S.C. Malte, J. - (1.)This revision is against the order dated 24.1 1985 by which the Special Judge, Chandigarh, dismissed the application of the petitioner-accused who had raised certain objections in respect of search of the places and seizure of certain documents during that search. The papers before me indicator that a special case under section 13(2) read with 13(1 )(a) of the Prevention of Corruption Act,1988, was filed in the Court of the Special Judge, Chandigarh. The petitioner is an accused in that case. In that Case an application was moved by the prosecution for obtaining a search warrant for searching the places including the lockers in the bank in order to seize certain incriminating documents and other pieces of evidence. It was submitted that in order to spell out the offence that the petitioner holds property disproportionate to known sources of income, it was necessary to seize such articles/documents as pieces of evidence. The Special Judge granted the warrant. Consequently, search was conducted at the places and quite a number of articles were seized A list of these articles is attached with the Criminal Misc. 3218/1995 annexed with the present petition. The list indicates that contain cheque books and other documents have been seized as per the list, and the other list is in respect of lockers in the bank situated at Chandigarh. A random perusal of the documents thus seized indicates that quite a number of cheque books showing that the accounts stand in the name of the accused-Petitioner, are the articles seized among the articles. It is not necessary to make a detailed reference to all those articles thus seized.
(2.)The first contention was that the seizure had offended Art. 20(3) of the Constitution. The counsel for the petitioner relied on the case of State of Gujrat Vs. Shyamlal AIR 1965 Supreme Court 1251. In that case the Magistrate had issued summons to the accused to produce certain documents In the set of these facts, the provisions of section 94 of the Old Code was considered and it was held that the order issued by the Magistrate offend the provisions of Art. 20(3) of the Constitution. In that case the majority view had considered the provisions of sections 94 and 96 of tho Old Code. The judgment by majority view was confined to the provisions of section 94 (Old Code) in juxtaposition to Art. 20(3) of the Constitution and concluded that, the order by the Magistrate deserves to be set aside. In the judgment the Single Judge had expressed minority view The minority view also concurred with the decision of the majority view in so far as it related to the scope of section 94(1) (Old Code). The Single Judge in his minority view has however, observed as follows:- ,
"If S.94( 1) does not authorise a Magistrate to issue a summons to a person accused of an offence for the production of a document or thing in his possession evidently in exercise of the powers under S.96(l) no warrant may be issued to search for a document or thing in his possession. Paragraphs 2 and 3 are undoubtedly not related to S.94(l). But under paragraph 2 a Court may issue a search warrant where the document or thing is known to the Court to be in the possession of any person if it is known to be in the possession of any person paragraph 2 cannot be resorted to. "Again, if the interpretation of the first paragraph that a search warrant cannot issue for a thing or document in the possession of a person accused be correct, issue of a general warrant under the third paragraph which may authorise the search of a place occupied by the accused or which he had access would in substance amount to circumventing the restriction implicit in paragraph one."
However, the judgment given by the majority thus seems to have been confined to the question of competence of the Court to issue summons to the accused for production of a thing. The observations made by the Single Judge, as a minority view, in the case of Shyam Lal (supra), has been considered by this Court in ease of Shiv Dayal Vs. Sohan Lal, AIR 1970 Punjab and Haryana 408. Relying on those observations the single Bench of this Court took the view that issuance of warrants was not correct. However, in the concluding portion he had observed that there was no need to issue search warrants because accused himself had supplied the list of trade marks and dies in question.
(3.)My attention was also invited to the ease of V.S. Kuttan Vs. Rama Krishna AIR 1980 Supreme Court 185. In that ease the ease of Shyamlal (supra) had been also considered. In para 14 of the ruling of V.S. Kuttan (supra). Their Lordships have made the following observations:-
"Section 93(1 )(c) of the new code comprehends a situation in which the Court may issue a search warrant when it considers that the purpose of an enquiry, trial or other proceeding under the Code will be served by a general search or inspection to search, seize and produce the documents mentioned in the list. When such a general search warrant is issued, in execution of the premises even in possession of the accused, can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statement made by the accused upon his personal knowledge and which when proved may have the tendency to incriminate. The seizure pursuant to a search warrant issued under section 93(1 )(c) will not have even the remotest tendency to compel the accused to incriminate himself. He is expected to do nothing. Ho is not required to participate in the search. He may remain passive spectator. He may even remain absent. Search can be conducted under the authority of such warrant in the presence of the accused. Merely because he is occupying the premises which is to be searched under the authority of (he search warrant, it cannot even remotest be said search and consequent seizure of documents including the document which may contain statements attributable to the personal knowledge of the accused and which may have tendency to incriminate him, would violate the constitutional guarantee against self- incrimination because his he is not compelled to do anything. A passive submission to search cannot be styled as a compulsion on the accused to submit to search, and if anything is recovered, such search which may provide incriminating evidence against the accused, cannot be styled as a compelled testimony' This is too obvious to need any precedent in support. The immunity against self-recrimination extends to any incriminating evidence which the accused may be compelled to give. It does not extend to cover such[ situation as where evidence which may have tendency to incriminate the accused is being collected without in any manner compelling him or] asking him to be a party to the collection of "the evidence, search of the premises occupied by the accused without the accused being compelled] to be a party to such search would not be violative of the constitutional guarantee enshrined in Art. 22(3)."