KHUSHALDAS VRAJLAL CHOKSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner herein has challenged the judgment and order dated 3rd March. 1981 passed by the learned Chief Judicial Magistrate Rajkot whereby the learned Magistrate had ordered that the present petitioner original accused No 1 shall produce the scooter in dispute before the court further directing that the respondent No. 1 original complainant may take away the said scooter on furnishing security of Rs. 15 0 together with solvent security.

(2.) Mr. P. M. Thakkar the learned Counsel for the petitioner (original accused) has challenged the above order mainly on two grounds. Firstly that the learned Magistrate has no power in law to pass the impugned order and secondly in the facts and circumstances of this case the impugned order is contrary to law and untenable. Mr.Thakkar has urged that the impugned order could possibly be considered to have been passed under sec. 91 of the Code of Criminal Procedure (hereafter New Code) as there is no other provision in the Code under which the impugned order could be passed. The corresponding section in the repealed Code of Criminal Procedure 1898 (hereafter Old Code) was sec. 94. The two sections are in pari materia. Mr. Thakkar has argued that the provisions of sec. 91 of the New Code (sec. 91 of the Old Code) ate not applicable to an accused person. He has urged that although the language of the section is wide enough to include even an accused person but on a true construction of the said section the accused person cannot be regarded as having been covered because it may result into great injustice caused to the accused e.g. all accused who is given immunity by law from making a statement or producing a document or thing which may be incriminatory in nature. Mr. Thakkar has also urged that sec. 91 would not apply to the accused also because the power under the section is exercisable not only by the court but also by the Police Officer. If the Police Officer is given power to compel the accused to produce a document or thing which may be incriminatory it would create great hazard for the accused. Mr. Thakkar has relied on the judgment of the Supreme Court in STATE OF GUJARAT V. SHYAMLAL MOHANLAL CHOKSHI A.I.R. 1965 S.C. 1251 wherein the Supreme Court has considered the provisions of sec. 94 of the Old Code which were identical with those of sec. 91 of the New Code. It is a majority judgment of Gajendragadkar C.J. Hidayatullah Sikri and Sachawat JJ. wherein it is held that on true construction of sec. 94 of the Old Code it cannot be said to apply to the accused persons. The reason given by the Supreme Court is that it would cause great hardship to the accused person it it is held that sec. 94 applies to the accused and also because the power under sec. 94 of the Old Code (Sec. 91 of the New Code) is exercisable by the Police officer.

(3.) Mr. D. G. Karia the learned Counsel for the respondent No. 1 has urged that in the present case the production of the scooter would not in any way be incriminatory for the accused and therefore the impugned order of production of scooter by the accused before the Court is legally valid and proper in the circumstances of the case. The submission of Mr. Karia is sot correct because on the correct interpretation of sec. 91 of the New Code it must be held following the aforesaid judgment of the Supreme Court that the said provisions do not apply to the accused persons irrespective of whether in any given case the order of production of a document or a thing by the accused person may not be incriminatory. This is so also because it is neither proper nor desirable to go into the question as to whether the document or thing which is sought to be produced by the accused can be incriminatory or not. The Court cannot be expected to decide in the course of trial as to whether the production of a document or a thing would or would not be incriminatory in nature. More so in the case of a Police Officer who at the investigating stage could not be entrusted with the responsibility to decide whether the production of the document or a thing would or would not be incriminatory for the accused. Hence it must be held that the provisions of sec. 91 of the New Code do not apply to the accused persons. Therefore the impugned order of the learned Magistrate directing the accused to produce the scooter in the court is untenable and deserves to be set aside.