KANTA BHATNAGAR, J. - (1.) THE petitioner is an accused for the charge under section 406 in a criminal case in the court of Munsif and Judicial Magistrate, Kushalgarh. By the order dated 14-7-81 the learned Magistrate ordered for issuance of notice to the accused to produce the disputed she-buffalo in the court. On 14-7-81 on the request of the complainant the learned Magistrate issued an order for producing the disputed she-buffalo in the court. Being aggrieved by that order the petitioner has invoked the inherent jurisdiction of this Court by filing a petition under section 482 Cr. P. C. THE notice at the admission stage was issued to the respondents. Mr. Arora has put in appearance on behalf of respondent No 1 Khemji the complainant request of the parties the petition was finally heard.
(2.) LEARNED counsel for the petitioner contended that provisions of section 91 Cr. P. C are not applicable to the accused petitioner and therefore the impugned order suffers from an illegality. To substantiate his case the learned counsel placed reliance on the principles enunciated in the case of Badya v. Mst. Kamli Bai (1 ). It has been submitted by Mr. Arora, learned counsel for the complainant-respondent that the scope of section 91 is wide enough to include the accused person also and in case he has any objection in complying the directions issued by the court he should request the court to set aside the order instead of seeking relief from this Court. Section 91 deals with cases where summons may be issued to a person to produce document or other thing required for the purpose of investigation, enquiry and trial. The question as to whether this provision is applicable to an accused person or not came for consideration before Hon'ble the Supreme Court in the case of State of Gujarat vs. Shyam Lal Mohanlal Chokei (2 ). Dealing with the provisions of section 94 (1) (Old Cr. P. C. analogous to section 91 of the new Cr. P. C), their lordships discussed the principle as to whether an accused person can be called upon to incriminate himself by producing any article or document in his possession and were pleased to observe as under : - "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 Criminal Procedure Code it gives effect to it. " Their lordships were further pleased to observe that : - "it is true that the words of Sec. 94 are wide enough to include an accused person but it is well recognised that in some cases a limitation may be put on the construction of the wide terms of a statute. Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be, if possible, construed as not to alter the common law. " Their lordships were also pleased to take into consideration the provisions of Article 20 (3) of the Constitution of India imposing a ban for compelling an accused person to dispose documents which are incriminating and based on his knowledge. According to their lordships if section 94 was construed to include an accused person, some unfortunate consequences would follow. One of the reasons given by their Lordships to bring the accused out of the preview of section 94 Cr. P. C. (old) is the use of word 'to attend and produce' appearing in the relevant section in this connection their lordships were pleased to make the following observations : - "the words 'attend and produce' are rather inapt 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. " The Supreme Court case was placed reliance on by this Court in the above referred case of Badya vs. Mst. Kamli Bai (supra) and it was held that summons to produce property cannot be issued to the accused.
(3.) IN view of the settled proposition of law I find no justification in the learned Magistrate issuing direction to the accused to produce the disputed she-buffalo in the court. The application under section 482 is allowed and the impugned order is set aside. .;