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J.D. Metha and anr. Vs. P.H. Nanavati and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 71 and 72 of 1983
Judge
Reported in1983(2)BomCR45
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 91 and 397; Evidence Act, 1872 - Sections 162; Constitution of India - Article 21
AppellantJ.D. Metha and anr.
RespondentP.H. Nanavati and ors.
Appellant AdvocateV.H. Gumaste, ;Shirish M. Gupte and ;R.F. Lambay, Advs.
Respondent AdvocateL.R. Chari and ;Denzil D'Mello, Advs. for opponent No. 1, ;Niteen V. Pradhan, Adv. for opponent No. 2 and ;J.A. Barday, P.P., for opponent No. 3-State
Excerpt:
.....filed application in lower court for witness summons to be issued against original accused to produce 15 documents - magistrate by order held that documents called for from society have no relevance to facts of case and therefore directed to return documents to said society - criminal revision application preferred - in instant case petitioners cannot claim that their personal liberty is involved in production of document and that cannot be violative of articles 21 of constitution - section 162 empowers witness to raise all objections - in view of precedent jurisdiction given to court to decide validity of objections covers not only objections raised under section 123 but to all other objections as well - court directed magistrate that documents which consist of letters allowed to..........let us now consider as to whether there is any procedure established by law directing a person to produce documents in a court. section 91 of the code of criminal procedure, 1973, empowers a magistrate to issue a summons to produce a document to a witness if the magistrate considers the production of such document necessary or desirable for the purpose of any inquiry or trial under the code. when an application is made by the complaint requesting the courts to get produced certain document from the custody of a person, the magistrate must apply his mind and consider as to whether it is necessary or desirable for the purpose of inquiry or trial to get those documents from a person in whose possession or power such documents or things an believed to be. it further empowers the magistrate.....
Judgment:

M.P. Kanade, J.

1. These two applications arise out of a criminal complaint filed by one P.H. Nanavati in the Court of the Metropolitan Magistrate, 14th Court, Girgaum, Bombay. Criminal Application No. 71 of 1983 is filed by the Chairman of the Navyug Nagar Co-operative Housing Society Limited, while Criminal Application No. 72 of 1983 is filed by one K.M. Shah, the Ex- Chairman of the Society.

2. For relevant facts leading to these criminal application require to be stated in order to appreciate the point involved in them. During the year 1979-80 P.H. Nanavati, opponent No. 1 in Criminal Application No. 71 of 1983 was the Chairman of the said Society, and one C.P. Wagh, opponent No. 2 in both criminal application was the Honorary General Secretary of the said Society. On November 24, 1980 Nanavati filed a complaint against Wagh under section 323 of the Indian Penal Code in the Metropolitan Magistrate's Court, 14th Court, Girgaum, Bombay, which is numbered as Case No. 140 / S of 1980. The case of Nanavati against Wagh is that on November 1, 1980 a meeting of the managing committee of the said Society was held and in the said meeting in the presence of the members of the managing committee and others Wagh assaulted him.

3. On January 8, 1982 complainant Nanavati filed an application in the lower Court praying for a witness summons to be issued against original accused Wagh to produce 15 documents. That summons was served on Wagh, and he contended in the Court that he was not in possession of the said documents and, therefore, unable to produce the same. The contention of Wagh was accepted by the Court. It is necessary at this stage to mention that one K.M. Shah was the Chairman of the said society at the material time, who had field Criminal Application No. 72 of 1983 to review the order passed by this Court. Nanavati made another application on February 5, 1982 for a witness summons to be issued against K.M. Shah, who was then the Chairman of the said Society, calling upon him to produce the said documents. On the application field by Nanavati, the learned Magistrate on February 8, 1982 was pleased to issue a witness summons against Shri Shah. In pursuance of the summons of the Court, Shah appeared through an Advocate in the Court and objected for the production of the said documents. The objection was overruled by the learned Magistrate, directing the witness to produce the documents, and on production he was allowed to raise objections, if any, to the production of the said documents. Accordingly Shah objected to the production of the documents and also relevancy thereof in connection with the case pending before the learned Magistrate. Wagh, opponent No. 2- accused, supported the contention of Shah and opposed the production of the said documents. The learned Magistrate by his order dated July 7, 1982 held that the documents called for from the said Society have no relevance to the facts of the case, and, therefore, directed to return the documents to the said Society.

