desirable- Discretion. But
apply judicial thinking. Must satisfy himself
that the document has a bearing upon and is
relevant to the case. Ramprasad vs State of
M.P., 2012 CrLJ 360 (MP): 2011 (2) MPLJ
672
 Om Prakash Sharma vs CBI, AIR 2000 SC
2335: 2000 CrLJ 3478
Elements in 91
 ‘Ultimately, this would always depend upon
the facts of each case and it would be difficult
to lay down a rule of universal application and
for all times. The fact that in one case the
Court thought fit to exercise such powers is
no compelling circumstance to do so in all
and every case before it, as a matter of
course and for the mere asking.’
S91- applicable to accused as well?
 Not available to accused to summon
documents/things at the stage of his
application for discharge
 State of Orissa v. Debendra Nath Padhi
(2005) 1 SCC 568
Accused’s Right to Summon
 Any document or other thing envisaged under the aforesaid provision can be
ordered to be produced on finding that the same is 'necessary or desirable for
the purpose of investigation, inquiry, trial or other proceedings under the Code'.
The first and foremost requirement of the section is about the document
being necessary or desirable. The necessity or desirability would have to be
seen with reference to the stage when a prayer is made for the production.
If any document is necessary or desirable for the defence of the accused, the
question of invoking Section 91 at the initial stage of framing of a charge would
not arise since defence of the accused is not relevant at that stage. (Emphasis
added)
Accused’s Right to Summon
 When the section refers to investigation, inquiry, trial or other
proceedings, it is to be borne in mind that under the section a
police officer may move the Court for summoning and
production of a document as may be necessary at any of the
stages mentioned in the section. In so far as the accused is
concerned, his entitlement to seek order under Section 91
would ordinarily not come till the stage of defence. When
the section talks of the document being necessary and
desirable, it is implicit that necessity and desirability is to be
examined considering the stage when such a prayer for
summoning and production is made and the party who
makes it whether police or accused. (Emphasis Added)
S91
 4. ‘Document or any other thing’
 Very wide range. But…Controlled discretion.
For example a Magistrate does not have the
power to order production of money by way of
converting it into a draft. Even if accused
consented to enlarged order, power still could
not be extended.(Jagdish Prasad Sharma vs
State of Bihar, 1988 CriLJ 287 (Pat)
‘Thing’
 Physical Object
 Issuing summons to a person for a specimen
of his signature cannot be under this section.
(T. Subbiah v Ramaswamy, 1970 Cr LJ 254 )
s91
 Court also has inherent jurisdiction and need
not always rely on 91.
 Case diary also a document
 Does not include telegrams, letters etc- for
them s 92
 Person who presents documents not witness
S91
 Disobedience: S 349 of the code- 7 days
imprisonment. Also offence under 175 IPC
(Omission to produce document..)
 Illustration A, being legally bound to produce
a document before a [District Court],
intentionally omits to produce the same. A
has committed the offence defined in this
section.
 Defence: Reasonable Excuse
s92
 For post, telegram, etc. that are excluded
under 91.
 Can detain these as well.
 ‘Ominbus’ order by DSP directing detention of
entire mail of the petitioner by the Postal
department is not illegal. Kailash Chandra v
Superintendent of Post Offices, AIR 1960,
Punj: 1960 Cr LJ 1134
 Can only be directed to deliver it to a
nominated person rather than presenting to
court or to detain them pending further orders
S 93- Search Warrants
 ‘An examination of a person’s body, property
or other area that the person would
reasonably be expected to consider as
private, conducted by a law enforcement
officer for the purpose of evidence of a crime.’
(P.R. Aiyar, Advanced law Lexicon, 2005)
Search Warrants
 6 circumstances- 3 under S 93.
 1. Where court has reason to believe that the
person who has been summoned to produce
a warrant will not produce it
 Cannot be used to compel accused (93 I (C)
for that)
 Integral part of investigation (V.S. Kuttan Pillai
v. Ramkrishnan, (1980) I SCC (Cri) 226: 1980
CriLJ 196 )
Search Warrant
 ‘Reason to believe’- ‘Sufficient cause to
believe’ Melicio Fernandes v. Mohan, 1966
Cri LJ 1258: AIR 1966 Goa 23,32.
