Authored By : John Freeman Norris, S.C. Ghose

John Freeman Norris, J.

1. On the 20th August, Hadjee Jackariah Mahomed & Co.,through Mr. Hume, their attorney, applied to the Presidency Magistrate of theNorthern Division of Calcutta for warrants for the arrest of Ahmed Mahomed andTopun Ramchore on charges of cheating and abetment thereof.

2. In support of the application, Noor Mahomed, a member ofthe prosecutors firm, was examined on solemn affirmation. His deposition wasas follows:

I am a member of Hadjee Jackariah and Co. I have been amember of that firm since 1874. I know the first defendant Ahmed Mahomed. He isa boat owner. He has had business with us since 1879. He kept a floatingaccount with us. The first defendants ledger was kept by Topun Ramchore in myoffice. He used to make entries in the cash-book occasionally. When defendantNo. 1 came to my office for money I used to ask defendant No. 2 to look at theledger and say whether No. 1 had a credit balance. No. 2 always said he hadcredit balance. Day before yesterday No. 1 came to my office and asked for Rs.300. We sent for his ledger. After examining it we found Rs. 800 on the debitside. No. 1 said "this is not correct; I have to get money from you."We got suspicious and examined his accounts from 1882 up to date. The resultwas that the first defendant had overdrawn upwards of a lac of rupees. On the30th April 1887, the ledger, as written up by Topun the defendant No. 2, showeda balance of nearly Rs. 5,000 in favor of the first defendant, but this was notcorrect. The correct account showed nearly Rs. 8,000 against him. On the 13thof May 1887, we paid him (first defendant) Rs. 1,200. This is the entry for theRs. 1,200. On the 19th May 1887, we paid him Rs. 800. On the 28th June last wepaid him Rs. 3,000 in notes. These first and third payments were made in Topunspresence. I handed over the money to Topun, and he paid them to the firstdefendant. I made these payments on the belief that there was a balance in hisfavour. If I knew that there was no balance in his favour I would not have madeany payment. Defendant No. 2 made a statement to Mr. Hume. This is it (producedand marked A).

3. Topun Ramchores statement to Mr. Hume was made in answerto questions put by that gentleman. The statement, question and answer, is asfollows:

Q.-I am going to ask you some questions; you can answer themor not as you like.

A.-Whatever you ask I will give truthful answers to.

Q -Whose servant were you A.-Hadjee Jackariah Mahomed& Cos. I was their writer.

Q.-What books did you keep

A.-I kept the nund, the ledger, and sometimes the cash-book;the ledger for 1887 is all in my writing.

Q.-Messrs. Hadjee Jackariah Mahomed & Co. have examinedthe ledger for five years past from which they have discovered that muchcheating has been going on. Do you know anything about the cheating, and areyou willing to tell me about it

A.-I am willing to tell you what I know about it, and thewhole truth. I know everything about it.

Q.-Very good, what you know tell me.

A.-In 1882 Ahmed Mahomed said to me I will give you Rs. 20in every Rs. 100 if you will make a goolmal in my account with the firm, sothat I can get (zaida) more money. I agreed to this, and I commenced to make agoolmal.

Q.-What sort of a goolmal

A.-If he took Rs. 2,000 from cash, I omitted to write it inledger, and out of the Rs. 2,000 I will get Rs. 400 from Ahmed Mahomed at hishouse. I used also to do as follows (asia bhee kia). If he took Rs. 2,000 fromthe cash, I used to credit him with this sum in the ledger. In February 13th1887, Ahmed Mahomed took from the cash in my presence from the hands of NoorMahomed Rs. 1,500. This Rs. 1,500 I never entered in the khatyon, but I did inthe cash-book. On the 6th March 1887, he took Rs. 1,500. I entered this in thecash-book, but not in the ledger. I did this intentionally (sumuj he chordia).On the 7th April 1887, he took from cash Rs. 2,000. This amount I credited himwithin the khatyon. On the 24th April 1887, he took Rs. 4,000, and I wrote inthe khatyon Rs. 400. On the 10th January 1887, I credited in the khatyon Rs.1,500 in the name of Ahmed Mahomed, but I received from him that day only Rs.500, which I credited in cash-book. On the 30th January 1887, I received fromAhmed Mahomed Rs. 900, but in the khatyon I credited Rs. 1,900. On the 30thApril I credited him with Rs. 1,000, but on that day I received nothing fromhim. When Ahmed Mahomed used to come for money a man used to come with him.Ahmed Mahomed is blind for the last two years. He used to ask Noor Mahomed formoney, and he, Noor Mahomed, used to ask me. "Ahmed Mahomed he hisab kaisahai ;" and I used to say "Usko juma hai." I always used to saythere was a credit, but it was not true. When I used to be asked about theaccount of Ahmed Mahomed by Noor Mahomed, I used always to tell him from thekhatyon. I have been falsifying the account of Ahmed Mahomed since 1882 tillnow (abhee tuk),"then says" till 30th April, 1887.

Q.-Aooording to your khatyon in what state is AhmedMahomeds account for 1887 on 30th April 1887, that is, from January to 30thApril 1887

A.-He has to receive a little more than Rs. 5,000, but thisaccount is false. Hadjee Jackariah Mahomed & Co. in truth ought to receivefrom Ahmed Mahomed Rs. 8,500.

Since 1882 up to 30th April 1887, I have falsified AhmedMahomeds account to the extent of Rs. 70,000.

At 2 P.M. to-day I went to Hadjee Jackariah Mahomeds officeand asked the servants for the books of 1886-1887; they said the books wereupstairs. I said bring them down. They said saheb logue have gone out; thebooks (duftur bund hai). I asked where the sahebs were. By sahebs I mean mymasters. I went upstairs and saw the books being looked at by one Tyub. He is awriter. I saw him looking at the account of Ahmed Mahomed. I then gotsuspicious (humara dil mai shuk paida. hua) that whatever goolmal was in theaccount would be discovered (khubber malum hoga). I went to Ahmed Mahomed athis house at Nibbotollah Gully. He was asleep. I asked his wife to wake him.She did so. I went, and said to him: The saheb logue are looking at your account,on that; account (yihsubab se), you go to them and tell them you have taken allthe money, and that whatever money you have got you will give them and ask themto forgive you. He then said to me, dont take or mention my name (humara nammut lo); you take it all upon yourself (tumara oopar sub lo) and say you did itall, and if afterwards they do anything I will spend money to defend you (rupiakhuruch karag e tumko bhachane ke waste) ; you say the cash was with NoorMahomed, and that if. you made mistakes (bhoolkya) Noor Mahomed knows it all. Ithen said I will not tell all these lies. If you dont go, they will be angry,and will take out warrants against us and arrest us, and then your izzut(respect) will not remain. He then said you go; I am getting fever; go home andlie down and say you are not well (tubeeat accha nahi). 1 said I would not tellthese lies; that I was going to the sahebs. I left Ahmed Mahomed, and as I wasgoing to office I met with Hadjee Vydanah, one of my masters, in the street andtold him everything, and he took me to you (Mr. Hume.) I have got Rs. 1,500 orRs. 1,600 in notes, and Rs. 700 or 800 in jewellery left from this fraud, andif my masters will take this property, 1 will give it up. I have received inthis fraud from Ahmed Mahomed about Rs. 9,000.

