Author: Aditi Solanki.
AIR 1954 SC 300.
NAMES OF PARTIES
There were two applications filed before the court. Subsequently, there were three separate parties, including the joint parties which are stated as follows:
1. Petition No. 372 of 1953
- M.P. Sharma
- Delhi Glass works Ltd.
- Deputy-General Manager, Delhi Glass Works Ltd.
- Secretary, Delhi Glass Works Ltd.
- Stakeholder in Delhi Glass Works Ltd.
2. Petition No. 375 of 1953
- Messrs. Allen Berry & Co. Ltd.
- Asia Udyog Ltd.
- Shri R.K. Dalmia
- The secretary and General Attorney of Shri R.K. Dalmia
- Share Holder of Messrs. Allen Berry & Co. Ltd. And Asia Udyog Ltd. and an officer of the petitioner
Satish Chandra Distt. Magistrate, Delhi and 4 Ors.
Justice Mehr Chand Mahajan;
Justice B.K. Mukherjea;
Justice Sudhi Ranjan Das;
Justice Vivian Bose;
Justice Ghulam Hasan;
Justice N.H. Bhagwati;
Justice B. Jagannadhadas; and
Justice T.L. Venkatarama Ayyar.
The present case is one of the first judgements of the Hon’ble Supreme Court related to the right to privacy in India, although it was partially overruled in the later judgement of K.S. Puttaswamy v. Union of India1 by a nine Judge bench. An eight-judge bench of the Hon’ble court discussed the constitutionality of the search and seizure provisions of the Code of Criminal Procedure, 1898.
The judgement is primarily renowned for the discussion on the right to privacy and its interplay with the Article 20(3) of the Constitution of India. In this judgement, it was held that search and seizure of documents did not amount to “compelled testimony” and thus, it is not violative of the article 20(3) of the Constitution which talks about the right against self-incrimination and thereby states that “No person accused of an offence shall be compelled to be a witness against himself”. It is based on the legal maxim “nemo teneteur prodre accussare seipsum”, which means “No man is obliged to be a witness against himself.”
In the present case, the petitioner argued that the search and seizure by the police was a clear violation of the fundamental right to property under the article 19(1)(f) of the Constitution of India. The article contained the right to property. However, it has been repealed now. The Act also violated the right against self-incrimination by the petitioner that is guaranteed to all the citizens under the article 20(3) of the Constitution. It is determined that a person whose name has appeared in the first information report (FIR), as an accused is able to seek protection under the article 20(3). Such protection that has been granted, is accessible at the trial and the pre-trial stages. The expression ‘pretrial stage’ includes the stage when the police investigation in going on and the person is considered an accused. Further, the right is expanded to include such a person, who is not mentioned as an accused in the FIR, but is affected by the acts of the police.
In the present case, the issue of compelled self-incrimination was thoroughly examined by the Honorable Court. It was stated that the power of search and seizure was an overwhelming power of the state. Such power is required for the protection of society and the maintenance of law and order. It was further noticed, that the power was not subjected to the right to privacy, that is a fundamental right under the Article 21 of the Constitution because the Indian Constitution does not contain any clause or article which is equivalent to the Fourth Constitutional Amendment in the United States, which forbade excessive search and seizures, as was cited and argued by the petitioner in the present case.
The Government of India ordered an investigation into the conduct of a firm after it went bankrupt in 1952 under the Companies Act 1913. The investigation was launched because the corporation attempted to embezzle funds and conceal the true state of affairs from shareholders by fabricating balance sheets and accounts. It claimed that the dishonest and fraudulent transactions will be punishable under the Indian Penal Code 1860.
As a result, a FIR was filed in 1953, and a search warrant application was made to the District Magistrate under Section 96 of the Criminal Procedure Code 1973 (hereinafter CrPC). The warrant was issued by the District Magistrate, and simultaneous searches and seizures took place at thirty-four distinct locations. The Petitioner petitioned the Supreme Court, requesting that the search warrants be annulled for violating Articles 19(1)(f) and 20(3), as well as the return of the materials obtained.
- Whether the searches in question have led to the violation of the fundamental right of the petitioner against self-incrimination as under the Article 20(3) of the Constitution of India?
- Whether the fundamental right to acquire, hold and dispose of property under Article 19(1)(f) is violated by the searched in question?
ISSUE 1: WHETHER THE SEARCHES IN QUESTION HAVE LED TO THE VIOLATION OF THE FUNDAMENTAL RIGHT OF THE PETITIONER AGAINST SELF INCRIMINATION AS UNDER THE ARTICLE 20(3) OF THE CONSTITUTION OF INDIA?
