The entire procedure specified in the Code of criminal procedure, 1973 is based on

principle of justice and fairness. One of the fundamental principles of legal

jurisprudence is that a person accused of any offence should be given equal chance
to be heard and to defend himself. It is in consonance with this theory only that
there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to issue
of process, provisions in section 161 (3), provision in section 162 of the code that
any statement recorded during the course of investigation, shall not be signed by
the person making the statement, has been specified.
Similarly

upholding the similar proposition, the protection against selfincrimination has been provided as a special fundamental right, under Part III of
the Constitution of India. Article 20(3) states that:
No person accused of any offence shall be compelled to be a witness against
himself.
The power of search and seizure of the court and police authorities particularly the
power to issue summons or notice by the court or officer in charge of the police
station under section 91(1) of CrPc. The issue has been dealt in detail by thesuprem
court in the case of M.P Sharma and others vs Satish Chandra, State of Bombay vs
Kathi Kalu Oghad and State of Gujrat v Shyamlal Mohanlal Choksi. After going
through all the three case laws it is felt that the matter has been wrongly taken up
by the court. The Supreme Court in Kalu Oghads case has narrowly interpreted the
expression to be a witness which has created situation where a very narrow space
is available for the actual protection of this right in respect of production of
documents.
This has been done by dealing with the general provisions of search and seizure
and then analysing the Shyamlal Choksi as well as Kalu Oghads case.

General Provision regarding search and seizure

Section 91 with the head note Process to Compel Production of Things of the Code
of Criminal Procedure, 1973 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.

Whereas section 93 When search warrant may be issued; in sub section (1)
provides that:
(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 thing or document is
not known to the court to be in the possession of any person, or (c) where the Court
consider that the purpose of any inquiry, trial or other proceeding under this code
will be served by a general search 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 provisions hereinafter contained.

This means that an officer in charge of a police station can send a notice or a court
can issue a summon under section 91(1) to any person within whose possession the
officer or court thinks is the document or a thing necessary for the purpose of
investigation. But if the court or officer feels that the person to whom the summons
or notice is issued, will not produce the document or thing, the court can issue a
warrant of search to the officer, under section 93(1) (a).

With regard to the first proposition about the process of issue of search warrant
under section 93(1) (a), the Honorable Supreme Court in the leading case of M.P
Sharma and Others v Satish Chandra, District Magistrate, Delhi and Others,
through Jaghandadas J. stated that:

It may be mentioned in passing that the provision for the issue of general search
warrants appears for the first time in procedure Code of 1882 and even there the
issue of general warrants is not based on non-compliance with a previous summons
for production. It is, therefore, clear that there is no basis in the Indian law for the
assumption that a search or seizure of a thing or document is in itself to be treated
as compelled production of the same. Indeed a little consideration will show that
the two are essentially different matters for the purpose relevant to the present
discussion. A notice to produce is addressed to the party concerned and his
productions in compliance therewith constitute a testimonial act by him within the
meaning as explained above. But search warrant is addressed to an officer of the
government, generally a police officer. Neither the search nor the seizures are acts
of the occupier of the searched premises. They are acts of another to which he is
obliged to submit and are; therefore, not his testimonial acts in any sense.

Which in whole means that the search conducted by the police officer or any
investigating officer will be valid only if it has been conducted without any help
(involuntary help) from the person, only if any formal accusation has been levelled
against the person.