4. After hearing the application the Magistrate granted asummons against the defendant No. 1, Ahmed Mahomed, and a warrant againstdefendant No. 2, Topun Ramchore.

5. On the same day, after grant of process against the defendantsMr. Hume, upon the same materials upon which he had applied for warrants,applied "for a search warrant to search the premises No. 13, PollockStreet, Calcutta, the place of the business of the accused Ahmed Mahomed forthe books of his business for the years 1882 to 1887 inclusive." Thisapplication was made in the presence of Ahmed Mahomed who happened to be in theMagistrates Court as a complainant in a case, and the Magistrate called hisattention to the fact that such application was being made.

6. The Magistrate order upon this application was"issue search warrants." The search warrant was in the followingterms:

To Inspector Merriman--

Whereas Ahmed Mahomed and another has been charged before meof the commission, or suspected commission, of the offence of cheating, and ithas been made to appear to me that the production of khatta books for the years1882 to 1887 is essential to the inquiry now being made, or about to be made,into the said offence or suspected offence;

This is to authorize and require you to search for the saidproperty in the house of Ahmed Mahomed, No. 13, Pollock Street, and if found toproduce the same forthwith before this Court; returning this warrant with anendorsement certifying what you have done under it immediately upon itsexecution.

Given under my hand and seal of the Court, dated this 20thday of August 1887.

8. The search warrant was executed on the 21st August. Whatwas done in pursuance of the search warrant appears by an endorsement thereon,which is as follows:

Warrant executed in the presence of the following gentlemenby Inspectors Merriman and Hefferman on the 21st August 1887, vis.: Mr. Upton,Attorney-at-law, Mr. Manuel, Attorney-at-law, Hadjee Yusuff Mahomed, HadjeeAbdoola Dagrna, Hadjee Noor Mahomed, Hadjee Abdoola Zackariah Solyman, MahomedMoosa and defendant Ahmed Mahomed.

The following books and papers were found at No. 13, PollockStreet.

Room on ground floor.

1. Nine khattas, one marble paper cover book, and some loosepapers.

2. On a wooden almirah, 11 khattas, four marble paper coverbooks.

3. Inside the same almirah, three khattas.

4. On a wooden tucktapose, one khatta.

5. On the wall, three files of papers.

6. One wooden box, locked, containing some khattas andpapers. The box after being locked is taken over by the Police, and the keykept with Moosa, defendants son.

7. Inside a large wooden box, three small bundles ofmanuscript.

8. In an adjoining godown in a wooden box with brass dampssome loose papers.

9. In an inner godown, the door of which was locked, insidea roll of canvas, six khattas.

At this stage Hadjee Osman arrived.

10. In a wooden chest on a table, one khatta and four presscopy letter books.

Upstairs bed room.

11. In an almirah, glass panes, two envelopes containingmanuscript.

12. On the top of a box, nine khattas and 1 torn khatta.

13. On the top of another almirah, four small khattas.

14. Three files of papers.

15. On an iron safe, eight English bound books.

16. On the top of another almirah, one khatta and one bundleof papers.

17. Inside a Bombay carved almirah, six small khattas. Inthe drawer thereof, two khattas, one bundle of papers. In another drawerthereof, one bundle of papers.

18. In a wooden almirah a bundle of letters.

19. One wooden box, looked, containing papers, the key withHadjee Mahomed Yusuff.

20. Inside the small iron safe opened by Hadjee YusuffMahomed, 3 G.C. notes of Rs. 100 each, R/91 26200, 26199, 26198 not taken. OneBengali document on Re. 1 stamp paper which is kept inside wooden box No. 19.

21. In a glass case adjoining, two small khattas and twoletters.

At this stage Babu Mohendro Nath Dutt, pleader fordefendant, came in. In the adjoining room Hadjee Ahmed Ismail here comes withthe keys of the two safes.

The one in this room is opened; only jewellery found. In thelarge safe opened in the first room nothing found except some title-deeds,&c, not taken.

22. In the office room, in a tiled shed outside the house, alarge chest full of books.

23. In the upper shed, over the coach-house, two khattabooks, one file of old papers, one account book.

All the above are contained in three wooden boxes and twogunny-bags which were sealed by defendants people before taken away by thepolice.

9. On 22nd August, Mr. Pittar, an attorney, appeared beforethe Magistrate on behalf of Ahmed Mahomed and applied that the warrant might beset aside, and that the prosecutors might not be allowed to inspect the booksfound by the Police on the premises No. 13, Pollock-Street, on the previousday. Mr. Hume opposed the application, and it was refused.

10. On Mr. Humes application the Magistrate ordered thatthe prosecutors should have inspection of the books on notice to the accusedAhmed Mahomed.

11. On the same day the following notice was served uponAhmed Mahomed:

Take notice that we, on behalf of the prosecutors abovenamed, propose tomorrow, Tuesday, the 23rd day of August instant, at 12oclock, at noon, with the permission of the Magistrate of the Northern Divisionof Calcutta, and in company with a member of prosecutors firm, to inspect inthe Court of the said Magistrate the several books and documents, now lyingthere and belonging to you. This notice is given you in order that you may, ifso advised, attend at the said inspection either personally or by solicitor orsome other representative.

11. On 23rd August, Mr. Wheeler, an attorney, appearedbefore the Magistrate on behalf of Ahmed Mahomed, and applied to have thesearch warrant set aside; the Magistrate refused the application. Mr. Wheelerthen applied for a postponement of the inspection of the books for four days toallow him to get complete instructions; but the Magistrate declined to grant alonger postponement than 24 hours, and directed the inspection to take place atthe Court House in the presence of the accused or his agent, and an officer ofthe Court, on the following day. On 24th August, Mr. Chatterjee, counsel forthe accused, applied to the Magistrate to set aside the search warrant, whichhe refused to do, and directed that the inspection should take place in theCourt House, in the presence of Ahmed Mahomed or his agent, and an officer ofthe Court, The inspection of the books thereupon commenced in the Magistratesoffice, in the presence of a pleader on behalf of Ahmed Mahomed, of Mr. Hume,of Noor Mahomed, and of two officers of the Court.

12. During the progress of the inspection an account ofTopun Ramchore with Ahmed Mahomed was discovered in the books for the year1882, showing payments of various sums of money by Ahmed Mahomed to TopunRamchore amounting to Rs. 4,158; and certain entries in one of the khatta bookswere initialled by Mr. Hume, who brought the fact of the alleged discovery tothe notice of Ahmed Mahomeds pleader, and requested him to go and see thebook, which the pleader declined to do, saying, "what is the use of mygoing."

13. On the 25th August Mr. Bonnerjee applied to us for arule calling upon the prosecutors to show cause why the order granting thesearch warrant and the order granting inspection of the books should not be senaside. We took time to consider whether we should grant a rule, and intimatedthat, in the meantime, the inspection should not be proceeded with.

14. On 29th August we granted a rule "to show cause whythe Magistrates order of 23rd August granting inspection of all books, papers,and documents found by the police at the premises of the accused Ahmed Mahomedand seized and brought away by them to his Court should not be set aside, andsuch other order made on the premises as to this Court may seem meet."

