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Ranchhoddas Khimji Ashere Vs. Tempton Jahangir and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 150 of 1960 with Crl. Appln. No. 298 of 1960
Judge
Reported inAIR1961Guj137; 1961CriLJ338; (1961)2GLR415
ActsConstitution of India - Article 20(3); Code of Criminal Procedure (CrPC) , 1898 - Sections 94 and 439; Succession Act, 1925 - Sections 317
AppellantRanchhoddas Khimji Ashere
RespondentTempton Jahangir and anr.
Appellant Advocate I.C. Bhatt and;A.D. Desai. Advs.
Respondent Advocate J.M. Thakore, Adv. General and; B.R. Sompura, Asst. Govt. Pleader on behalf of Attorney General
DispositionRevision Application allowed
Cases Referred and Gurpurb Singh v. S. Autar Singh
Excerpt:
.....to consider how far the provisions of article 20(3) affect the validity of the order of the learned magistrate, we should like to dispose of the first contention urged by mr. this contention turns entirely on a question of fact and unless the record clearly shows that the allegation of opponent no. if this is the position, there can he no doubt that the constitutional guarantee in article 20(3) was violated by the making of the impugned order and the order was bad and illegal. autar singh, air 1960 j and k 55 which have taken the same view, namely, that an order under section 94 of the criminal procedure code requiring an accused to produce documents which are reasonably likely to support the prosecution against him offends against the provisions of article 20(3). we are,..........the petitioner's application to cancel an earlier order dated 21st august 1959 passed by the learned magistrate directing the petitioner to produce certain books of account in a criminal case pending against the petitioner in the court of the learned magistrate.2. the facts giving rise to this revision application may be briefly stated as follows:--opponent no. 1 filed a complaint against the petitioner in the court of the judicial magistrate, first class. broach, charging the petitioner for an offence under section 406 of the indian penal code. the complaint was numbered as criminal case no. 1100 of 1959. during the pendency of the complaint. opponent no. 1 made an application to the learned magistrate under section 94 of the criminal procedure code for an order requiring the.....
Judgment:

Bhagwati, J.

1. This Revision Application is directed against an order passed by the Sessions Judge, Broach, dismissing a Revision Application preferred by the petitioner against an order passed by the Judicial Magistrate, First Class, Broach, rejecting the petitioner's application to cancel an earlier order dated 21st August 1959 passed by the learned Magistrate directing the petitioner to produce certain books of account in a Criminal Case pending against the petitioner in the Court of the learned Magistrate.

2. The facts giving rise to this Revision Application may be briefly stated as follows:--Opponent No. 1 filed a complaint against the petitioner in the Court of the Judicial Magistrate, First Class. Broach, charging the petitioner for an offence under Section 406 of the Indian Penal Code. The complaint was numbered as Criminal Case No. 1100 of 1959. During the pendency of the complaint. Opponent No. 1 made an application to the learned Magistrate under Section 94 of the Criminal Procedure Code for an order requiring the petitioner to produce certain books of account mentioned in that application. An order was passed by the learned Magistrate at the foot of the application on 21st August 1959, which was in the following terms :

'The accused should produce the books of account stated in the application on the next date'.

Some controversy was raised before us as to whether the learned Magistrate made the order On the basis of an agreement by the petitioner that he would produce the hooks of account on the next date of the hearing. We shall refer to that controversy when we deal with the arguments advanced before us on behalf of the patties.

3. It appears that the petitioner thereafter made an application, Exhibit 17, to the learned Magistrate, on 12th September 1959, praying that the application of opponent No. 1 for production of the books of account should be rejected. By this application the petitioner in effect sought a cancellation of the order dated 21st August 1959 which had been passed by the learned Magistrate on the application of opponent No. 1. The ground on which the application was based was that by reason of Article 20(3), of the Constitution of India, the petitioner could not be compelled to produce the books of account inasmuch as the production of the books of account would amount to testimonial compulsion so as to attract the applicability of Article 20(3). The application was opposed by Opponent No. 1 and the learned Magistrate by an order dated 30th December 1959 negatived the plea of the petitioner based on the provisions of Article 20(3) and rejected the application and ordered the petitioner to produce the books of account as prayed for by Opponent No. 1.

