Dr J C Vashista (Advocate) 06 May 2020
The police can arrest to comply the notice, if the accused do not appear and produce requisite document for investigation.
Dr J C Vashista (Advocate) 06 May 2020
Dear Mr. Om Parkash,
I respectfully differ with you.
The entire procedure specified in the Code of criminal procedure, 1973 is based on principle of justice and fairness. One of the fundamental principles of legal jurisprudence is that a person accused of any offence should be given equal chance to be heard and to defend himself. It is in consonance with this theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to issue of process, provisions in section 161 (3), provision in section 162 of the code that any statement recorded during the course of investigation, shall not be signed by the person making the statement, has been specified.
Similarly upholding the similar proposition, the protection against self incrimination has been provided as a special fundamental right, under Part III of the Constitution of India. Article 20(3) states that:
“No person accused of any offence shall be compelled to be a witness against himself.”
The power of search and seizure of the court and police authorities particularly the power to issue summons or notice by the court or officer in charge of the police station under section 91(1) of CrPc. The issue has been dealt in detail by the apex court of this country in case of M.P Sharma and others vs Satish Chandra, State of Bombay vs Kathi Kalu Oghad and State of Gujrat v Shyamlal Mohanlal Choksi. After going through all the three case laws it is felt that the matter has been wrongly taken up by the court. The Supreme Court in Kalu Oghad’s case has narrowly interpreted the expression “to be a witness” which has created situation where a very narrow space is available for the actual protection of this right in respect of production of documents.
This has been done by dealing with the general provisions of search and seizure and than analysing the Shyamlal Choksi as well as Kalu Oghad’s case.
General Provision regarding search and seizure
Section 91 with the head note Process to Compel Production of Things of the Code of Criminal Procedure, 1973 states that:
(1) Whenever any Court or any officer in charge of a police station consider that the production of any document or other thing is necessary or desirable for the purpose 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 hm to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) 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 causes such document or thing to be produced instead of attending personally to produce the same.
Whereas section 93 When search warrant may be issued; in sub section (1) provides that:
(1)(a) Where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such thing or document is not known to the court to be in the possession of any person, or (c) where the Court consider that the purpose 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 provisions hereinafter contained.
This means that an officer in charge of a police station can send a notice or a court can issue a summon under section 91(1) to any person within whose possession the officer or court thinks is the document or a thing necessary for the purpose of investigation. But if the court or officer feels that the person to whom the summons or notice is issued, will not produce the document or thing, the court can issue a warrant of search to the officer, under section 93(1) Cr PC. .
minakshi bindhani 13 November 2021