15. The rule was argued before us on the 7th, 8th and 9thSeptember ; Mr. Hill and Mr. Palit appearing in support of it; theAdvocate-General Mr. Garth showing cause.

16. Mr. Hills first argument was that the issue of a searchwarrant by a Magistrate is a judicial act; that before he can have "reasonto believe" within the meaning of Section 96 of the Criminal ProcedureCode, be must be satisfied by judicial inquiry; and he urged that this warranthad been granted without a proper judicial inquiry and upon insufficientmaterials.

17. In support of the first branch of his argument, he citeda passage from 2 Hale P.C. 15 and Queen v. Hossein Ali Chowdhry 8 W.R. Cr. 74.

18. I agree with Mr. Hill that the issue of a search warrantis a judicial act, and that it ought only to be issued after judicial inquiry,and upon proper materials. But assuming the point taken by the learned Counselto be open to him upon argument of the rule as granted, upon which I entertainthe gravest doubt, I can see nothing to lead me to the conclusion that thissearch warrant has been issued without a judicial inquiry or upon impropermaterials.

19. Mr. Hills second objection was that the warrant was badon the face of it. Here again I must say that I have considerable doubt whetherthis point is open to argument upon this rule. But assuming that it is, I am ofopinion that the warrant is good.

20. Mr. Hill argued that, by virtue of Section 554 of theCriminal Procedure Code, the forms in Schedule V are to be taken as integralparts of the Act; that, therefore, the words "specify clearly" inForm VIII of Schedule. V are an integral part of the Act, and that the recitalin the warrant "that the production of khatta books for. the years 1882 to1887 is essential to the inquiry now being made or about to be made," wasnot a clear specification. No doubt, it would have been better if the warranthad recited "that the production of the khatta books of the said Ahmed Mahomedfor the years 1882 to 1887 is essential ."

21. But I think that the warrant must be looked at as awhole.

22. It recites that a charge has been made against AhmedMahomed, that the production of khatta books for the years 1882 to 1887 isessential to the inquiry, and then it authorizes the officer to whom it isdirected "to search for the said property in the house of AhmedMahomed" (it would have been better if it had said "the said AhmedMahomed" "No. 13, Pollock Street." I think the warrant sufficientlyclearly shows that it was the accuseds khatta books for the years 1882 to 1887that had been made to appear to be essential to the inquiry, and that it wasthose khatta books which the officer to whom the warrant was directed was tosearch for. In support of his argument, Mr. Hill referred to Entick v.Carrington 19 Howell State Trials 1030. The facts of this case are so familiarto every lawyer and every student of the constitutional history of England,that it would be affectation and waste of time to give even the briefestoutline of them. The case decided, amongst other things, that general warrantswere bad. The warrant in this case is not a general warrant, but as I havealready pointed out, a warrant to search for and seize certain specifieddocuments.

23. Mr. Hills next argument was that there was no powerunder the Criminal Procedure Code to issue a search warrant for documents atall. Again calling in aid the provisions of Section 554 of the CriminalProcedure Code, and reiterating the argument; that by virtue there of Form VIIIin Schedule V was an integral part of the Act, he contended that a document wasnot "a thing."

24. Now assuming that the forms in Schedule V of theCriminal Procedure Code are by virtue of Section 554 of that Code to be takenas integral parts of the Act (a very large assumption I think), they clearlycannot over-ride and render nugatory the enabling sections.

25. Section 94 of the Criminal Procedure Code, so far as ismaterial to this case, bays: "Whenever any Court considers that theproduction of any document or other thing is necessary or desirable for thepurpose of any investigation, inquiry, trial or other proceedings under thisCode by or before such Court, such Court may issue a summons to the person in whosepossession or power such document or thing is believed to be,, requiring him toattend "and produce it or to produce it at the time and place stated inthe summons." Section 96 of the Criminal Procedure Code says, so far as ismaterial to this argument: "When any Court has-reason to believe that aperson to whom a summons under Section 94 has been or might be addressed willnot or would not produce the document or other thing as required by suchsummons, it may issue a search warrant, and the person to whom such warrant isdirected may search or inspect in accordance therewith and the provisionshereinafter contained." The words of Section 94 are of the widest possiblecharacter. Any person in whose possession or power a document or other thing,which the Court considers necessary or desirable for the purposes of anyinvestigation, inquiry or trial, is, may be summoned to produce it. The wordsof Section 96 are equally wide. Any person to whom a summons under Section 94has been or might be addressed, and who, the Court has reason to believe, willnot or would not produce the document or other thing, is liable to have hispremises searched; searched for what Surely for the document or other thingwhich the Court has reason to believe he will not or would not produce. Thewhole object of Section 96 would be frustrated if we were to hold that becauseForm VIII, Schedule V, says, "specify the thing clearly" and not"specify the document or other thing clearly," there was DO authorityto issue a search warrant for a document. I do not think it would serve anyuseful purpose to consider as Mr. Hill invited us to do, whether a searchwarrant for documents in the premises of an accused person could be lawfullyissued in England. The judgment in the Court of Common Pleas as delivered byLord Camden in Entick v. Carrington 19 Howell State Trials 1030 is no doubt agreat, almost an overwhelming, authority against the legality of such aproceeding; and it may be that the issue of a search warrant in the case of Reg.v. Colucci 3 F. and F. 103 was illegal; see the note of Mr. Graves, the learnedauthor of Russell on Crimes, at p. 433 of Vol. III, 5th Edition.

26. The judgment of Lord Camden was based upon the fact"that there was no written law giving any Magistrate powers to issue asearch warrant for papers." The absence of such statutory authority, whichcontinues, as far as I know, up to the present time, is no doubt the reason forMr. Graves query. Amongst the many astonishing legislative enactments of thiscountry, there is one authorizing under certain circumstances the issue of asearch warrant for documents not only in the premises of an accused person, butalso in the premises of any other person in the world, using the word"world" in a somewhat restricted sense.

27. I dont think I do Mr. Hills able and exhaustiveargument any, serious injustice when I say that the points to which I havealluded were in the nature of preliminary skirmishes, attacks upon his enemiesoutpost, preparatory to the real combat which was waged upon the right claimedby the prosecution to inspect the books.

28. Mr. Hill urged that any right on the part of theprosecution to inspect these books must depend upon the statutory law of theland. Section 5 of the Criminal Procedure Code, he pointed out, enacts that"all offences under the Indian Penal Code shall be inquired into and triedaccording to the provisions hereinafter contained;" and if he said, theCriminal Procedure Code is silent, as the Advocate-General admitted it is as toany, right of inspection of documents seized under a search warrant, theycannot be inspected, at any rate not by the prosecution.

29. It was urged that the only object of Sections 94 and 96of the Criminal Procedure Code was to procure the production of documents. Itwas pointed out that the heading of the chapter in which these sections find aplace is "Of process to compel the production of documents and for thediscovery of persons wrongfully confined ;" that in Act X of 1875, whichcontains in Sections 86 and 87 provisions similar to those in Sections 94 and96 of the Criminal Procedure Code, the chapter in which those sections are tobe found is headed "Of securing attendance of witnesses and production ofdocuments;" that in Act IV of 1877, which in Sections 144 and 145 alsocontains provisions similar to those of Sections 94 and 96 of the present Code, the chapter in which those sections occur is headed "Of evidence,"and the subdivision of the chapter containing Sections 144 to 147 is headed"Of securing documentary evidence."

