1. This is a petition in revision against an interlocutory order dated 4-9-1956 passed by the Sub-divisional Magistrate of Khurda in a criminal case under Section 409, Penal Code, pending against the petitioner in his file.
2. The learned Magistrate, at the request of the prosecution, called upon the petitioner-accused to produce his F. P. S. Register (Foodgrains Procurement Stock Register). This order appears to have been passed by the Magistrate under Section 94, Criminal Procedure Code, though that section was not expressly quoted in the order.
The order was challenged as unconstitutional on the ground that it contravened the fundamental right guaranteed by Clause (3) of Article 20 of the Constitution, Reliance was placed mainly on a recent decision of the Supreme Court reported in M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (A), where it was held that the guarantee in Article 20(3) of the Constitution though against 'testimonial compulsion' would include protection against any process for production of evidentiary documents which are reasonably likely to support a prosecution against the accused.
3. It is necessary to briefly recapitulate some of the essential facts. The petitioner-accused is the Managing Director of Sri Biswanath Rice Mills Ltd., Jatni. For the year 1952-53 and 1953-54 he was both a Purchasing Agent and Miller-Agent for the Government of Orissa in the District of Purl. It is also admitted by Mr. Misra on behalf of the petitioner, though no evidence has yet been adduced by the prosecution on the subject, that the petitioner was during the relevant period a licensee under the Orissa Food, Grains Control Order, 1951 which was in force then.
The terms of the agreement between him and the Government of Orissa show that he was appointed as an agent of the Government for the purpose of purchasing food grains in the area allotted to him by the Collector on behalf of the Government, storage of the same and subsequent disposal in accordance with the instructions that may be issued from time to time by the Collector or any officer authorised by him in this behalf. He was required to work under the direction and control of the Collector on all matters pertaining to the agency including the price at which the foodgrains should be purchased and sold, the place and manner of storage and disposal of the foodgrains. The purchase of the foodgrains was made by him on behalf of the Government who through the Collector advanced sums from time to time to enable him to make the purchase. The Collector was conferred power to inspect the stocks and also to inspect the various books of accounts which the petitioner was required to maintain under Clause 12 of the agreement.
The petitioner also undertook to produce for inspection his books of accounts at such times and at such places as may be fixed by the Collector. He was allowed a liberal commission for the services rendered by him to the Government. The Miller-agency agreement is also of a similar kind and it is not necessary to refer to it in detail.
4. It seems thus clear that in connection with the foodgrains procurement scheme the petitioner agreed to serve as an agent of the Government for the purpose of purchase, storage and disposal of foodgrains. He had no independent status at all. The foodgrains purchased belonged to the Government. They were stored by him in godowns which also either belonged to the Government or were taken on rent by the Government. He sold the foodgrains on behalf of the Government.
He was also required to keep accounts pertaining to the agency and to allow them to be inspected by the officers of the Government. The printed Forms for keeping these accounts were also supplied by the Government. One of the F. P. S. Forms (Form No. IV) was actually filed before us by the Government Advocate and we found it to be a printed Form of the Government of Orissa. Following the well-known rule that any act of an agent within the scope of the agency will be deemed to be the act of the principal the said Register also may be held to be a Register of the Government though actually written and maintained by their agent.
5. The Civil Supplies Officer of Puri, after an inspection of the petitioner's premises filed a complaint before the Sub-divisional Magistrate of Khurda for the prosecution of the petitioner under Section 409, I. P. C., on the ground that he had committed criminal breach of trust of a large quantity of rice and paddy stored by him as the Purchasing Agent of the Government. The Sub-divisional Magistrate took cognizance on the basis of the complaint of the Civil Supplies Officer.
At the commencement of the trial the prosecution wanted the petitioner to produce from his custody the said Register presumably for the purpose of proving from the entries in the Register the actual stock that was in the possession of the petitioner for which he was not able to give a satisfactory account later on.
6. I should further point out that as a licensee under the Orissa Foodgrains Control Order, 1951 the petitioner is required to maintain a register of daily accounts showing the stock on each day, the quantity received, the quantity delivered and the closing balance of stock on each day. During the course of the argument it was conceded by the Counsel for both sides that the F. P. S. Register would also be a statutory register which a licensee is bound to maintain by and under the provisions of the Orissa Foodgrains Control Order, 1951.
7. On the aforesaid facts the question for consideration is whether the order of the Magistrate calling upon the petitioner to produce the said Register would amount to 'testimonial compulsion' against an accused in a criminal case and would thus offend Clause (3) of Article 20.
8. The Supreme Court decision cited above is to the effect that the protection against compulsory testimony under Clause (3) of Article 20 is not only available so far as the giving of oral evidence by an accused is concerned but is also available against the production of documents in his possession which may be reasonably used against him. The Government Advocate, however, contended that the aforesaid decision was applicable only to 'private documents' in the possession of an accused and that it would not apply to 'public-documents' in his possession which were outside the scope of the immunity conferred by Clause (3) of Article 20.
