Article review.

Section 91 and 93 of the Cr. P.C

Introduction:
For there to be justice delivered, it is important that proper procedure is followed. And it is important that
the procedure followed should be fair and reasonable so that there is no scope for the innocent to be
punished and at the same time the procedure must ensure that the guilty must not go scot- free. The
procedure for arrest, detention, trial, judgment etc., is prescribed under the Criminal Procedure Code of
1973. The code defines bail-able offence, cognizable offence, complaint, courts, offence, judicial
proceedings, warrants case summons case etc. It is a complete code prescribing the classes of criminal
courts, offices and their powers and jurisdiction. This code also prescribes for the police to act upon the
crime along with their duties and functions. The procedure from the occurrence of crime to arrest, bail trial
and prosecution, has been discussed in detail in the Criminal Procedure Code. Besides these the Code also
provides, and prescribes for the maintenance of wives children and parents, maintenance of public order
and tranquility, preventive action of police, information to police and their power to investigate, jurisdiction
of criminal courts in inquiries and trials, conditions requisite for initiation of proceedings. Complaints to
magistrates, trial before court of sessions, trial of warrant cases by magistrates, trial of summons cases by
magistrates, summary trials, evidence of enquires and trials, the procedure for judgments and procedure for
appeal etc.1.
Documents and other material objects relevant for any investigation, inquiry or trial should be available to
the agencies conducting such proceedings. If any person in possession or control of any such relevant
documents or things does not cooperate with these agencies and fails to produce the things required, the
law will have to device coercive methods for obtaining these material objects for the purposes of proper
investigation or trial. The code therefore, provides initially for the summons to produce any documents or
things, but if this method fails or apprehended to fail the court can issue orders to the police for the search
and seizure of such documents or things. The Code also empowers the court to issue warrant for a general
1 Short Essay on the Criminal Procedure in India. http://www.shareyouressays.com/85618/short-essay-on-thecriminal-procedure-code-of-india

search of any place for the purposes for any inquiry or trial, or to issue warrants for the search of places
suspected to contain stolen property , counterfeit coins or currency notes or stamps or obscene objects and
such other objectionable materials. The exigencies of the investigation may require the immediate search of
a place and the Code in such cases empowers the police to make a search even without obtaining a warrant
from the Magistrate.
Section 91: The analysis of constitutional validity.
The entire procedure that is specified in the Code of Criminal procedure, 1973, is based on the principles of
fairness and justice. One of the fundamental principles of jurisprudence is that a person who is accused of
any offence should be given an equal chance to be heard of and to defend himself. It is in consonance with
this theory that there are provisions in the Code, that specify that any statement recorded during the case of
investigation, shall not be signed by the person making the statement2. Similarly Article 20(3)3 of the Indian
Constitution, upholds the similar proposition, which is provided as a fundamental right. Section 91 4, talks
about summons to produce a document or a thing. It deals with the power of search and seizure of the court
and police authorities particularly the power to issue summons or notice by the court of officer in-charge, of
the police station. This issue has been dealt in detail by the apex court in many cases5.
Where Section 91 depicts the process to compel the production of things, Section 93 6, talks about when a
search warrant may be issued. The officer in charge of a police station can send a notice or a court thinks is
2 Section 161(3) : The police officer may reduce into writing any statement made to him in the course of an
examination under this section, and if he does so, shall make a separate and true record of the statement of each such
person whose statement he records.
3 No person accused of any offence, shall be compelled to be a witness against himself.
4 Section 91(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 purposes of any investigation, inquiry, trial or other proceeding under this code by or
before such court or officer, such court may issue 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, 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.
(3) Nothing in this section shall be deemed
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872, or the Bankers book Evidence Act, 1891.
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of postal or telegraph authority.

5 Mp.Sharma and others v. Satish Chandra, KathiKalu Oghad v. State of Bombay, State of Gujarat v. Shyamlal
Mohanlal Choski.