30. It was admitted by the Advocate-General, as contendedfor by Mr. Hill, the word "inspect" in Clouse 3 of Section 96 of theCriminal Procedure Code applies only to locality or place, not to"document or other thing." A reference to Section 97 of the CriminalProcedure Code shows that this view is correct.

31. Mr. Hill then entered into an elaborate history of thelaw of discovery. He pointed out that at common law there was DO right todiscovery in civil cases; he traced the action of the Courts of Equity inaiding discovery in civil actions, and stated the main principles upon whichthose Courts acted in granting discovery to be three in number, viz., 1st, thatthe documents sought to be discovered should be specifically mentioned; 2nd,that discovery should only be granted as against the parties to a suit; 3rd,that it should only be granted in aid of civil rights; and he cited authoritiesto show that these were the principles upon which Courts of Equity had acted. Theseprinciples, he contended, found legislative sanction in the statute law of thiscountry. The first principle was embodied in Section 163 of the Civil ProcedureCode; the second in the provisions of Chap. X of the Civil Procedure Code; andthe third in Section 132 of the Evidence Act. Having traced the history ofdiscovery in relation to civil actions, Mr. Hill pointed out that there were noprovisions in the Criminal Procedure Code similar to those contained in Chap. Xof the Civil Procedure Code, and this he said was because the common law withregard to discovery had never been modified by statute with reference tocriminal cases; nor had the second of the three principles upon which Courts ofEquity acted in aid of the common law ever been applied to criminal cases.There was, urged Mr. Hill, no right of discovery at all in criminal cases. Insupport of this proposition the following authorities were cited, viz., BaconsAbridgment, Vol. 2, p. 286, title "Evidence"; 3 Russell on Crimesp.433 (5th Ed.); Reg. v. Mead 2 Ld. Kaym 927; Rex v. Purnell 1 Wilson 239; Rexv. Cornelius 2 Str. 1210; Roe d. Haldane v. Harvey 4 Burrows 2484; Rex v.Justices of Buckingham 8 B. & C. 375; and Rex v. Earl of Cadogan 5 B. &AId. 902. I have examined all these authorities, and no doubt they establishvery clearly the proposition that the English Courts, from an early date, downto the year 1828, have constantly refused to compel discovery in criminalcases.

32. With great respect to the learned Counsel, I must takeleave to say that this argument, able and captivating as it was, is beside themark. The Legislature in this country has authorized the production, and, undercertain circumstances, the compulsory production, of an accused personsdocuments in Court. The question is, what are the rights of the prosecutionwith regard to them now they are in Court Mr. Hills answer to the question,which I put to him during the course of the argument, is this : They may, uponthe chance that a certain entry in one of the books will support their case,call for the entry and examine it, and if they do this they must put it in,whether it tells for them or against them. If this is so the prosecution wouldbe in a worse position than a plaintiff in a civil suit, for though a party callingfor a document which he has given the other party notice to produce is bound,if the document is produced and inspected, to put it in if required to do so,yet as a matter of practice notice to a party to produce documents is not givenunless the party giving it has obtained a knowledge of their contents, eitherfrom answers to interrogatories or by inspection before trial, or from someprivate source.

33. When once an accused persons documents are in thepossession of the Court by virtue of the due execution of a search warrantissued under the provisions of Section 96 of the Criminal Procedure Code. I cansee no distinction between such documents and those of any description foundupon his person at the time of his arrest or on his premises at the time of, orsubsequent to, his arrest. I asked Mr. Hill in the course of the argument if hecould point to any distinction and he admitted that he could not. Nor can I seeany distinction between such documents and any other things found upon aprisoner when arrested, or upon his premises at the time of or after hisarrest. That documents or other things found upon a prisoner at the time of hisarrest, or upon his premises at the time of, or subsequent to, his arrest, maybe used in evidence against him if material to the issue, is too plain forargument. The books are full of reports of cases where this has been done; itis a matter of daily occurrence at every Criminal Assize, at every QuarterSessions.

34. Now can it be argued with any show of reason that thepolice or the solicitor for the prosecution are not to have an opportunity ofinspecting and examining documents or other things found upon a prisoner whenarrested, or upon his premises at the time of, or subsequent to, his arrest,before tendering them as evidence A man is charged with burglary. The evidenceshows that he was found in a counting-house where there was a safe, that thewindows of the counting-house had been forced upon, and the safe unlocked. Uponthe prisoner, when arrested, or at his premises at the time of, or subsequentto, his arrest, are found house-breaking instruments and a bunch of keys; theprosecution allege that the window was forced open with one of thehouse-breaking instruments, and the safe opened with one of the keys; must theyproduce the frame of the window before the Court and the house-breakinginstruments, call for the latter one by one, and try each separately to see ifit fits the lock of the safe If this is the law it is consistently andpersistently broken every day, and if it is the law one would expect to findsome trace of an expression of opinion by some Judge that it is so; and weshould expect to find that amongst the thousands of learned Counsel who havedefended prisoners an objection was taken, that the police had no right toascertain before they came to Court, whether any of the house-breakinginstruments fitted the window frame, or whether any one of the keys fitted thelock, or, in other words, that the police had no right to inspect the house-breakinginstruments or the keys. I might multiply illustrations, but I will take areported case. In Reg. v. Bernard v, which was a trial under a specialcommission before Lord Campbell, C.J., Pollock, C.B., Erle and Crowder, JJ., asergeant of police stated that after the prisoner was in custody he hadsearched a room at his residence and there found a letter from one Allsop whichhe had handed to the solicitor for the Treasury; the Attorney-General, Sir FitzRoy Kelly, proposed to have the letter read, and this before any evidence hadbeen given to connect Allsop with the prisoner. Now can it be conceived thatthe letter had not been read by the solicitor to the Treasury when he waspreparing his briefs and by the Attorney-General before he proposed to have itread How else could they have known whether or not it was relevant to theenquiry The prisoner was defended by Mr. Edwin James, Q.C., Mr. Simon, Mr.Hawkins (now Mr. Justice Hawkins), Mr. Sleigh, Mr. Brewer and Mr. Scobell; theyobjected to the admission of the letter, not upon the ground that the Court orthe Treasury had no right to its custody, or to inspect it, but upon the groundthat the charge against the prisoner being one of murder, the principle uponwhich, upon a charge of treason, documents found after the arrest have beenheld, admissible did not apply. Admitting that the letter was shown to havebeen in the prisoners possession, there was no evidence, beyond the receipt ofthe letter, which was a passive act, to connect him with the writer. The Courtwas unanimously of opinion that the letter was admissible "not on theground that the writer of the letter was a co-conspirator with the prisoner,but on the ground that it was found in the prisoners possession, and that itscontents were relevant to the present inquiry."