In support of this argument he relied on a series of American decisions of which reference need be made only to the two following leading, decisions, namely, Wilson v. United States, (1911) 221 US 361 (B), and William Shapire v. United States, (1948) 335 US J (C).
9. The relevant provisions of the American; Constitution are Amendments IV and V which are as follows:
'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
'No person ..... shall be compelled in any criminal case to be a witness against himself ..... '
In India though there is no constitutional provision corresponding to Amendment IV. Clause (3) of Article 20 is almost identical with Amendment V. In U. S. A. it seems settled that the constitutional immunity of Amendment V is applicable to what are known as 'private documents' in the possession of an accused and does not extend to 'public documents' which may be in his custody.
In the Wilson case (B), cited above the reason for this distinction between public and private documents was given as follows:
'But the physical custody of incriminating-documents does not of itself protect the custodian against their compulsory production. 'The question still remains with respect to the nature of the documents and the capacity in which they are held.' It may yet appear that they are of acharacter which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim, of privilege.
This was clearly implied in the Boyd Case (Boyd v. United States, (1886) 116 US 616) (D), where the fact that the papers involved were the private papers of the claimant was constantly emphasised. Thus, in the case of public records and official documents, made or kept in the administration of public office, the fact of actual possession or of lawful custody would not justify the officer in resisting inspection, even though the record was made by himself and would supply the evidence of his criminal dereliction.
If he has embezzled the public moneys and falsified the public accounts, he cannot seal his official records and withhold them from the prosecuting authorities on a plea of constitutional privilege against self-incrimination. The principle applies not only to public documents in public offices but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained.' (The underlining (here into ' ') is mine).
The Wilson case (B), was followed in subsequent decisions of the Supreme Court of U. S. A. (see Heike v. United States, (1912) 227 US 131 (E); Jack Davis v. United States, (1945) 328 US 582 (P); and (1948) 335 US 1 (C).
10. In Wingmore on Evidence (3rd Edition) in Section 2259 c (pp. 348-349) two reasons are given for this distinction :
'(i) Public official books being the property of the State are always accessible to its representatives and usually to the publfc. No guilty officer, merely by his own entries in them, can any more insist on privacy than if he were to have gone to the judicial records and there inscribed a forgery. His assumption of the office involves an implied undertaking to yield the document of the office to all inspection duly authorised. The judicial demand for its disclosure is therefore made against him as an official, and not as an accused person and his status as the latter cannot annul or override his status as the former.
(ii) The State requires the books to be kept, but it does not require the officer to commit the crime. If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by the compulsion of law. The State announced its requirement to keep the books long before there was any crime; so that the entry was made by reason of a command or compulsion which was directed to the class of entries in general, and not to this specific act. The duty or compulsion to disclose the books existed generically and prior to the criminal act but is independent of it, and cannot be attributed to it.'
11. On the question as to what are 'public documents' which are outside the immunity clause of Amendment V there seems a sharn cleavage in American opinion which is reflected in the majority and minority judgments in the Shapire case (C). In the Wilson case (B), it was pointed out that the immunity from compulsory production does not apply not only to (i) public documents kept in public offices but also (ii) to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.
Thus in the Jack Davis (P) case the petrol coupons in the possession of a petrol dealer were held to be public documents in his custody and as such outside the privilege of IVth and Vth Amendments. In the Shapire case (C), the majority of Judges held that all duplicate sales invoices, sales books, sales records, ledgers, inventory records and other papers relating to sales maintained by a wholesaler of fruit and produce were also public papers inasmuch as they were required to be maintained under the Emergency Price Control Act. The majority based their decision on the following reasoning:
'The record involved in the case at bar was a sales record required to be maintained under an appropriate regulation, its relevance to the lawful purpose of the Administrator is unquestioned and the transaction which it recorded was one in which the petitioner could lawfully engage solely by virtue of the license granted to him under the statute.'
12. The minority, however, were not prepared to go so far though there was complete unanimity on the question that public records are under no circumstance privileged. In the minority judgment Frankfurter J., observed that all records which are required to be kept under some regulatory power of the Government do not ipso facto become public records and that further investigation as to the nature of the records and the nature of possession with the accused would be necessary. To quote his own language-
'Records required to be kept by law are not necessarily public in any except a word-playing sense. To determine whether such records are truly public records, that is, are denuded of their essentially private significance, we have to take into account their custody, their subject-matter and the use sought to be made of them.' But he conceded that-
'Records may be public records regardless of whether a statute requires them to be kept 1C they are kept in the discharge of a public duty either by a public officer or 'by persons acting under his direction'.' (The underlining (here into ' ') is mine).
After reviewing several previous decisions of the various State Courts Frankfurter J., pointed out--(at page 65).'Clearly the records of business licensed to sell State owned property are public records''.
