State Of Gujarat v. Shyamlal Mohanlal

V.B. RAJU

(1) This is a reference by the learned Sessions Judge of Nadiad recommending that the order passed by the trial Court on an application of the Police Prosecutor of Umreth for issuing a summons to an accused person to produce certain documents be set aside. The Police Prosecutor Umreth had requested the trial Magistrate to direct an accused person who was accused in a case under the Bombay Money Lenders Act to produce certain account books which he was alleged to be in possession of and which were likely to be used by the prosecution to prove its case. The learned trial Magistrate rejected this application. But the learned Sessions Judge before whom the State went in revision was of the view that the accused can be compelled to produce account books in his possession if they do not contain any personal statement of the accused. He was of the view that the provisions contained in clause (3) of Article 20 of the Constitution did not apply. Therefore he made a reference to the High Court to issue suitable directions to the learned Magistrate.

(2) The learned Magistrate rejected the application given by the Police Prosecutor to direct the accused to produce the account books. When such an application comes up before a Magistrate for orders the Magis- trate must decide atleast two things: (1) whether he has powers to do so and if so under what provisions of the Criminal Procedure Code and (2) if there is a provision in the Criminal Procedure Code for issuing such directions whether Article 20 clause (3) of the Constitution prohibits him from doing so.

(3) Article 20 of the Constitution reads as follows:-

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged of an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at he time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.

(4) Interpretation of clause (3) of Article 20 of the Constitution has been the subject matter of the decisions by Their Lordships of the Supreme Court and therefore it is not necessary for me to discuss this question beyond reproducing the conclusions of Their Lordships of the Supreme Court which are found at page 249 in the case of State of Bombay v. Kathi Kalu 64 B.L.R. 249. His Lordship Sinha C.J. has observed as follows:

(5) In view of these considerations we have come to the following conclusions :

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody without anything more. In other words the mere fact of being in police custody at the time when the statement in question was made would not by itself as a proposition of law lend itself to the inference that the accused was compelled to make the statement though that fact in conjunction with other circumstances disclosed in evidence in a particular case. would be a relevant consideration in an enquiry whether or not the accused had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer resulting in a voluntary statement which may ultimately turn out to be incriminatory is not compulsion. (3) To be a witness is not equivalent to furnishing evidence in its widest significance; that is to say as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body of way of identification are not included in the expression to be a witness. (5) To be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise. (6) To be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning namely bearing testimony in Court or out of Court by a person accused of an offence orally or in writing. (7) To bring the statement in question within the prohibition of Art. 20(3) the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made.

(6) It is observed by his Lordship that the phrase to be a witness includes not merely making of oral or written statements but also pro- duction of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused and the phrase also means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in Court or otherwise.

(7) In that case Their Lordships of the Supreme Court applied these principles to the question whether an accused person can be compelled to give any specimen handwriting or signature or impressions of his fingers palm or foot. But the principle applicable to the question of production of documents by an accused person was not stated. Their Lordships however referred to the Supreme Court Case of M. P. Sharma v. Satish Chandra District Magistrate Delhi 1954 S.C.R. 1077 wherein the follow- ing observations were made :

Broadly stated the guarantee in Article 20(3) is against 2 testimonial compulsion It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is to be a witness. A person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see sec. 119 of the Evidence Act) or the like. To be a witness is nothing more than to furnish evidence and such evidence can be furnished through the lips or by produc- tion oi g thind or of a document or in other modes. So far as production of documents is concerned no doubt sec. 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word witness which must be understood in its natural sense i.e. as referring to a person who furnishes evidence. Indeed every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so pro- cured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is to be a witness and not to appear as a witness: It follows that the protection aforded to an accused in so far as it is related to the phrase to be a witnesses is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.

(8) With respect to these observations in M.P. Sharma v. Satish Chandra 1954 S.C.R 1077 His Lordship Sinha C.J. has observed as follows :

This Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness stand when stand- ing trial for an offence. The guarantee was thus held to include not only oral testimony given in Court or out of Court but also to statements in writing which incriminated the maker when figuring as an accused person After having heard elaborate arguments for and against the views thus expressed by this Court after full deliberation we do not find any good reasons for departing from those views. But the Court went on to observe that to be a witness means to furnish evidence and includes not only oral testimony or statements in writting of the accused but also production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down certainly it was not under discussion of the Court as a point directly arising for decision that calling upon a person accused of an offence to give his thumb impression his Impression of palm or fingers or of sample handwriting or signature comes within the ambit of to be a witness which has been equated to to furnish evidence. Whether or not this Court intended to lay down the rule of law in those wide terms has been the subject-matter of decisions in the different High Courts in this country.