 May be a general search warrant or one
restricted to a particular place
Discretion
 Discretion- ‘May’- not fanciful but judicial
thinking.
Search Warrant-2
 2. When the court does not know of
possession of document or thing- warrant can
be issued. 93 (1) (b)
 3. Inquiry, trial or other proceedings of the
court will be served by a general search. 93
(1) (c)
 General search- trove.
 V.S. Kuttan Pillai v. Ramkrishnan, (1980) I
SCC (Cri) 226: 1980 CriLJ 196 (Also
summarises Kathi Kalu and M.P. Sharma)
 Passive Submission- not self incriminatory?
 Does not expressly say ‘Investigation.’ (Refer
to definitions under 2(g) and (h)
 However possibly included? But not
sanctioned..
 Discretion- Expectation that Magistrate will
give reasons.
Search Warrants- 93 (1) (c)
 Expectation is that the Mag should be
reasonably satisfied that the search is likely
to be a link in the chain which in the normal
course will lead to an inquiry or trial under the
Code if the expected material is found on the
search, and that there are reasonable
grounds for such expectation.
 Melicio Fernandes v Mohan, 1966 CriLJ 1258
 Kalinga Tubes Ltd v D.Suri, (1953) 54 Cri LJ
1041
 FORM NO. 10
 Form- requirements- name, thing, etc.
 However for purposes of 93 I(C)- It can be
amended under s 476 as it requires ‘specify
the thing clearly’ which is not possible under
93 (1) (c).

 (Read the form to see what the requirements,

etc are)
 An interesting article on Self Incrimination:
http://www.nlujodhpur.ac.in/downloads/
lawreview/Final_Self%20Incrimination.pdf
4. Search Warrant- s 94
 For stolen property, forged documents, etc.
 i. Only issued by a Dist Mag, Sub-divisional
Mag of Mag of First Class
 Ii. Must be officer above rank of constable
 Iii. Before issuing a warrant the Mag must
have reason to believe that the place is used
for the deposit of stolen property or sale, etc.
S 94
 Judicial mind needs to be applied
 Not seizure under civil claims (Subal Chandra
Samal v Sailesh Kumar Pradhan, 1999 Cri LJ
2414
 (Dinesh Auto Finance vs State of A.P., 1988
Cri LJ 1876 AP
 Procedure to enter, search, take possession,
convey to magistrate and take into custody
any person privy to the articles found.
S94
 Applies to stolen property or objectionable
articles to which this section applies.
 What are Objectionable articles?
 Counterfeit coins, pieces of metals,
counterfeit currency notes, forged
documents, false seals, obscene objects.
 Stolen articles Counterfeit Currency Notes,
Forged Documents etc- Defined in IPC
 Form 11
5. Search Warrant- s 95
 Sedition, Promoting enemity between
classes, etc.
 Usually books, newspapers, other
documents, etc.
 Issued by State Govt by Notification
 Notification must contain justification
 Ajit newspaper of Punjab challenged validity
of state guidelines- publishing extolling values
of Khalistan fell within 124 A 153 A and B etc
of IPC. Sadhu Singh Hamdard Trust Jalandhar v State of
Punjab, 1992 Cr LJ 1002 (P & H)
S 95
 Magistrate can by warrant authorize any
police officer
 Freedom of Speech? Can not be used if
content simply ‘Highly objectionable.’ For eg
the case of ‘Jinnah-India, Partition,
Independence’ book- notification quashed.
Manish Jani vs State of Gujrat, AIR 2010 Guj
30
 Section 96- To be read with 95. Redressal of
95 within 2 months.
6. Search Warrant s 97
 Mags-Dist, Sub-divisional or First Class has
reason to believe that any person is confined
under such circumstances that the
confinement amounts to an offence..