Arguments by petitioner
As per the Article 19(1)(f) of the Constitution of India, which has been repealed by the 44th constitutional amendment of 1978, all the citizens of India have the right to acquire or dispose of any property, which is subject to the jurisdiction of any current or future law that puts the reasonable restrictions on exercising any rights that have been bestowed by it in the interest of the general public. The petitioner argues that the searches and seizures that were carried out in the current case were not reasonable in nature and thus constitution a serious restriction on the rights of the petitioner in so far as the buildings of the petitioners were invaded, their documents taken and their bussiness as well as reputation being harmed as a result of these searches that were arbitrary in nature at the best.
Further, the law in this case can be traced to the Section 96(1) of the CrPC, which says that, “Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub- section (1) of section 95”
The section authorizes such searches and should be held invalid as it violated the constitutional right of the people.
A search does not limit the right to possess and enjoy property on its own. Unquestionably, a seizure and evacuation restrict possession and enjoyment of confiscated goods. This, however, is simply a stopgap solution for the duration of the investigation. Thus, a search and seizure is merely a temporary violation of the right to keep the premises searched and the objects taken. Legislative regulation is required in this regard, and reasonable restrictions cannot be judged unconstitutional in and of themselves. If such temporary action is deemed to be in excess of legal authority, the resulting damage is a subject for further proceedings to address. The court further states that they are unable to see how any violation under the Article 19(1)(f) of the constitution could be involved in the case with respect to the warrants in question. Such warrants purport to be under the first alternative that could be found for the Section 96(1) of the Criminal Procedure Code.
ISSUE 2: WHETHER THE FUNDAMENTAL RIGHT TO ACQUIRE, HOLD AND DISPOSE OF PROPERTY UNDER ARTICLE 19(1)(F) IS VIOLATED BY THE SEARCHED IN QUESTION?2
Arguments by petitioner
According to Article 20(3) of the Indian Constitution, “no person accused of any offence will be compelled to be a witness against himself.” The petitioner argued before the Hon’ble Court that a search to gather papers for investigation is a compulsory procurement of incriminatory evidence from the accused himself, which is unconstitutional and prohibited under Article 20(3). Forcible search and seizure of documents is equivalent to the person from whom they are seized being compelled to produce the documents. This would constitute searches and seizures of papers, as well as any legislation restrictions in this regard, illegal and void, in violation of the fundamental right under the Article 20(3) of the Constitution of India.
Further, reliance was also placed upon the provisions of section 94 and 96 of the Criminal Procedure Code in support of the broad proposition that “a seizure of documents on search is, in contemplation of law, a compelled production of document.” The alleged sections are stated as follows:
94. (1) For the purposes of any investigation, inquiry, trial, or other proceeding under this Code by or before any court, or in any location outside the towns of Calcutta and Bombay, any officer in charge of a police station, such court may issue a summons, or such officer may issue a written order, to the person in whose possession or power such document or thing is.
96. (1) When a court believes that a party to whom a summons or order under Section 94 or a requisition under Section 95, sub-section (1), has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition, when the court is unaware that the document or thing is in the possession of anyone, or when the court believes that the purposes of any inquiry, trial, or other proceeding under this Code.
It was held by the Hon’ble court that the Article 20(3) of the Constitution of India, which talks about the right against self-incrimination, embodies the principle of protection against such self-incrimination which is one of the fundamental canons of the Common law when it comes to criminal jurisprudence. The court further elaborated that as under the English law, the principle evolved from a feeling of revulsion against the inquisitorial methods that were adopted in the pretrial process as well as the barbarous and ruthless sentences that were imposed by the court in the exercise of their criminal jurisdiction. The principle that has been stated above, was adopted in the case of John Liburn, which brought about the wide and firm recognition of the principle that the accused should not be put under any form of oath and should not be a source of evidence in the pre-trial as well as trial process. It was also held in the case of Weeks v. United States3, that the documents or any other form of evidence that has been obtained through unreasonable searches and seizures, were not admissible in the court of law as evidences.
The court also cited English law, claiming that “the protection of accused against self-incrimination encourages active investigation from the outside sources to determine the truth and proof of an alleged or suspected crime rather than extortion of confession based on unconfirmed suspicion.” Analyzing the various terms with respect to our constitution, the hon’ble court declared right against self-incrimination to consist of the following components;
- It is a right of “a person accused of an offence”
- It is “a protection against compulsion to be a witness” and
- It is “a protection against such compulsion that results in him giving evidence
The court has also commented on the nature of the guarantee under the Article 20(3) and in that regard, it has broadly stated that the guarantee is against testimonial compulsion, which, in turn, is confined to the oral evidences. However, it has also been stated that a person can be a witness not only through giving oral evidence but also by producing any documents or merely making any intelligible gestures. This can be found in the case of dumb witnesses under the Section 119 of the Indian Evidence act. Although the Section 139 of the same act indicates that a person who is delivering documents or summons is not a witness, the Section 139 is intended to restrict the right to cross-examination rather than to provide guidance on the meaning of the term “witness.” Thus, it may be concluded that the protection that has been granted to an accused by the words “to be a witness” extends not just to oral evidence in court but may also apply to compelled testimony previously collected from him.” As a result, it is open to anyone who has faced a formal accusation of committing an offence, which could lead to prosecution in the usual run of events.
