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TMI Blog1962 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... not apply. Therefore, he made a reference to the High Court to issue suitable directions to the learned Magistrate. 2. The learned Magistrate rejected the application given by the Police Prosecutor to direct the accused to produce the account books. When such an application comes up before a Magistrate for orders, the Magistrate must decide at least two things: (I) whether he has powers to do and if so, under what provisions of the Criminal Procedure Code, and (2) if there is a provision in the Criminal Procedure Code for issuing such directions, whether Article 20 Clause (3) of the Constitution prohibits him from doing so. 3. Article 20 of the Constitution reads as follows : - (I) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself. 4. Interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, orally or in writing. (7) To bring the statement in Question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become as accused, any time after the statement has been made. 5. It is observed by his Lordship that the phrase to be a witness includes not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused, and the phrase also means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. 6. In that case, Their Lordships of the Supreme Court applied these principles to the question whether an accused person can be compelled to give any specimen handwriting or signature, or impressions of his fingers, palm or foot. But the principle applicable to the question of production of documents by an accused person was not stated. Their Lordships, however, referred to the Supreme Court case of M. P. Sharma v. Satish Chandra 1978(2)ELT287(SC) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to other persons in other situations does not call for decision in this case. 7. With respect to these observations in 1978(2)ELT287(SC) His Lordship Sinha C. J., has observed as follows:- 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 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 tav down certainly it was not under discussion of the Court as a point directly arising far decision that calling upon a person accused of an offence to give his thumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge 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. 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 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 his finger impressions or his handwriting, in spite of efforts as concealing the true nature of it by dissimulation cannot change their intrinsic chara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional as that would not amount to a compulsory production of incriminating evidence. In the present case, even on what was stated in Sharma's case 1978(2)ELT287(SC) there was no formal accusation against the appellant relating to the commission of an offence. In view of these decisions of their Lordships of the Supreme Court in the cases cited 'above, it is clear that if an accused produces a document, that would not offend Article 20 Clause (3) of the Constitution, unless the document contains statements based on the personal knowledge of the accused. 9. But the question cannot be answered by merely construing Article 20 of the Constitution. Even if the Court does not offend Article 20 of the Constitution by compelling an accused person to produce a document provided the document does not contain any statement based on his personal knowledge, the question would remain whether the Court has powers to do so. For this purpose we have to turn to the Criminal Procedure Code. 10. Section 94 of the Criminal Procedure Code reads as follows:- 94 (1) Whenever any Court or any officer in charge of a police-station considers that the production of any document or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter XXIII deals with trials before High Courts and Courts of Session, The procedure that the Court has to follow is, therefore, governed by these Chapters and when we consider the provisions of these Chapters, we may have to bear in mind some other provisions in the Criminal Procedure Code. For instance, when it is provided in Sections 244 and 25I-A that the Court should take all such evidence that the accused produces in his defence, we have to bear in mind the provisions of Section 342 that the accused person is a competent witness and he can, therefore, examine himself in his defence. 12. The instant case is a summons trial and there is nothing in Chapter XX which would give powers to the Court to issue a summons to an accused person after he has appeared in the Court and after the trial has begun. During the course of a trial, the Court cannot do anything which is not warranted by the provisions contained in Chapters XX to XXIII of the Criminal Procedure Code. To issue a summons to an accused person to produce a document is, therefore, not warranted in a trial. 13. Having regard to the provisions in Chapters XX to XXIII of the Criminal Procedure Code, it is difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to compel the production of documents and other moveable property, and for the discovery of persons wrongfully confined. Section 91 of the Criminal Procedure Code Provides as under:- When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court. As already observed, in Section 94 the words are 'to attend and produce' or 'to produce'. There is no provision in Section 94 similar to that which is contained in Section 91. In view of the very wide powers given to the police under Section 96 and 165, the Legislature would not have provided for a summons to an accused under trial to [reduce a document which might incriminate him. In such cases the proper sections to be utilised are Sections 96 and 95. 16. It is true that the words of Section 94 are general and there is ordinarily no reason to' restrict the expression 'to the person in whose possession or power such document or thing is believed to be', to persons other than accused persons. But i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1016, it was held that the provisions of Section 94, Criminal Procedure Code cannot be taken to apply to the case of an accused person on his trial to whom a notice has been issued to produce an incriminating document. It was also observed that to hold otherwise would be to go contrary to the principles laid down in the Code of Criminal Procedure in Sections 342 and 343. 21. In Bajrangi Gope v. Emperor ILR Cal 304, it was held as follows :- Section 165 of the Criminal Procedure Code does not authorize a general search for stolen property in the house of the absconding offender, against whom an information has been laid of having committed a dacoity. It refers only to specific documents or things which may be the subject of a summons or order under Section 94 of the Code, and the latter does not extend to stolen articles or any incriminating document or thing in the possession of the accused. At page 306 the following observations were made: - We are clearly of opinion that Section 165 of the Criminal Procedure Code does not authorize a general search for stolen property. It speaks of a specific document or thing which may be the subject of summons or order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he an be taken to a doctor, and made to undergo the necessary medical process or treatment with a view to have the article extracted from his tody. It is therefore clear from the decisions cited above that under a search warrant or other kindred process o law, documents or articles or any other incriminating evidence can be seized from the custody or the person of the accused by force and against his will, such as stolen articles, bloodstained clothes, etc., but he cannot be compelled to produce them himself. For the same reason, there can be no objection to an accused person being taken to a doctor for the examination of injuries on his body so as to ascertain whether he, could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify them. 24. Until recently the accused person was not competent to be a witness. 25. As the accused is present in Court it would be improper to provide that a summons should be issued to a person present in the Court and also present in the dock o the Court as an accused person. If the Legislature had intended that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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