Kerala High Court
T.R.Ajayan vs M.Ravindran on 7 January, 2008
  IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1622 of 2006()
1. T.R.AJAYAN, S/O. O.RAMAN,
                      ...  Petitioner
                        Vs
1. M.RAVINDRAN,
                       ...       Respondent
2. MRS. NIRMALA DINESH, W/O. DINESH,
                For Petitioner  :SRI.A.KUMAR
                For Respondent  :SMT.M.K.PUSHPALATHA
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
 Dated :07/01/2008
 O R D E R
                                                               'C.R.'
                          V.K.MOHANAN, J.
             ---------------------------------------------
        Crl.M.C.Nos. 1622, 1627 & 1628 of  2006
              ---------------------------------------------
             Dated this the 7th day of  January, 2008
                              O R D E R
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These three Crl.M.Cs. are filed challenging three separate orders in S.T.No.4577 of 2004 on the file
of the Judicial First Class Magistrate's Court, Palakkad. Since in all these Crl.M.Cs., the parties are
the same and the matter arose out of S.T.No.4577 of 2004, these matters are heard together and are
being disposed of by this common judgment.
2. The petitioner herein is the complainant in S.T.No.4577 of 2004 on the file of the Judicial First
Class Magistrate Court-II, Palakkad arising out of a private complaint filed under Section 138 read
with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred for short as 'N.I.Act'
only). The petitioner, on the closure of evidence filed three petitions,(1) C.M.P.No.1276 of 2006,
filed for a direction to reopen the prosecution evidence, (2) C.M.P.No.1277 of 2006, filed for a
direction Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-2-:
to the first accused to produce the minutes book of Infogenie Information Tech and Serv Pvt. Ltd.
and (3) C.M.P.No.1275 of 2006, filed for a direction to the Assistant Commissioner of Income Tax
(Assessment), Circle No.I, Palakkad to produce the income tax returns, balance sheet etc. of
M/s.Infogenie Information Tech and Serv Pvt.Ltd. All these petitions were dismissed by the court
below by three separate orders and the petitioner is challenging the above three orders separately by
preferring these Crl.M.Cs.
3. Crl.M.C.No.1622 of 2006 is filed challenging Annexure-F order dated 5.6.2006 in CMP No.1276
of 2006 in S.T.No.4577/2004. Annexure-C is the copy of the petition (C.M.P.No.1276 of 2006)
where the prayer is for re-opening the complainant's evidence. Crl.M.C.No.1627 of 2006 is filed
challenging Annexure- E order in Annexure-B petition, namely C.M.P.No.1275 of 2006, in which the
prayer is for a direction to produce the income tax records from the Assistant Commissioner of
Income Tax (Assessment), Circle No.I, Palakkad. Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-3-:
Crl.M.C.No.1628 of 2006 wherein the challenge is against Annexure-G order of the court below in
C.M.P.No.1277 of 2006, a copy of which is produced as Annexure-D wherein the prayer is to direct
the first accused to produce the minutes book of the company, namely M/s.Infogenie Information
Tech and Serv Pvt.Ltd. The above three orders are impugned in the above three criminal
miscellaneous cases.
4. In order to appreciate the contentions of the petitioner, a brief description of facts of the case is
absolutely necessary which is as follows:-
S.T.No.4577 of 2004 was filed by the petitioner herein under Section 138 read with Section 142 of
the N.I.Act with the allegation that the cheque in question was issued by the first and second
accused in their capacity as Vice Chairman and Managing Director respectively of the company
M/s.Inforgenie Information Tech and Serv Pvt.Ltd. for repayment of loan advanced to the company
to the tune of Rs.10,75,000/- on various occasions in his individual capacity. The petitioner-
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-4-:
complainant was earlier the Chairman and the Managing Director of the said company till his
resignation in October, 2003. According to the petitioner/complainant, an amount of
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Rs.10,75,000/- was due to the complainant and the accused, acting on behalf of the company in
discharge of the liability towards the complainant, gave cheques for Rs.5,00,000/- and 5,75,000/-
respectively. The cheque for Rs.5,75,000/- was encashed. But the cheque for Rs.5,00,000/- was not
encashed. According to the petitioner/complainant, on contacting the accused, they took back the
cheque for Rs.5,00,000/- and issued two other cheques; one for Rs.3,00,000/- and another cheque
for Rs.2,00,000/- bearing No.170842 dated 15.9.2004 drawn on H.D.F.C.Bank, Palakkad Branch.
