THE PROCESS TO COMPEL PRODUCTION OF THINGS UNDER THE CRIMINAL PROCEDURE CODE

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This article is written by Syed Sulthana of Sri Padmavati Mahila Visvavidyalayam, Tirupati an intern under Legal Vidhiya.

Abstract

It is important to have a law to regulate crime in the society. The mere existence of law does not give any fruitful results; the law should be clear and stringent. Many philosophers have done research regarding the crimes happening in society, and the behaviour of the criminal. Based on these things criminologists suggested different kinds of punishment to maintain law and order in society. In the same way, the Britishers who ruled India codified the Indian penal code. Later we Indians developed the Criminal Procedure Code,1973. In this article, we will discuss one of the provisions which is the process of collecting documents or things which are necessary during the investigation.

Keywords:

Summon, search warrant, magistrate, documents, things, compel, production, accused, investigation.

Introduction

Chapter VII of the criminal procedure code talks about the process to compel the production of things. To find the person who had committed the offence the police must have to go through a proper investigation. During the investigation, the police must enquire about the accused and examine the surroundings of the area where the crime has happened. Section 91 to section 105 of the criminal procedure code deals with the provisions of process to compel the production of things. During the investigation, one must have to follow the procedure mentioned in sections 91 to 105 of the criminal procedure code.

Process to compel production of things

Section 91 to 105 of the Criminal Procedure Code talks about various ways through which the court or the police can compel the individual to produce the necessary documents as mentioned in Chapter VII of the Criminal Procedure Code.

The person can be compelled to produce things in four ways. They are through

Summons
Search warrant
General search
Seizure and others

Summons to produce

Section 91: Summons to produce document or other thing

Section 91 enables the Court or the Police Officer in charge of the Police Station to issue a summon to produce a document or a thing for assistance in a trial, investigation or trial. The power of the Court under section 91 of CrPC for summoning and production of documents is one of absolute discretion. The only condition for exercising discretion under section 91 is that the Court must believe that the production of the document is necessary or desirable.

Reason to believe

The Court must have a reason to believe that the production of documents is necessary in the interest of justice. The application for summoning the production of documents can only be rejected by assigning some justified reasons to it. The wording of Section 91 gives wide powers to the Court to summon documents and things. The term reason to believe is defined in section 26 of the Indian Penal Code.

‘Document or other thing’

The term document or thing used includes the meaning

The word thing refers to a physical object or a material thing and does not refer to an abstract thing.
On such documents can be summoned which would have some bearing upon the facts and circumstances of the case.
Therefore, the Officer or the Court summoning the documents must ensure whether there is a prima facie case for supposing that the documents are relevant.

Whether Summon of Production can be issued to an Accused Person

The scope of Section 91’s language allows for the issuance of a summons for the production of documents under an accuser’s control. However, this practice would not be in accordance with Article 20(3)’s constitutional obligation in this regard. Such document production at the accuser’s request would amount to self-incrimination and bias in the investigation against the accused. The Court has held in numerous decisions that after carefully examining section 91, it is obvious that it should not be used against the accused since doing so would amount to self-incrimination and cause the accused undue hardship. Such an action would be considered testimonial coercion.

Personal attendance of person while producing things

The person to whom the summon is issued to produce a document or a thing deemed to have complied with the summon when he brings them to the court or sends the document through somebody else instead of attending the court in person. The person doesn’t need to be physically present while producing in court. The court only summoned to produce things not for his appearance so the presence is immaterial. If the person fails to comply with the summons of the court or police officer without any reasonable cause he will be penalized under section 349 of the code.

Search Warrant (section 93 to 98)

Meaning

A search warrant is a written authority given to the police officer or other authorized person by the magistrate or a court, for searching any place either generally or specified things or documents or for persons confined or detained. A search carried out based on a search warrant is a coercive method, as it invades the privacy of a person’s residence/home.

Scope

Section 93 to 98 of the Criminal Procedure Code deals with search warrants. Section 93 provides for three general rules to be kept in mind while issuing a search warrant and the remaining three are provided by the successive sections i.e., 94, 95 and 97.

There are six circumstances where the court may issue a search warrant. They are:

When the person’s Non-compliance of summons issued under section 91
When such a document is not known to the Court to be in the possession of the person
When such document is necessary for inquiry, trial or other proceedings or for general inspection or search;
Search of place under section 94
Search of persons under section 95
Compel restoration of abducted females under section 98.

Constitutional Validity of Search Warrants

Fundamental rights always outweigh legal rights; therefore, any search procedure shall only be carried out where there is an absolute necessity to do so as it breaches the right to privacy guaranteed under Article 21. The provision regarding search warrants has been questioned when it comes to summoning the accused for the production of a document or title in his possession.

