The validity of Section 91 of CrPC


Code of Criminal Procedure (CrPC) was enacted in 1973 and came into force on 1 April 1974. At present, the act contains 484 sections divided into 37 chapters, 2 schedules and 56 forms. It is based upon the principle of justice and fairness. One of the fundamental rules of legal jurisprudence and natural law is that any person who is accused of any offence should be given an equal chance to be heard and to defend himself in the Court of law.

It is in consonance to these rules that there are certain provisions in Code of Criminal Procedure, 1973 related to the process of proceedings in Section 161(3) and Section 162 of the Code state that any statement recorded by the police officers during the course of investigation, shall not be signed by the person making the statement.

Similarly, upholding this proposition, the protection of self- incrimination has been provided as a fundamental right, under Part III of the Constitution of India in Article 20(3). Article 20(3) of Constitution of India states that: “No person accused of any offence shall be compelled to be a witness against himself”.

Section 91 of the Criminal Procedure Code, 1973 deals with the power of the courts and police authorities regarding search and seizure of document or thing. The issue of power under Section 91(1) of Criminal Procedure Code, 1973 has been dealt in detail by the apex court in case of M.P. Sharma & Others v Satish Chandra, State of Bombay v Kathi Kalu Oghad & Others and Shyamlal Mohanlal v  State of Gujarat.

Section 91 of the Code of Criminal Procedure, 1973 with the marginal note ‘Summon to produce document or other thing’ states that:

“(1) Whenever any Court or any officer in charge of a police station consider that the production of any document or other thing is necessary or desirable for the purpose 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.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.”

Historical Background

The principle has been embodied in the statutes in the Fifth Amendment of American Constitution which states that: “No person shall be compelled in any criminal case to be a witness against himself”. The same principle has been incorporated in the Indian Constitution under Article 20(3) but with some different words. Article 20(3) of the Indian Constitution states that: “No person accused of any offence shall be compelled to be a witness against himself”.

The expression “to be a witness” here needs some special consideration as the soul of the whole provision lie in this expression. Whether there is a complete umbrella against self-incrimination or not will be determined by the interpretation of this expression.

The Supreme Court in M. P. Sharma & Others v Satish Chandra[1] stated that “to be a witness” means to become a witness and not to appear as a witness and in that manner the protection of self-incrimination not only extends to compelled testimony in court but extend even to pre-trial investigation and interrogation. The similar interpretation of the phrase has been followed by the Supreme Court in State of Bombay v Kathi Kalu Oghad & Others[2] and Shyamlal Mohanlal v. State of Gujarat.

However, apart from the akin interpretation, Apex Court made another interpretation in Kathi Kalu Oghad’s case where the majority through Sinha, Bhuvneshwar P.(CJ)  stated: “to be a witness means imparting knowledge in respect of relevant facts, by means of oral statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority to come to a decision, by testifying to what he has seen, or something which he has heard which is capable of being heard and is not hit by rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy.”

For that reason, even if an accused of any offence has any document which has the tendency to expose his guilt or something by which he will himself confirm the criminal charges against him, he can be summoned by any competent court to produce the document or thing and that the summoned issued will not be considered as against protection of self-incrimination. The only requirement is that the content of the document should not divulge any information based on the personal knowledge of the accused.

Summons and Conflict with Article 20(3) of the Constitution of India

Section 91 of CrPC provides the powers to the courts and officer in charge of the police station to issue summon for document or desirable for purpose of any investigation. Whereas Section 93 of CrPC in its sub-section (1) gives powers to issue search warrants. Section 93(1) of CrPC provides that:

  1. Where any court has reason to believe that a person to whom a summons or order has been issued under section 91 or a requisition under section 92(1) has been, or might be, addressed, will not or wouldn’t produce the document or thing required by such summons or requisition, or
  2.  where such thing or document is not known to the court to be in possession of any person, or
  3. where the court considers that the purposes of any inquiry or trial under this Code will be served by a general search or inspection, it may issue a search warrant: and therefore the person to whom such warrant is directed, may inspect in accordance therewith and provisions hereinafter contained.

It can easily be interpreted from the above sections that court can issue summon under Section 91(1) to any person who the court thinks has the possession of document or thing necessary for the investigation. But if the court feels that the person to whom summon or notice is issued will not produce the document or thing then the court has the power to issue a warrant to an officer under Section 93(1)(a) of CrPC.