The cheque for Rs.3 lakhs was encashed. The further case of the complainant is that at the request of
the accused, the complainant had presented the said cheque for collecting through the
H.D.F.C.Bank, Palakkad, but, the same was returned to the complainant without Crl.M.C.Nos.1622,
1627 & 1628 of 2006 :-5-:
encashment. Hence, after compliance of the statutory formalities, a complaint was filed on which
the court took cognizance and the case was proceeded with. On the side of the complainant, the
complainant himself was examined as PW-1 and another witness PW-2, the Branch Manager of
H.D.F.C. Branch, Palakkad was also examined. Thereafter, the prosecution evidence was closed and
the accused were questioned under Section 313 of the Criminal Procedure Code. During the trial, the
defence took a contention that no amount is due to the complainant and no consideration was
passed. It is also the defence of the accused that the blank cheque kept in the company was misused
by the complainant, as such they have denied the entire transaction. It was, in these circumstances,
the complainant filed petitions as aforesaid for reopening the complainant's evidence and with a
prayer for direction to the Income Tax Authorities as well as the first accused to produce the
documents mentioned in those petitions. Annexure-C in Crl.M.C.No.1622 of 2006 was filed under
Section 311 of Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-6-:
the Cr.P.C. whereas Annexure-B in Crl.M.C.No.1627 of 2006 and Annexure-D in Crl.M.C.No.1628 of
2006 were filed under Section 91 of the Criminal Procedure Code for production of documents.
Suffice to say in those petitions for production of documents, nobody was cited as witnesses, but
simply prayed for a direction to the concerned parties therein to produce the documents which are
mentioned therein. But, the court below dismissed all the above three petitions and according to the
petitioner/complainant, the said orders of the court below are arbitrary and illegal.
5. I have heard elaborately Mr.A.Kumar, learned counsel for the petitioner and also Advocate
Smt.P.K.Radhika, counsel for the respondents.
6. The learned counsel for the petitioner submits that the order of the Magistrate dismissing the
petition of the complainant for reopening the evidence is against the settled law and by disallowing
the above petition, the court below had denied opportunity to the complainant to substantiate his
case. It is further Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-7-:
submitted that by Annexure-E order in Crl.M.C.No.1627 of 2006, the learned Magistrate had denied
the prayer of the complainant to adduce better evidence to advance the case of the complainant. In
the said petition, the prayer was only for a direction to the Assistant Commissioner of Income Tax
(Assessment), Circle No.1, Palakkad to produce the income tax returns, balance sheet etc. of
M/s.Infogenie Information Tech and Serv Pvt.Ltd. According to counsel, the said prayer was
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rejected by the court below on a mis-conception of law. According to the counsel, as on the date of
the impugned order, there was no restriction in producing the document which sought to be
produced. According to counsel for the petitioner, after the amendment to Section 137 of the 1961
Act, there is no ban for producing such documents.
7. It is also argued by counsel for the petitioner that though directions are sought for directing the
first accused to produce the minutes book of the company, as per Annexure-D in C.M.P.No.1277 of
2006 in Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-8-:
S.T.No.4577 of 2004, there was no prayer to examine the first accused as a witness and therefore,
the finding of the court below that if the first accused is directed to produce the documents of the
company which are based upon the personal knowledge of the accused, it will be used as
incriminating evidence against him which will against Article 20(3) of the Constitution of India, is
absolutely baseless and perverse.
8. Per contra, Adv.Smt.P.K.Radhika, counsel for the respondents argued that the orders of the court
below are absolutely correct and the court can issue direction to produce the income tax documents
only if it is satisfied that the same was for the purpose of public interest. It is also argued that even
though the first accused was not cited as a witness, the order directing him to produce the
documents of the company in a criminal case against him will amount to compelling him to adduce
evidence against himself and therefore, the directions sought for by the complainant are hit by
Article 20(3) of the Constitution of India. It is also Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-9-:
argued that the complainant's evidence was closed much earlier and the accused were questioned
under section 313 of the Criminal Procedure Code and the complainant/petitioner approached the
court below at the fag end of the trial and therefore, the court is not bound to allow the petitions of
the complainant and the court below has rightly dismissed all the petitions and no interference of
this Court is warranted at this stage. Since the subject matter of these Crl.M.Cs. is different, for the
sake of convenience, it can be considered separately.
Crl.M.C.No.1622 of 2006:
This Crl.M.C. is filed challenging Annexure-F order of the court below by which Annexure-C petition
filed under Section 311 of the Code of Criminal Procedure for re-opening the evidence of the
complainant was dismissed. The reason stated by the Magistrate for rejecting the petition is that he
had already dismissed the other two petitions filed by the complainant for production of certain
documents. It Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-10-:
appears to me that the above approach of the court below, though practically correct, procedurally
and legally is incorrect. Chapter XVIII of the Code of Criminal Procedure deals with the trial before a
Court of Session. Chapter XIX deals with trial of warrant- cases by Magistrates and this Chapter is
divided into three parts. Chapter XX deals with trial of summons--cases by Magistrates and Chapter
XXI deals with summary trials. From the above provisions of the Code of Criminal Procedure, it can
be seen that according to the nature of trials, separate provisions are incorporated in each chapter.
