The process to compel production of a document or other items involve these terms:
- Summon
- Search warrant
- General search
- Seizure & others
What Is A Summon?
It’s basically an order for procuring the attendance of a person and production of documents which shall be in writing, in duplicate & signed by the presiding officer of such court & shall bear the seal of the court. In general, it is served by the police officer but other public servants or officers of the court can also serve the summon. Directly giving a message is the best way to serve a summons.
Section 91 of the CRPC which deals with summon issued to produce a document or other thing says that if it is in the opinion of the court or a police officer that they may require a document or other thing for investigation, inquiry, or a trial from a person then in such case, a court can issue summon or a police officer may issue a written order towards such person for producing such document or other things which are specified in the summoning.
Here other things mean those things which can be produced in a court of law such as tangible or moveable things or any physical object but it will not include those things which are not real.
Q) Is it mandatory for a person to attend personally in a court of law for the production of such a document or other things?
No. a person doesn’t need to attend personally rather he may send such things or documents through other people too.
Q) Can a magistrate issue summon to produce a document that is in the custody of postal or telegram authority under this section?
No. a magistrate cannot issue a summon under this section to produce a document that is in the custody of such telegram or postal authority.
Q) If any person other than a witness provides such a document or other things then in such case will it be deemed as a witness?
No. such mere production of a document or other things in pursuance of summoning will not be deemed as a witness under this section.
Q) Can a person include the accused as well? If yes then will it be constitutionally valid?
Yes. it can include the accused except the accused who are under trial. Here accused is bound to produce the document which will not incriminate him but the police officer cannot direct the accused to produce a document that will incriminate him under article 20(3) of the Indian Constitution.
For example- if a police officer asks the accused of the gun through which they had murdered or killed someone then it will not be valid according to article 20 of the Indian Constitution as such order will tend to incriminate the accused as he is giving the evidence against himself but if police ask a person X or an accused Y to produce a document only for the purpose to check their residential address or any ID proof then in such cases X & Y are bound to produce such documentation as it will not incriminate them in such cases.
Section 92
As it is seen that section 91 restricts magistrate to issue a summon to a postal or telegram authority for production of the document or any other thing but section 92 talks about the process by which one can get a document which is in the custody of postal or telegram authority. It says that if any person needs some document which is in the custody of such telegram or postal authority then in such case that person can first apply to a district magistrate or a chief judicial magistrate or a court of a session or a high court as they only have the powers to ask such telegram or postal authority for production of a document or other thing.
If the district or a chief judicial magistrate or a court of a session or a high court is satisfied that production of such document is necessary for investigation then they will direct such telegram authority to produce it. But if a magistrate other than a district or chief judicial magistrate thinks that they need a document which is in the custody of such telegram authority then can only ask such authority to make a search and detain any such document required for investigation, inquiry, or a trial till the order comes from the district or a chief judicial magistrate.
If the executive magistrate X has a reason to believe that production of the document is necessary for investigation which is in the custody of the postal or telegram authority then according to the above-mentioned section 91, he has not got the powers to ask such authority so in such case what will he do?
So here in this case the executive magistrate can either apply to a district or a chief judicial magistrate or a high court as mentioned under section 92 as they have only got the powers to ask such authority for the production of a document or the executive magistrate can ask such authorities to search and detain it till the order comes from the district or chief judicial magistrate.
Search Warrants
It is a judicial order by which police authorities are asked to find the necessary things which will serve the purpose of investigation of a crime. It can be a particular search like the things to be searched will be specified or it can be a general search warrant through which police authorities are asked to search for unspecified places because there may be some situations where they believe that they can find something necessary for investigation of a crime.
Section 93 says that if a court asks any person to produce any document as required under section 91(1) & such person refused to produce such document so in that case court can issue a particular search warrant. For example, if a person, say X, was asked to produce any document according to section 91 but he didn’t provide the document in a court of law so now in such cases court can issue a particular search warrant i.e.; searching for the specified thing but this search warrant will not include the accused as it will incriminate the accused but if a court is not aware of the possession of the document.
If a court thinks that they can get any type of evidence for inquiry or a trial then in such cases the court will issue a general search warrant which can also include the accused irrespective of the fact when proved it may tend to incriminate him as here the accused himself is not giving such things which are seized by the police authorities.
For example- if a crime took place in a market area and it is not known to anyone like by whom it was committed or how it was committed then in such cases court can issue a general search warrant i.e.; finding unspecified things. also leaving the district or a chief judicial magistrate any other magistrate cannot issue a search warrant in case of any parcel or any document which is in the custody of such telegram or postal authority.
Q) Is it necessary that a summon should be issued in the very first place?
No. a summon doesn’t need to be issued in the very first place because there might be some situations where the possession of the document is not known to anyone so in such cases, the court can directly issue a search warrant.
Q) Can a police officer search without a warrant?
Yes. According to section 165 of the CRPC police authorities have got the powers to make a particular search without a warrant only if they have a reason to believe that they can get any evidence that is necessary for the investigation of a crime but the police authorities will have to follow the procedure given under section 100 of the CRPC also police authorities cannot go for such search without an FIR under this provision.
What Is A Seizure?
Section 94 generally gives power to a district magistrate, sub-divisional magistrate, or a magistrate of a first-class to issue a search warrant to the police officer if there is a suspicion about a place which is used for the commission of unlawful activity but the police officer to whom such search warrant was issued should be above the constable rank also such police officer can enter and search that place as specified in the warrant, they can also seize or detain anything which can be an evidence of such crime & will have to produce it before the court or detain it till the offender is produced before the court or keep it in a safe place.
Police authorities can arrest all those persons who were involved in committing such unlawful activity. Here, the magistrate should conduct an inquiry through which he needs to be satisfied that the place is used for the deposit of stolen property. this section basically talks about the particular search as it deals with some of the objectionable articles such as illegal production of currency notes, coins, etc. are mentioned under this provision.
Section 100 deals with the issue of a search warrant in a closed place so it basically says that if a search warrant is issued and the place where such search is to be made is closed then in such cases the person residing or the person in charge of that particular place has to allow the officer to enter that particular place and help the officer in such search. The person executing the warrant has to show the warrant to the person residing or the person in charge of such closed place but if entry to such closed place is not given then in such cases, the entry will be done according to section 47(2) of the CRPC i.e. by the process of breaking the doors, windows, etc. or the officers can use reasonable force for such entry in a closed place and it has to be done if an officer has a reason to believe that person to be arrested has entered that place.
If there is a suspect that the person in charge of such a closed place is hiding anything then the officer can even search that person also and if such person is a woman that the search will be made by another woman with strict regard to decency and before making such search the person executing the warrant shall call the two respected peoples of the locality or in absence of such persons they can call any other person from a different locality to attend and also be the witnesses for such search will be made in the presence of witness and list will be made of all the items which are seized by the person executing the warrant and will be signed by the witnesses.
Though the witnesses don’t need to be present in a court of law if a court issues a summon to be present then in such case they must be present otherwise it will be deemed as an offense committed under section 187 of the IPC. The occupant of such place or any person on his behalf shall be present during the search and the list made of all the seized items will be given to such person as well.