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 a document or thing, the court can issue
a warrant of search to the officer under section 93(1)(a).
There has been an indiscriminate use of these sections by police officers to demand a wide range of
information7. From time to time the constitutional validity of the warrant issued under section 93(1)(a), in
the context of Article 20(3) has been raised. The contentions were raised that the term any person in section
91(1) not only includes witnesses and other persons, but also includes the accused. Therefore if the accused
person does not obey the summons, he will have to face a compelled search in his house, and this itself
shows the compulsion put on the accused. Further, the compelled search made will be an intrusion into the
privacy. Also there will be a prosecution, for the offence committed under Section 174 8 of the Indian Penal
Code, 1860. Therefore in light of all this the summons issued is a compulsion on the accused person to
produce self incriminating evidences, thereby completely violating his fundamental right guaranteed under
Article 20(3).
With regard to the first proposition about the process of issue of search warrant, under Section 93(1)(a) , the
Honorable Supreme Court, in M.P. Sharma and others v. Satish Chandra 9, stated that: The fundamental
guarantee in article 20(3) comprehends within its scope not merely oral testimony given by an accused in a
6 Section 93(1)(a) : Where any court has a reason to believe that a person to whom a summons or a order under Section 91 or a
requisition under subsection (1) of Section 92 has been, or might be addressed, will not or would not produce document or thing
as required by such summons or requisition, or (b) Where such a thing or document is not known to the court to be in a
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 herein after contained.

7 http://sflc.in/s-91-of-crpc-the-omnipotent-provision/.
8 Section 174- Non Attendance in obedience to an order from public servant.- Whoever being legally bound to
attend in person or by an agent at a certain place and time in a obedience to a summons, notice, order or
proclamation, proceeding from any public servant legally competent, as such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs from the place he is bound to attend at that place or time,
at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to
one month, or with fine which may extend to five hundred rupees, or both, or with fine which may extend to five
hundred rupees, or with both, or, if the summons, notice, order or proclamation is to attend in person or by agent in a
Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
9 AIR 1965 SC 1251, 1259-60.

criminal case pending against him, but also evidence of whatever character compelled out of a person who
is or is likely to become incriminated thereby as an accused. It, therefore, extends not only to compelled
production of documents by an accused from his possession, but also to such compelled production of oral
or documentary evidence from any- other person who may become incriminated thereby as an accused in
future proceedings. It was therefore argued that a forcible search and seizure was simply an indirect way of
accomplishing what Article 20(3) forbade obtaining self-incriminating testimony from an accused.
The Supreme Court taking a broad view of Article 20(3) expanded its scope it laid down that, a person can
be a witness not merely by giving oral evidence but also producing documents or making intelligible
gestures as in the case of a dumb witness. The phrase to be a witness in Article 20(3), the court ruled,
meant nothing more than to furnish evidence and this could be done through lips, or by production of a
thing or document (evidence) or in any other mode. Every positive volitional act which furnishes evidence
is testimony, and testimonial compulsion connotes coercion which procures the positive volitional
evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part 10.
However, while expanding the reach of Article 20(3), the Court declined to find that a search and seizure
violated it. All in all it held that the search conducted by the police officer or any investigating officer, will
be valid only if it has been conducted without any help, from the person, only if any formal accusation has
been leveled against the person.
However with regard to the intrusion into the privacy, it has been settled that the right to privacy, is not an
absolute right and is subject to reasonable restriction, whenever there are contradicting interests, which
requires much weight-age, than the right to privacy of a person for the sake of justice11.
The Order passed by a learned Magistrate, to the accused to produce a document is against law. It is not
established that the original document is available with the accused, and as he is not legally bound to
produce the document, which acts as an evidence against him12.
Now another issue that has to be analyzed is whether the accused will be penalized under Section 174 of
the Indian Penal Code, 1860, if he does not comply with the notice or summons issued to him. The apex

10 http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/146.html
11 Surendra Mohan v. K.P. Mani, 1986 Cri LJ 287 (Pat).
12 R.Dhanasekharan v. Dakishinomurthy.

