S.M. Fazl Ali, J.
1. This is an application by the petitioner for quashing an order passed by the learned Magistrate directing the accused to produce certain documents that were in their possession under the provisions of Section 94 of the Code of Criminal Procedure. There is also a prayer in the petition for quashing the proceedings against the petitioners on the ground that the complaint does not disclose any case against them. Lastly the petitioners have prayed that the present case may be stayed till the disposal of the civil suit which is pending between the parties and in which the subject-matter is identical with the allegations in the complaint.
2. In the first place it has been contended by Mr. Sunder Lai that the complaint does not disclose any case against the petitioners and therefore the proceedings against them should be quashed. I am, however, unable to agree with this contention. I have gone through the complaint carefully and 1 find that there are serious allegations in it against the petitioners. Before the learned Magistrate certain witnesses were also examined by the complainant and the learned Magistrate after applying his mind to the evidence on the record as also to the complaint summoned the accused. It is not open to this Court to go into the sufficiency or otherwise of the material that was before the learned Magistrate.
It is clearly mentioned in the complaint that the petitioners as trustees of Gurdawara temple had converted to their own use a large part of the properties. It is true that the complaint contains rather vague allegations and is not very happily worded. The fact, however, that a complaint is defective is no ground for holding that no en e at all has been made out by the complainant in his complaint. The question regarding the comments which the accused have to make on the complaint would arise only after the evidence is led before the Court and at the time when the Court decides as to whether a charge should be framed against them.
3. It was then contended by Mr. Sunder Lai that the case should be stayed pending the civil suit. It appears, however, that the accused made a prayer to this effect to the learned Magistrate, who has, however, not yet passed any orders on this prayer and has asked the petitioners to produce the necessary documents in order to enable him to come to a decision as to whether a case for stay has been made out. I may point that under the provisions of Section 344, Criminal P. C. the Magistrate has ample jurisdiction to stay the criminal case if he thinks that the subject matter of the criminal and the civil case is identical and if the suit is proceeding instituted prior to the criminal case. Under these circumstances I am most reluctant to exercise my discretion without giving the learned Magistrate an opportunity to exercise his discretion under the provisions of Section 344 of the Code of Criminal Procedure. This contention of the learned Counsel for the petitioners is, therefore, overruled.
4. The last contention which has been put forward by Mr. Sunder Lai is that the order of the learned Magistrate on the application of the complainant directing the petitioners to produce certain documents is without jurisdiction as it violates the protection given to the accused persons under Article 20(3) of the Constitution of India. In my opinion the contention raised is well founded and must be given effect to. In support of the contention Mr, Sunder Lai relied upon a decision of the Supreme Court in case of M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) where their Lordships were considering the scope of Article 20(3) of the Constitution of India and pointed out in very clear terms that the Article is available to the accused in case of any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them. Their Lordships while considering this question observed as follows:
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. The question then that arises next is whether search warrants for the seizure of such documents from the custody of these persons are unconstitutional and hence illegal on the ground that in effect they are tantamount to compelled production of evidence.
In the case before the Supreme Court their Lordships were really considering the question as to whether an order for seizure and search of documents passed Under Section 96 Cr.PC. would violate the provision of Article 20(3) of the Constitution of India. Their Lordships held that such an order would not contravene the provisions of Article 20(3) and that if there was an order directing production of documents by the accused it would violate the right of the accused under Article 20(3) of the Constitution of India. This decision it appears has been followed by a Division Bench of the Madras High Court in Swarnalingam Chettiar v. Asst. Labour Inspector, Karaikudi (S) A.I.R. 1956 Mad 165 where an order similar to the one passed by the learned Magistrate in the present case was set aside as being in violation of the principle contained in Article 20(3) of the Constitution of India.
