Bimal Kanti Ghosh vs M. Chandrasekhar Rao

G.B. Patnaik, J.—The Petitioner has invoked the inherent jurisdiction of this Court to quash the order dated 22-9-1985 passed by the learned Magistrate in a complaint case bearing I.C.C. No. 32 of 1980, whereunder the learned Magistrate directed issuance of summons to the Petitioner for production or documents in possession of the Petitioner.

The complainant and the Petitioner are the two Directors of a Private Limited Company. The Company was engaged with the raising work of graphite in Athmallik in the district or Dhenkanal and china-clay in Jhankarpalli in the district of Sambalpur. The Petitioner had taken on lease some mines both at Athamallik and at Jhankarpalli. The Company had a contract with the Petitioner to purchase the minerals raised from Petitioner''s mines. A complaint was tiled purporting to be one u/s 221 of the Companies Act in the Court of the Sub-Divisional Judicial Magistrate, Bhubaneswar, who was of the view that no prima facie case existed against the Petitioner and further he was of the opinion that Section 621 of the Companies Act would be a bar to take cognisance and accordingly the said complaint case was dismissed. Against the said order of the Sub-Divisional Judicial Magistrate a revision was carried to the Sessions Judge who directed the Sub-Divisional Judicial Magistrate to conduct an injury u/s 202 of the Code of Criminal Procedure and in course of the said inquiry the complainant produced a Resolution dated 17-12-1979 passed by the Board of Directors of the Company wherein the complainant appears to have been authorised by the Board to file the complaint against the Petitioner. On 8-5-1980, the complainant filed an application for issue of a search warrant to get some documents which was ultimately rejected by order dated 12-1-1983 and the complainant was directed to produce his witnesses in support of the charge the complainant filed another application for self-same relief which was also rejected by the learned Magistrate by order dated 13-4-1983. Another application again was filed on 20-8-1983 for the self-same purpose and this application has been allowed by the impugned order dated 22-9-1983. The learned Additional Chief Judicial Magistrate considered the scope and effect of the provisions in Sections 91 and 93 of the Code of Criminal Procedure and ultimately passed the impugned order.

Mr. Pasayat, the learned Counsel for the Petitioner, submits that it is fundamental of criminal jurisprudence that an accused should not be compelled to incriminate himself and this principle has been well recognised both under the Code of Criminal Procedure as well as under Article 20(3) of the Constitution. In that view of the matter even though the language of Section 93 of the Code of Criminal Procedure is rather wide, yet it would not bring within its sweep any compulsion on the accused to produce documents in his possession which may incriminate himself. In this connection, the learned Counsel places reliance on the decision of the Supreme Court reported in State of Gujarat v. Shyamlal A.L.R. 1965 S.C. 1251.

The petition dated 20-8-1983 filed by the complainant-opposite party sought for issue of a search warrant to search the premises in possession of the accused-Petitioner or his agents and to cause production of documents mentioned in the schedule attached to the said petition. According to the complainant, production of such documents would ensure fair trial of the case. In the complaint case cognisance has been taken against the accused u/s 221 of the Companies Act on the allegation that the accused while acting as a Director of the Company took an advance of Rs. 90,000/- for official expenditure and did not account for the same in spite of repeated demands and, therefore, defaulted to perform the duty cast upon him under the provisions of the Companies Act. Chapter. VIII of the Code of Criminal Procedure contains provisions relating to process for production of things. Section 91 of the Code provides that the Court considers that production of any document is necessary or desirable for the purpose of investigation, inquiry, trial, or other proceedings under the Code, then such Court may issue summons to the person in whose possession or power such document is believed to be requiring him to attend and produce it at the time and place stated in the summons. Section 93 is the relevant provision dealing with the circumstances as to when such warrant can be issued. Section 93 is quoted hereinbelow in extenso for better appreciation of the question involved in this case

When search warrant may be issued.

(1) (a) Where any Court has reason to believe that a person to whom a summons or order u/s 91 or a requisition under Sub-section (1) of Section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or

(b) where such document or thing is not known to the Court to be in the possession of any person, or

(c) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to how such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.

(2) The Court may, if it thinks fit, specify in the warrant the particulars of place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief/Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority.

From a bare perusal of the aforesaid provisions, it is crystal clear that search-warrants are not issued generally and are granted only in the cases expressly authorised by these provisions. The Court before issuing a search-warrant must have reasons to believe that the person to whom summons u/s 91 of the Code has been issued will not or would not produce the document. The expression "reason to believe" would mean that there must be some, justifiable grounds for the Court to form that opinion and a mere suspicion cannot take the place of justification to have the opinion. Article 20(3) of the Constitution provides full protection against testimonial compulsion. The question which remains for consideration is whether a search-warrant can be issued against an accused directing him to produce some documents in his possession within the ambit of Section 93 of the Code, or not.

The pari materia provision under the old Code, namely, Section 94 of the Code of Criminal Procedure, 1898, came up for consideration before the Supreme Court in the case of State of Gujurat v. Shyamlal, etc. A.L.R. 1965 S.C. 1251. The majority view expressed in the judgment of Justice Sikri, is to the effect that Section 94 on its true construction does not apply to an accused person under trial. It was held in the aforesaid case:

Keeping the above consideration in mind, let us look at the terms of the section. It will be noticed that the language is general, and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce are rather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court to ''attend and produce'' a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to ''attend and produce'' a document.

The argument pressed on us that the ''person'' referred to in the latter part of Section 94(1) is broad enough to include an accused person does not take into account the fact that the person in the latter part must be identical with the person who can be directed to produce the thing or document, and if the production of the thing or document, cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of Criminal Law, the generality of the word ''the person'' is of no significance.

In its ultimate conclusion, the Court held:

...we hold that Section 94 on its true construction, does not apply to an accused person....

Dealing with Article 20(3) of the Constitution as to what is the true meaning of "compelled testimony" within the said Article, the Supreme Court elaborately discussed the point and held in the case of Nandini Satpathy Vs. P.L. Dani and Another, :

...The prohibitive sweep of Article 20(3) of the Constitution goes back to the stage of police interrogation-not commencing in court only. Both the provisions substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or urial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. The phrase ''compelled testimony'' must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation....

(Quoted from the headnote)

Keeping in mind the prohibitions contained in Article 20(3) of the Constitution and in view of the decision of the Supreme Court reported in State of Gujarat''s case A.L.R. 1965 S.C. 1251, there is no manner of doubt that an accused cannot be forced to produce incriminating materials in his possession by issuing search-warrants u/s 93 of the Code. Consequently, the impugned order must be held to be without jurisdiction and, therefore, this is a fit case where the order should be quashed in exercise of inherent jurisdiction of this Court. I would, therefore, quash the order of the learned Magistrate dated 22-9-1983 in ICC Case No. 32 of 1980 pending in the Court of the Additional Chief Judicial Magistrate, Bhubaneswar.

This Criminal Miscellaneous Case is accordingly allowed.