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Chapter XXIV under the caption 'General Provisions as to Inquiries and Trials' by which several
provisions are incorporated by which the parties to the proceedings as well as the court are
authorised to invoke appropriate provisions contained in the above chapter so as to meet the
contingencies that may arise during the trial of the case. Thus Section 311 of Code of Criminal
Procedure is included as one of the provisions in Chapter Crl.M.C.Nos.1622, 1627 & 1628 of 2006
:-11-:
XXIV dealing with general provisions as to inquiries and trials. Coming to Section 311, it can be seen
that the same is incorporated as an exception to the provisions enumerated in the aforesaid chapters
of the Criminal Procedure Code. Section 311 of the Criminal Procedure Code is a provision
incorporated with a view to enable either the prosecution or the defence or even the court itself to
take evidence at any stage even if the evidences are closed as the case may be. In Section 311, it is
stated that any Court may, at any stage of any inquiry, trial or other proceeding under this Code,
summon any person as a witness, or examine any person in attendance, though not summoned as a
witness, or recall and re- examine any person already examined; and the court shall summon and
examine or recall and re-examine any such person if his evidence appears to it to be essential to the
just decision of the case. As per the various provisions contained in the above chapters, the code has
fixed a strict procedure for the trial of the cases. But, Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-12-:
for the ends of justice and for the just decision of the case, either party to the proceedings or the
court itself can invoke Section 311 even though separate provisions are made for the trial of the
cases, according to its nature/class. In such a situation, unless and until sufficient reasons are made
out, the court cannot invoke Section 311 of the Code of Criminal Procedure and therefore, it is
incumbent upon the court below to come into a conclusion as to whether in the given facts and
circumstances of the case, for invoking Section 311, sufficient grounds are made out or not. If the
court is of the opinion that no case is made out to invoke Section 311, there is no need to reopen the
evidence either for the prosecution or for the defence.
2. Section 311 of the Criminal Procedure Code consists of two parts. The first part is discretionary in
nature whereas the second part is mandatory. But in Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-13-:
both the cases, the test is whether the exercise of such power is imperative to do justice to the case.
But, in the present case, nothing is discernible from the impugned order as to whether the court has
come into any conclusion as required under Section 311 of the Code of Criminal Procedure. The
order simply says that since the court has dismissed two petitions (Crl.M.P.1275 & 1277 of 2006) for
production of documents, the prayer for re-opening evidence is also rejected. There is no error in
simultaneously considering the request for re-opening the evidence as well as production of the
documents. But, even then, the above test has to be applied and court has come into its own
conclusion. Then only, it can be ensured that the justice should not be only done but manifestly seen
to be done. It is discernible from the available materials that the accused has denied the passing of
consideration and if so, it is the burden of the complainant to establish the passing of consideration
and to discharge his burden, it Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-14-:
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is absolutely necessary, just and proper to re-open the evidence and the documents sought to be
produced assume importance.
3. In a decision reported in Iddar v. Aabida reported in 2007(4) KLT 652 (S.C.), the Apex Court has
reiterated the legal position by saying that the object underlining Section 311 of the Code is that
there may not be failure of justice on account of mistake of either party in bringing the valuable
evidence or record or leaving ambiguity in the statements of witnesses examined from either side.
The determinative factor is whether it is essential to the just decision of the case. Therefore, I am of
the view that the court below ought to have allowed Annexure-C petition namely, C.M.P.No.1276 of
2006 filed by the complainant, thereby further opportunity ought to have been given to the
complainant to substantiate his case and to uphold the policy of court allowing to adduce evidence
and not to shut out the evidence. Going by Annexure-F order, it can be seen that the same was
issued without proper Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-15-:
application of judicial mind. In the decision cited supra, the Apex Court has held that "it is, however,
to be borne in mind that whereas the section confers a very wide power on the Court on summoning
witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater
is the necessity for application of judicial mind." In the light of the above decision and considering
the factual situation involved in the case, I am of the view that the court below ought to have allowed
the application of the complainant to reopen the complainant's evidence. Therefore, Annexure-F
order is not sustainable and the same is set aside and C.M.P.No.1276 of 2006 (Annexure-C) is
allowed. Crl.M.C.No.1627 of 2006:
This Crl.M.C. is filed challenging Annexure-E order by which the learned Magistrate had rejected
the prayer of the complainant for a direction to the Assistant Commissioner, Income Tax Circle-I,
Palakkad to produce Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-16-:
the income tax returns, balance sheet etc. of M/s.Infogenie Information Tech and Serv Pvt.Ltd.
Annexure-E order is issued in Annexure-B petition filed under Section 91 of the Code of Criminal
Procedure. The reason given in the impugned order is that there is a ban under Section 138(1)(b) of
the Income Tax Act for summoning the particulars relating to an assessee. However, the
Commissioner or the Chief Commissioner, as the case may be, shall furnish such particulars only if
he is satisfied that the particulars sought to be produced are in the public interest. According to the
learned Magistrate, the request for production of documents by the complainant is only for
protecting the interest of the complainant and not for any public interest and hence the request was
rejected. The learned counsel for the petitioner submits that the above decision of the learned
Magistrate is illegal as the same is against the statute. The counsel very much placed reliance on the
decision of the Supreme Court reported in M/s.Dagi Ram Pindi Lall v. Trilok Chand Jain (AIR 1992
SC 990). In Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-17-:
paragraphs 14 and 15 of the above judgment, the Apex Court had held as follows:-
"14. The finality which has been attached to the order of the Commissioner under
Section 138(1)
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(b) of the Act is applicable only in cases where application is made to the
Commissioner by a party or any other person for receiving documents or
information. It has nothing to do with the powers of the Courts to summon the
production of assessment record of an assessee, filed after 1-4-1964. The privilege as
to secrecy, which the assessee had acquired under Section 54 of the 1922 Act
remained unimpaired by the repeal of that Act or even by the omission of Section 137
of the 1961 Act in respect of record filed prior to 1-4-1964 and relating to the
assessments prior to that date. That privilege did not extend, after April 1, 1964, to
record filed before the income-tax authorities, for the assessment years 1964-65
onwards. Section 6 of the General Clauses Act as well as Section 138(1)(b) of the 1961
Act cannot extend the ban on the exercise of the jurisdiction by the Courts to
summon the production of documents from the income-tax authorities after April 1,
1964 relating to assessment year 1964-65 in respect of the record filed after April 1,
1964.
