Section 92 : Procedure as to letter and telegrams:

As per Section 92 (1) If District Magistrate, Chief Judicial Magistrate, Court of Session or High Court is of the opinion that any document or thing which is in the custody of-

• Postal Authority
• Telegraph authority
  And same is required for the purpose of any investigation, enquiry or trial may ask such authority to deliver that thing or document to the person as directed by such Magistrate or Court.

Executive Magistrate, Judicial Magistrate, Police Commissioner, District Superintendent of Police is of the opinion that any document or thing which is in the custody of-

• Postal Authority
• Telegraph authority
  And same is required for the purpose of any investigation, enquiry or trial may-

• • • Conduct Search
    • Detain such document or thing
    • Authorities mentioned under this section does not have any power to ask for the delivery of such thing or documents until the obtaining of order of any of the authorities mentioned under 92(2) that is District Magistrate, Chief Judicial Magistrate, Court of Session or High Court.
    • Whether Section 92 is violation of right to privacy: With regard to the intrusion into the privacy, it was held in the case of Surendra Mohan vs K.P. Mani 1986 that 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 justice”

Case Laws:

Samuels Case 1603: A man’s house is his castle because next to the person own freedom comes the freedom of his house. The maxim also forms part of the fabric of the Fourth Amendment to the Constitution,3 which protects people, their homes, and their property against unreasonable searches and seizures by the government.

Entrick vs Calington 1765: On 11 November 1762, the King’s Chief Messenger, Nathan Carrington, and three other King’s messengers, James Watson, Thomas Ardran, and Robert Blackmore, broke into the home of the Grub Street writer John Entick in the parish of St Dunstan, Stepney “with force and arms”. Over the course of four hours, they broke open locks and doors and searched all of the rooms. The King’s messengers were acting on the orders of Lord Halifax, newly appointed Secretary of State for the Northern Department, “to make strict and diligent search for … the author, or one concerned in the writing of several weekly very seditious papers. Entick sued the messengers for trespassing on his land. It was held in the case that prerogative powers of the monarch and government are subordinate to the law of the land. It guarantees that government officials acting in an executive capacity “cannot exercise public power unless such exercise of it is authorised by some specific rule of law”. Hence Lord Camden ruled, as later became viewed as a general principle, that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.

State vs Bhawani Singh 1968: It was held that search warrant should be used as a last resort for the mature concentration. searches under the Code of Criminal Procedure have to be conducted strictly in accordance with the formalities and within the legal limits prescribed in the said Code. An Indian citizen’s house, it must always be remembered, is his castle because next to his personal freedom comes the freedom of his home. Just as a citizen cannot be deprived of his personal liberty except under authority of law, similarly, no officer of the State has a prerogative right to forcibly enter a citizen’s house except under the authority of law.

• Compulsive Method :

Section 93: When search-warrant may be issued : Search warrants are written authority given to a police officer or other person by a competent magistrate or court for the search of any place either generally or for specific things or documents or for a person wrongfully confined. Section 93 prescribes when a search warrant can be issued.

Conditions when Search warrant may issued : Search warrant can be issued by CJM or DM  if they opine that:

• The person who has received the summons under section 91 and section 92 (1) will not produce the documents or things
• When such document or thing is not known to the Court to be in the possession of any person
• That search warrant is necessary for the purpose of any inquiry, trial or other proceeding. Court may direct any one kind of search among the following:

1. General Search: In the case of PG Sen Gupta vs J.N. Roy 1927 it was defined that General search is not in respect of any specific document or thing which are considered necessary
2. Specific Search: The court will specify the place to which extend a particular place is to be searched.

An only authorized person is entitled to for the execution of search warrant as per the directions of the court.

• Only District magistrate or Chief Judicial Magistrate have the power to grant a warrant to search for documents or things. If any Magistrate, not being empowered under this section issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; his proceedings shall be void under Section 461 CrPC.

Case Laws:

V.S. Kuttar Pialli vs Ramkrishna 1980: It was held by the Court that Search of the premises occupied by the accused does not violative of Article 20 (3).

Section 94:  Search of place suspected to contain stolen property, forged documents and Objectionable articles

If District Magistrate, Sub Divisional Magistrate or a Magistrate of the first class (DM, SDM or JMIC) believes that a place is being used for-

• Stolen property as contained in Indian Penal Code under section 410-414
• Forged Document as contained in the Indian Penal Code under section 463
• Objectionable article as contained in the sub clause 2 of this section 94: Objectionable article has been mentioned in the Sub section (2) of this section as follows :-

1. 1. 1. Counterfeit coin;
      2. Pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962);
      3. Counterfeit currency note; counterfeit stamps;
      4. Forged documents;
      5. False seals;
      6. Obscene objects referred to in section 292 of the Indian Penal Code (45nof 1860);
      7. Instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).

They can authorize a police officer (above the rank of constable). Such Police officer will conduct search in following manner –

1. To enter such place with such assistance as may be required
2. To conduct search as specified in the warrant
3. To take the possession of any property or article found at the suspicious place
4. To covey the property before the magistrate
5. To take into custody such property and carry before a magistrate .

Section 95:  Power to declare certain publications forfeited and to issue search warrants for the same. Where-

(a)  any newspaper, or book, or

(b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860 ), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of sub- inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.

• General Rule relating to search:
• Seizure and Impounding :

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 statement.

Similarly, Article 20(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 cases.

Now another issue that is to be analysed is whether the accused will be penalised under section 174 of IPC 1860, if he does not comply with the notice or summons issued to him ?

The apex court in the case of State of Gujrat vs Mohanlal Chokasi 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 decided 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 section.

In State of Bombay v. Kathi Kalu Oghad’S, 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 considered to be against self-incrimination.