Gurdev Singh, J.
1. This order will dispose of a set of eleven appeals (Criminal Appeals Nos. 1194 to 1204 of 1962) against the acquittal of the respondents as they involve a common question of law for decision.
2. The respondents, Prabhu Singh and Narindar Singh Lamba, are the Chairman and Managei of the Transport Company known as Messrs, Loharu Motor Service (Private) Limited. On the complaint of the Provident Fund Inspector that they had failed to pay the contribution of the employees and the employers' share and submit the necessary return as required by the Employees' Provident Fund Scheme, 1952, they were tried by Shri Hardial Singh, Magistrate First Class, Bbiwani, on eleven different charges under Section 14 of the Employees' Provident Fund Act, 1952, read with Section 76 of the Employees' Provident Fund Scheme, 1952, The respondents pleaded not guilty to all the charges and contended that since the number of their employees was below 20, the Employees' Provident Fund Act could not apply to their concern. The complainant did not examine any evidence in support of his case but relied solely on the records 01 the Transport Company kept by the respondents, and applied to the Court under Section 94 of the Criminal Procedure Code for their production by the accused. The respondents resisted the application contending that in view of the prohibition contained in Article 20(3) of the Constitution against testimonial compulsion they could not be forced to produce the relevant documentary evidence against themselves. The learned trial Magistrate upheld their objection holding that the respondents could not be compelled to be witnesses against themselves and in absence of any other material to support the case against the respondents acquitted them in all the eleven cases. Against these orders of acquittal, dated 3rd September, 1962, the State has preferred these eleven appeals under Section 417 of the Criminal Procedure Code.
3. The application of the complainant for the production of documents and books of the respondents' company was admittedly made under Section 94 of the Criminal Procedure Code which empowers any Court or an officer in charge of the police station to order the person in whose possession such documents are to attend and produce the relevant documents. The decision of the trial Magistrate that in view of the provisions of Article 30(3) of the Constitution no such order compelling an accused to produce incriminating documents against hunk can be made, finds support from two Division Bench authorities reported as R. C. Gupta v. The State, : AIR1959All219 and State of Maharashtra v. Nagpur Electric Light and Power Co., Ltd., : AIR1961Bom242 .
In the former case it was held that an order under Section 94 directing a person to produce documents before the Court was clearly an order to furnish evidence, and such an order, therefore, attracted the prohibition contained in Clause. (3) of Article 20 of the Constitution. The Bombay decision : AIR1961Bom242 is more in point, as be sides holding that Article 20(3) of the Constitution prohibited a summons being issued under Section 94 of the Criminal Procedure Code against an accused-person requiring him to produce documents in support of the prosecution case, the learned Judges of that Court held that the production of a document in a criminal case in support of the prosecution case was a testimonial act, and the protection against self-incrimination given to the accused under Article 20(3) was available not only to natural individuals but to companies as well.
4. learned Counsel, appearing on behalf of the State, has, however, argued that both these decisions, which proceeded on the scope of Article 20(3) of the Constitution as laid down in M. P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) , ignored certain observations contained in that judgment of the Supreme Court and could not be considered as good law in view of the subsequent decision of a Bench of eleven Judges of that Court in State of Bombay v. Kathi Kalu, : 1961CriLJ856 .
5. In : 1978(2)ELT287(SC) , which is a Full Court decision without any dissension, while examining the scope and extent of the fundamental right guaranteed by Article 20(3) of the Constitution, Jagatinadhadas, J., who spoke for the Court, observed as follows: -
Broadly stated, the guarantee in Article 20(3) is against '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 malting intelligible gestures as in the case of a dumb witness (see Section 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 production of a thing or of a document or in other modes.
Proceeding further his Lordship said;-
Considered in this light, the guarantee under Article 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.
6. The case before their Lordships was one relating to the issue of a search warrant under Section 96 of the Criminal Procedure Code. Examining the provisions of that section, it was held that there was nothing in Article 20(3) of the Constitution to render illegal such warrants issued under that Section. In coming to this conclusion their Lordships observed:-
A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a totally different fundamental right by some process of strained construction. Nor is it. legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.
7. It is true that in course of the discussion at page 306 of the Report Jagannadhadas, J. who delivered the judgment of the Court, remarked: -
Notwithstanding these assumptions, we are usable to read Sections 94 and 96 (1), Criminal Procedure Code, as importing any statutory recon nation of a theory that search and seizure of documents is compelled production thereof.
But these observations, in our opinion, cannot be interpreted as laying down that an order under Section 94 of the Criminal Procedure Code calling upon an accused person to produce certain document was not hit by the prohibition contained in Article 20(3) of the Constitution. As pointed out by the learned Judges of the Allahabad High Court in R. C. Gupta's case, : AIR1959All219 (supra), their Lordships of the Supreme Court were merely observing that search and seizure of document could not be treated as compelled production.