15. Section 6(c) of the General Clauses Act 1897 on which reliance was placed by the
High Court reads as under:--
"6. Where this Act, or any Central Act or regulation made after the commencement of
this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-18-:
d i f f e r e n t  i n t e n t i o n  a p p e a r s ,  t h e  r e p e a l  s h a l l  n o t
..........................................................................
(c) affect any right, privilege, obligation or liability acquired or incurred under any
enactment so repealed.
A plain reading of the Section shows that the repeal of any enactment, unless a
different intention appears, shall not affect any right, privilege, obligation or liability
acquired, accrued or incurred under the repealed enactment. In respect of the
documents filed after the repeal of Section 137 of the 1961 Act, with effect from April
1, 1964 relating to assessments for the period 1964-65 onwards, no right, privilege,
obligation or liability can be said to have been acquired, accrued or incurred prior to
the omission of Section 137 of the Act. Therefore, the ban contained in Section 137 of
the 1961 Act on the exercise of the powers of a civil court to call for production of
documents etc., could not be said to have continued to exist, in matters arising
subsequent to the omission of that Section with effect from April 1, 1964 and that ban
came to an end in respect of the period after April 1, 1964.
The general principle is that an enactment which is repealed, is to be treated, except as to
transactions past and closed, as if it had never existed. The assessee had acquired no right or
privilege under the repealed act, since the provision is only a procedural restriction and did not
create any substantive right in the assessee, in respect of assessments for the period after the
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omission of Section 137 of the 1961 Act. Thus, reliance placed on the provisions of Section 6 of the
General Clauses Act to hold the continuation of the ban on Crl.M.C.Nos.1622, 1627 & 1628 of 2006
:-19-:
the exercise of jurisdiction by the Courts was misplaced."
Thus, after the detailed examination regarding the scope of Section 138(1)(b) of the Income Tax Act,
in para 18 of the above decision, the Apex Court had held as follows:-
"18. As a result of the above discussion, we, therefore, find that the answer given by
the Full Bench of the High Court in the impugned judgment, to situation (d) of the
second question (supra) as formulated by it, is erroneous and we set it aside.
Consequently, we hold that after the repeal of Section 137 of the Act, there is no
longer any impediment left in the way of a Court to summon the production of
documents filed by an assessee before the income-tax authorities after April 1, 1964
relating to assessment proceedings for 1964- 65 onwards and that the finality
attached to an order of the Commissioner under Section 138(1)(b) has no relevance to
the exercise of powers by a Court to summon the production of documents in a case
pending before the Court. Since, the challenge before us had been confined to the
answer given by the High Court to situation (d) of the second question as formulated
by it and no other finding of the High Court was called in question, we have refrained
from expressing any opinion on the other findings recorded by the Full Bench of the
High Court. The appeal consequently succeeds to the extent indicated above and is
allowed. We, however, make no order as to costs."
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-20-:
From the above, it can be seen that the settled position of law is that there is no ban in directing the
concerned authority to produce income tax returns and balance sheet as required by the
complainant in the present case and the court is entitled to issue such direction for the proper
disposal of the matter pending before it.
2. In the light of the above discussion, it is to be held that after the repeal of Section 137 of the
Income Tax Act and in the light of Section 138(1)(b) of the same Act, there is no bar for the court to
the exercise of its powers to summon the production of documents relating to income tax
assessment in a case pending before the court. The embargo contained in Section 138(1)(b) of the
Act has nothing to do with the powers of the court under Section 91 of the Code of Criminal
Procedure, even if no public interest involved. Thus, on a reading of Section 138(1)(b) of the Income
Tax Act, it is conspicuous that there is no impediment against the exercise of powers of the court to
summon the production of a document filed by an assessee before the Crl.M.C.Nos.1622, 1627 &
1628 of 2006 :-21-:
income tax authorities after April 1, 1964 relating to assessment proceedings for 1964-65 onwards.
Therefore, in the light of the above position of law, Annexure-E order of the learned Magistrate is
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unsustainable and the same is liable to be quashed and accordingly, Annexure-E order of the court
below is quashed and Annexure-B petition, i.e., C.M.P.No.1275 of 2006 is allowed.
