Desai, J. - (1.) Nemo tenetur seipsum prodere - no man is bound to accuse himself - which finds constitutional recognition in Article 20 (3) of the Constitution, conferring immunity from compelling an accused person to be a witness against himself by giving self-incriminating evidence, has been put into forefront to support a prayer for quashing the search warrant issued by Sub-Divisional Magistrate, Alwaye, on 4th January 1977 directing the Deputy Superintendent of Police, Alwaye to search the premises styled as the Office of H. M. D. P. Sabha ('Sabha' for short) Moothakunam, and to seize the books, documents and papers as set out in the application for issuance of search warrant. The Magistrate had before him a complaint filed by the first respondent Ramakrishnan against the petitioner and 5 others for having committed offences under Sections 403, 409, 420 and 477A read with S. 34, Indian Penal Code. Original accused 1, and accused 2 the present petitioner, were respectively President and Secretary of the Sabha and original accused 3 to 6 were described as Managers of the Institution. The complainant made an application on 4th January 1977 requesting the learned Magistrate to issue a search warrant to search the office premises of the Sabha and seize the books, documents, etc. described in the application, if found therein. On the very day the Magistrate issued a search warrant and in fact it was executed and certain books, vouchers and papers were produced before the Court. The present petitioner (original accused 2 ) requested the learned Magistrate to recall the warrant and to return the books and documents seized under the authority of the search warrant. The learned Magistrate was of the opinion that in view of the decision of this Court in Shyamlal Mohanlal v. State of Gujarat, (1965) 2 SCR 457 and an earlier decision of V. Khalid, J. of Kerala High Court, no search warrant could be issued under Section 91 of the Code of Criminal Procedure, 1973 ('new Code' for short), and accordingly directed that anything recovered pursuant to the search warrant issued by him be returned to the person from whom the same were recovered. The order was, however, to take effect after the decision on the requisition which was by then received from the Income-tax Officer under Section 132-A of the Income Tax Act. First respondent (original complainant) preferred a revision application to the High Court of Kerala questioning the correctness of the decision of the learned Magistrate and the claim to constitutional immunity of the accused from search and seizure of books, documents, etc. directed with a view to collecting evidence against him, being violative of Art. 20 (3) of the Constitution was canvassed before the Court. The High Court after an exhaustive review of the decisions of this Court as well as those bearing on the Fifth Amendment to the American Constitution held that the provisions relating to search contained in Section 93 (1) of the Criminal Procedure Code, 1973, are not hit by Article 20 (3) of the Constitution.
(2.) Section 91 confers power on the Court or an officer in charge of a police station to issue a summons or written order, as the case may be, to any person in whose possession or power a document, the production of which the Court or the officer considers necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under the Code is believed to be. Section 93 confers power on the Court to issue search warrant under three different situations.
(3.) Sections 91 and 93, so far as they are relevant, read as under: "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 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 him to attend and produce it, or to produce it, at the time and place stated in the summons or order." "93. (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 document or thing is not known to the Court to be in the possession of any person, or (c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general 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 the provisions hereinafter contained".;