35. If I am right in holding that documents and other thingsseized upon the premises of an accused person by virtue of a search warrantissued under Section 96 of the Criminal Procedure Code stand upon precisely thesame footing as documents and other things found in his possession upon alawful arrest for an offence under the Indian Penal Code, which, as I havealready pointed out, it is not denied by Mr. Hill, and which I think is thecase, it seems to me to follow as a matter of course that there must be a rightof inspection.

36. The question of the legality of the seizure of chattels,including documents in the possession of persons charged with an offence, wasconsidered very lately in the case of Dillon v. OBrien 20 ILR 300. The factsof that case were as follows: The plaintiff was engaged in carrying out thenotorious "Plan of the campaign" (the modus operandi of which I neednot describe), which was admitted to amount to a conspiracy at common law. Whilstso engaged he was arrested upon a warrant, and certain Bank notes, gold andsilver coins, paper books, paper documents and writings then in his possessionwere seized. The plaintiff brought an action of the over in respect of thechattels seized; the defendant justified getting out the warrant for the arrestof the plaintiff, and justified the seizure of the chattels "for thepurpose of producing the same as evidence on the prosecution of theplaintiff," averring that the same was and are material and necessary evidencein the said prosecution; the plaintiff demurred, and the demurrer was arguedbefore Palles, C.B., Dowse, B., and Andrews, J. In delivering the judgment ofthe Court, Palles, C.B., says: "I, therefore, treat it as clear and beyonddoubt that, at least in cases of treason and felony, constables (and probablyalso private persons) are entitled, upon a lawful arrest by them of one chargedwith treason or felony, to take and detain Property found in his possessionwhich will form material evidence in his prosecution for that crime; and I takethe only real question upon this defence as being whether this right extends tocases of misdemeanour.

Although no case has been cited (nor have I myself foundany) in which the right has (in reference to misdemeanours) been judiciallydecided to exist, or any text-book which draws the distinction here attemptedto be taken, the circumstances of one case at least, viz., that so much reliedon for the plaintiff Entick v. Carrington 19 Howell State Trials 1029 were suchthat, if there was any trace of such a distinction, it could hardly fail tohave been referred to either at the Bar or by the Bench. The absence, however,of express or direct authority entitles the defendants to have the matterdetermined on principle.

For this purpose I must first ascertain the reason of therule as applicable to felony. The characteristic by which felony isdistinguished from misdemeanour is that at common law the goods of the felonwere forfeited upon conviction. The only right, however, to these goods whichthe books mention as being in the Crown before conviction, by reason of thepossible future conviction, is that of taking (and detaining them for areasonable time) for the purpose of making an inventory. Such a right hasnothing in common with that of taking for the purpose of evidence. Forfeiturein felony, therefore, cannot be the origin of the right. To what then is it tobe referred Its purpose and object, viz., to produce in evidence in ajudicial proceeding, appears to me to show that it must be derived from theinterest which the State has in a person guilty (or reasonably believed to beguilty) of a crime being brought to justice, and in a prosecution, oncecommenced, being determined in due course of law. On the existence of thisinterest in the state many of the most important principles of ourjurisprudence depend. It is this which renders illegal an agreement tocompromise a prosecution, whether for felony or, [with one possible exceptionKeir v. Leeman 9 Q.R. 371 for misdemeanour. It is this, too, which preventseven a malicious prosecution against an innocent person constituting a cause ofaction if there be reasonable and probable cause for its institution. Theparamount nature of this interest is well illustrated by the power which, forthe purpose of enforcing it, the law gives to the officer in whose custody aperson charged with a crime lawfully is. There is no doubt that he may kill hisprisoner in case of resistance if he cannot otherwise secure his custody; and thisas well when the charge is misdemeanour as felony. But the interest of theState in the person charged being brought to trial in due course necessarilyextends as well to the preservation of material evidence of his guilt orinnocence as to his custody for the purpose of trial. His custody is of novalue if the law is powerless to prevent the obstruction or destruction of thisevidence, without which a trial would be no more than an empty form. But ifthere be a right to production or preservation of this evidence, I cannot seehow it can be enforced otherwise than by capture.

If material evidences of crime are in the possession of athird party, production can be enforced by the Crown by subpoena duces tecum.But no such writ can be effective in the case of the person charged.

It appears to me to be clear that this must be the origin ofthe right in felony, and that, being derived from the common law, it ought,prima facie at least, to be deemed to exist in all cases in which that interestof the State exists, and cannot (at least without express authority) be soconfined as to be inapplicable in cases of custodies of such value in the eyesof the law as to justify, for their preservation, the taking of life.

Let me, however, assume for a moment that the rule does notextend to misdemeanours, and see whether the results which necessarily wouldflow from this distinction would be those reasonable ones which usually arefound to spring from the application of rules having their origin in the commonlaw. All attempts to commit felonies are, at common law, misdemenours only, andtherefore inflicting a mortal wound was, at common law, until the actual deathof the victim, no more than a misdemeanour; and if we are to confine the rulein question to felonies, we must face this absurdity, that in oases of murder,by firing at, wounding, or poison, the right of the constable to take theinstrument of the crime and the evidence of guilt would depend, not upon thecommission of the act which results in death, but upon the victim havingactually ceased to breathe. All reason is against such an implication; and Ican be no party to it unless coerced by authority.

This brings me to the only case relied on by theplaintiff-Entick v. Carrington 19 Howell State Trials 1063 (1064). The questionthere was as to the legality of a warrant; not only to seize and apprehend theplaintiff and bring him before a Secretary of State, but also to seize hisbooks and papers. In that case there was no allegation of the plaintiffs guilt,nor that there was a reasonable and probable cause for believing him to beguilty , nor that a crime had, in fact, been committed by any one, nor that hehad in his possession anything that was evidence of (or that there werereasonable grounds for believing might be evidence of) a crime committed by himor any one else. The nature of the question there is shown by the statement ofLord Camden (1),that, if this point should be determined in favour of thejurisdiction, the secret cabinets and bureaux of every subject in this kingdomwill be thrown open to the search and inspection of a messenger whenever theSecretary of State shall think fit to charge, or even to suspect, a person tobe the author, printer, or publisher of a seditious libel. Lord Camden takespains to show that the word papers in the warrant could not, in point of law,be restrained to libelous papers only; and he adds: All the papers and books,without exception, if the warrant be executed according to its tenor, must beseized and carried away, for it is observable that nothing is left either tothe discretion or to the humanity of the officer. It was, of course, decidedthat that warrant was illegal; but the case as a decision is not in point here.The right here claimed is not to take all the plaintiffs papers, but thoseonly which are evidence of his guilt; and the claim is based, not as in Entickv. Carrington 19 Howells State Trials, at pp. 1063 (1064) upon a warrantissued upon mere suspicion, but upon an allegation of actual guilt and a lawfulapprehension of the guilty person. If (by the law as then understood) the rightto seize evidences of guilt in the possession of the person charged wasconfined to cases of treason and felony, the judgment would have been rested onthat simple ground; the care which was taken to show that the warrant embracedall papers [132] would have been thrown away, and the entire of the elaboratejudgment of Lord Camden would have been unnecessary. For myself I am satisfiedthat, in pronouncing that judgment, Lord Camden had not before his mind casesof seizure of evidences of guilt upon lawful apprehension as distinguished fromgeneral warrants to seize all papers.

