No, accused can't be compelled to produce any document under Section 91 CrPC. Below is the Judgment of Madras High Court regarding the same.
Madras High Court
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL ORIGINAL PETITION No.21724 OF 2003
CRL.M.P.No.6234 OF 2003.
M.Kalanithi Maran ... Petitioner
The Inspector of Police,
CBCID, Metro, Chennai.
(Crime No.714 of 2001) ... Respondent
Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure for the relief extracted supra.
For petitioner : Mr.K.Asokan,
senior counsel for
For respondent : Mr.I.Subramaniyam,
High Court, Madras.
:O R D E R
The above criminal original petition has been filed under
Section 4 82 of the Code of Criminal Procedure praying to call for the records
and quash the written order of the respondent issued under Section 91 Cr.P.C.,
2. Petitioner, who is the Managing Director of the Sun TV
Limited, is the accused in the above case registered by the respondent for the
offences punishable under Sections 120-B r/w.417 and 153 IPC. The charge
against him is that when Mr.M.Karunanidhi,the former Chief Minister of the
Government of Tamil Nadu, was arrested in the wee hours of 30.6.2001, from the
morning of 30.6.2001, the SUN TV was continuously telecasting news as if
Mr.Karunanidhi was attacked and manhandled by the Police at the instance of
the State Government and there was a deliberate human rights violation in his
arrest and that the SUN TV edited the entire recorded events, inserted dubbing
voices and misrepresented the entire facts with the deliberate intention of
creating hatred in the mind of the public towards the State Police and the
Government of Tamil Nadu headed by the Chief Minister Selvi J.Jayalalitha;
that though the misconduct on the part of two Union Ministers was also
recorded by the SUN TV it did not telecast the attack on the police officials
by them and the extreme patience shown by the police officials who arrested
the former Chief Minister and because of such distorted news telecasted by the
SUN TV, violence took place in many parts of the State in which hundreds of
transport buses suffered damage and the fear psychosis was also created in the
mind of the general public.
3. During the course of investigation, the Inspector of
Police, Crime Branch CID, Metro Wing, Chennai has sent an order purported to
be under Section 91 Cr.P.C. thereby directing the petitioner to produce the
following documents on or before 14.7.2003 before the said Officer at 10.00
1.The Video Cassettes (Master Copy) taken on 29.6.2001 by the SUN TV crew
members at the time of effecting the arrest of Thiru M. Karunanidhi at his
residence by CBCID.
2.Furnish the names, designation and address of the crew members of SUN TV,
who were all involved in taking the videograph and telecasting the above
4. In these circumstances, the petitioner has come forward to
file the above criminal original petition seeking the relief sought for on
ground that in issuing the impugned order, the respondent has exceeded his
jurisdiction in directing the petitioner to cause production of the documents
mentioned in the said order; that a reading of Section 91 Cr.P.C. would
clearly reveal that the words used therein are the person and not an
accused person and therefore the respondent cannot invoke his powers under
Section 91 Cr.P.C. against an accused person; that the Honourable Supreme
Court has held that the person referred to in Section 91 Cr.P.C. does not
include an accused person and therefore he cannot be compelled to produce
documents or information pursuant to a written order by a police Officer under
Section 91 Cr.P.C.
5. During arguments, the learned senior counsel appearing on
behalf of the petitioner, besides adhering to the facts pleaded in the above
Criminal O.P., would also cite four judgments in consummation of the meaning
of the terms the person as employed in Section 91 Cr.P.C. which does not
include an accused person. The first judgment cited is one reported in
STATE OF GUJARAT v. SHYAMLAL MOHANLAL CHOKSI (196 5 M.L.J. (Crl.) 417)
wherein the Larger Bench of the Honble Apex Court by majority held that
section 94 of the Criminal Procedure Code (old Code and presently Section 91)
on its true construction does not apply to an accused person. Consequently,
in exercise of powers under section 94(1) Cr.P.C., a Court has no authority to
summon a person accused of an offence before it to produce a document or a
thing in his possession.... 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. Further, if section 94 Cr.P.C. is construed to include
accused person, it is likely to lead to grave hardship for the accused and
make investigation unfair to him.
