EMPEROR Vs. BILAL MAHOMED

JUDGEMENT

(1.) THIS is a reference made by the District Magistrate of Ahmedabad. It appears that certain persons were being prosecuted for an offence under Section s 4 and 5 of the Bombay Prevention of Gambling Act. When the complainant, who was a Police Sub-Inspector, was in the witness-box under cross-examination, the accused applied under Section 94 of the Criminal Procedure Code for production of statements recorded by the Sub-Inspector in relation to the offence. It is not clear from the record how those statements came to be recorded. If the police were inquiring into the offence under Chapter XIV of the Criminal Procedure Code the right to production of the statement would be governed by Section 162. Apparently the learned Magistrate treated the offence as non-cognizable (see Emperor v. Raghunath (1932) 34 Bom. L.R. 901) and the inquiry as not falling under Chapter XIV, and he directed that the statements should be produced under Section 94. The prosecution had not reached the stage at which the production of the documents could be asked for under Section 257, so that we are only concerned with the powers of the Court under Section 94 and the principles on which those powers should be exercised.

(2.) SECTION 94 of the Criminal Procedure Code provides, so far as material, that " when any Court considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under the Code by or before such Court such Court may issue a summons for the production of the document". Under Sub-section (3), "nothing in the SECTION is to be deemed to affect the Indian Evidence Act, SECTION s 123 and 124". It is in our opinion clear that under SECTION 94 the Court has an absolute discretion to require the production of any document which it considers necessary or desirable for the purposes of the investigation or trial proceeding before it, and, as in this case the learned Magistrate) ordered the production of the documents, we should normally not interfere with his discretion. But the learned Magistrate, who is also a Subordinate Judge, gave a considered judgment from which it appears that he was of opinion that he possessed a discretion in the matter, and that he was bound to exercise it in favour of the accused by reason of a decision of a full bench of the Judicial Commissioner's Court of Sind, to which the learned Magistrate refers. We have not had the advantage of an argument on behalf of the accused in this case; but we think that the matter is sufficiently dealt with by the learned Magistrate to enable us to appreciate the point of view of the accused. The discretion under SECTION 94 must be exercised judicially, and it should be exercised in such a way as not to conflict with the policy of the Legislature as disclosed in SECTION 162 of the Code and in SECTION s 123 to 125 of the Indian Evidence Act. Statements made to the police are in their nature confidential and SECTION 162 of the Code illustrates the limited purposes for which their production should be required. It is necessary also to bear in mind, as the learned Magistrate did, that under SECTION 125 of the Indian Evidence Act a police-officer cannot be compelled to say whence he got any information as to the commission of any offence. The learned Magistrate made an exception in his order in favour of a statement made by the informant. But in our opinion the learned Magistrate exercised his discretion on a wrong basis altogether. He should have held that at the stage which the trial had reached it was not desirable to compel the police-officer to produce statements which he had recorded.