STATE OF MAHARASHTRA Vs. NAGPUR ELECTRIC LIGHT AND POWER CO LTD

JUDGEMENT

(1.) THESE criminal references arise from 19 criminal cases filed by the Nagpur Municipal Corporation against the Nagpur Electric Light and Power Company, limited, hereafter referred to as the Company, for alleged evasion of octroi dues. In alt the cases the Company is accused of offences under Section 152 of the City of Nagpur Corporation Act, 1948, and in some of them under Section 420, Indian Penal Code.

(2.) ON 18-12-1959 the Municipal Corporation filed a list of witnesses to whom summonses were to be issued and the list included the store keeper or the Wardha branch of the Company and the Assistant Accountant of the Company at Nagpur, both of whom were cited only for the production of certain documents and records belonging to the Company. Summonses were accordingly ordered to fee issued by the learned trial Magistrate. The Company then applied to the learned Magistrate for the withdrawal of the summonses or the ground that they violated the protection against self-incrimination guaranteed by Article 20 (3) of the Constitution. The objection having been overruled by the learned trial Magistrate, the Company went in revision to the Sessions Court, Nagpur, and the learned Additional Sessions Judge, who heard the revision application, has made these references to this Court, recommending that the objection raised by the Company should be accepted and that the summonses to the Store Keeper and the Assistant Accountant be ordered to be withdrawn.

(3.) IT is common ground that the direction contained in the summonses, calling upon the Company's officers to produce certain documents was made under Section 94 of the Criminal Procedure Code. If such a direction were given to a person accused of an offence, the direction would violate the protection against testimonial compulsion guaranteed by Article 20 (3) of the Constitution. Article 20 (3) provides that "no person accused of any offence shall be compelled to be a witness against himself". In the case M. P. Sharma v. Satish Chandra, District Magistrate, Delhi, 1954 SCR 1077 : (AIR 1954 SC 300) the Supreme Court observed that "to be a witness' is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes". It is thus clear that to produce a document in a criminal case in support of a prosecution is a testimonial act. If an accused person can be summoned under Section 94 of the Criminal Procedure Code to produce documents likely to incriminate him in the course of a trial of an offence alleged to have been committed by him, his refusal to produce the documents would be punishable under Section 175 of the Indian Penal Code, or by committing him for contempt of Court. It must therefore follow that Article 20 (3) of the Constitution prohibits a summons to be issued under Section 94 of the Criminal Procedure Code against an accused person, requiring him to produce documents m support of the prosecution case. A similar view was expressed by a Division Bench of the Allahabad High Court in R. C. Gupta v. The State, AIR 1959 All 219.