4. Feeling aggrieved by the said order passed by the learned Metropolitan Magistrate, Nanavati preferred Criminal Revision Application No. 364 of 1982 in this Court. In the said criminal revision application only original accused C.P. Wagh and the State of Maharashtra were made parties. K.M. Shah was not added as a party to the said revision application. From the record it appears that a notice before admission was issued to the parties on July 17, 1982 After hearing the parties to the said revision application, S.J. Deshpande, J., passed an order dated October 28, 1982. The order runs as under :

'Heard the parties. The documents consist of letters which are being relied on by the complainant. These are allowed to be produced subject to all legal objections as to admissibility and relevancy in law. Accused will have a right to object at a proper time. Order of the learned Magistrate dated 7-7-1982 is hereby set aside.'

In pursuance of the aforesaid order of this Court, the case was taken up by the learned Magistrate on November 11, 1982. On December 3, 1982 Nanavati again made an application that a witness summons be issued to the Chairman of the said Society to produce the documents referred to in the said application. The learned Magistrate was pleased to pass on order to issue a summons to the witness to produce the documents. The Chairman of the said Society, J.D. Mehta, was served with the summons, directing him to produce the documents listed in his application dated December 3, 1982 presented by Nanavati. This summons for witness to produce the documents is challenged by J.D. Mehta, in Criminal Application No. 71 of 1983, and the Ex- Chairman of the said Society, K.M. Shah, has field Criminal Application No. 72 of 1983 for review of reconsideration of the order passed by this Court on October 28, 1982. Since both these matters are connected matters and arise out of the same proceedings, it is advisable and necessary to dispose of both the said matters by a common judgment.

5. Shri Pradhan for the accused adopted the arguments of Shri Gumaste, learned Counsel appearing in support of the petitions. Shri Gumaste submitted that Chairman K.M. Shah was not heard in Criminal Revision Application No. 364 of 1982 in the High Court. He objected to the production, relevancy and admissibility of the said documents and an order in his favour. Without hearing Shah, the order passed by this Court is not binding on him , and, therefore, this Court must review the said order and reconsider the same. Secondly, it is argued by Shri Gumaste that section 162 of the Indian Evidence Act, 1872, requires to be properly construed and it must be construed in such a way that the provisions of Article 21 of the Constitution of India do not contravene the personal liberty to produce or not to produce the documents in possession of witness, as it is a valuable right as to personal liberty, and it is, therefore, that the order must be in consonance with the constitutional provisions of Article 21 of the Constitution. I would like to make it very clear that Shri Gumaste has not challenged the constitutional validity of section 162 of the Evidence Act so as to contravene the provision of Article 21 of the Constitution, but what is urged by Shri Gumaste is that section 162 of the Evidence Act must be construed in such away that it would not contravene the provision of Article 21 of the Constitution. It is then Shri Gumaste argued this Court would be justified to review the order passed by this Court since there is a violation of the principles of natural justice in hearing the Criminal Revision Application No. 364 of 1982. In support of his contention Shri Gumaste relied upon the decision of this Court in Bombay cycle & Motor Agency Ltd. v. Bhagwan Prasad Ramragubir Pandey : (1974)76BOMLR612 . It is observed in this case that. 'Apart from authorities, on principal also if in a particular case the High Court finds that a judgment is obtained by abuse of process or it is without jurisdiction or it is delivered without hearing the party who is entitled to be heard without the party or his Counsel being at fault and, therefore, it is necessary in the interest of justice to set aside the judgment and order and grant rehearing afresh of the appeal, then certainly the High Court possesses such power under section 561-A of the Criminal Procedure Code (corresponding to section 482 of the new Code).' (bracketed portion supplied). Shri Gumaste also relied upon three judgment of the Supreme Court, namely, (1) Kharak Singh v. State of U.P. and others, : 1963CriLJ329 ; (2) Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi. and others, : [1967]3SCR525 ; and (3) Govind v. State of Madhya Pradesh and others, : 1975CriLJ1111 . These three authorities relied upon by Shri Gumaste deal with the personal liberty of citizen. The personal liberty under Article 21 of the Constitution -(II)7 is to include all varieties of right which go to make the personal liberty of a man other than those dealt with a particular type of personal liberty and article 21 with the residue. The three authorities referred to above undoubtedly deal with the fundamental right as argued by Shri gumaste. The Chairman of a co-operative society cannot be said to have a personal right to produce or not to produce a document when called for by a court while relying upon the provisions of Article 21 of the constitution. Documents which are called for in a court notwithstanding the provision of an Act, which I shall refer to immediately, are meant for administration of justice by a court and a party to whom a witness summons has been issued to produce a document cannot claim a personal right under Article 21 not to produce it because it is a valuable document. I am unable to appreciate the submission made by Shri Gumaste that it is a personal right of a person to produce or not to produce a document when called upon to produce it by a witness summons by the Court. It is argued by Shri Gumaste that the procedure laid down by the Court must be just, fair and reasonable so that the personal ability of the witness should be impaired otherwise contravened by the order of the Court. In support of this contention Shri Gumaste relied upon the decision of the Supreme Court in Smt. Meneka Gandhi v. Union of India and another, : [1978]2SCR621 . It is laid down by the Supreme Court in the said case that, 'Obviously, a procedure cannot be arbitrary, unfair and unreasonable.' It is further observed that, 'The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right, just and fair. Natural Justice, it has been said, is only 'fair play in action.' Nor do we wait for directions for Parliament.' Relying upon this authority it is contended that a witness who is summoned to produce a document must have all rights to object to its production, relevancy and admissibility or any other objection that he intends to take up, and if that right is denied to him, it will be inconsistent with Article 21 of the Constitution.

