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Ali Sheikh Vs. Akbar Bahar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1976CriLJ759
AppellantAli Sheikh
RespondentAkbar Bahar and ors.
Cases ReferredState of Bombay v. Kathi Kalu
Excerpt:
- .....of akbar bahar, respondent. on an application dated 25-7-1973 made by the said respondent, the trial magistrate vide his order dated 26-7-1973 directed that the seized property be restored to the former on his giving an undertaking to the effect that he would produce the same in court when required to do so. this order was passed ex parte without hearing the petitioner or his counsel. aggrieved by this order, the petitioner went up in revision to the c. j. m. srinagar. while assailing the order mr. k. n. rain appearing on behalf of the petitioner urged before the chief judicial magistrate that the order could not be sustained as it had been passed without hearing his client in flagrant violation of the principles of natural justice. he further contended before the chief judicial.....
Judgment:
ORDER

Jaswant Singh, C.J.

1. On 18-7-1973 the petitioner herein made a complaint under Sections 406/506 Ranbir P.C. before the City Judge, Judicial Magistrate First Class, Srinagar, who referred the same to the S, H. O., Saddar Police Station, Srinagar, for investigation under Section 202 of the Code of Criminal Procedure (hereinafter referred to as the Code): During the course of the investigation some chattel including a few head of cattle were seized by the police from the possession of Akbar Bahar, respondent. On an application dated 25-7-1973 made by the said respondent, the trial Magistrate vide his order dated 26-7-1973 directed that the seized property be restored to the former on his giving an undertaking to the effect that he would produce the same in court when required to do so. This order was passed ex parte without hearing the petitioner or his counsel. Aggrieved by this order, the petitioner went up in revision to the C. J. M. Srinagar. While assailing the order Mr. K. N. Rain appearing on behalf of the petitioner urged before the Chief Judicial Magistrate that the order could not be sustained as it had been passed without hearing his client in flagrant violation of the principles of natural justice. He further contended before the Chief Judicial Magistrate that the said order ought not to have been passed by the trial Magistrate, as later on if the accused is called upon to produce the seized property made over to him, it would not be possible to compel him to do so in view of the provisions of Article 20(3) of the Constitution of India. Both the contentions raised by the counsel for the petitioner found favour with the Chief Judicial Magistrate. He has accordingly made a reference to this Court recommending that the aforesaid order directing restoration of the seized property to Akbar Bahar, respondent, praised by the trial Magistrate be set aside and he be directed to pass a fresh order after hearing the learned Counsel for the parties.

2. The reference came up for hearing before the erstwhile Chief Justice who vide his order dated 28-9-1973 referred it to a Division Bench in view of the fact that it, inter alia, involved a substantial question of law regarding the interpretation of the provisions of Article 20(3) of the Constitution, This is how the case is before us.

3. Appearing in support of the reference, Mr. K. N, Raina has vehemently contended before us, as he did before the learned Chief Judicial Magistrate, that the impugned order could not be sustained as it had been passed in flagrant violation of the principles of natural justice. Mr. Raina has further reiterated that the trial Magistrate should not have passed the aforesaid order because if the accused is subsequently called upon to produce the property entrusted to him, he is likely to come forward with the plea that he cannot be compelled to do so in view of the provisions of Article 20(3) of the Constitution.

4. Mr. T. Hussain has on the other hand contended that Article 20(3) of the Constitution applies only to cases of 'compelled testimony' and since in the present case there is no question of Akbar Bahar, respondents making an oral or written statement, the apprehension of the complainant is wholly unjustified. He has further submitted that there can be no question of the respondent being subjected to any compulsion and Article 20(3) of the Constitution being attracted as his client has voluntarily undertaken to produce the property when called upon to do so. Mr. Hussain has also urged that the fundamental right enshrined in Article 20(3) of the Constitution can be waived and as his client is voluntarily waiving the benefit of Article 20(3) of the Constitution, it would not lie in his mouth to claim the benefit thereof at a subsequent stage. So far as the other contention of Mr. Raina that the order having been passed without affording an opportunity to his client of being heard is concerned, Mr. T. Hussain has no objection if the trial Magistrate is directed to pass a fresh order after hearing the learned Counsel for the parties.

5. We have given our careful consideration to the submissions of the learned Counsel for the parties. Article 20(3) of the Constitution no doubt enshrines the rule of protection against self-incrimination but as held by the majority in State of Bombay v. Kathi Kalu : 1961CriLJ856 % be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in court or otherwise, and is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

6. The property having passed into the custody of the Court, the production by the person entrusted with its temporary custody even if he happens to be an accused in obedience to the order of the Court, would not, in our opinion, amount to his making any statement, written or oral, or imparting any knowledge in regard thereto within the meaning of Article 20(3) of the Constitution. We are, therefore, of the view that the apprehension of the petitioner is wholly unfounded.

7. In view of our finding in regard to the applicability of Article 20(3) of the Constitution of India, it is not necessary for us to go into the other contentions of Mr. T. Hussain that it is open to a person to waive the right available to him under Art- 20 (3) of the Constitution of India.

8. As the order in question is opposed to the principles of natural justice having been passed without hearing the petitioner and the respondent has no objection to the trial Magistrate being ordered to pass a fresh order, we cannot allow the impugned order to stand. Accordingly we accept the reference, set aside the impugned order and remit the case to the trial Magistrate with the direction to pass a fresh order according to law after hearing the learned Counsel for the parties who are directed to appear before him on 28th of August 1975.

Mian Jalal-Ud-Din, J.

9. I agree.


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