With reference to the case of Entich v. Carrington4, the court stated that they could not derive from the case, any support for the proposition that has been stated by the council that searches and seizures, in their ordinary nature, are violative of the privilege of protection against self-incrimination as stated under the Article 20(3). The court, in this regard, also referred to the judgement of the Calcutta High Court in the case of Satya Kinkar Roy v. Nikhil Chandra Jyotishopadhyay5. In this particular case, it was held that the Section 94 of the CrPC is applicable to the accused. As an extension, it may be assumed that there is an element of coercion that is implicit in the whole process that has been contemplated by the Section 94 because, whatever the case may be, non-compliance results in the unpleasant consequence of the police, referred to as “minions of law” invading one’s premises and rummaging through a person’s private paper in the shadow of a search warrant. It was thus reasoned that some searches that fall within the scope of the second and third alternative as stated in the Section 96(1) would fall beyond the constitutional protection that has been guaranteed under the Article 20(3), which is an anomalous distinction for which it is not possible to establish a logical basis.
Besides the interpretation as has been given above, the court also analyzed the history of the Indian statutes and legislations regarding the search and seizure warrant and it was found by the hon’ble court that the legislations don’t support the theory of self-incrimination as propounded under the common law. The instances of the application could only be found in the section 114 of the Criminal Procedure Code that talks about the issue of search warrant by a magistrate. However, some more related provisions also point to the absence of the theory, such the Section 142 of the same code, which vests in the officer who is in charge of the police station with the power to make a search in certain circumstance, that too Suo moto. Further, the Section 365 of the code is the earliest statuary provision when it comes to the issuance of summons, which is followed by the Section 368 that is co-dependent on the section 365 as it is called “relating to the issue of search warrants.”
Based on the above stated reasoning and contentions, it was concluded by the hon’ble court that there is no basis in the Indian law for the notion that search or seizure of a thing or document constitutes their compelled production before the court. Thus, the court rules that the searched based upon which the case is established, could not be said to be illegal and challenged on the same grounds on the basis that they violate any fundamental rights of the petitioner. The court stated that the search and seizures formed an essential part of the process established by the law and the applications that were filed against the same were liable to be dismissed.
The author supports the Court’s decision in terming the present case as not being one of the violations of right to privacy as well as the Article 20(3), i.e., the right against self-incrimination. The present case is a matter of search and seizure, without which the ambit of criminal law would be very much restricted. It is not always possible to give the best judgement when the evidences are available. If the Court did render the case as being a violation of the Article 20(3) and Article 19(1)(f), which although has been struck down, plays a vital role in the present case, this would cause hinderance to the delivery of justice. The bench has rightly stated that search and seizure is a must for the protection of social security and that search and seizure process if temporary interference for which statutory recognition was unnecessary. The power of search and seizure is an overarching state power for the protection of social security, and it must be governed by law. As a result, there is no rationale for considering the right to privacy a fundamental right when the country’s constitution does not include it.
The process of search and seizure, is thus, a reasonable restriction under of the freedoms under the Constitution which could not be held unconstitutional. Further, it may also be noted that many countries such as the USA also allow the waiver of fundamental rights and reasonable restrictions in the cases where it is required. Further, the right against self-incrimination does not include evidences and witnesses as has been rightly cited by the Hon’ble bench. Hence, so as to deliver justice to the victim, it is a part of the necessary process that needs to be done. Hence, agree upon decision in the present case.
As a result, the case of MP Sharma v. Satish Chandra represents a watershed moment in India’s highest Court in terms of the right to privacy. An eight-judge Constitution bench ruled unanimously that “the right to privacy is not a fundamental right under the Indian Constitution, that search and seizure is necessary for the protection of social security, and that the search and seizure process is a temporary interference for which statutory recognition is not required. It was deemed a reasonable limitation of constitutional rights that could not be declared unconstitutional.” Although the decision was partially overruled in the KS Puttaswamy judgement, it still holds as a precedent partially and aids the process of investigation by allowing seizure as a part of due process of law.
- Puttaswamy v. Union of India (2017) 10 SCC 1.[↩]
- Sub-clause (f) omitted by 44th constitutional amendment, 1978.[↩]
- Weeks v. United States 232 U.S. 383 (1914).[↩]
- Entick v Carrington  EWHC KB J98.[↩]
- Satya Kinkar Roy v. Nikhil Chnadra Jyotishopadhyay AIR 1951 Cal 101.[↩]
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