37. In this country there is no distinction between felonyand misdemeanour. Now, if the right to seize and detain property of anydescription in the possession of a person lawfully arrested for treason,felony, or misdemeanour rests "upon the interest which the State has on aperson guilty or reasonably believed to be guilty of a crime being brought tojustice, and on a prosecution, once commenced, being determined in the duecourse of law," how can such interest be protected unless there is a rightto inspect as well as to seize and detain The latter would be almost uselesswithout the former, Mr. Hill admitted that, though there was no expresslegislative enactment authorizing him to do so, the

38. Magistrate might inspect these books, but he said hecould not delegate his authority.

39. Now the Magistrate is not conducting the prosecution: itis no part of his duty to suggest or dictate what evidence shall be put in.

40. I am fully conscious of the dangers to which Mr. Hilland Mr. Palit alluded as possibly resulting from this view of the law. I admitthat, if the right of inspection claimed here exists, it exists equally withregard to the books of third parties. There is nothing, except the discretionof the Magistrate, to prevent the seizure of the books of any merchant orbanker in this city. There is nothing except the discretion of an officer incharge of a police-station to prevent the seizure of the books and plant of anindigo concern in the mofussil.

41. But as Maule, J., said in the well-known bigamy case,"that is no business of mine." All I have to do is to interpret the lawof this country to the best of my ability.

42. If the dangers to which attention was called are real,and I think they are not only real but forcible, the Legislature must beinvoked to remove them.

43. I am of opinion that the Magistrate had a right to allowinspection of these books, and that consequently this rule should be discharged; but the inspection must be limited to the books named in the search warrant.

S.C. Ghose, J.

44. This rule arises out of an order made by the PresidingMagistrate of the Northern Division of Calcutta on the 23rd August last,granting inspection of all the books and papers found in the premises of oneAhmed Mahomed, and seized and brought up by the police under a search warrantissued by the said Magistrate on the 20th idem. The circumstances of the caseare shortly as follow:

On the 20th August last Mr. Hume, on behalf of the firm ofMessrs. Jackariah & Co., laid an information before the Magistrate againsttwo individuals, Ahmed Mahomed and Topun Eamohore, charging them with theoffence of cheating in a large sum of money; and in support of the applicationthat Mr. Hume made, one Noor Mahomed, a member of the aforesaid firm, wasexamined, and a statement made before Mr. Hume by Topun Ramchore on theprevious day, i.e., on the 19th idem, was produced before the Magistrate. Theevidence of Noor Mahomed was shortly to the effect that both the accused hadcheated the Company in the sum of about a lac of rupees between the years 1882to 1887; and the statement of Topun Ramchore was that he entered into aconspiracy with Ahmed Mahomed in defrauding the Company in the manner in whichthey did. The Magistrate, upon the materials that were laid before him, ordereda summons to issue against Ahmed Mahomed, and a warrant of arrest against theother accused, Topun Ramchore. Later on the same day, it would appear that anapplication for a search warrant was applied for on behalf of the prosecutorfor the purpose of searching the premises of Ahmed Mahomed, No. 13, PollockStreet, for the books of his business from 1882 to 1887. The order that waspassed upon this application was, that a search warrant do issue; and, inaccordance with this order, a warrant was drawn up in the form prescribed byNo. 8, Schedule V of the Criminal Procedure Code. The warrant was as follows :(Reads warrant; see 15 C. pp. 116, 117).

45. The police on the authority of this warrant went to thepremises, No. 13, Pollock Street, and seized not only certain khatta booksfound on the premises, but also various other papers as detailed in the returnof the police: and in due course forwarded the same to the Court of theMagistrate. It also appears that, subsequent to the issue of the order of the20th of August for a search warrant, several applications were made on behalfof Ahmed Mahomed for the purpose of withdrawing. . the said order, but theywere refused ; and on the 23rd of August the order, which is the subject-matterof this rule, was made by the Magistrate, viz., granting to the prosecutorinspection of the books and papers found in the house of the accused andbrought up by the police.

46. The application that was made to us on behalf of AhmedMahomed questions the legality of the order granting a search warrant, as alsothat of the order granting inspection of the books and papers, but the rulethat was granted was, rightly or wrongly, confined to the order of inspection.This rule has now been heard before us, and discussed at considerable length,and with great ability, by the learned Counsel on either side.

47. Mr. Hill on behalf of Ahmed Mahomed, in the first place,contended that there were no materials whatever before the Magistrate, properlyso called, upon which he could grant under Section 96 of the Criminal ProcedureCode the order for a search warrant. If the matter was open before us, speakingfor myself, I should be inclined to hold that the said order of the Magistratewas bad in law, for it would appear that no summons under Section 94 of theCriminal Procedure Code was in the first instance issued upon Ahmed Mahomed forthe production of any particular documents ; and there was nothing to indicateupon the evidence of Noor Mahomed that there was any reason to believe that thesaid documents would not be produced upon summons being served. And as regardsthe statements made before Mr. Hume by Topun Eamchore, I need hardly say thatthey were no evidence whatever against Ahmed Mahomed; and besides, there wasalso nothing even upon those statements to justify the grant of a searchwarrant. Search warrants are judicial acts, and must be granted upon propermaterials. But, as I have already said, the matter is not open before us, andthe order itself having been executed, and the books and papers having beenbrought up before the Magistrate, the question does not now really arise.

48. The next point that was raised by Mr. Hill was that thewarrant that was issued was bad, because it was not specific, but too wide andgeneral in its character. As to this matter it seems to me that, although itwould have been desirable, nay proper, for the Magistrate to specify the booksof what particular business, and whose books were to be brought up, still therecan he no doubt what the warrant really meant ; and it does not appear that anysuch objection, as is now raised, was raised before the Magistrate. I thinkthat the accused has not been prejudiced by reason of the specification of thedocuments required to be seized being somewhat indistinct ; and on this ground,and also on the ground that upon the rule as granted the matter is not properlyopen before us, I agree with my learned colleague in disallowing the objection.

49. The next matter that was urged by Mr. Hill was that ingranting an order for a search warrant, and also in granting inspection of allthe documents brought up, the Magistrate has in effect compelled the defendantto make a discovery as against himself in aid of the criminal prosecution. Hecontended, quoting many authorities, that in England no man could be compelledto produce evidence so as to criminate himself, and that discovery was onlygranted in equity in aid of civil rights, and never in aid of a criminalprosecution; and he argued that the law in this country ought to beadministered in the same way as in England.

50. There can, I think, be no doubt, upon the authoritieswhich have been laid before us, that in England the law is as it has beencontended for; but it seems that the law in this country is not the same. Witha view to see how the law which we have to administer stands, it may be necessary shortly to refer to the history of the legislation on the subject,and in doing so, it is not necessary to refer back further than the year 1861.In that year an Act, No. XXV of 1861, was passed. Section 114 of that Act ranas follows:

When a Magistrate shall consider that the production ofanything is essential to the conduct of an inquiry into an offence known orsuspected to have been committed, he may grant his warrant to search for suchthing, and it shall be lawful for the officer charged with the execution ofsuch warrant to search for such thing in any house or place within thejurisdiction of such Magistrate. In such case the Magistrate may specify in hiswarrant the house or place or part thereof to which only the search shall extend.