The same view has been taken by the Kerala High Court in Krishnan Kesavan v. State of Kerala ATR 1957 Kerala 78 and also by the Madhva Bharal High Court in Mahomed Hussain v. Provident Fund Inspector ATR 1957 Madh-B 68. The Supreme Court decision appears to have been followed by a Division Bench of the Calcutta High Court in the case reported in Collector of Customs v. Calcutta Motor and Cycle Co. : AIR1958Cal682 wherein their Lordships of the Calcutta High Court have gone into this matter at great length, In view of the authorities mentioned above in my opinion id is now settled beyond doubt that an order passed) by the learned Magistrate Under Section 94 Cr.PC. calling upon the accused to produce the documents which are incriminating against them is absolutely without jurisdiction. Mr. Dhar, however, appearing for the respondent submitted that the Supreme Court decision is not applicable to this case. He has relied upon the observations of the Supreme Court in that very decision which are to be found at page 308 and which are as follows:
We may also assume that there is an element of compulsion implicit in the process contemplated by Section 94 because, in any case, non-compliance results in tile unpleasant consequence of invasion of one's premises and rummaging of one's private papers by the minions of law under a search warrant. Notwithstanding these assumptions we are unable to read Sections 94 and 96(1) Criminal P. C. as importing any statutory recognition of a theory that search and seizure of documents is compelled production thereof.
On the basis of these observations it was contended by Mr. Dhar that their Lordships of the Supreme Court had held that Sections 94 and 96 do not contravene the provisions of Article 20(3) of the Constitution of India and must, therefore, be upheld. But scrutinizing the contention a bit closely it seems to mo that the contention is based on some misconception, Their Lordships of the Supreme Court have drawn a clear distinction between an order of the Court by which the accused himself is directed to produce the documents and an order of the Court by which police is directed to search or seize the documents in possession of the accused. The former case amounts to testimonial compulsion which comes within the ambit of Article 20(3), Constitution of India whereas in the latter case Article 20(3) has no application. This distinction has been brought out in the following observations made by their Lordships of the Supreme Court in that case;
It is, therefore, clear that there is no basis in the Indian Law for the assumption that a search or seizure of a tiling or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But a search warrant i$ addressed to an officer of the Government, generally a police officer. Neither the search nor the seizure are acts of the occupier of the searched premises. They are acts of another to whom he Is obliged to submit and are, therefore, not his testimonial acts in any sense. Even in the American decisions there is a strong current of judicial opinion in support of this distinction. In Hale v. Henkel (1905) 201 US 43 Justice Mckenna in his dissent'-ing judgment makes the following observations:
Search implies a quest by an officer of the law; a seizure contemplates a forcible disposition of the owner .... The quest of an officer acts upon the things, themselves, may be secret, intrusive, accompanied by force. The sprit of a subpoena is but the delivery of paper to a party, - is open and above board. There is no element of trespass or force in it.
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.
The learned Counsel for the complainant has not been able to cite any decision where the interpretation given by him on the Supreme Court decision has Been accepted. Mr. Dhar, however, relied on a decision of the Calcutta High Court reported in Satya Kinkar v. Nikhil Chandra : AIR1951Cal101 which was however, given previous to the Supreme Court decision. In my opinion after the observations made by the Supreme Court in A.I.R. 1954 SC 300 the decision of the Calcutta High Court is no longer good law. I am fortified in my view by a Division Bench decision of the Madras High Court in (S) A.I.R. 1956 Mad 165 where their Lordships of the Madras High Court while referring to the Calcutta decision observed as follows:
In view of the observations of the Supreme Court in their recent decision in A.I.R. 1954 SC 300 this petition must be allowed. Their Lordships therein observed that the guarantee under Art 20(3) would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against the accused. Having regard to these observations reliance cannot be placed on the decision of the Calcutta High Court in A.I.R. 1951 Cal 101.
It was lastly contended by the counsel for the respondent that in this case the learned Magistrate did not compel the accused to produce the documents but they themselves agreed to do so. This contention is based on a statement in the objection of the accused in which they stated that if they are ordered to produce the documents concerned they would do so but if the documents are produced they should be kept in safe custody. A perusal of the objection clearly shows that the application of the complainant for production of the documents was strongly resisted and if they made any statement in protest to comply with the orders of the Court in case their objection was overruled, this surely cannot be taken to mean that they agreed to the production of the documents.
5. For the reasons given above, therefore, I am of the opinion that the order of the learned Magistrate directing the accused to produce the documents amounted to violation of the protection given to the accused under Article 20(3) of the Constitution of India and was clearly without jurisdiction and must be set aside. It is, however, still open to the learned Magistrate to take such other action for the search and seizure of the documents as may be permissible under law. It is manifest that the order directing the accused to produce the documents having been set aside anything that has been done in consequence of that order must be rectified by the learned Magistrate,
6. The application is allowed to this extent that the order of the learned Magistrate directing the accused to produce the documents is set aside.