(9) His Lordship Sinha C.J. then observed as follows :

To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements but not in the larger sense of the express- sion so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification.

(10) We have already indicated that we are in agreement with the Full Court decision in Sharmas case (1954 S.C.R. 1077) that the prohibition in cl. (3) of Art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with refer- ence to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him he may be called upon by the Court to produce that document in accor- dance with the provisions of sec. 139 of the Evidence Act which in terms provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore he cannot be cross-examined. Of course he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion therefore the observations of this Court in Sharmas case that sec. 139 of the Evidence Act has no bearing on the connotation of the word witness is not entirely well founded in law. It is well established that cl. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy but which do not contain any statement of the accused based on his personal knowledge. For example the accused person may be in possession of a document which is in his writing or which contain his signature or his thumb impression. The production of such a document with a view to comparison of the writing or the signature or the impression is not the statement of an accused person which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or specimen of his handwriting he is not giving any testimony of the nature of a personal testimony. The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his hand- writing in spite of efforts at concealing the true nature of it by dissimulation cannot change their instrinsic character. Thus the giving of finger impression or of specimen writing or if signatures by an accused person though it may amount to furnishing evidence in the larger sense is not included within the expression to be a witness.

(11) In (1960) 3 S. C. R. 116 Mohamed Dastagir v. The State of Madras reference is made to the Supreme Court case of M. P. Sharma v. Satish Chandra 1954 S.C.R. 1077 and the following observations were made :

Reliance was placed upon the decision of this Court in M. P. Sharma v. Satish Chandra and others 1954 S.C.R. 1077 in support of a proposition that a compelled production of incriminating document by a person during police investigation is testimonial compulsion within the meaning of Art. 20(3) of the Constitution. In that case this Court has observed at p. 1088;

(12) Intended every positive volitional act which furnishes evidence is testimony and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court-room. The phrase used in Art. 20(3) is to be a wetness and not to appear as a witness. It follows that the protection afforded to an accused in so far as it is related to the phrase to be a witness is not merely in respect of testimonial compulsion in the court room but may yell extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.

(13) Considered in this light the guarantee under Art. 20(3) would be available in the present cases to these petitioners against whom a First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.

(14) These observations were unnecessary in Sharmas case having regard to the fact that this Court held that the seizure of documents on a search warrant was not unconstitutional as that would not amount to a compulsory production of incriminating evidence. In the present case even on what was stated in Sharmas case there was no formal accusation against the appellant relating to the commis- sion of an offence.

(15) In view of these decisions of Their Lordships of the Supreme Court in the cases cited above it is clear that if an accused produces a docu- ment that would not offend Article 20 clause (3) of the Constitution unless the document contains statements based on the personal knowledge of; the accused.

(16) But the question cannot be answered by merely construing Article 24 of the Constitution. Even if the Court does not offend Article 20 of the Constitution by compelling an accused person to produce a document provided the document does not contain any statement based on his personal knowledge the question would remain whether the Court has powers to do so. For this purpose we have to turn to the Criminal Pro- cedure Code.

(17) Section 94 of the Criminal Procedure Code reads as follows :-

94 (1) Whenever any Court or any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation inquiry trial or other proceeding under this Code by or before such Court or officer such Court may issue a summons or such officer a written order to the person in whose possession or power such document or thing is believed to be requiring him to attend and- produce it or to produce it at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed to affect the Indian Evidence Acts 1872 secs. 123 and 124 or to apply to a letter postcard telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities.

(18) Section 96 of the Criminal Procedure Code also reads as follows :-

96 (1) Where any Court has reason to believe that a person to whom a summons or order under sec 94 or a requisition under sec. 95 sub sec. (1) has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition or where such document or thing is not known to the Court to be in the possession of any person or where the Court considers that the purposes of any inquiry trial or other proceeding under this Code will be served by a general search or inspection it may issue a search-warrant: and the person to whom such warrant is directed may search or inspect in accordance therewith and the provisions hereinafter contained. (2)Nothing herein contained shall authorize any Magistrate other than a District Magistrate or Chief Presidency Magistrate to grant a warrant to search for a document parcel or other thing in the custody of the Postal or Telegraph authorities.

(19) The question is whether sec. 94 applies to an accused person or not and whether the Court can apply sec. 94 of the Criminal Procedure Code to an accused person during the course of a trial. The manner in which trials of summons cases are to be conducted is explained in Chapter XX of the Criminal Procedure Code. The manner in which warrant cases are to be tried is to be found in Chapter XXI Chapter XXII deals with summary trials and Chapter XXIII deals with trials before High Courts and Courts of Session. The procedure that the Court has to follow is therefore governed by these Chapters and when we consider the provisions of these Chapters we may have to bear in mind some other provisions in 244 and 251A that the Court should take all such evidence that the accused produces in his defence we have to bear in mind the provisions of sec 342 that the accused person is a competent witness and he can therefore examine himself in his defence.