He relied on two cases viz.. Palandini v. Superior Ct. 178 Cal 369 (G); and State v. Stein, 215 Mina 308 (II). In the Palandini case (C), the sales records of licensed fish dealers were held to be non-privileged because the fish belonged to the State and the licensed dealers had only a qualified interest therein. Similarly, in the Stein case (H), the records of sales of licensed dealers in raw furs, were held to be public papers because the State was the owner in trust for the people of all wild animals.
13. Thus, though the Amercan decisions are unanimous that all 'public records' are outside the constitutional privilege of IVth and Vth Amendments the majority held that all records required by law to be maintained even by a private person were public records; whereas the minority were of the view that such a wide definition of public records will not be correct but that, records of a business licensed to sell State-owned property or of a public utility concern may be public records.
14. The difference between the majority and the minority view in America is not very material in the present case because apart from the statutory duty of maintaining the F. P. S. Register cast on the petitioner by the Orissa Food-grains Control Order, 1951 and the licence issued thereunder, he by acting as the agent of the Government had undertaken to maintain this register in accordance with the directions that may be issued from time to time by a public officer.
The register deals with the purchase, storage and sale of rice and paddy which is the property of the Government and is thus for all practical purposes a register maintained by the Government. This register would, therefore, come even within the narrow definition of 'Public record' as given by the minority of Judges in the Shapire case (C). It may also be a 'public document1 within the meaning of Section 74(1)(iii) of the Evidence Act.
15. Mr. Misra on behalf of the petitioner urged two grounds for not accepting the American view. Firstly he contended that in America incorporate bodies were dealt with on a different footing from private individuals and were not conferred the privilege of Amendments IV and V; Whereas in India the Supreme Court in the decision cited above definitely overruled such a distinction.
Secondly, in India there is no fundamental right against unreasonable search as in U. S. A. in Amendment IV and consequently all the decisions of U. S. A. which discussed the privileges of Amendments IV and V (which were read together) should not be applied too literally in India.
16. I am, however, not persuaded by this argument. It is true that the American distinction between incorporate bodies and private individuals so far as the constitutional privilege of Amendment V is concerned has not been accepted in India by the Supreme Court at page 304 of AIR 1954 SC 300 (A). But the principle that all public documents should be outside the scope of the privilege has nothing to do with the question as to whether the accused is an incorporate body or a private individual.
In the Shapire case (C), the immunity was claimed by a private individual and in the majority judgment at page 22 it was pointed out that there is no distinction between an incorporate body and a private individual so far as this privilege is concerned. The minority also did not rest their decision on the ground that the accused was not an incorporate body but on the ground that the documents were not public papers.
17. Similarly, the absence of a constitutional safeguard against unreasonable searches in the Indian Constitution similar to Amendment IV would not justify the inference that public records in the possession of private individuals are also within the scope of the immunity conferred by Article 20(3) of the Constitution. In the aforesaid Supreme Court decision AIR 1954 SC 300 (A), the distinction between public records and private records was not considered at all presumably because the records seized were admittedly private records.
But at page 305 while citing some of the American decisions (1886)) 116 US 616 (D), their Lordships of the Supreme Court were aware that the decision applied only to private books and papers of an accused. It is true that the absence in the Indian Constitution of a provision similar to Amendment IV was also taken as one of the factors for concluding that in India search and seizure of a document from an accused would not amount to infringement of the fundamental right under Article 20(3) of the Constitution.
But I am unable to find any special reasons as to why the principles of American decisions regarding the absence of privilege for public documents should not be applied in India. The reasons given in support of the American decisions apply with full force. The accused-petitioner had undertaken to maintain these documents either by virtue of a statutory provision or by virtue of a contract entered into with the Government. He had also agreed to their being inspected from time to time by public officials and also to produce them for inspection whenever required.
He was acting merely as the agent of the Government in the maintenance of these records and in a sense he was a mere custodian of the records on behalf of the Government. I should further point out that the language in the Vth Amendment to the American Constitution is practically identical with that of Article 20(3) of the Indian Constitution.
18. Mr. Misra Cited Swarna Lingam Chefr-tiar v. Assistant Labour Inspector, Karaikudi (S) AIR 1956 Mad 165 (I), Calcutta Motor & Cycle Co. v. Collector of Customs, AIR 1956 Cal 253 (J), wherein the aforesaid decision of the Supreme Court was followed and it was held that any compulsory process for production of evidentiary document in the possession of an accused would amount to an infringement of Article 20(3) of the Constitution. But in these two decisions the fundamental distinction between 'Public records' and 'private records' which has become the settled law in America has not been noticed and hence they are not of much help in the present discussion.
19. For these reasons I Overrule the contentions raised on behalf of the petitioner and hold that he must comply with the order of the Magistrate and produce the register called for on pain of incurring the penalty prescribed by law for non-compliance with his order. The revision petition is dismissed.
20. I agree.