51. It will be observed that the Legislature used theexpressions "anything" and "such thing ;" the word"document" was not specifically mentioned.

52. This Act was amended in some respects by Act VIII of1869, but so far as the particular matter now before us for consideration isconcerned, the law remained the same as in 1861. The next Act upon the subjectis Act X of 1872 by which the law regulating the procedure of the Courts ofCriminal Judicature other than the High Courts in the Presidency town and theCourts of Police Magistrates was consolidated and amended, and the portions ofthis Act which ought here to be referred to are Sections 365 to 367 and ChapterXXVII.

53. Section 365 ran as follows: "Whenever an officer incharge of a police-station, or any Court, considers that the production of anydocument is necessary or desirable for the purposes of any investigation orjudicial proceeding, such officer or Court may issue a summons to the party inwhose keeping such document is believed to be, requiring him to attend andproduce such document at the time and place stated in the summons."

54. Section 336: "If there appears reason to believethat the person to whom the summons is addressed will not produce it asdirected in the summons, such officer or Court may issue a search warrant forthe document in the first instance."

55. Section 367: "Any Court may, if it thinks fit,impound any document produced before it, or may, at the conclusion of theproceedings, order such document to be returned to the person who producedit." It is not necessary to refer in detail to the several sections inChapter XXVII. It is sufficient to say that the law upon the matter of thatchapter, as it existed in 1869, was somewhat amplified.

56. On referring to Sections 365 to 367 it will, however, beobserved that in 1872, for the first time, special provisions were made for theproduction of documents by a party either by summons or by search warrant; andthis was perhaps thought necessary by reason of a decision of the High Court ofCalcutta in Queen v. Hossein Ali Chowdhry 8 W.R. Cr. 74 as to the rightconstruction to be put upon Section 114 of Act XXV of 1861, and as to thepowers conferred thereby upon the Court and police officers in respect ofsearching for documents or any other thing. The party might be, as it isobvious, either the accused himself or a third party, and the Legislature in1872 thought it right to lay it down in clear terms that any party might becompelled to produce documents for the purpose of any investigation or judicialproceeding.

57. It may be useful here to refer to some extent to theproceedings of the Legislative Council upon the Criminal Procedure Bill of1872.

58. It would appear from the speech of Mr. Fitz JamesStephen that was made on the occasion (vide pp. 393-394, Vol. XI of theProceedings of the Legislative Council of India) that be did not quite agreewith several of the provisions of the Bill; and as to the modifications uponthe then existing system which had been made by the Select Committee, hereferred, for the reasons thereof, to his colleagues and specially to the thenLieutenant-Governor of Bengal. The Lieutenant-Governor in his speech in pages409 and 410 then, amongst other matters, said as follows:

The criminal law was, as the honorable member had said, alaw of overwhelming importance in this country; he meant not only the law forthe administration of criminal justice but the executive administration ascarried on through the Magistrates. The prevailing ideas on the subject ofcriminal law had been somewhat affected by the English law; and the departuresfrom the rules of the English law which the Committee recommended were foundedon this ground, that many of the prominent parts of the English law were basedon political considerations, the object of those familiar rules of criminal lawbeing not to bring the criminal to justice, but to protect the people from atyrannical Government, and the functions of juries of the people having beenfor many centuries principally directed to the protection of the interests ofthe people. Not only were those provisions now unnecessary in England, but theywere especially out of place in a country where it was not pretended that thesubject enjoyed that liberty which was the birthright of an Englishman, and itwas not intended to introduce rules into the criminal law which were designedwith the object of securing the liberties of the people. That being so, HisHonour thought they might fairly get rid of some of the rules, the object ofwhich was to secure for the people that jealous protection which the Englishlaw gave to the accused. It seemed to him that they were not bound to protectthe criminal according to any Code of fair play, but that their object shouldbe to get at the truth, and anything which would tend to elicit the truth wasregarded by the Committee to be desirable for the interests of the accused ifhe was innocent, for those of the public if he was guilty. That being so, hewould say that he bad no sympathy whatever for some of those things which hishonourable friend Mr. Stephen had called superstitions. For instance, HisHonour did not see why they should not get a man to criminate himself if theycould; why they should not do all which they could to get the truth from him;why they should not cross-question him, and adopt every other means, short ofabsolute torture to get at the truth. They had already done a good deal in thedirection of clearing away English prejudices, and the Committee proposed tomake further concessions to common sense in the present Bill, &c, &c,&c.

59. It is obvious, upon a consideration of the observationswhich I have just quoted, that the Legislature was quite sensible to the manyimportant differences that existed between the English law and the law whichexisted in this country, and which was then being enacted.

60. One of the matters of difference which must have, as Imay assume, occurred to them was as to the compelling of an accused personfurnishing or producing evidence as against himself; and according to thespeech of the then Lieutenant-Governor, they thought that the same protection,which an accused in England was entitled to receive, need not be extended to anaccused in this country; and that "they were not bound to protect thecriminal according to any Code of fair play, but their object should be to getat the truth;" and that they "did not see why they should not get aman to criminate himself if they could." And I further observe, withreference to the particular matter now before us, that the Select Committee intheir supplementary report, dated the 12th March, 1872, evidently referring toSections 865 to 367 of the Bill, said that they had made "the necessaryprovision for securing documentary evidence and for impounding such documentsas the Court thinks fit." The words " securing documentaryevidence," read by the light of the remarks of the thenLieutenant-Governor, are to my mind significant as showing the intention of theLegislature.

61. Whether the policy which influenced the action of theLegislature in 1872 was right or not, it is not for me to say. But it is clearthat they intended that an accused person might be compelled to furnishevidence, the production of which might have the effect of criminating him.

62. The other Acts that may be referred to upon the samesubject are Act X of 1875 (the High Courts Criminal Procedure Act), Sections79-86; and Act IV of 1877 (the Presidency Magistrates Act), Section 144-147;wherein the law was practically the same as in the Act of 1872.

63. We then come to the present Criminal Procedure Code, ActX of 1882, whereby the previous laws in the Mofussil and in the Presidencytowns were consolidated and amended; and so far as the particular matter beforeus is concerned, the law will be found in Sections 94 to 99.

64. Section 94 runs as follows: "Whenever any Court,or, in any place beyond the limits of the towns of Calcutta and Bombay, anyofficer in charge of a police-station, considers that the production of any documentor other thing is necessary or desirable for the purposes of any investigation,inquiry, trial, or other proceeding under this Code by or before such Court orofficer, such Court may issue a summons, or such officer a written order, tothe person in whose possession or power such document or thing is believed tobe, requiring him to attend and produce it, or to produce it at the time andplace stated in the summons or order.

Any person required under this section merely to produce adocument or other thing shall be deemed to have complied with the requisitionif he cause such document or thing to be produced instead of attendingpersonally to produce the same.

Nothing in this section shall be deemed to affect the IndianEvidence Act, 1872, Sections 123 and 124, or to apply to a letter post-card,telegram, or other document in the custody of the Postal or Telegraphauthority.

