Report No. 69

Chapter 69

Incriminating Documents and Title Deeds

Sections 130 and 131

I. Introductory

69.1. Certain affairs of a man's personal life may require special protection for reasons of public policy. This may be so even though no professional relationship is in issue. A privilege relevant to such affairs is created by section 130 in respect of two kinds of document.- title deeds and incriminating documents. In its earlier half, the section provides that no witness who is not a party to a suit shall be compelled to produce his title deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee. In its latter half, the section provides that no such witness shall be compelled to produce any document the production of which might tend to criminate him. In both cases, a written waiver is permissibl.- as is provided in the following word.- "unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims."

II. Title Deeds

69.2. Section 130-earlier hal.- Necessity in the present days.-

It will be convenient to consider the two parts of the section separately. The earlier half of the section, which enacts the rule that a witness who is not a party shall not be compelled to produce his title deeds1 to any property, is derived from the English law. In English law, this rule was said to be founded upon a consideration of the great inconvenience and mischief which might result to individuals if they are compelled to disclose their titles by the title deeds. The rule was, however, criticised by Cross, writing in 1958 (when the rule was in force), in these words2-

"It is doubtful whether a privilege of this nature ought to survive in modern times, although it is difficult to think of cases in which its continued existence can do much harm."

The law on the subject has now been altered in England by the Civil Evidence Act3, which abolishes the privilege in relation to civil proceedings. The relevant provision of the Act reads

16. Abolition of certain privileges.-(1). The following rules of law are hereby abrogated except in relation to criminal proceedings, that is to say-

(b) the rule whereby, in any legal proceedings, a person other than a party to the proceedings cannot, be compelled to produce any deed or other document relating to his title to any land."

It may be of interest to note that in India also, section 130 has been criticised in these words4-

"In England the law's failure to protect title adequately by legislation and the inevitable risk which was thereby created for even bona fide titles furnished a sufficient explanation, if not a justification. But under a system of compulsory public registration in such privileges there is neither necessity not utility."

1. The expression "title deeds" is used for brevity to cover documents of pledge and mortgage as well.

2. Cross Evidence, (1958), p. 244.

3. Section 6(1)(b), Civil Evidence Act, 1968.

4. Woodroffe and Arnir Ali Evidence, (1959), Vol.. III, p. 1630.

69.3. Recommendation to delete the earlier half.-

In our view, there is considerable force in this criticism. Registration of most documents concerning immovable property is now compulsory or, where an exemption from registration is granted, it is based on some special principle. If a person does not register a document voluntarily, he takes the risk of loss, and should need no special protection whether or not it is compulsorily registrable. If a person gets the document registered, he also needs no special protection, because the title is publicly recorded, and privately. The need for privacy is hardly a valid consideration in respect of proprietary documents which are registered. Even where the document is not registered, it is, in modern times, more likely than not to have acquired some publicity. We therefore recommend deletion of this part of the section.

69.4. Documents relating to title-production by parties.-

It may be noted that section 130 does not deal with the position of parties. So far as parties are concerned, the duty to produce the documents in their possession is a matter entirely outside the section. The rule in the law of procedure is that a party may refuse to produce title deed.- or, for that matter, any other documen.- if the document relates only to his case1 and does not relate to or tend to prove or support the opponent's case and does not contain anything impeaching his own case. This position is not affected by the section.

1. Halsbury's, 3rd Edn., Vol. 12, pp. 38, 39, para. 55, and p. 59, para. 78

69.5. The matter seems to be more one of procedure than of evidence so far as the parties are concerned, and primarily pertains to the subject of discovery1. The following observations in a Madras case,2 which state3 the position in India, bear reference to the Code of Civil Procedure, and not to the Evidence Act:-

"The documents have been filed as relating to matters in issue in the suit, and we think the opposite parties should be allowed to inspect and take copies of them unless they, as privileged in law, relate exclusively to the case of the parties producing them as containing nothing supporting or tending to support his opponent's case."