Constitutional Validity

Article 20(3) of the Constitution of India states: “No person should be accused to be a witness against himself”. The protection against self-incrimination under Indian Constitution is based on the principle, “nemo tenetur seipsum accusare” which means ‘no man, not even the accused himself can be compelled to answer any question, which may tend to prove the accused guilty of a crime, he has been accused of’. If the confession is derived from any physical or moral compulsion, it should stand to be rejected by the court. It is the State’s duty to prove him guilty without any reasonable doubt. The principle is based on giving equal opportunity to accused to know what charges are levelled against him and on the basis of that he will prepare a defence for himself. The right against forced self-incrimination, widely named as the Right to Silence is enshrined in the Criminal Procedure Code and the Constitution of India.

From time to time constitutional validity of warrant under Section 93(1) of the Criminal Procedure Code had been raised in the context of Article 20(3) of the Constitution of India. The contentions were raised by many jurists and scholars that ‘any person’ in Section 91(1) of CrPC also includes the accused person with other witnesses.

Therefore, if an accused person does not obey the summons, he will have to face the constrained search in his house which shows the compulsion put on accused. This compulsion put on the accused not only contravenes the fundamental right guaranteed under Article 20(3) but also is an intrusion to privacy.

In account of these sections, there will be a prosecution for the offence committed under Section 174 of the Indian Penal Code, 1860.

Section 174 of Indian Penal Code with marginal note ‘Non-attendance in obedience to an order from public servant’ states: “Whoever, being legally bound to attend in person or by agent at a certain place and time in obedience to a notice, order, summons or any proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the order, summons, proclamation or notice is to attend in person or by agent in a Court of Justice, with a simple imprisonment for a term which may extend to six months, or with a fine which may extend to one thousand rupees, or with both”.

With regard to the theory of process of the search warrant, Supreme Court in its leading case of M.P. Sharma and Others v Satish Chandra stated:

“There is no basis in Indian law for the presumption that a search or seizure of document or thing in itself is a constrained production of the same. The court observed that provisions of Article 20(3) of the Constitution of India and search warrants are essentially different matters. A notice produced addressed to the party concerned and its compliance constitutes a testimonial act by a person to whom an order was issued but search warrant is issued to a govt officer. The search or seizures are not acts of the occupier but acts of other. Hence, it does not amount to self- incrimination under Article 20(3)”.

In the whole, the search conducted by a police officer or any legalize authority will be valid only if it is conducted without any help of the person against whom a search warrant has been issued.

The Supreme Court in Shyamlal Mohanlal v. the State of Gujarat held that the term ‘any person’ in Section 91 of the Code of Criminal Procedure does not include the person accused of any offence and no notice can be issued to him. Though, the judgement in Shyamlal’s case does not restrict the accused. In the State of Bombay v Kathi Kalu Oghad, the ratio decidendi of the judgement of the case kept open the doors for some amount of flexibility.


The entire deliberation clearly state that the right against self-incrimination is not an absolute right provided to the accused but its interpretation of phrase laid down in Maneka Gandhi case states that the procedure established by law is to be just, fair and reasonable. The Court observed that any procedure will ensure justness and fairness only when it respects the rights victims and accused equally.

On the contrary, the present law violates the equal protection of the law under Article 14 of the Indian Constitution of the accused. Thus, to maintain justness and fairness it was noted that, “it does not matter how much substantive the document is or how much it is relevant for proving the fact in issue without reasonable doubt, if it is incriminating then it should be inadmissible”.

Therefore, it is urged to the lawmakers of the country that there should be equal respect of this right in the same manner as other fundamental rights are respected.


Ques 1. ‘Self-incrimination’ is explained in which Article of Indian Constitution?

Answer. Article 20(3) of the Constitution of India states: “No person should be accused to be a witness against himself”.

Ques 2. Explain the maxim “nemo teneteur prodre accusare seipsum”.

Answer. It means No man is obliged to be a witness against himself’.

Ques 3. What are the ingredients of Article 20(3)?

Answer. Ingredients of Article 20(3) of the Constitution of India are:

  1. The person accused of an offence;
  2. Compulsion to be a witness;
  3. Compulsion resulting in giving evidence against himself.

Ques 4. Can a police investigation be based on photocopy of documents?

Answer. Photocopy of any documents is inadmissible in law. It can be tendered as evidence only through secondary evidence under provisions of the Indian Evidence Act, 1872.




[1] 1954 AIR  300  

[2] 1961 AIR 1808

Leave a Reply

Your email address will not be published. Required fields are marked *