Crl.M.C.No.1628 of 2006 The above M.C.is filed challenging Annexure- G order of the court below
passed on Annexure-D petition i.e., C.M.P.No.1277 of 2006 which is a petition filed under Section 91
of the Code of Criminal Procedure, for producing the minutes book of M/s.Infogenie Information
Tech and Serv Pvt. Ltd from incorporation till 2004, the audited accounts of the company for the
years 2000-01, 2001-2002, 2002-2003 and 2003-2004 and the Income Tax Returns for the years
2000-2001, 2001-02, 2002-03 and 2003-04 along with balance sheet and annexures. The specific
prayer Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-22-:
in the petition was for a direction directing the first accused Sri.M.Raveendran who is the Vice
Chairman of Infogenie Information Tech and Serv Pvt.Ltd. to produce those documents. By the
impugned order, the Magistrate had held that the relief sought for by the complainant is hit by
Article 20(3) of the Constitution of India. On a perusal of the above order, it can be seen that the
learned Magistrate has miserably failed in applying his mind and arriving at a judicial decision.
What is discernible from the impugned order is that the Magistrate had just incorporated the
contentions of the accused, but there is no discussion as to how those contentions are sustainable
and as to how the order of the Magistrate on allowing the petition will infringe Article 20(3) of the
Constitution of India against the respondent/accused. In the order, though the decision reported in
State of Bombay v. Kathi Kalu (AIR 1961 S.C. 1808) is cited, there is no discussion as to how the said
decision will apply in the facts and circumstances of the present case.
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-23-:
2. In this Criminal M.C., there arises a vital legal question. The question is whether issuance of a
summons under Section 91 of the Code of Criminal Procedure directing the accused to produce the
documents, related to the company of which he is one of the Directors and as such in his possession,
will amount to infringement of the fundamental right guaranteed under Article 20(3) of the
Constitution of India. In order to have a clear understanding of the question, the facts leading to
passing of Annexure 'G' order, though it is stated earlier, it is necessary to repeat the same which I
shall state briefly here again.
3. The petitioner herein in Annexure 'D' petition is the complainant in a proceedings under Section
138 of the Negotiable Instruments Act. According to him, previously he was also one of the directors
of the company namely, Infogenie Information Tech and Serv Pvt.Ltd. of which the accused are the
present directors. In order to substantiate the allegations contained in the complaint and especially
in the light of the defence Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-24-:
taken by the accused during the trial of the case, the complainant preferred Annexure 'D' petition
namely, C.M.P.No.1277 of 2006 under Section 91 of the Code of Criminal Procedure with a prayer to
produce the minutes book of the company, namely M/s.Infogenie Information Tech and Serv.
Pvt.Ltd from incorporation till 2004, the audited accounts of the company for the years 2000-01,
2001-02, 2002-03 and 2003-04 and the Income Tax Returns for the years 2000-01, 2001-02,
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2002-03 and 2003-04 along with balance sheet and annexures. The prayer in the petition filed
under Section 91 of the Code of Criminal Procedure is for a direction directing the first accused
Sri.M.Raveendran who is the Vice Chairman of Infogenie Information Tech and Serv Pvt.Ltd to
produce those documents. It is pertinent to note that though the prayer is for a direction directing
the first accused Sri.M.Raveendran to produce those documents, there was neither a prayer to
examine him as a witness nor he was cited as a Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-25-:
witness. It is the above prayer which is rejected by the learned Magistrate stating that if it is allowed,
it will amount to infringement of Article 20(3) of the Constitution of India. In order to answer the
above question, two provisions namely, Section 91 of the Code of Criminal Procedure and Section
139 of the Indian Evidence Act, 1872 are relevant and assume importance. Chapter VII of the Code
of Criminal Procedure, contains Section 91, which is under the caption 'Process to compel the
production of things' and with sub-caption 'A-Summons to produce'. For convenience, Section 91 of
the Code of Criminal Procedure is quoted hereunder with title, which runs as follows:-
91. Summons to produce document or other thing:-
(1)Whenever any court or any officer-
in-charge of a police station considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under
this code by or before such court or officer, such court may issue a summons, or such officer a
written order, to Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-26-:
the person in whose possession or power such document or thing is believed to be, requiring him to
attend and produce it, or to produce it, at the time and place stated in the summons or order;
(2) Any person required under this section merely to produce a document or other thing shall be
deemed to have complied with the requisition if he causes such document or thing to be produced
instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed---
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the
Banker's Books Evidence Act,1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in
the custody of the postal or telegraph authority."
(emphasis supplied) Thus, on a reading of Section 91 of the Code of Criminal
Procedure, it can be seen that instead of personally producing the documents or
things sought to be produced, it can be caused to be produced instead of even without
attending the court personally. That means for the compliance of the above section,
the Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-27-:
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persons directed to produce the thing or documents need not personally present and produce the
same, but it can be produced by other means. In this case, it is relevant to note that Annexure 'D'
petition is filed under Section 91 of the Code of Criminal Procedure and if the prayer is allowed, the
things or documents sought to be produced can be caused to be produced instead of the accused
personally present for that purpose.
4. Section 139 of the Indian Evidence Act, 1872 runs as follows:-
"139. Cross-examination of person called to produce a document.-- A person
summoned to produce a document does not become a witness by the mere fact that
he produces it, and cannot be cross-examined unless and until he is called as a
witness."