6. How far these arguments are relevant having regard to the facts of this case will have to be considered. The summons for witness was directed against the Chairman of the said society which was duly registered. The earlier summons was issued to Chairman K. M. Shah, petitioner in Criminal Application No. 72 of 1973, and the latter was issued to Chairman J. D. Mehta, petitioner in Criminal Application No. 71 of 1973. The documents sought to be produced by opponent No. 1 original complainant, are not personal properties of the petitioners and, therefore, they cannot claim any personal right as envisaged by Article 21 of the Constitution. It is, therefore, the contention of Shri Gumaste that the personal right of the petitioners has been infringed cannot be accepted. It is true that a document in the possession of a person may be regarded as valuable property and can be said to have relevance with the personal liberty of that man. It depends upon the facts and circumstances of each case as to whether such a right was involved as provided by Articles 21. In the instant case, in my judgement, the petitioners cannot claim that their personal liberty is involved in the production of a document, and accordingly that cannot be violative of Articles 21 of the Constitution.

7. Articles 21 of the Constitution makes it clear that no person shall be deprived of his life or personal liberty except according to procedure established by law.

8. Let us now consider as to whether there is any procedure established by law directing a person to produce documents in a Court. Section 91 of the Code of Criminal Procedure, 1973, empowers a Magistrate to issue a summons to produce a document to a witness if the Magistrate considers the production of such document necessary or desirable for the purpose of any inquiry or trial under the Code. When an application is made by the complaint requesting the courts to get produced certain document from the custody of a person, the Magistrate must apply his mind and consider as to whether it is necessary or desirable for the purpose of inquiry or trial to get those documents from a person in whose possession or power such documents or things an believed to be. It further empowers the Magistrate requiring such person to attend and produce it, or to produce it, at the time and place stated in the summons or order. The requirement of section 91 is that the Magistrate must feel it necessary and advisable to get it. In the instant case such a summons was issued to the petitioners to produce the said documents.

