Decided on October 31,1973

Kebal Chand Jain Appellant
Dinanath Agarwal Respondents


B.K. Ray, J. - (1.) THE Petitioner is fating a trial as an accused under Section 420, Indian Penal Code in the Court of the Sub -Divisional Magistrate, Bargarh. On 23 -7 -1973, the complainant opposite party filed a petition in the trial Court praying to direct the accused Petitioner for production of the documents mentioned therein. After hearing learned Counsel for both parties, the learned S.D.M. directed the Petitioner to produce the documents. This order for production of the documents was confirmed by the very same Court by an order dated 4 -8 -1973. It is against the order of the learned. S.D.M. directing the Petitioner to produce certain documents as desired by the opposite patty the present revision has been filed.
(2.) THE application filed by the opposite party in the trial Court for production of documents by the Petitioner is one under Section 94, Code of Criminal Procedure. The language of the section is very wide and one may think by reading the section that it includes an accused person, but judicial pronouncements are otherwise. That apart, Article 20(3) of the Constitution clearly lays down that no person accused of any offence shall be compelled to be witness against him. In the decision reported in State of Bombay v. Kathi Kalu : A.I.R. 1961 S.C. 1808, this provision of the Constitution has been held to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Section 94(1), Code of Criminal Procedure again came up for consideration in a later decision of the Supreme Court reported in State of Gujarat v. Shyamlal, A.I.R. 1965 S.C. 1251. The following three passages from the judgment of this reported decision may be quoted below to elucidate the point in controversy in the case. In paragraph 29 of the judgment their Lordships have observed as follows: One of the fundamental canons of the British system of Criminal jurisprudence and the American Jurisprudence has been that the accused should not be compelled to incriminate himself. The Indian Legislature was aware of the above fundamental canon of criminal jurisprudence because in various sections of the Code of Criminal Procedure it gives effect to it. In paragraph 33 of the judgment their Lordships have further observed as follows: The language of Section 94 is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce are rather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court to attend and produce ' a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to 'attend and produce ' a document. In paragraph 31 of the judgment their Lordships have observed thus: If Section 94 is construed to include an accused person, some unfortunate consequences follow. Suppose a police officer -and here it is necessary to emphasize that the police officer has the same powers as a Court directs an accused to attend and produce or produce a document. According to the accused, he cannot be compelled to produce this document under Article 20(3) of the Constitution. What is he to do? If he refuses to produce it before the police officer, he would be faced with a prosecution under Section 175, Indian Penal Code, and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid order if Section 94 applies to an accused person. This becomes clearer if the language of Section 175 is compared with the language employed in Section 485, Code of Criminal Procedure. Under the later section a reasonable excuse for refusing to produce is a good defence. If he takes the document and objects to its production, there is no machinery provided for the police officer to hold a preliminary enquiry. The police officer could well say that on the terms of the section he was not bound to listen to the accused or his counsel. Even if he were minded to listen, would he take evidence and hear arguments to determine whether the production of the document is prohibited by Article 20(3). At any rate, his decision would be final under the code for no appeal or provision would lie against his order. Thus it seems to us that if we construe Section 94 to include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him. From the aforesaid passages in the judgment of the Supreme Court and from the dictum laid down in State of Bombay v. Kathi Kalu : A.I.R. 1961 S.C. 1808 it follows that an accused person cannot be directed to produce documents which are incriminatory in nature so far as his case is concerned. In view of this position of law, the impugned order of the learned S.D.M. Bargarh directing production of documents by the Petitioner must be quashed. Accordingly, I allow the revision and quash the order for production of documents by the Petitioner.;

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