(20) The instant case is a summons trial and there is nothing in Chapter XX which would give powers to the Court to issue a summons to an accused person after he has appeared in the Court and after the trial has begun. During the course of a trial the Court cannot do anything which is not warranted by the provisions contained in Chapters XX to XXIII of the Criminal Procedure Code. To issue a summons to an accused person to produce a document is therefore not warranted in a trial.

(21) Having regard to the provisions in Chapters XX to XXIII of the Criminal Procedure Code it is difficult to accept the contention that sec. 94 of the Criminal Procedure Code applies to an accused person under trial. If sec. 94 applies to an accused person under trial it was open to the police station officer to act under sec 94 of the Criminal Procedure Code. In my opinion it is much easier and much simpler for the police or even for the Court to act under sec 96 as a warrant can always be issued to such particular person without offending the provisions of Chapters XX XXI XXII and XXIII of the Criminal Procedure Code In the application made by the learned Police Prosecutor he wanted the Court to issue an order. The order sought for could not be issued by a Court under any provision of the Criminal Procedure Code The learned Police Prosecutor did not ask for a search warrant or for the issue of summons. Under sec. 94 the Court may issue a summons and the police officer may issue a written order. Under sec. 94 the Court cannot issue a written order.

(22) The question whether sec. 94 applies to an accused person in custody or whether it applies to an accused person under trial are important in this connection. Under sec. 94 the Court or the police officer in charge of police station may issue a summons or a written order to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons or order. The use of the expression to attend at it would clearly show that sec. 94 was not intended to apply to an accused person under trial or an accused person in custody It is true that the house of an accused person can be searched under the provisions of sec. 96 of the Criminal Procedure Code and under sec 165 of the Criminal Procedure Code. Under the latter section any place with the limits of the police station may be searched if the other requirements of the section are satisfied.

(23) Chapter VI deals with processes to compel appearance. Part A of this Chapter deals with summons part B deals with warrant of arrest part C deals with proclamation and attachment part D deals with other rules as regards processes and part E deals with special rules regarding processes in certain cases. The next Chapter namely Chapter VII deals with processes to compel the production of documents and other movable property and for the discovery of persons wrongfully confined. Sec. 91 of the Criminal Procedure Code provides as under :

When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant is present in such Court such officer any require such person to execute a bond with or without sure- ties for his appearance in such Court.

(24) As already observed in sec. 94 the words are to attend and produce or to produce. There is no provision in sec. 94 similar to that which is contained in sec. 91. In view of the very wide powers given to the police under secs. 96 and 165 the Legislature would not have provided for a summons to an accused under trial to produce a document which might incriminate him. In such cases the proper sections to be utilised are secs. 96 and 95.

(25) It is true that the words of sec. 94 are general and there is ordinarily no reason to restrict the expression to the person in whose possession or power such document or thing is believed to be to persons other than accused persons. But if we look at the scheme of the Act it appears to my mind that sec. 94 was not intended to apply to an accused person under trial.

(26) Once the trial beings vis-a-vis the accused the procedure to be followed by the Court is that is contained in Chapters XX to XXIII dependent on the type of the case against the accused.

(27) The learned Government Pleader however relies on Re S. Kondareddi and another I.L.R. 37 Madras 112 and Bissar Misser v. Emperor I. L. R. 41 Calcutta 261. In the Madras case Justice Benson followed the case in Mahomed Jackariah and Co. v. Ahmed Mahomed I.L.R. 15 Calcutta 109 where it was held that it was clearly the intention of the Legislature to make sec. 94 applicable to an accused person notwithstanding that this involved a departure from the general principle of the English law. The learned Judge of the Madras High Court relied on Mahomed Jackariah and Co. v. Ahmed Mahomed I.L.R. 15 Calcutta 109 but there the point decided related to the right of inspection of books named in a search warrant. of the Calcutta case reference has been made to the English law on the point As observed in Re S. Kondareddi and another I.L.R. 37 Madras 112 the general principle of the English law is that a summons cannot be issued to an accused person to produce documents. In the Madras case it was observed that a contrary view is taken in Ishwar Chandra Ghoshal v. The Emperor 12 Calcutta Weekly Notes 1016 In the Madras case it was observed as follows:-

The Magistrate always has the power to issue a search warrant to obtain the production of a document or other thing in possession of the accused.