9. Then we refer to section 162 of the Evidence Act. It lays down that a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. It is clear from this section that notwithstanding any objection a witness who is summoned to produce a document is bound to produce it in the Court. He cannot raise any objection when directed to produce a document in the Court. However, the section gives him a right to raise objections which there may be to its production or to its admissibility, and such objection, if any, must be decided by a Court at the time when he is directed to produce such a document in Court. The objection can be raised by a witness as to its production or to its admissibility. The word 'admissibility' used in section 162 necessarily means the relevancy of the document. Unless a document is relevant for the purpose of inquiry, it cannot be said to be admissible in a criminal trial. The word 'admissibility' used in section 162 involves all sorts of objections as to production, as to relevancy and as to admissibility, or even claiming any privilege in respect of the said document. The word 'admissibility' will have to be construed to mean all objections that the person who is asked to produce the document had raised in the matter. Now when a document is produced not withstanding any objection, the Court is further empowered to inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. That means if the State claims privilege in respect of a document sought to be produced in a Court, the Court is supposed to see as to whether it relates to the State and if necessary record evidence and decide the admissibility of such document relating to the affairs of a State. Shri Gumaste is right in his submission that all sorts of objections, including the relevancy of a document, can be raised under section 162 and the Court at that stage of the proceeding must determine as to whether such a document can be allowed to be produced, and other objections taken thereof must be decided.

10. Shri Chari, learned Counsel appearing on behalf of opponent No. 1 complainant, tried to restrict the meaning of the word 'admissibility' in his arguments. According to Shri Chari, objection can relate only to admissibility and that admissibility is further referred to in the second clause of the said section 162 that if it relates to State affairs and an objection as to the relevancy of the said document can be sustained. Having regard to the language used in section 162 it is not possible to hold that the word 'admissibility' is restricted to a privileged document by the State. Shri Chari relied upon the decision of the Supreme Court in The State of Punjab v. Sodhi Sukhdev Singh, : [1961]2SCR371 . It is observed in paragraph 20 of the said decision that the first clause of section 162 requires that a witness summoned to produce a document must bring it to the Court and then raise an objection against either its production or its admissibility. It also authorises the Court, and indeed makes it its obligation, to decide the validity of both of the said objections. It is significant that the objections to the production or admissibility of evidence specified in section 162 relate to all claims of privilege provided by the relevant section of chapter IX of part III of the Evidence Act. Section 123 is only one of such privileges so that the jurisdiction given to the Court to decide the validity of the objections covers not only the objections raised under section 123 but all other objections as well. This observation is relied upon by Shri Chari to substantiate his argument that only the validity of the objections is to restrict the scope of section 162 to only cases where the objections relating to claim of privilege provided for in the relevant sections of the Chapter of the Evidence Act. In the said case before the Supreme Court the question of a privileged document was considered, and it is held that the objections relating to privileged documents was can also be raised under section 162 of the Evidence Act. Accordingly this decision does not support the submission of Shri Chari. Then Shri Chari relied upon a decision of the Calcutta High Court in Orient Paper Mills v. Union of India and others, : AIR1979Cal114 . The head note of that authority in fact goes against the submission of Shri Chari. It is clearly laid down that section 162 of the Evidence Act empowers the witness to raise all objections. It is observed in the judgment of the Calcutta High Court that the jurisdiction given to a Court to decide the validity of objections covers not only an objections raised under section 123 but to all other objections as well.

11. While disposing of Criminal Revision Application No. 364 of 1982 this Court directed the Magistrate that the documents which consist of letters were allowed to be produced subject to all legal objections as to relevancy in law, and the accused will have a right to object at a proper time. The order passed by this Court is not restricted to admissibility, but even it refers to admissibility and relevancy of the document in question. I do not find any ground to reconsider the said judgment.

