Process To Compel Production of Documents and Things

Processes to compel production of documents or other things:
Summons:
Section 91 of the Code confers a general power on Court and police officer to issue
summons/order for production of document or other thing which is necessary for the
purposes of conducting investigation, inquiry, and trial. The use of expression ‘whenever’
in section 91 indicates that such summons or order may be issued at any stage of the
proceeding. The non-compliance may lead to issuance of a search warrant by the Court.
The summons under section 91 may be issued at the instance of any party to the
proceeding, including the prosecution or complainant or the accused. Before issuing the
summons the Court must satisfy itself that the document or thing required for
investigation, inquiry or trial is in the possession of the person to be summoned. It must be
noted that summons under this section cannot be issued against the accused to produce
documents or things which are incriminating against the accused.
Search Warrants
Section 93 provides a more efficacious method for the production of a document or thing
i.e. search-warrant. It’s a more drastic step, and involves serious invasion of the rights and
privacy of the individual. While under section 91, the summons or order to produce is
addressed to the person who has its custody, a warrant under section 93 is addressed to a
police officer for execution. A court having jurisdiction over the subject-matter of the
proceeding may issue a search-warrant for search in any place in India in the same way as
a warrant of arrest. Provisions relating to warrant of arrest apply to search-warrants.
Conditions for issuing search warrant
A search warrant may be issued by a court only if any of the following three circumstances
exists:
i) Reason to believe that summons for production will not be obeyed;
ii) It is not known whether the document or thing is in possession of any person or court;
iii) Where a general search or inspection is considered necessary for the purpose of any
trial or inquiry or other proceeding of the Code.
Other circumstances in which a search warrant may be issued are:
i) Search of a place suspected to contain stolen property, forged documents etc. (sec. 94)
ii) Search of a place suspected to contain any book, newspaper or documents which the
State Government has declared to be forfeited. (Sec. 95)
iii) Search for the person who is wrongfully confined. (Sec. 97 and sec. 98)
Constitutional Validity of search warrants
Whether a search-warrant is valid when issued against the accused person relating to
documents or things in his possession?
The Supreme Court in Shyamlal Mohanlal v. State of Gujarat has held that the term
‘person’ in section 94 (now section 91) does not include an accused person. Therefore, the
court or police officer, as the case may be, is precluded from issuing a summons/order to
an accused person to produce any document or thing in his possession as that would be
violative of Article 20(3) of the Constitution. A search-warrant under section 93(1)(a) can
be issued only in cases where a summons has been or might has been issued. As the term
‘person’ in section 91 does not include an accused, therefore, a search-warrant under
section 93(1)(a) for the documents or things in the possession of the accused cannot be
issued.
Procedure Relating to search of a Place
Section 100 is applicable when a search is to be made of a place and not of person. Any
person residing in, or being charge of such closed place shall on production of the warrant,
allow free entry and afford all reasonable means for smooth search of the place. If there is
any reasonable suspicion that any person is concealing on his person any article or thing
for which the search of a place is to be made, the person may be searched. If the person to
be searched is a woman, then the search shall be made by another woman with strict
regard to her decency.
Search of a place without warrant and safeguards thereof:
Section 103 empowers a Magistrate to direct a search to be made in his presence of any
place for the search of which he is competent to issue a search warrant. Similarly a police
officer during any investigation, in exceptional circumstances, may carry out search
without warrant. Such power is conferred by section 165 of the Code. It empowers a police
officer making an investigation to conduct search without a warrant if he has reasonable
grounds for believing that anything necessary for the purpose of an investigation into any
offence may be found and that he is of the opinion that undue delay may frustrate the
object of the search. As search is a process exceedingly arbitrary in character, stringent
statutory conditions are imposed on the exercise of the power. Section 165 provides certain
safeguards to the person concerned in order to prevent the arbitrary exercise of the
powers. Section 165 does not permit a general search and it authorizes police officer the
power to search for particular things or documents, necessary for the purposes of the
investigation.
The police officer must have reasonable grounds for believing that:
i) The thing for which search is to be made for the purposes of the investigation may be
found in the place within the limits of his police station.
ii) Such thing, in his opinion, cannot otherwise be obtained without undue delay i.e. it
would be too late before a search-warrant is obtained from a Magistrate. Therefore, the
section ensures that the search by police officer is not arbitrary and are genuinely required
in cases where there is no time to approach a Magistrate for a search-warrant.23
iii) The police officer before proceeding to search a place must record the grounds of his
belief as to the necessity of such search and must also specify the things for which the
search is to be conducted. The non recording of reasons for search would make the search
illegal.
iv) Copies of record relating to searches made by the police officer shall be sent forthwith
to the nearest Magistrate. This requirement prohibits any kind of manipulation or
fabrication afterwards.
v) The section requires the Magistrate to furnish; free of cost, to the occupier of the place
searched a copy of the entire record furnished to him. It enables the occupier to satisfy
himself as to the legality of the search.
Other than these instances the police officer may also search a place without warrant in
following situations:
i) Section 166 enables a police officer to effectuate search of a place located beyond the
limits of his own police station, if the exigencies of the situation so require.
ii) Where a police officer in charge of a police station has reason to believe that weights,
measures or instruments for weighing which are false, are used or kept in any place, he can
inspect and search the place and seize such things as per section 153 of the Code.
Seizure
Section 102 of the Code confers power on a police officer to seize certain property. In case
of M.T. Enrica Lexie v. Doramma the Court elaborated upon the power of police to
seize any property under section 102 and held that such power can be exercised if such
property is:
i) alleged to be stolen or is suspected to be stolen or
ii) the object of the crime under investigation or has direct link with the commission of
offence under investigation.
Where a search warrant is issued for the search of any particular things, the person making
the search has been empowered to seize such things if recovered during such search. Every
police officer shall report the seizure to the Magistrate and in case the property cannot be
carried to the court, to give it to a person executing bond for its production before the
court.

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Process To Compel Production of Documents and Things

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Processes to compel production of documents or other things:

Conditions for issuing search warrant

Constitutional Validity of search warrants

Procedure Relating to search of a Place

i) alleged to be stolen or is suspected to be stolen or

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