8. The prohibition against testimonial compulsion embodied in Clause (3) of Article 20 of the Constitution, subsequently came up for examination' before the Supreme Court in several cases and the Full Bench decision in M. P. Sharma's case, : 1978(2)ELT287(SC) (supra), was examined by a larger Bench of that Court in : 1961CriLJ856 . In that case their Lordships were called upon to consider the validity of Section 27 of the Indian Evidence Act, and they held that if the self-incriminatory information is given by an accused without any threat, that would not be hit by the provisions of Clause (3) of Article 20 of the Constitution as the statement cannot be said to have been made under compulsion. Referring to Clause (3) of Article 20 of the Constitution, which lays down that 'no person accused of any offence shall be compelled to be a witness against himself,' Sinha, C. J., who delivered the majority judgment spoke thus:-
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 expression 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. 'Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that -- though they may have intended to protect an accused person from the hazards of self-incrimination, in the-light of the English Law on the subject they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice.
9. Proceeding further, the Court held that 'to be a witness' in its ordinary grammatical sense meant giving oral evidence in Court, but case law had 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.
10. Referring to the decision in M. P. Sharma's case, : 1978(2)ELT287(SC) the Instanced Chief Justice expressed agreement with the dictum that Clause (3) of Article 20 covered not only oral testimony given by a person accused of an offence but also his written statement which may have a bearing on the controversy with reference to the charge-against him. While his Lordship did not subscribe-to the observation in that case that Section 139 of the Evidence Act had no bearing on the connotation of tie word 'witness', he was conscious of the fact that in certain cases the production of documents by an accused would be hit by Clause (3) of Article 20 'as is evident from the following' observations of the learned Chief Justice (at page-1814 of the Report):-
The accused may have documentary evidence in his possession which may throw some light on he controversy. 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 accordance with the provisions of Section 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, h cannot be cross-examined .... In our opinion, therefore, the observation of this Court in Sharma's case, : 1978(2)ELT287(SC) that Section 139 of the Evidence Act this no bearing on the connotation of the word 'witness' is not entirely well founded in law. It is well established that Clause (3) of Article 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 contains 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.
11. The concluding portion of these observations clearly indicates that the answer to the question whether the order requiring the production of a document by an accused person is hit by the prohibition contained in Clause (3) of Article 20 of the Constitution would depend upon the nature of that document. If the document is such as in the words of his Lordship, '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. But if the order relates to a document which contains 'any statement of the accused based on his personal knowledge,' the order for its production will attract the constitutional bar against testimonial compulsion,
12. In the cases before us the documents which the complainant wanted to summon from the respondents were the registers etc., kept by them or under their direction relating to the affairs of the company of which they are the Chairman and the Manager. Such documents would obviously contain information based upon personal knowledge of the respondents, which was to be used as in- criminating evidence against them, and consequently an order compelling the production of such documents by the respondents would be vocative of the constitutional guarantee contained in Article 30(3) of the Constitution.
13. It may further be observed that while holding in : 1961CriLJ856 (supra),- that Section 27 of the Indian Evidence Act was not hit by Article 20(3) of the Constitution the learned Judges were influenced by the fact that there was no testimonial compulsion involved if an accused person made a statement falling under Section 27 of the Act without duress or threat. The position with regard to an order made under Section 94 of the Criminal Procedure Code is, however, not the same, as failure to comply with an order for production of documents etc., under that provision of law renders the defaulter liable to prosecution under Section 175 of the Indian Penal Code. It is thus obvious that the person against whom such an order is made is not at liberty to disobey it and he can ignore it only at the risk of prosecution resulting in punishment by way of imprisonment and fine as well. Where such an order is addressed to an accused person (as the complainant sought to obtain in the cases before us), it is clearly an order compelling him to produce documents which the prosecution seeks to use as evidence against him.
In view of the dictum of their Lordships of the Supreme Court in : 1961CriLJ856 that the expression 'to be a witness' used in Article 20(3) of the Constitution is not to be literally construed but has a wider meaning, there can be no doubt that in seeking an order under S, 94 of the Criminal Procedure Code the complainant intended to compel the respondents to be witnesses against themselves. The prohibition against testimonial compulsion contained in Article 20(3) of the Constitution, in my opinion, clearly operates against the passing of such an order. There being no evidence in support of the cases against the respondents, the learned trial Magistrate quite properly ordered their acquittal.
14. For the reasons recorded above, I find no force in these eleven appeals and dismiss the same.
Mehar Singh, J.
15. I agree.