12. The next question that poses for consideration in this application is as to whether petitioner Shri K.M. Shah can have a right to review the order passed by this Court on October 28, 1982. It is well settled that a third party cannot file a review application in respect of an order passed by a Court. It is only open to a party to a litigation to ask for a review application. It is, therefore, the application for review is, in my view, not maintainable. It is vehemently argued by Shri Gumaste that he had a right to be heard since an order in his favour was passed by the Magistrate, and without being heard the said order is set aside by this Court. It is true that an order was passed in favour of petitioner K.M. Shah, but he was not a party to the proceedings. He was merely asked to produce certain documents, and he objected to the admissibility and relevancy of the said documents. The question raised in the review application was as to the order passed by the learned Magistrate between the parties to the proceedings. It was opponent No. 1- complainant who asked for the production of documents, and he was challenged the order which was passed by the learned Magistrate. Opponent No. 2- accused who was supporting the objections raised by the witness was made a party to the revision application. The order was passed in the presence of the parties to the proceedings. After hearing the parties to the revision application, the said order was passed by this Court. The right of filing a revision is not a vested right. A revisional Court has to consider as to whether the order passed by the lower courts or courts subordinate is valid. The person aggrieved could be only the accused, against whom the documents were sought to be produced in the Court, and he was a party to the proceedings. I am unable to appreciate how a witness who happened to be the chairman of a Co-operative Society could raise all these objections as to admissibility, productivity and relevancy of the documents. These documents are used against an accused person and not against the witness who is summoned to produce a document. I am rather surprised at the conduct of the Chairman of the said Society moving the Court for review of such application. He cannot be said to have personal interest in the documents sought to be produced in the Court. Such a person is challenging the order of a revisional Court. He is merely a custodian of the record of the said Society, and accordingly he should not have filed a review application feeling aggrieved by such an order of the Court. In my view, the review application is misconceived and cannot be said to have been filed by an aggrieved person against an order passed by this Court. On these two grounds these criminal applications must be rejected. Since the order was passed in an in inquiry or trial of a case by a witness who was summoned to produce documents, it cannot be said to be an aggrieved party in the matter even thought legally he has not a right to raise all objections as to production and admissibility of the documents. Since the is a third party and not a party to the dispute, the revision application itself not maintainable, and that deserves to be dismissed. Shri Gumaste very vehemently argued that he has got a right to be heard in the matter, and since the order is passed without giving him any hearing, he is entitled to make a review application. It is true that an order was passed on his objections to the production of documents. The learned Magistrate held that they are not relevant. Then the question arises as to whether in the revision application filed by the complainant against the accused was he entitled to be heard? The answer to that question is that he should have been made a party to such proceedings since an objection was raised by him as to the relevancy of the said documents. Then the question which arises is as to whether he can file an application for review of the said application. To that question, the answer is obviously no, because he is not a party to the revision application and obviously not a necessary party tot the adjudication of a dispute between the accused and the complainant as to the relevancy or admissibility of such documents. In this view of the matter, the criminal application filed by K.M. Shah, namely Criminal Application No. 72 of 1983, is not maintainable and accordingly deserves to be dismissed.

13. The second application, namely, Criminal Application No. 71 of 1983, is filed by J.D. Mehta, another Chairman of the said Society. After remand the learned Magistrate again issued a notice for production of the said documents. The notice is served on the witness for production of the said documents. Having received a notice, he filed this application. There is no substance in this application for more than one reason. In the first instance, the petitioner ought to have complied with the witness summons for production of the documents. He should not have disobeyed that summons and rushed to the High Court for challenging the summons for production of documents. The language of section 162 of the Evidence Act makes it abundantly clear that notwithstanding any objection he must obey the summons for production of the documents and arise any objections thereto as to the admissibility thereof. Instead of following the procedure, the petitioner rushed to the High Court by way of this criminal application, and it is on that ground alone this application deserves to be dismissed. There is another ground to reject this application. It is that the order passed by this Court on October 28, 1982 specifically mentions that the documents consisting of letters are allowed to be produced subject to all legal objections as to admissibility and relevancy in law. It in open to all the petitioner to raise all sorts of legal objections as to admissibility and relevancy in law. He is not debarred to raise such objections. In view of the order passed by this Court that the witness could raise illegal objection before the learned Magistrate, he should not have rushed to this Court for filing this application. On that ground also the application itself is not maintainable. Thirdly, I am unable to appreciate the conduct of the Chairmen of the said Society to associate themselves with the criminal trial between the complainant and the accused. The documents sought to be produced are not privileged documents or their personal properties for them to take any objection for their production or admissibility. The conduct of the Chairman of the said society is rather very unhappy that they should associate themselves in a private complaint between the complainant and the accused. However, the law gives them a right to take objections after having produced the documents as to production or admissibility of such document. The impugned order of this Court dated October 28, 1982 itself is clear that it protects the right of some of the persons connected with the trial of this case, namely the complainant, the accused and also the witness who is summoned to produce the document. In such circumstances, these applications filed by the petitioners can be said to be improper and unnecessary. With this view of the matter, both the applications stand dismissed.

14. In the result, the rule is discharged in both these applications.


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