4. Aggrieved by the order of the learned Magistrate, dismissing his application, the petitioner preferred a Revision Application against the same to the Sessions Judge, Broach. The learned Sessions Judge also dismissed the revi-sion application on the ground that the petitioner was not entitled to the protection against compulsion of self-incrimination contained in Article 20(3) and that in any event, the books of account which the petitioner was ordered to produce were public documents and the constitutional guarantee under Article 20(3) did not extend to such documents. The learned Sessions Judge accordingly held that the order of the learned Magistrate was correct and legal and declined to interfere in the matter. The petitioner, therefore, preferred the present Revision Application before us.

5. In this Revision Application, Mr. I. C. Bhatt, learned advocate on behalf of the petitioner, challenged the vires of Section 94 of the Criminal Procedure Code and a notice was, therefore, ordered to be issued to the Attorney General. In response to the notice the learned Advocate General has appeared before us on behalf of the Attorney General to support the vires of Section 94 of the Criminal Procedure Code. It may, however, he mentioned that in the course of the arguments, Mr. I. C. Bhatt gave up his contention that Section 94 of the Criminal Procedure Code was ultra vires Article 20(3) and confined his challenge to the order of the learned Magistrate directing the petitioner to produce the books of account. Mr. I. C. Bhatt contended that by the order the petitioner was compelled to produce the books of account and this constituted testimonial compulsion which violated the constitutional guarantee contained in Article 20(3) and the order was, therefore, bad and illegal. Mr. A. D. Desai, learned advocate on behalf of Opponent No. 1, combated this contention of Mr. I. C. Bhatt and gave a two-fold answer to this contention. Mr. A. D. Desai argued that the provisions of Article 20(3) were not attracted in the present case inasmuch as the order was passed by the learned Magistrate as a result of the agreement on the part of the petitioner to produce the books of account and even after the order was passed, the petitioner stated at the next hearing of the case that he would produce the books of account at the adjourned hearing and there was, therefore, no testimonial compulsion in the Order which would attract the application of Article 20(3). The second argument of Mr. A. D. Desai was that the protection against compulsion of self-incrimination in Article 20(3) extended only to private documents-and that since the books of account which the petitioner was required to produce were not private documents, tile petitioner was not entitled to claim any protection in respect of the production of such books of account. We shall now proceed to examine these arguments.

6. The scope and ambit of Article 20(3) have been considered in a decision of the Supreme Court in M. P. Sharma v. Satish Chandra, AIR 1954 SC 300. In that case the constitutionality of certain searches and seizures under Section 96 of the Criminal Procedure Code was challenged mainly on the ground that the searches and seizures violated the constitutional guarantee contained in Article 20(3). The argument urged before the Court was that a search to obtain documents for investigation into an offence is a compulsory procuring of incriminating evidence from the accused himself and is, therefore, hit by Article 20(3) as unconstitutional and illegal. This challenge under Article 20(3) was sought to be met by a two-fold contention. It was contended in the first instance that the fundamental guarantee in Article 20(3) is confined to the oral testimony given by an accused in a criminal case pending against him and does not extend to compelled production of documents from the possession of the accused. The second contention was that even if the constitutional guarantee extends to compelled production of documents by an accused from his possession, searches and seizures under Section 96 of the Criminal Procedure Code are not on the same footing as compelled production of documents by the accused: they are not positive volitional evidentiary acts of the accused and the provisions of Article 20(3) are, therefore, not attracted. Dealing with the first contention, Jagannadhadas J., delivering the judgment or 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 he 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 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'. * * * * *

'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 procured is confined to what transpires at the trial in the Court room.

'The phrase used in Article 20(8) is 'to be a witness' 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 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 prose-cusion. Whether it is available to other persons in other situations does not call for decision in this case.

'Considered in this light, the guarantee under Article 20(3) would he 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 .....'