On a reading of the above section, it is crystal clear that a person summoned to produce a document
cannot be cross-examined as he does not become a witness and unless and until he is called as a
witness he cannot be cross-examined. In the present case also, the first Crl.M.C.Nos.1622, 1627 &
1628 of 2006 :-28-:
accused Sri.M.Raveendran against whom the direction sought under Section 91 of the Code of
Criminal Procedure is not cited as a witness and there is no request or prayer to cross-examine him
on his production of the document. So the prayer in Annexure 'D' petition is perfectly within the
limits of Section 91 of the Code of Criminal Procedure as well as Section 139 of the Indian Evidence
Act.
5. Now let us have a reading of Article 20(3) of the Constitution of India.
"20. Protection in respect of conviction for offences.--
(1)xxxxxxxxxxxxx (2)xxxxxxxxxxxxx (3) No person accused of any offence shall be
compelled to be a witness against himself."
On a plain reading of Article 20(3) of the Constitution of India, one can understand that the
fundamental right conferred on a person accused of any offence is that he shall not be compelled to
be a witness against himself. Therefore, the question consequent thereof is whether
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-29-:
an accused person if directed to produce a thing or document will amount to testimonial
compulsion, even if he is not cited as a witness or not proposed to cross- examine him on his
production of the document or thing in terms of Section 91 of the Code of Criminal Procedure.
6. While dealing with the validity of Section 96 (1) of the Code of Criminal Procedure, 1898, eight
Judges' Constitutional Bench of the Apex Court in the decision reported in M.P.Sharma and others
v. Satish Chandra, District Magistrate, Delhi and others (AIR 1954 SC 300) had laid down the
principles underlying in Article 20(3) of the Constitution of India and the fundamental right
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guaranteed under the above article. The extract of the relevant passages are quoted herein:-
"Article 20(3) embodies the principle of protection against compulsion of self-
incrimination which is one of the fundamental canons of the British system of criminal
jurisprudence and which has been adopted by the American system and incorporated as an article of
its Constitution. It has also, to a substantial extent, been recognised in the Crl.M.C.Nos.1622, 1627 &
1628 of 2006 :-30-:
Anglo-Indian administration of criminal justice in this country by incorporation into various
statutory provisions. (Para 4) So far as the Indian law is concerned, it may be taken that the
protection against self incrimination continues more or less as in the English common law, so far as
the accused and production of documents are concerned, but that it has been modified as regards
oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution
on the basis of such compelled evidence. ( Para 7) Analysing the terms in which this fundamental
right has been declared in our Constitution, it may be said to consist of the following components:
(1) It is a right pertaining to a person "accused of an offence"; (2) It is a protection against
"compulsion to be a witness"; and (3) It is a protection against such compulsion resulting in his
giving evidence "against himself". (Para 9) Broadly stated the guarantee in Art.20 (3) is against
"testimonial compulsion". But there is no reason to confine it to the oral evidence of a person
standing his trial for an offence when called to the witness-stand. 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
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-31-:
the commission of an offence has been levelled which in the normal course may result in
prosecution. (Para 10) Considered in this light, the guarantee under Art.20(3) would be available to
persons 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. " (Para 11) (emphasis supplied) Finally in the above
decision, the Apex Court had held that the searches made in pursuance of warrants issued under
Section 96 of the Code of Criminal Procedure could not be challenged as illegal on the ground of
violation of fundamental right under Article 20(3) of the Constitution of India. In the above
decision, the Apex Court had also observed that when the Indian statutory law specifically
recognised, protection against production of incriminating documents until Evidence Act 1 of 1872
was enacted which has a provision in this behalf in S.130 thereof. In paragraph 7 of the above
decision, the Apex Court had further held as follows:- Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-32-:
"7. In the Indian law the extent to which this protection is recognised appears from the various
relevant statutory provisions from time to time. Section 3 of Act 15 of 1852 recognised that an
accused in the criminal proceedings was not a competent or compellable witness to give evidence for
or against himself. This provision was repealed by the Evidence Act 1 of 1872. But meanwhile the
Criminal Procedure Code of 1861 in Ss.204 and 203 thereof respectively, provided that no oath shall
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be administered to the accused and that it shall be in the discretion of the Magistrate to examine
him.
The Criminal P.C. of 1872 by S.250 thereof made a general questioning of the accused, after the
witnesses for the prosecution had been examined, compulsory and S.345 thereof provided that no
oath or affirmation shall be administered to the accused person. These features have been continued
in the later Codes of Criminal Procedure and have been incorporated into S.342 of the present
Criminal P.C. of 1898. The only later statutory change, so far, in this behalf, appears to be that
brought about by S.7, Prevention of Corruption Act, 1947. By virtue of that section an accused is a
competent witness on his own application in respect of offences under that Act. So far as witnesses
are concerned, S.3 of the Act 15 of 1852 also declared the protection of witnesses against compulsion
to answer Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-33-:
incriminating questions.
Shortly thereafter in 1855, this protection was modified by S.32 of Act 2 of 1855 which made him
compellable to answer even incriminating questions but provided immunity from arrest or
prosecution on the basis of such evidence or any other kind of use thereof in criminal proceedings
except prosecution for giving false evidence. This position has been continued under S.132, Evidence
Act 1 of 1872 which is still in force. So far as documents are concerned, it does not appear that the
Indian statutory law specifically recognised protection against production of incriminating
documents until Evidence Act 1 of 1872 was enacted which has a provision in this behalf in S.130
thereof. It is not quite clear whether this section which excludes parties to a 'suit' applies to an
accused.
