1 WP 1979/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1979 OF 2009 Tushar Balasaheb Patil .... Petitioner Vs. The State of Maharashtra & Ors. .... Respondents Mr. Niranjan Mundargi i/by Mr. S.R. Mithare, Advocate for petitioner. Mrs. A.A. Mane, APP for State. Mr. Rajendra Sorankar, Advocate for respondent no.2. Coram : Smt. R.P.SondurBaldota, J. Date : 26th November, 2010 P.C. 1. The question falling for the consideration of this Court in the present writ petition is whether the direction given by the trial Court calling upon the petitioner to produce a document being an agreement between him and a company by name Pancham regarding distribution and marketing rights of “Prabhodhan” is contrary to the doctrine of protection against self-incrimination enshrined under Clause (3) of Article 20 of the Constitution. 2. The brief facts of the case are that, the petitioner is accused no.3 in a private complaint bearing Regular Criminal Case No.41 of 2002 filed by respondent no.2 for the offence punishable under Sections 2 WP 1979/2009 43, 65, 72 and 85 of Information Technology Act, 2000 read with Sections 500, 506, 384, 403, 417, 425, 426, 380, 417, 149 of Indian Penal Code. The petitioner is being prosecuted along with seven other accused persons. It is alleged by respondent no.2 in the complaint that he along with the original accused nos. 1 and 2 are the directors of the company, by name EDM Technology (India) Pvt. Ltd. The petitioner and the other accused persons carry out business in the name and style of BTP Group Company. Original accused nos. 1 and 2, despite being director of EDM Technology (India) Pvt. Ltd., at the instigation of the other accused persons, acted as agents of BTP Group Company, thereby harming the interest of their own company and acted in the interest of their personal economic gains. 3. Respondent no.2 filed an application under Section 91 Code of Criminal Procedure vide Exhibit 102 and 130 seeking directions from the trial Court to the petitioner and others for production of certain documents. The application was opposed by the petitioner and other accused persons. The trial Court by its order dated 2nd April 2008 partly allowed the application. It directed the petitioner to produce the agreement executed between himself and Pancham regarding distribution and marketing rights of `Prabhodhan’. It, however, rejected the request for production of other documents. The rejection was on the ground that some of the documents were public documents and for the remaining documents, there was 3 WP 1979/2009 another source available for respondent no.2 to get the documents produced. Being aggrieved by the order of the trial Court, the petitioner preferred revision application to the Sessions Court being Criminal Revision Application No.697 of 2008. The Sessions Court dismissed the revision application holding that there was no infirmity in the order and it did not require any interference. 4. Mr. Mundargi, learned counsel for the petitioner submits relying upon the decision of the Division Bench of our High Court in The State of Maharashtra vs. The Nagpur Electric Light and Power Co. Ltd. And another , reported in 1961 (2), Criminal Law Journal 200, that the order directing the accused persons to produce documents in support of the prosecution case is prohibited by Article 20(3) of the Constitution of India. Clause 3 of Article 20 of Constitution of India reads thus “no person accused of any offence shall be compelled to be a witness against himself.” 5. Mr. Sorankar, learned counsel for respondent no. 2 submits on the other hand that the view taken by the Division Bench as regards the direction to accused for production of document is based upon the decision of the Apex Court in M.P. Sharma vs. Satish Chandra, District Magistrate, Delhi, 1954 SCR 1077 : (AIR 1954 SC 300). The propositions laid down in the decision, however, were later re-examined by a larger bench of the Apex Court constituted by eleven Judges in the case of State of Bombay vs. Kathi Kalu Oghad, reported in A.I.R. 1961 Supreme Court 1808. The 4 WP 1979/2009 larger bench came to be constituted as the Apex Court felt that the propositions laid down in M.P. Sharma’s case may have been too widely stated and therefore required to be restated with more particularly. Some of the questions framed by the larger bench for it’s consideration, which questions are relevant presently, read as follows: (a) Whether production of specimen handwritings of the accused could be said to have been `a witness against himself’ within the meaning of Article 20(3) of the Constitution? (b) Whether the impressions of the accused palms and fingers taken from him after his arrest, which were compared with the impressions on the glass panes and phials, were not admissible evidence in view of the provisions of Article 20(3) of the Constitution (c) Whether the direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under Section 73 of the Indian Evidence Act, infringes the fundamental right enshrined in Article 20(3) of the Constitution. Larger Bench of the Apex Court after discussing in detail, its decision in M.P. Sharma’s case (supra) held that the view taken in the decision that “to be a witness” means “to furnish evidence” and includes not only oral testimony or statements in writing of the accused but also 5 WP 1979/2009 production of a thing or of evidence by other modes is not correct. It observed that : “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 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 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. 6 WP 1979/2009 In our opinion, therefore; the observation of this Court in Sharma’s case, 1954 S C R 1077 : (AIR 1954 S.C. 300) that S. 139 of the Evidence Act has no 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 the accused based on his personal knowledge”. (emphasis supplied). In view of the above decision of the Apex Court, the ruling of division bench of this Court in the Nagpur Electric Case is no more a good law. There is no bar against giving a direction to an accused person to produce a document in his custody which document may throw light on any of the points in controversy. The impugned order is a very balanced order. It requires no interference. Hence, the petition is dismissed. (Smt. R.P. SondurBaldota, J)