 Eg S 340 IPC
 To get confined person to Magistrate and he
will do what circumstances demand.
 In the form of a writ of Habeas Corpus
 Need to satisfy that person wrongfully
detained but no need for a detailed inquiry
nor right for person affected by this.
 Supreme Court has been narrowing down
jurisdiction- for eg cannot be used where son
living with father. But cases of Gherao.
s98
 For women or female child
 Dist Mag, Sub-div Mag or Mag of First Class
 Complaint on oath necessary
 Only to restore liberty to restore to rightful
guardian if under 18
Question
 Classify WHO can issue these warrants:
Constitutional Validity of Search
Warrants
 Accused person-self incrimination?
 Not acts of testimonial compulsion as not acts
of accused person at all.(1077) M.P. Sharma
vs Satish Chandra 1954 AIR 300, 1954 SCR
 Constitution not charter of the lawless…
General Provisions relating to
Search Warrants
 S99- Provisions of ss 38, 70, 72, 74, 77, 78
and 79 apply to 93, 94, 95 or 97.
Search of place without warrant
 1. S 103- Magistrate if he considers it
advisable
 2. Search by Police Officer during
investigation S 165 for exceptional
emergencies where there is no time for
judicial thinking- but safeguards. (Pp107-111)
Specific items, recording of reasons,
reasonable grounds for believing (not
suspicion), etc.
Search of place without warrant
 3. s166- search by police officer in different
jurisdiction
 4. s 153 Search for false weights and
measures
General Provisions- relating to all
searches-with and without warrant
 S100 applicable
 1. The owner to co-operate; person might be
searched
 2. Authorities have appropriate powers to
break in, etc)
 3. Procedures in place to ensure reliable
evidence – witnesses and presence of owner

 (Pp 112-116)
Non-compliance: Consequences
 Pp 117-120
 Not excluded simply unless some prejudice is
caused to accused. (What was otherwise
relevant does not become irrelevant simply
because provisions not followed (Barindra
Kumar vs Emperor ILR (1909 37 Cal 467) Sir
Lawrence Jenkins )
Non-compliance
 Where Mag not empowered issues a search
warrant: For eg under s94 warrant for search
of place suspected to contain stolen property-
If error but in good faith this will merely will
not be set aside on these grounds. (S 460
(a))
 Under 93(3) the requirement is that only a
Dist Mag or CJM shall issue warrant or a
thing in custody of the postal or telegraph
authority. If issued by Mag not specified the
search proceedings shall be void. (S 461 (b) )
Non-Compliance
 Search without a warrant by an unauthorized
Police Officer is illegal and devoid of legal
authority.
 Even if seizure not completely lawful, it will
not affect validity of trial (State v Navjot
Sandhu, (2005 II SCC) 600: 2005 Cri LJ 3950
 Non-compliance with search procedure will
mean unlawful entry which can be turned into
a civil suit. Also IPC 96-105.
Seizure
Physical control. (But bank accounts)
 Seizure of incriminating things- allowed under
sections read with forms.
 S 102- any property found under suspicious
circumstances. ‘Any offence.’
 M.T. Enrica Lexie v Doramma (2012) 6 SCC
760 identified property as:
 i. Stolen property
 Ii. Property which has direct link with
commission of crime
S 102
 Property:
 1. Includes bank accounts- sometimes even
that of party not an accused- Eg Adarsh
Housing Society Scam. Adarsh Co-operative
Housing Society Ltd v Union of India, 2012
Cri LJ 520 (Bom) D.B.
 2. Report/Present property forthwith or to
person executing bond if inconvenient
S 102
 3. Speedy and natural decay and if owner
unknown or absent and value less than 500
Rupees, may forthwith be sold at auction
under orders of SP and provisions of 457 and
458 to apply
 4. Passport not covered- Passport Act 1967
 S 103-105- Please read carefully- in the code
as well as relevant parts in the text.
 S 104- Impounding
 Impound anything under this code.
 Read in book.
 WEEKS 5 AND 6