We do not, of course, recommend any change in this provision of the Civil Procedure Code.

1. As to discovery, see Order 11, rules 13, 14, 15, Code of Civil Procedure, 1908.

2. Halamonory v. Romaswamy Chettiar, ILR 30 Mad 231.

3. See also Vinayak v. Norottam, ILR 17 Born 581.

III. Incriminating Documents

69.6. Section 130-Latter half-Applicability to documents incriminating spouse.-

This disposes of the earlier half of the section 130. The latter half of the section provides that no witness who is not the party shall be compelled to produce an incriminating document. Analogous to this provision is the one in section 1321, relating to incriminating questions.

1. See discussion relating to section 132, infra.

69.7. One .of the fundamental canons of the Anglo-Indian system of criminal jurisprudence is that the accused shall not be compelled to incriminate himself. The principle was based on a feeling of revulsion against the methods adopted in the Star Chamber1. The principle was extended to the production of documents by an accused person in response to a subpoena or other from of legal process. Mansfield C.J. observed in Doe v. Harvey, (1769) 4 Burr 2484:

"In a criminal or penal cause the defendant is never forced to produce any evidence though he should hold in his hand."

1. John Lithurns case, 5 ST 1315.

69.7A. Aspect of privacy.-

In modem times, the concept of the right to respect for private life has come into some prominence. A person's family and personal life, his intimate spiritual life and "the life he lives at home with the door shut" is being recognised to an increasing extent in the interest of the protection of the dignity of the individual. In this context, the provisions of this section assume importance. The disclosure of embarrassing facts relating to a person's private life is one factor of the field of privacy. The material which might damage a person's honour and reputation in his private life (as distinguished from his public life) might raise issues analogous to privacy. The question then to be considered is whether such disclosure ought to receive absolute protection of whether there should be any limitations in that regard.

Section 130 strikes a compromise between conflicting considerations by providing that a witness who is not a party to a suit shall not be compelled to produce any document, the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims. Parties to the suit are, therefore, excluded from the protection. But all others receive the protection unless they have already waived it in writing. This is not to say that harm to reputation is the only consideration which would have weighed with the Legislature in providing this protection. The likelihood of prosecution would harm person and property also.

69.8. Section 130-Latter half-party.-

It may be noted that the accused is now a competent witness, but not compellable. The question whether the latter half of the section applies to the accused in his capacity as a witness has not arisen so far. Under article 20(3) of the Constitution, a person accused of any offence cannot be compelled "to be a witness" against himself. The Supreme Court, in State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 (1816), para. 16, construed the expression "to be a witness" in Article 20(3), but the judgment does not specifically discuss the topic of production of documents under section 130. We may, however, note that with reference to section 94 of the Code of Criminal Procedure, 1898, which was the provision empowering the Court to issue summons for production, it has been specifically held by the Supreme Court that it does not apply to the accused.1 This was as a matter of construction.

In Bedfern v. Bedfern, 1891 Probate 139, Bowen, L.J. stated:

"It is one of the inveterate principles of English Law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture or ecclesiastical censure."

1. State of Gujarat v. Shamlal, AIR 1965 SC 1251 (1258) (Majority view).

69.9. There is, in England, a general rule of evidence that a person should not be compelled to say anything which might tend to bring him into the peril and possibility of being convicted as a criminal. Hence a party cannot be compelled to produce documents for inspection or to answer interrogatories if the production or answer would tend to subject him to any punishment whether by way of criminal prosecution, the payment of penalties, or forfeiture, and the rule applies even if a negative answer will not imperil him.1

In England, the privilege has been held to apply2 to incriminating documents where the possible charge was one of-

(a) theft3

(b) incent;4

(c) subornation of perjury;5

(d) assault and false imprisonment;6

(e) forgery;7

(f) embezzlement;8

(g) fraud.9

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