Thus so far as the Indian law is concerned, it may be taken that the protection against
self-incrimination continues more or less as in the English common law, so far as the accused an
production of documents are concerned, but that it has been modified as regards oral testimony of
witnesses, by introducing compulsion and providing immunity from prosecution on the basis of
such compelled evidence."
Thus the Apex Court had finally concluded and held that the protection against self-incrimination
continues more Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-34-:
or less as in the English common law, so far as the accused on production of documents are
concerned, but that it has been modified as regards the oral testimony of witnesses by introducing
compulsion and providing immunity from prosecution on the basis of such compelled evidence. So,
according to the above decision of the Apex Court, Article 20(3) is against testimonial compulsion
and there is no reason to confine it to the oral evidence of a person standing his trial for an offence
when called to the witness stand and 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.
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7. But, in a later decision of the Apex Court in State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC
1808), a ten Judges' Bench held in para 11 as follows:-
(11) The matter may be looked at from another point of view. The giving of Crl.M.C.Nos.1622, 1627
& 1628 of 2006 :-35-:
finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a
witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral
statements or statements in writing by a person who has personal knowledge of the facts to be
communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a
witness' to a certain state of facts which has to be determined by a court or authority authorised to
come to a decision, by testifying to what he has seen, or something he has heard which is capable of
being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in
respect of matters in controversy. Evidence has been classified by text writers into three categories,
namely (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have
already indicated that we are in agreement with the Full Court decision in Sharma's case, 1954 SCR
1077: (AIR 1954 SC 300) that the prohibition in cl.(3) of Art.20 covers not only oral testimony given
by a person accused of an offence but also his written statements which may have a bearing on the
controversy with reference to the charge against him. The accused may have documentary evidence
in his possession which may throw some Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-36-:
light on the controversy. If it is a document which is not his statement conveying his personal
knowledge relating to the charge against him, he may be called upon by the Court to produce that
document in accordance with the provisions of S.139 of the Evidence Act, which, in terms, provides
that a person may be summoned to produce a document in his possession or power and that he does
not become a witness by the mere fact that he has produced it; and therefore, he cannot be
cross-examined. Of course, he can be cross-examined if he is called as a witness who has made
statements conveying his personal knowledge by reference to the contents of the document or if he
has given his statements in Court otherwise than by reference to the contents of the documents."
While considering Sharma's case (cited supra), but by deviating from what is stated in para 10 of
that judgment in AIR 1961 SC 1808 ( State of Bombay v. Kathi Kalu Oghad), the Apex Court had
held as follows:-
"In our opinion, therefore, the observation of this Court in Sharma's case, 1954 SCR
1077; (AIR 1954 SC 300) that S.139 of the Evidence Act has no Crl.M.C.Nos.1622,
1627 & 1628 of 2006 :-37-:
bearing on the connotation of the word 'witness' is not entirely well-founded in law. It
is well established that cl.(3) of Art.20 is directed against self- incrimination by an
accused person. Self- incrimination must mean conveying information based upon
the personal knowledge of the person giving the information and cannot include
merely the mechanical process of producing documents in court which may throw a
light on any of the points in controversy, but which do not contain any statement of
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the accused based on his personal knowledge. For example, the accused person may
be in possession of a document which is in his writing or which contains his signature
or his thumb impression. The production of such a document, with a view to
comparison of the writing or the signature or the impression, is not the statement of
an accused person, which can be said to be of the nature of a personal testimony.
When an accused person is called upon by the Court or any other authority holding
an investigation to give his finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of a 'personal testimony'.
The giving of a 'personal testimony' must depend upon his volition.
He can make any kind of statement or may refuse to make any statement. But Crl.M.C.Nos.1622,
1627 & 1628 of 2006 :-38-:
his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of
specimen writing or of signatures by an accused person, though it may amount to furnishing
evidence in the larger sense, is not included within the expression 'to be a witness'."
(emphasis supplied) In this decision, while discussing and considering the dictum laid down in the
Sharma's case (cited supra), the Apex Court had further observed and clarified as:-
"(9) This Court did not accept the contention that the guarantee against testimonial compulsion is to
be confined to oral testimony at the witness-stand when standing trial for an offence. The guarantee
was, thus, held to include not only oral testimony given in Court or out of Court, but also to
statements in writing which incriminated the maker when figuring as an accused person. After
having heard elaborate arguments for and against the views thus expressed by this Court after full
deliberation, we do not find any good reasons for departing from those views. But the Court went on
to observe that "to be a witness" means "to furnish evidence" and includes not only oral
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-39-:
testimony or statements in writing of the accused but also production of a thing or of evidence by
other modes. It may be that this Court did not intend to lay down- certainly it was not under
discussion of the Court as a point directly arising for decision--that calling upon a person accused of
an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting
or signature comes within the ambit of "to be a witness", which has been equated to "to furnish
evidence". Whether or not this Court intended to lay down the rule of law in those wide terms has
been the subject matter of decisions in the different High Courts in this country. Those decisions
are, by no means, uniform; and conflicting views have been expressed even in the same High Court
on different occasions. It will serve no useful purpose to examine those decisions in detail. It is
enough to point out that the most recent decision, to which our attention was called, is of a Full
Bench of the Kerala High Court in the case of State of Kerala v. K.K.Sankaran Nair, AIR 1960 Kerala
392 (FB). In that case, Ansari C.J., who delivered the opinion of the Court, has made reference to
and examined in detail the pronouncements of the different High Courts. Ultimately he came to the
conclusion that the decision of this Court in Sharma's case, 1954 SCR 1077: (AIR 1954 SC 300) also
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covered the Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-40-:
case of a specimen handwriting given by an accused person, under compulsion."