court in the case of State of Gujarat v. Shamlal Mohanlal Choski 13, held that the term any person included
in section 91 of the Criminal Code, does not include the person accused of any offence and therefore no
notice can be issued to the accused. But the judgment in this case, does not necessarily nor absolutely,
restricts the accused person. The ratio decidendi of this particular judgment has always kept the doors open
for contention, and there was some amount of flexibility still present at the time of interpreting this
section14.
In State of Bombay v. Kathi Kalu Oghad15, the Supreme Court interpreted the term to be a witness, which
is mentioned in Article 20(3) of the constitution, very narrowly. The issue in this case was whether
fingerprints and handwriting samples were hit by the Article 20(3) bar or, in other words, whether
compelling an accused to provide their fingerprints, or a handwriting sample, was equivalent to compelling
them to be a witness against themselves and whether compulsion was imputed in the taking of such
specimens in police custody.
The Court held that: The taking of impressions or 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. 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 fact, 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. Thus, the Apex Court held that handwriting exemplars, fingerprints, thumbprints, palm prints,
footprints or signatures were considered to be outside the scope of Article 20(3). It was also held that the
giving of a statement by an accused in police custody gave the Court no reason to believe that coercion had
been used in the procurement of the same. Therefore even if an accused, has any document, which has the
tendency to expose the guilt of the accused or by which he himself will confirm the criminal charges
against him, he can be summoned to produce the document, and that the summons issued will not be
13 (1965) 2 Cri LJ 256. Melicio Fernandez v. Mohan, 1966 Cr LJ 1258, Vinayak v. Vikram 1979 Cri LJ 71 (Bom),
Kalanithi Maran v. State, 2004 Cri LJ 1288 (Mad).
14 Section 91 of the Code of Criminal Procedure.
15 AIR 1961 SC 1808

considered to be against self incrimination. The only requirement is that the content of the document should
not disclose any information based on the knowledge of the accused.
The two cases, throws light on two questions : The first being whether the decision of the Majority bench in
Kathi Kalu Oghad, holds good? and the second question being, whether there is still scope that the person
accused of any offence can be summoned to produce any document or thing for the purpose of
investigation?
The protection against self incrimination, as provided in Article 20(3), is based on the principle, nemo
tenetur prodere, which means an accused should not be compelled to furnish any evidence against him. It
is the duty of the prosecution or the state to prove him guilty.
In one of the later decisions, of State of Gujarat v. Shyamlal Mohanlal Choski 16, Supreme Court held that
the term person under Section 91(1), does not include and accused person. However going again by the
ratio decidendi of the judgment, the court has stated that it is implicit in the Section 91(1), that an accused
person will not be called to produce any document which is self incriminating.
So can it be held that the person accused of any offence, has been excluded from the application of power
under section 91(1)?
This decision, should be looked up in the light of the judgment given in Kathi Kalu Oghad. Therefore by
summing up these judgments, it can be held that the accused, with due respect to his tight against self
incrimination, is definitely being exempted from being summoned to produce, incriminating documents,
only if it does not contain material on the basis of his personal knowledge.
This fact is clearly established that the right against self incrimination is not an absolute privilege provided
to the accused but still the interpretation of phrase procedure established by law is to be a just fair and
reasonable procedure. Any procedure will ensure justness and fairness only when it respects the right of
victim and accused equally. On the contrary the present law developed is violating the right to equal
protection of law under Article 14 of the accused or suspect. So how is the justness and fairness ensured to
the accused? It will definitely, finally lead him to the accusation. Therefore how much substantive the
document is, how much relevant it could be for proving the fact in issue beyond reasonable doubt, if it is
incriminating it should not be called by the accused by issuing any notice or summons. If called than it
should be considered as an inadmissible document. A coercive search of any place, is an encroachment
16 (1965) 2 Cri LJ 256, V Goplakrishnan Nayanar v. K.V Sasidharan Nambiar, 1996 Cri LJ 1302 (Ker).

upon the rights of the occupant of the place. But even in a free society like ours, such encroachments have
to be tolerated for the larger interests of the society. The provisions in the Code try to strike a balance
between the individual and the society by providing certain safeguards in the favor of the individual. Just as
a citizen cannot be deprived of his personal liberty except under the authority of the law, similarly, no
officer of the state has prerogative right to forcibly enter a citizens house, except under the authority of the
law17.
Conclusion:
This fact can be clearly established that the right against self incrimination, is not an absolute right
provided to the accused, but the interpretation to the statute must be just and reasonable. And any procedure
will ensure justness and fairness only when it tends to respect the tight of the victim and the accused as
well. Again bringing into light the Shyamlals case 18, the term any person in section 91, should exclude
the accused person, Only then the real objective of the Article 20(3), of the constitution can be achieved.
Maliamath Committee, Report titled, Reforms in Criminal Justice System, also held that though the
accused has right to remain silent an inference could be well drawn from the silence of the accused, which
is also contrary to the principle of the right to remain silent of the accused.

17 State v. Bhawani Singh, AIR 1968 Del 208 2II(FB), Melicio Fernandez v. Mohan,
18 State of Gujarat v. Shamlal Mohanlal Choski.