A.S. Qureshi, J.
1. The petitioner herein has challenged the judgment and order dated 3rd March, 1981 passed by the learned Chief Judicial Magistrate, Rajkot whereby the learned Magistrate had ordered that the present petitioner, original accused No. 1, shall produce the scooter in dispute before the Court, further directing that the respondent No. 1 original complainant may take away the said scooter on furnishing security of Rs. 15,000/- together with solvent security.
2. Mr. P. M. Thakkar, the Learned Counsel for the petitioner (original accused) has challenged the above order mainly on two grounds. Firstly that the learned Magistrate has no power in law to pass the impugned order and secondly in the facts and circumstances of this case, the impugned order is contrary to law and untenable. Mr. Thakkar has urged that the impugned order could possibly be considered to have been passed under Section 91 of the Code of Criminal Procedure (hereafter New Code) as there is no other provision in the Code under which the impugned order could be passed. The corresponding section in the repealed Code of Criminal Procedure, 1898 (hereafter Old Code) was Section 94. The two sections are in part materia. Mr. Thakkar has argued that the provisions of Section 91 of the New Code (Section 94 of the Old Code) are not applicable to an accused person. He has urged that although the language of the section is wide enough to include even an accused person but on a true construction of the said section, the accused person cannot be regarded as having been covered because it may result into great injustice caused to the accused e.g. an accused who is given immunity by law from making a statement or producing a document or thing which may be incriminatory in nature. Mr. Thakkar has also urged that Section 91 would not apply to the accused also because, the power under the section is exercisable not only by the Court but also by the Police Officer. If the Police Officer is given power to compel the accused to produce a document or thing which may be incriminatory it would create great hazard for the accused. Mr. Thakkar has relied on the judgment of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Chokshi A.I.R. 1965 S.C. 1251 wherein the Supreme Court has considered the provisions of Section 94 of the Old Code which were identical with those of Section 91 of the New Code. It is a majority judgment of Gajendragadkar, C.J., Hidayatullah, Sikri and Sachawat, JJ. wherein it is held that on true construction of Section 94 of the Old Code, it cannot be said to apply to the accused persons. The reason given by the Supreme Court is that it would cause great hardship to the accused person if it is held that Section 94 applies to the accused and also because the power under Section 94 of the Old Code (Section 91 of the New Code) is exercisable by the Police Officer.
3. Mr. D. G. Karia, the Learned Counsel for the respondent No. 2 has urged that in the present case the production of the scooter would not, in any way, be incriminatory for the accused and, therefore, the impugned order of production of scooter by the accused before the Court is legally valid and proper in the circumstances of the case. The submission of Mr. Karia is not correct because, on the correct interpretation of Section 91 of the New Code, it must be held following the aforesaid judgment of the Supreme Court that the said provisions do not apply to the accused persons irrespective of whether in any given case the order of production of a document or a thing by the accused person may not be incriminatory. This is so also because, it is neither proper nor desirable to go into the question as to whether the document or thing which is sought to be produced by the accused can be incriminatory or not. The Court cannot be expected to decide in the course of trial as to whether the production of a document or a thing would or would not be incriminatory in nature. More so, in the case of a Police Officer who at the investigating stage could not be entrusted with the responsibility to decide whether the production of the document or a thing would or would not be incriminatory for the accused. Hence, it must be held that the provisions of Section 91 of the New Code do not apply to the accused persons. Therefore, the impugned order of the learned Magistrate-directing the accused to produce the scooter in the Court is untenable and deserves to be set aside.
4. The second argument of Mr. Thakkar is that in the facts and circumstances of this case it is not necessary to order the production of the scooter also because such a production is not necessary for the purpose of either investigation or inquiry or trial as required by Section 91 of the New Code. According to Mr. Thakkar the transfer of the scooter by the complainant to the accused was voluntary and the complainant could take possession of the said scooter only by due process of law in the Civil Court. According to him, the complainant cannot resort to criminal proceedings for obtaining possession of the said scooter. Mr. Karia has urged on behalf of the complainant that the accused person had duped the complainant and induced him to part with the possession of the scooter under a misrepresentation that he was going to buy it. Hence, according to Mr. Karia, the offence was committed in respect of the scooter and, therefore, the learned Magistrate was justified in ordering the accused to produce the scooter before the Court. The contention of Mr. Karia is wholly untenable and must be rejected. It is not the function of the Criminal Court to direct the accused person to produce a thing in respect of which an offence is alleged to be committed with a view to restore the same to a person who may or may not have better title to it. That is the function of the Civil Court. Moreover, in this case, still the case of the complainant is to be decided and it cannot be said that the alleged offence in respect of the scooter has been committed as claimed by the complainant. The learned Magistrate has obviously gone wrong in passing an order directing the accused to produce the scooter in Court and further directed that the complainant may take away the scooter on furnishing security. This is tantamount to prejudging the issue. Even after coming to a final decision that the offence as alleged has been committed in respect of the scooter the learned Magistrate could not have ordered the production of the scooter and restoration of the same to the complainant. At the most, the accused could have been punished according to law if he was found guilty of the offence charged. For taking the possession of the scooter the complainant could only take resort to the Civil Court. Hence also, the impugned order of the learned Magistrate deserves to be set aside.
5. Mr. Thakkar has also urged that the learned Magistrate has no power to grant relief which is not prayed for in the complaint. In the complaint the complainant has prayed for a search warrant under Section 94 of the New Code to be issued to a Police Officer for carrying out the search at the place of the accused and produce the scooter before the Court. Mr. Thakkar has argued that in ordering the accused to produce the scooter in question, the learned Magistrate has granted the relief which even the complainant had not prayed for and hence the impugned order is illegal, void and inoperative in law. This contention of Mr. Thakkar also must be upheld as obviously, the complainant has not prayed for nor indeed could he pray for the production of the scooter by the accused. Issuing a search warrant to a Police Officer under Section 94 of the New Code stands on quite a different footing altogether. Mr. Karia has urged that the order passed by the learned Magistrate directing the scooter to be restored to the complainant is valid as, according to him, under Section 451 of the New Code, the learned Magistrate has such a power. This contention of Mr. Karia is untenable and is rejected because, the learned Magistrate has power to order the disposal of the property which is lawfully produced before the Court and not by ordering the accused to produce it which is legally not permissible. Again, the order of disposal of property under Section 451 of the New Code can be made by the learned Magistrate only after the final disposal of the complaint itself and not during the pendency of the proceedings.
6. In the result, the petition succeeds. The impugned judgment and order of the learned Chief Judicial Magistrate, Rajkot is set aside.
While this Miscellaneous application was pending before this Court, the learned Advocates of the parties stated that the proceedings in the trial Court are stayed. This is indeed surprising as this Court has not passed any order staying the proceedings before the trial Court, but as the record and proceedings were called for by the order of this Court, the trial Court has not been able to proceed with the complaint. Hence, it is directed that the record and proceedings shall be sent back to the trial Court promptly and the trial Court is directed to proceed with the bearing of the complaint as early as possible and dispose it of by judgment and order not later than 30-3-1984. Rule made absolute.