(emphasis supplied) So, according to the above decision of the Apex Court, calling upon a person
accused of an offence to give his thumb impression, his impression of palm or fingers or of sample
handwriting or signature comes within the ambit of 'to be a witness' was not a question for
discussion in the earlier decision of the Apex Court, and it is further held in the above decision that
"the self-incrimination must be conveying information based upon the personal knowledge of the
person giving the information and cannot include merely the mechanical process of producing
documents in court which may throw light to any of the points in controversy, but it had been
contained any statement of the accused based on his personal knowledge." If that be so, in the
present case, what summoned and directed to produce is certain documents regarding the company
affairs and that too not within Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-41-:
the personal knowledge of the accused. It is also relevant to note that the complainant was one of
the directors of the company of which now the accused are directors and he had also knowledge
regarding those documents and transaction with respect to the company. Therefore, it cannot be
said that it is a document exclusively within the knowledge and possession of the accused. As I
stated earlier, though the court below had cited the above decision in the impugned order, there is
no discussion as to how the above decision and the dictum laid down therein infringed the
fundamental right of the accused under Article 20(3) of the Constitution of India. In fact on a proper
reading of the above decision and the dictum laid down in the decisions of the Apex Court, it can be
seen that by allowing Annexure 'D' petition, no prejudice will be caused to the accused and there is
no element of testimonial compulsion so as to attract Article 20(3) of the Constitution of India.
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-42-:
8. It has to be remembered that by the growth of the society, the nature and means of crimes are
also being changed. On an overall assessment of the crimes and the factors which led to the
commission of crimes on previous days, one can understand that there were certain social factors or
communal issues or property disputes. But nowadays, due to unhealthy competition for amazing
amount of money, the number of economic offences are being increased. Grave offences, in which
economic or financial factors are acting as catalyst agents, are being committed and for committing
such grave offences, the wrong doers are adopting and making use of sophistic weapons and also
electronic devices. In short, the entire scenario, which were prevailing at the time of the
promulgation of the Indian Evidence Act and the Code of Criminal Procedure in its original form,
has been drastically changed and the court of law, especially courts which are dispensing criminal
justice find it Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-43-:
difficult to trace out the truth in this era of computer technology and cybercrimes. For discharging
the duties of the criminal court and dispensing justice, the court has to find out the truth and for
discharging such task, the court has to depend upon evidence in the form of materials or things or
documents. Only on appreciating such materials or evidences, the court can come into a conclusion
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regarding the real truth. It is to be remembered that there is no general ban for a direction directing
the accused to produce a thing or document which is within his possession. In view of Section 91 of
the Code of Criminal Procedure, the accused need not personally produce the thing or document
directed to be produced, and if he causes to produce the same that is sufficient for compliance of
that section. In view of Section 139 of the Indian Evidence Act, unless and until the person/accused
is shown as a witness, he cannot be Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-44-:
examined or cross-examined on his production of a document or a thing. In the light of the dictum
laid down by the Apex Court in the Kathi Kalu's case (cited supra), by merely producing a document,
it cannot be said that he is self-incriminated and conveying information based upon his personal
knowledge. In the light of the above discussion, the only conclusion that can be arrived is, no hard
and fast rule can be laid down and the court which confronted with such question has to come into a
judicial conclusion based upon the facts and circumstances involved in each case in the light of
Section 91 of the Code of Criminal Procedure and Section 139 of the Indian Evidence Act especially
in the back ground of Article 20(3) of the Constitution of India. In short, merely because a person is
an accused or likely to become an accused, there is no legal impediment for issuing a direction under
Section 91 of the Code of Criminal Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-45-:
Procedure directing such person to produce a document or thing unless and until the Court which
exercises such power comes into a judicial conclusion that issuing such summons or direction will
amount to the infringement of Article 20(3) of the Constitution of India. In the present case, in the
light of the above discussion, according to me, there is no testimonial compulsion infringing Article
20(3) of the Constitution of India. Therefore, the order of the court below as per Annexure 'G' in
Annexure 'D' petition is unsustainable and liable to be set aside and I do so accordingly.
In the result, these Crl.M.Cs. are allowed and the court below is directed to proceed with the case
accordingly and to dispose of the same on merits.
                                                     V.K.MOHANAN,
Mbs/                                                          Judge
Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-46-:
V.K.MOHANAN, J.
-------------------------------------------- Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-47-:
--------------------------------------------
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J U D G M E N T DATED: -0-2007 Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-48-:
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