(28) The issue of a summons is a milder means of attaining the same and I am of opinion that the ruling in Mahomed Jackariah and Co. v. Ahmed Mahomed I. L. R. 15 Calcutta 109 should be followed.

(29) In Bissar Misser v. Emperor I.L.R. 41 Calcutta 261 it was observed that section 165 authorizes a search of the house of the accused for specific documents and things necessary to the conduct of an inves- tigation into an offence. Section 94 was only incidentally referred to. What was considered was sec. 94 of the Code of 1882 and it was observed that sec. 94 of the Code of 1882 differs in no material respect from the same section of the present Code. But the question that was decided in I.L.R. 41 Calcutta 261 was that the search of the accuseds house was justified under the provisions of sec. 165.

(30) In Ishwar Chandra Ghoshal v. The Emperor 12 Calcutta Weekly Notes 1016 it was held that the provisions of sec. 94 Criminal Procedure Code cannot be taken to apply to the case of an accused person on his trial to whom a notice has been issued to produce an incriminating document. It was also observed that to hold otherwise would be to go contrary to the principles laid down in the Code of Criminal Procedure in sections 342 and 343.

(31) In Bajrangi Gope v. Emperor I.L.R. 38 Calcutta 304 it was held as follows :

Section 165 of the Criminal Procedure Code does not authorize a general search for stolen property in the house of the absconding offender against whom an information has been laid of having committed a dacoity.

(32) It refers only to specific documents or things which may be the subject of a summons or order under sec. 94 of the Code and the latter does not extend to stolen articles or any incriminating document or thing in the possession of the accused.

(33) At page 306 the following observations were made :

We are clearly of opinion that section 165 of the Criminal Procedure Code does not authorize a general search for stolen property. It speaks of a specific document or thing which may be the subject of summons or order under sec- tion 94 and it is clear that sec. 94 does not refer to stolen articles or to any incriminating document or thing in the possession of an accused person. The latter proposition has being laid down in the case of Ishwar Chandra Ghoshal v. Emperor 12 Calcutta Weekly Notes page 1016. In this case however it is suffi- cient to hold that sec. 165 did not authorize a search for stolen property in the house of the absconding offender; and remarkable as it may appear there is no other section admittedly which would cover such a search. There was no search warrant under section 98 in this case. The search was therefore not a legal search and two at any rate of the petitioners who were the part-owners and occupiers of the house had a right of private defence.

(34) If the accused person is in jail or in police custody how can he be asked to produce a document by leaving the jail or by leaving the police custody. If section 94 is applied it is easy for an accused person to give the document or thing to someone else and to say that the document or thing is not in his possession. The better course would be for the police to take action under sec. 96 or sec. 165 of the Criminal Procedure Code. In view of the provisions contained in sections 96 and 165 it would not be appropriate to hold that sec. 95 enables the Court to issue a summons to an accused person under trial. Section 343 of the Criminal Procedure Code provides as follows :

Except as provided in sections 337 and 338 no influence by means of any promise or threat or otherwise shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.

(35) It would be contrary to this section to hold that the Court can direct an accused person to produce a document in his possession.

(36) After referring to the Supreme Court case in M. P. Sharma v. Sri Satishchandra A. I. R. 1954 S.C. 300 it has observed as follows in In re Palani Goundan Petitioner A.I.R. 1957 Madras 546 as follows:

From this decision it seems to me that the following rule can be safely enun- ciated. An incriminating or relevant object or document or other form of evi- dence can be seized under process of law from the custody or person of the accused; but he cannot be compelled to produce it. It would follow from that rule that a stolen article can be seized from the person of the accused though he may be unwilling to part with it; or if he happens to swallow a stolen pro- perty he can be taken to a doctor and made to undergo the necessary medical process or treatment with a view to have the article extracted from his body.

(37) It is therefore clear from the decisions cited above that under a-search warrant or other kindred process of law documents or articles or any other incriminating evidence can be seized from the custody or the person of the accused by force and against his will such as stolen articles blood-stained clothes etc but he cannot be compelled to produce them himself. For the same reason there can be no objection to an accused person being taken to a doctor for the examination of injuries on his body so as to ascertain whether he could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify them.

(38) Until recently an accused person was not competent to be a witness. As the accused is present in Court it would be improper to provide that a summons should be issued to a person present in the Court and also present in the dock of the Court as an accused person. If the Legis- lature had intended that an accused person should be called upon to produce documents from his possession it would have made a provi- sion similar to sec. 91 and would not have provided that summons should be issued to the accused in such a case.

(39) For all the above reasons the learned Magistrate was right in reject- ing the application of the Police Prosecutor. The reference is therefore rejected. Application rejected.