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TMI Blog1989 (7) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... ate is to be ordinarily treated as a "person" for the purpose of the Constitution. There is no room for doubt that the word "person" in the former article 31(1) and now in its successor article 300A, applied and applies to a body corporate, which accordingly cannot be deprived of its property save by the authority of law. Section 305(2) of the Code of Criminal Procedure also dealing with prosecutions against "corporations" and defining "corporation" to mean an incorporated company or other body corporate, has used the expression "where a corporation is the accused person". But, as is usual with all definitions, and as is expressly provided both in article 367(1) of the Constitution as well as section 3 of the General Clauses Act, the definition in section 3(42) of the Act would apply to make the expression "person" include a company, provided there is nothing in the subject or context to rule out its application. And we are inclined to hold that, in view of the subject and in the context of a criminal prosecution, a company or other body corporate would not be a "person" within the meaning of the provisions of article 20(3). It is not disputed that if that be our view, the rule mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents are called documentary evidence". It is obvious that a body corporate cannot make oral statements. Assuming that such a body corporate, being "unable to speak", may be branded as a dumb witness for the purpose of section 119 of the Evidence Act who can give evidence "by writing", the "evidence so given", even though in writing, "shall be deemed to be oral evidence". Under section 60, however, "oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it, and if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner". We are afraid that whatever juridical personality the law might have conferred on a body corporate, it has not, as it obviously cannot have, invested a body corporate with sense organs to see, hear or perceive a thing. And, therefore, it could never be in the contemplation of law that a body corporate would or could give ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst self-incrimination by an accused person" and that "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 light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge". It has been observed further that only the giving of such "personal testimony" would come within article 20(3) which must, accordingly, "depend upon his volition" and must not be the result of any compulsion against him. Now, if a body corporate, like any other person, does not become a "witness" merely on its being summoned to produce a document, it cannot obviously adduce oral evidence, and even such evidence in writing which is to be treated as "oral evidence" under section 119, because of its incapacity to see or hear or perceive by sense, and above all cannot take or make oath or affirmation which is a must for witnesses (other than children), we would like to hold that such body corporate cannot be within the contemplation the provisions of article 20(3) which seeks to guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 'to be a witness' has been interpreted to mean 'to furnish evidence' and a company is certainly capable of furnishing documentary evidence against itself." As we have already seen, though, under section 139 of the Evidence Act, a person summoned to produce a document does not thereby become a witness, the Supreme Court in M.P. Sharma, AIR 1954 SC 300 at page 304 ruled that this section was "meant to regulate the right of cross-examination 'only and was' " not a guide to the connotation of the word "witness" in article 20(3). As already noted, this view in M.P. Sharma, AIR 1954 SC 300, has been negatived by a larger Bench of the Supreme Court in Kathi Kalu Oghad, AIR 1961 SC 1808, 1815 and, therefore, if we may say so with respect, the ratio in the Bombay decision in Nagpur Electric Light and Power Co. Ltd. [1961] 31 Comp. Cas. 324 can no longer be accepted to be good law. In respect of the various articles in Part HI of the Constitution which deal with fundamental rights, the framers of our Constitution derived inspiration from the American Constitution and the provision corresponding to article 20(3) is to be found in the fifth amendment of the American Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noble or good thoughts must be allowed to come from all directions. Be it however noted, that as Mahatma Gandhi put it, while we must allow all the cultures of all the world to be blown around us, we must not allow ourselves to be blown off our feet by any of them. It appears that many of our legal scholars regret that our craze for American precedents has led us to transplant a "due process clause" in our Constitution, even though the proposal for insertion thereof in the body of the Constitution was rejected by our founding fathers in the Constitutent Assembly after a long, detailed and thorough debate. In the case at hand, however, as discussed hereinbefore in some detail, we have come to our own conclusion on a critical interpretation of our own Constitution and our own laws, holding that the expressions "person" and "witness" in article 20(3) do not and cannot contemplate a juridical person like an incorporated company or other corporate bodies. It is settled law in company jurisprudence, since the celebrated decision of the House of Lords in Salomon v. Salomon and Co. [1897] AC 22 (HL), that a company is a distinct legal entity having a juridical personality independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to the judicial cant towards crime. We have already too much of what a wit has called "justice tempered with mercy". There is, therefore, a good reason for the view that the privilege should be kept within the strictest possible limits and to quote from the Supreme Court decision in M.P. Sharma, AIR 1954 SC 300 at page 303 "there is no inherent reason to construe the ambit of this fundamental right as comprising a very wide range". We are afraid that if the officers and employees of a company are not permitted to appear as witnesses for the prosecution against the company on an extension of the doctrine against self-incrimination, many of the offences committed by companies cannot be detected, prosecuted and punished. One word more before we conclude and that is about section 305 of the Code of Criminal Procedure which provides that when a body corporate is an accused, it may appoint a representative for the purpose of any inquiry or trial and such representative is to be examined under section 313 of the Code providing for examination of the accused to explain any circumstances appearing against the corporation. We would like to make it clear that we have not decided the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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