Because of this, the courts have determined that such production would result in self-incrimination and be against Article 20(3) of the Constitution. The search of the accused’s property, however, does not amount to self-incrimination, and as a result, it does not violate Article 20(3) of the Indian Constitution.

Section 93: when a search warrant can be issued. Scope & Application.

Section 93 not only applies when the inquiry is pending but also when an inquiry is about to be made. The search warrant may be general or restricted in its scope as to place or part thereof.

Three cases in which a search warrant can be issued under section 93.

Where the Court has a reason to believe that the person summoned to produce a document or thing will not produce a document or thing;
Where the document or thing is not known to be in the possession of any person;
Where a general search or inspection is necessary.

Reasons for allowing the search shall be recorded.

To search under a warrant, there must be a sufficient/judicious cause or reason; the court must record these reasons in writing; and this step guarantees that the provision is not exploited or misused. If no justifications are given when a search warrant is issued, the search is invalid and hence illegal.

General Search Warrant

A general search warrant may only be obtained when the court is not aware that a particular item or document is in the possession of any particular person. A general search warrant cannot be issued if it is known where the item is located or who owns it.

Section 94: Search for a place

Under section 94 of the Criminal Procedure Code, the police can search any place they suspect that there is the presence of stolen property or the sale or deposit of objectionable articles.

Section 94 applies to the objectionable articles including:

Counterfeit coins;
Counterfeit currency notes;
Counterfeit stamps;
Forged documents;
False seals;
Obscene material (under section. 292, IPC)
Instruments used are the production of anything mentioned from (1) to (6)

The District Magistrate or Sub Divisional Magistrate or Magistrate of the First Class can issue a search warrant under section 94 of the Criminal Procedure Code. They may authorize a person above the rank of a constable to search.

Requirements to issue a search warrant under section 94

The magistrate should have information regarding such objectionable material.
He shall conduct an inquiry as he thinks necessary.
The inquiry must disclose a reason to believe that the place is used for the deposit of any objectionable material.
Powers and Duties of the Police Officer
Power to enter the premises;
Search;
Take possession of such objectionable material;
Take into custody and carry before a Magistrate such person found in the place where such objectionable material was found.
To convey the property to the Magistrate.

Section 95:

A search warrant under section 95 is used to search newspapers, books or documents to declare them as forfeited.

The State Government, by way of a notification, may declare that such publication shall be forfeited to the State Government if any newspaper, document, or book contains anything that constitutes an offence under Sections 124-A, 153-A, 153-B, 292, 293, 294, or 295-A of the IPC. 2. The State Government is required to state the grounds of opinion on which the forfeiture must take place.
The entire piece of work under consideration must be considered.
Scholarly works on religion and history cannot be claimed to foster animosity among people, hence this clause is not applicable.
Article 19(1)(a) of the Constitution’s guarantees are not violated by this section.

Section 96: Application to the High Court for the cancellation of a forfeiture declaration.

Anyone who has a stake in a newspaper, book, or document that the state government has ordered forfeited may apply to section 96.
This application must be submitted within two months after the State Government’s announcement is published.
A special High Court bench made up of three or more judges will hear this application.
As proof of its contents, a copy of the contested newspaper, document, or book must be submitted as evidence.

Section 97: Search of Persons

Section 97 of the Criminal Procedure Code talks about the rescue of persons who are wrongfully confined. The provisions of Section 97 are in pari materia to the writ of habeas corpus. Therefore, a person wrongfully confined can be rescued with the intervention of the Police under provisions of Section 97.

Case law: Parvin singh v. biharilal singh[1]

The Supreme Court ruled that in a situation where the child was living with his father, section 97 was not prima facie attracted.

The Apex Court denied a husband’s request for a search warrant under Section 97 for his children who were with his wife in another similar instance since the mother is the children’s natural guardian and this act does not constitute unlawful confinement under any applicable law.

Section 98: Power to compel restoration of abducted females

Specifically, Section 98 only applies to women and female children under the age of 18 who have been abducted or unlawfully detained for a wrongful reason. The fact that Section 98 does not apply to male children indicates that it was designed to protect the interests of women in our society who are more susceptible to being kidnapped for criminal purposes. Even if he is the legal guardian, one parent cannot use the requirements of Section 98 to force the other parent to give him custody of his minor children.

District Magistrate; Magistrate of the First Class; or Sub-divisional Magistrate can issue search warrants under this section. The female rescued in such search is a minor the custody should be given to the father or guardian. In the case of a girl above 18 years, she should be handed over to her husband.

General Provisions Relating to Searches

Section 99: Direction etc., of Search Warrants

The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 shall apply to the Search warrants issued under sections 93, 95 or 97.

Section 100: Person in charge of closed place to allow search.