It was thus held by the Supreme Court in that case that the constitutional guarantee under Article 20(3) is not confined to oral testimony but also extends to any compulsory process for production of evidentiary documents which are reasonably likely to support the prosecution against the accused. Having dealt with this contention, the Supreme Court proceeded to deal with the other contention namely, whether the searches and seizures amounted to compulsory production of documents by the accused and held that 'neither the searches nor the seizures are acts of the occupier of the searched premises; they are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense.....' and are not hit by the provisions of Article 20(3), It can, therefore, he taken as established by this decision of the Supreme Court that any compulsory process for Production of evidentiary documents which are reasonably likely to support the prosecution is hit by the provisions of Article 20(3). The learned Advocate General referred us to a subsequent decision of the Supreme Court in Mohd. Dastagir v. State of Madras, AIR 1960 SC 756 and pointed out to us that according to the judgment of the Supreme Court in that case, the observations which we have quoted above from the decision of the Supreme Court in Sharma's case, AIR 1954 SC 300 (supra) were unnecessary. That, however, does not help Opponent No. 1. It is clear from the aforesaid discussion that the point as to whether the constitutional guarantee-under Article 20(3) comprehends within its scope compelled production of documents by an accused was raised and argued before the Supreme Court in Sharma's case, AIR 1954 SC 300 (supra) and it was decided by the Supreme Court in that case that the constitutional guarantee-does extend to compulsory production of documents by an accused. So far as this Court is concerned we are dutifully bound to follow that decision and in the light of that decision, we will now proceed to examine whether the impugned order in the present case violates the constitutional guarantee iu Article 20(3).

7. Before, however, we proceed to consider how far the provisions of Article 20(3) affect the validity of the order of the learned Magistrate, we should like to dispose of the first contention urged by Mr. A. D. Desai. This contention is based on the allegation that before the Order was made by the learned Magistrate, the petitioner had agreed to produce the hooks of account and it was by reason of that agreement that the learned Magistrate made the Order. Mr. A. D. Desai relied on the record of the case and particularly the endorsement made on the application of Opponent No. 1 for an Order requiring the petitioner to produce the books of account. There is an endorsement on this application signed by the petitioner stating that the petitioner would produce the books of account on the next date of hearing. Mr. A. D. Desai argued that this endorsement was made first in point of time and it was after the petitioner had agreed to produce the books of account by signing this endorsement that the learned Magistrate made the Order. The contention of Mr. A. P. Desai was that since the Order was made by the learned Magistrate on the basis of this agreement, the petitioner was not entitled to claim any protection in respect of the production of the books of account under Article 20(3). We do not think we can allow Mr. A. D. Desai to raise this contention on the record as it stands. This contention was not raised on behalf of Opponent No. 1 either before the learned Magistrate or before the learned Sessions Judge and we find that it has been raised for the first time before us. This contention turns entirely on a question of fact and unless the record clearly shows that the allegation of Opponent No. 1 is correct, we cannot allow Mr. A. D. Desai at this stage to raise this contention. We have looked at the record and particularly the endorsement made on the application of Opponent No. 1 for production of the books of account and we find it is not possible to say from the record whether the petitioner had agreed to produce the hooks of account and it was on account of that agreement that the learned Magistrate made the Order. We cannot come to any definite finding on this question of fact from the record and since the contention raised by Mr. A. D. Desai is based on this question of fact, we cannot permit Mr. A. D. Desai to urge this contention as an answer to the challenge made on behalf of the petitioner against the Order of the learned Magistrate.