65. Section 96 says: "Where any Court has reason tobelieve that a person to whom a summons or order under Section 94 or a requisitionunder Section 95, paragraph 1, has been or might be addressed will not or wouldnot produce the document or other thing as required by such summons orrequisition.

Or where such document or other thing is not known to theCourt to be in the possession of any person.

Or where the Court considers that the purposes of anyinquiry, trial, or other proceeding under this Code will be served by a generalsearch or inspection-

It may issue a search warrant, and the person to whom suchwarrant is directed may search or inspect in accordance therewith and theprovisions hereinafter contained.

Nothing herein contained shall authorise any Magistrate,other than a District Magistrate or Chief Presidency Magistrate, to grant awarrant to search for a document in the custody of the Postal or Telegraphauthorities.

66. It will be observed that the law, so far as theimmediate subject before us is concerned, is practically the same as it was in1872; and there can, I think, be no doubt that the Legislature intended, as Ihave already observed, that an accused person might be compelled to produceevidence against himself; and reading the above sections with Schedule V, No.VIII of the Criminal Procedure Code, the only safeguards, as far as I can see,which the Legislature provides are: 1st, that the documents called for, or inregard to which a search warrant is issued, must be distinctly specified; 2nd,that the documents are necessary for the purpose of the enquiry; and, 3rd, thatwhile granting a search warrant, the Magistrate must exercise his judicialdiscretion, and that he should not make such an order unless the materialsbefore him justify him in so doing.

67. The documents when seized are, as indicated in No. VIIIof the Schedule, to be brought before the Court; and then arises the question,when they are so brought before the Court, whether the Magistrate may grant tothe prosecutor the liberty to inspect them. According to a strict reading ofthe sections themselves, referred to above, there is no power given even to theCourt to inspect them; but it would be simply idle to say that the Court wouldnot have that power. Then, again, the production of such documents is, as thelearned Advocate-General has justly argued, for the purpose of their being usedas evidence in the cause: and one fails to see how it is possible that thisshould be done unless the prosecutor has an opportunity of inspecting them. Itwas contended by Mr. Hill that the Magistrate, and the Magistrate alone, hasthe power to inspect, and that he is bound to determine by examination made byhimself, or through an interpreter, as to the bearing or relevancy of anyparticular document. But it is obvious that the Magistrate does not prosecutethe case, and he has no interest, one way or the other, in the result of theprosecution; and he cannot be expected to know and decide for himself whetherany particular document is to go in as evidence.

68. Whether the documents are necessary for the enquiry is amatter which must be determined by the Magistrate at the time when he makes anorder under Section 94, or issues a search warrant under Section 96; andtherefore it seems to me that, when they are brought before the Court under anorder duly made, the Magistrate would have the power to allow the prosecutorthe inspection thereof. They stand, when they are brought to Court, preciselyin the same position, as my learned brother has so forcibly pointed out, asdocuments or things found either upon the person of a prisoner at the time ofhis arrest, or at his houses upon a search made by the police, and afterwardsforwarded to the Court. On referring to Chapter XIV of the Criminal ProcedureCode, which deals with the power and duties of the police, it would appear thatunder Section 165 the police are authorised to search for any document or thingnecessary for the investigation of a case; and then Section 170 provides, thatif, upon an investigation under that chapter, there insufficient evidenceagainst an accused, he shall forward him to the Magistrate with any weapon orother articles which may be necessary to produce before him, and shall requirethe complainant, if any, and all persons acquainted with the circumstances ofthe case, to appear before the Magistrate, prosecute, and give evidence in thematter of the charge. When, therefore, upon search, a police officer finds anydocuments which he thinks necessary for the investigation of the case, he hasto forward the same to the Court; and this he does evidently under Section 170;and he requires the complainant to appear before the Magistrate and prosecutethe case. Now it is obvious that, in the very nature of things, the prosecutorwould have an opportunity of looking at the documents thus seized; and it isdifficult to conceive that, if in the case of a search and seizure by thepolice, the prosecutor necessarily inspects the documents or articles seized,the Legislature intended that he should not have the same opportunity orprivilege when under the order of the Court any particular document or otherthing is seized under a search warrant and brought up to the Court.

69. Mr. Hill, as also Mr. Palit, contended before us thatthe privilege claimed for the prosecution in this case is not enjoyed by aparty to a suit in civil case when his adversary or a witness in the causeproduces a document in Court; that whereas in the case of a witness, he mayobject to the production of a document called for from him, and in the case ofa party to a suit, if his adversary inspects the document, the latter is boundto put it in as evidence; but that in the case of a criminal trial or enquirythe prosecutor would, if the contention of the learned Advocate-General wasright, be entitled to inspect a document without even being compelled to put itin as evidence. They also called attention to the fact that both the CriminalProcedure Bill and the Civil Procedure Bill passed through the LegislativeCouncil about the same time, and that it was hard to believe that theLegislature could have meant to give to a prosecutor such extraordinaryprivileges which they denied to a party to a civil suit. It is indeed true thatthe cower of inspection is not in distinct terms given in the CriminalProcedure Code to a prosecutor. In fact the Code is silent upon the matter,whereas the Civil Procedure Code clearly makes provision for such inspectionunder certain circumstances. If, however, the argument of the learned Counselfor the petitioner were carried to its legitimate extent, it must come to this,and indeed they did contend for that position, that a prosecutor in a criminalcase can, under no circumstances, be permitted to inspect a document or thingproduced by the police, unless it be at the trial after such document or thingis put in evidence. But even as to this, viz., as to its being put in evidenceat the trial, the Code is silent; in fact it stops short with saving that thedocuments or things when seized by the police are to be brought up to Court.Then, again, who is to put the documents or things in evidence That theLegislature intended that the Magistrate should conduct the case for theprosecution, and have the responsibility of determining by inspection as towhether any document is to go in as evidence, is a proposition which seems tome almost impossible to accept. If this is a correct view, and if we bear inmind the true purpose for which any document or thing is seized and brought upto Court, one cannot help thinking that the Legislature, while providing forthe seizure and production in Court of documents, intended by implication thatthe prosecutor should, under the orders of the Court, have the power, toinspect and determine whether they should go in as evidence.

70. It was further contended by Mr. Hill that all that theprosecutor in this case might have called for were the particular entries inthe books of the accused, and when they were brought into Court they could bepub in as evidence at the trial, and that then the prosecutor would have theliberty of inspecting them. But it seems to me that it would be simplyimpossible for a prosecutor in a case like this to give the precise dates ofthe entries in the books of the accused without inspection beforehand.

71. There is one other matter which I think it right tomention here. It is this, that the order of the Court was to search for andbring up the khatta books of the defendants business from 1882 to 1887. Thepolice evidently exceeded their authority and seized not only certain khattabooks, but also various other papers. I think that those other papers are notproperly before the Court; and it follows that no inspection can be had inrespect to them. While, therefore, I agree with my learned colleague in holdingthat the order granting inspection in the circumstances of this-case cannot beset aside, I think that the inspection should be confined to-the documents coveredby the warrant of the 21st August last.

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Ahmed Mahomed Mahomed Jackariah and Co. vs. Ahmed Mahomed (13.10.1887 - CALHC)