To grant a right to free entry when searching closed premises.
To guarantee that searches are conducted fairly and impartially in the presence of two impartial witnesses.

To offer a list of the items that are found once such a search is conducted.
section 100 disables a clause that allows the owner of the property to see the entire search process.
This exercise’s main goal is to make sure that the police aren’t concealing anything.

Procedure in case of body/personal search

A person may be searched if there is a reasonable suspicion that they are concealing something on their person or body. If the subject is a woman, a female officer must search in a dignified manner. When a person is searched, a list of everything taken into possession must be made, and a copy must be given to the person being searched.

Independent Witnesses

Two or more independent witnesses who are respectable persons in the society shall be made witness to such search procedure.
The object of the same is to ensure public confidence and fair procedure while the search takes place.
Such witnesses shall be independent, uninterested, unprejudiced persons.
Such persons are to be selected by the officer searching.
Non-compliance with the provisions of Section 100(4) may be an irregularity not affecting the legality of the proceedings, but each case will have to be judged on its own merits.

Refusal to attend and witness a search

If a person neglects or refuses to attend the search or witness it, the same shall amount to an offence under section 187 of the IPC.

Section 102: Power of Police officer to seize certain property.

The phrase “seize” refers to physically taking ownership, such as when seizing moving property. according to Section 102, seizing a person’s bank accounts and lockers does not constitute a seizure.

Scope

There must be an occasion for the Police Officer to seize any property under section 102, and such occasion may arise in the following cases:
If the property is stolen; or
It is suspected to be stolen; or
Such property has a direct link with the commission of crime

Report of Seizure

The police officer may inform his superior of the seizure if he is working at a police station with a subordinate. A report of a seizure must be forwarded to the magistrate by the police officer.

Leaving the property on executing bond

In the following cases the property so seized may be left with any person on executing a bond to produce the property at a given time and date before the Court:

When the property cannot be conveniently transported to the Court; or
When there is difficulty in securing proper accommodation for the custody of the property; or
Where continued retention of the property in police custody may not be useful for investigation.

The warrant in lieu of a summons

As per section 87 of criminal procedure code a Court may, in any case where it is empowered by this Code to issue a summons for the appearance of any person, issue a warrant for his arrest after stating its reasons in writing if,

either before or after the issue of such summons, but before the time fixed for his appearance, the Court has reason to believe that he has absconded or will not obey the summons; or
if, at such time, he fails to appear and the summons is proven to have been duly served in time to admit of his appearing in accordance with it, and no reasonable excuse is offered for such failure.

A person is obligated under the bond to appear in court whenever they receive a summons. If the person does not show up even after this, the presiding officer has the authority to issue a warrant for their arrest and appearance in court.

Proclamation of Offender

A warrant for arrest may be issued by the court itself or at the police officer’s request if the accused person fails to appear before a police officer during an investigation or before a trial court. Subsequently, under section 82 CrPC, a court may publish a written proclamation requiring the person against whom it has issued a warrant to appear at a specified place and time within 30 days of the date of publishing the proclamation if the court has reason to believe that the person has absconded or is hiding so that the warrant cannot be executed.

Section 82 CrPC is divided into three sections:

According to the first part of the provision, it is well established that the issuing of a warrant is a prerequisite for the issuance of a process of proclamation under provision 82 CrPC. The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself, preventing the execution of the warrant.
The second portion outlines how a proclamation should be carried out or published to inform the accused that his appearance is expected in connection with a specific case before a specific court.
This section, as noted in sub-section (4) of Section 82 CrPC, gives additional latitude to conduct an investigation against an accused who has committed the offence specified in sub-section (4).

In Devendra Singh Negi vs. State of Uttar Pradesh[2]. The wording “has absconded or is concealing himself so that such warrant cannot be executed” in Section 82 of the Code are relevant, according to the Honorable Court. Anyone who is not immediately available cannot be classified as an absconder. The Court must record its satisfaction that the accused has absconded or is concealing him in order to prevent the warrant’s execution. Section 82’s provisions are necessary and must be severely enforced. Section 82 CrPC required the court to issue a warrant in the first instance and to state its reasons for believing that the accused is absconding or hiding himself. In any event where the warrant is not executed, no recourse can be sought to Section 82, and it may be necessary to investigate the officer who went to execute the order and the measures he took to serve it.

Conclusion

The main objective of any country irrespective of the ideology it follows is to protect its citizens’ rights to property, life and liberty. To protect these rights a law should be there and the law should be clear. Part VII of the criminal procedure code clearly explains the process to be followed while doing an investigation and the process to compel a person to produce things. The power of the Magistrate to issue summons and search warrants protecting the rights of the accused is mentioned in sections 91 to 105 of the Criminal Procedure Code.

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