8. Turning to the Order passed by the learned Magistrate, we find that the Order compels the petitioner to produce the books of account. There is no doubt that the Order is a compulsory process for production of books of account which are evidentiary documents reasonably likely to support the prosecution. We may mention at this stage that a faint attempt was made by Mr. A. D. Desai to argue that there is nothing to show that the books of account of which production was sought from the petitioner were incriminating documents likely to support the prosecution. This argument is without any substance. The application for production of the books of account was made under Section 94 of the Criminal Procedure Code and it is a condition which must be fulfilled before an Order can be made under that Section that the document of which production is sought must be ne-cessary or desirable for the purpose of the inquiry or trial. The application was made by Opponent No. 1 for an Order requiring the petitioner to produce the books of account as the books of account were, according to Opponent No. 1, reasonably likely to support the prosecution against the petitioner and it was on that basis that the learned Magistrate made the Order requiring the petitioner to produce the books of account. If the books of account were not reasonably likely to support the prosecution against the petitioner, the learned Magistrate could not have made the Order under Section 94 of the Criminal Procedure Code. We must, therefore, take it as established that the books of account which the petitioner was required to produce constituted evidentiary documents which were reasonably likely to support the prosecution in the criminal case pending against the petitioner. If this is the position, there can he no doubt that the constitutional guarantee in Article 20(3) was violated by the making of the impugned Order and the Order was bad and illegal. Mr. I. C. Bhatt has drawn our attention to the decisions of the Madras High Court, Allahabad High Court and the High Court of Jammu and Kashmir reported in Swarnalingam v. A. L. Inspector, (S) AIR 1956 Mad 165, R. C. Gupta v. State, AIR 1959 All 219, and Gurpurb Singh v. S. Autar Singh, AIR 1960 J and K 55 which have taken the same view, namely, that an Order under Section 94 of the Criminal Procedure Code requiring an accused to produce documents which are reasonably likely to support the prosecution against him offends against the provisions of Article 20(3). We are, therefore, of the opinion that the Order in the present case is violative of Article 20(3) inasmuch as it compels the petitioner to produce the books of account which are evidentiary documents reasonably likely to support the prosecution case against the petitioner and the Order is, therefore, bad and illegal.

9. The second contention of Mr. A. D. Desai was that the constitutional guarantee in Article 20(3) extends only to private documents and that the books of account which the petitioner was required to produce were not private documents and the petitioner was, therefore, not entitled to claim protection against self-in-crimination in respect of the books of account. Mr. A. D. Desai pointed out to us that the books of account of which production was sought were books of account maintained by the petitioner and Opponent No. 1 as joint administrators ot the estate of one Barjorji Mervanji Fraser and that since the books of account were required to be maintained under the Indian Succession Act, they were not private documents. We do not propose to decide the broad contention urged by Mr. A. D. Desai that the constitutional guarantee in Article 20(3) extends only to private documents because we are of the view that even if that were so, the books of account which the petitioner was required to produce were private documents and that the immunity against testimonial compulsion applied in respect of the books of account. The only Section in the Indian Succession Act to which our attention was drawn in support of the contention that the hooks of account were required to be maintained under that Act was Section 317. Now all that Section 317 requires is that an administrator shall, within six months from the grant of probate or letters of administration, Or within such further time as the Court which granted the probate or letters may appoint, exhibit in the Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor Or administrator is entitled In that character; and shall in like manner, within one year from the grant or within such further time as the Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of. The only obligation on the administrator is to exhibit an inventory and an account of the estate. No obligation is imposed on the administrator by the Section to maintain any hooks of account. Of course, if the administrator has not maintained proper books of account, the account which he exhibits in Court, may not be accepted by the Court, but it cannot be said that the Section imposes any obligation on him to maintain the books of account. We do not think that the books of account maintained by an administrator or joint administrators in connection with the administration of the estate of a deceased person can be said to be public documents. If they are not public documents, they would he necessarily private documents, and even if the contention of Mr. A. D. Desai that the protection against self-incrimination in Article 20(3) extends only to private documents were correct--a point on which we do not express any opinion--we have no hesitation in coming to the conclusion that the protection against self-incrimination extended to the books of account which the petitioner was required to produce under the Order. It must, therefore, follow that the Order of the learned Magistrate was violative of Article 20(3) and was void and illegal.

10. The result is that the Revision Application is allowed and the Rule is made absolute. The Order of the learned Magistrate dated 30th December 1959 passed on the application of the petitioner Exhibit 17 is set aside.


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