6. The second judgment cited by the learned Senior counsel is
one reported in RAMASWAMI IYER v. S. SUBRAMANIAM (1990 L.W. (crl.) 484)
wherein a learned single Judge of this Court, following the above judgment of
the Supreme Court cited supra, has held that once it is clear that the law of
the land is that section 91 of the Criminal Procedure Code on its true
construction does not apply to an accused person under trial, this petition
will have to be necessarily allowed.
7. In the third judgment cited, reported in SURYA NARAYANAN &
ANOTHER v. M.V. VIJAYAN ((1995) M.L.J. CRL.240) also, a learned Single
Judge of this Court has discredited the Court mechanically ordering production
of documents in the custody of the Personal Manager and Supervisor of hotel
regarding the offence committed in their official custody.
8. The last judgment cited in support of the case of the
petitioner is one reported in K. SENTHAMARAI & OTHERS v. STATE, BY INSPECTOR
OF POLICE, CB.CID, KAMARAJAR DISTRICT & OTHERS (1998(1) CRIMES 319) wherein
also following the Apex Court judgment, extracted supra, a learned Single
Judge of this Court has held that section 91 Cr.P.C. does not apply to an
accused person in the case of the Magistrate issuing summon to the accused to
produce documents which are not only incriminated, but also likely to be
9. On such arguments, learned counsel for the petitioner
would pray to quash the written order of the respondent dated 4.7.2003.
10. On the contrary, the learned Public Prosecutor, High
Court, Madras appearing on behalf of the respondent, citing Article 23 of the
Constitution of India wherein prohibition is created regarding traffic in
human beings and all forms of host labour but authorises the State to impose
compulsory service for the public purpose and would pose a question that is
there any prohibition created against summoning any accused to cause
production of document or other thing which is necessary or desirable for the
purpose of an Officer investigating, enquiring or conducting the trial or
other proceedings under the Code of Criminal Procedure?
11. At this juncture, learned Public Prosecutor would cite
the judgment reported in STATE OF GUJARAT v. SHYAMLAL MOHANLAL CHOKSI (A.I.R.
1963 GUJARAT 178) wherein it is held:-
If an accused produces a document in his possession that would not offend
Article 20 clause (3) unless the document contains statements based on the
personal knowledge of the accused, because he does not become a witness by the
mere fact that he has produced it.
But, there is no denying of the fact on the part of the learned Public
Prosecutor that the Apex Courts judgment cited by the learned senior counsel
for the petitioner reported in 1965 M.L.J. (Crl.) 417 has arisen only from
this case on appeal wherein the Honourable Apex Court has confirmed the
proposition held by the Gujarat High Court in the above judgment.
12. Learned Public Prosecutor would also cite yet another
judgment reported in A.I.R.1978 S.C. 1025 (NANDINI SATPATHY VS. P.L.DANI)
wherein the Full Bench of the Honble Apex Court has held:
Under S.161 Cr.P.C. any person includes the accused thus enabling the
police to examine the accused during investigation, but the prohibitive sweep
of Art.20(3) of the Constitution goes to the stage of police investigation not
commencing in Court only. In fact, the provisions of Art.20(3) and S.161(2)
substantially cover the same area so far as police investigations are
concerned. The ban on selfaccusation and the right to silence, while an
investigation or a trial 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.
Compelled testimony is 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. A police officer is clearly a person in authority and insistence on
answering is a form of pressure especially in the atmosphere of the police
station unless certain safeguards erasing duress are adhered to.
Legal penalty for refusing to answer or answer truthfully may by itself not
amount to duress. It cannot be regarded as compulsion under Art.20(3). But,
frequent threats of prosecution if there is failure to answer may take on the
complexion of undue pressure violating Art.20(3). The manner of mentioning it
to the vi ctim of interrogation may introduce an element of tension and tone
of command perilously hovering near compulsion.
13. The learned Public Prosecutor would also submit that the
case above first cited by the learned senior counsel for the petitioner has
been decided by a larger Bench of Five Judges, but the same has also been
considered by still a Larger Bench of seven Judges in a different manner and
therefore, the judgments cited on the part of the learned senior counsel
appearing for the petitioner reported in (1965) MLJ (Cri) 417 is not a
conclusive one. On such arguments, the learned Public Prosecutor would pray
to dismiss the above Criminal Original Petition.
14. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for both,
the short legal question that arises for determination is pertaining to the
notice issued by the respondent under Section 91 of Cr.P.C. seeking to cause
production of the items mentioned in para No.3 supra.
15. The contention of the petitioner is, that the person
mentioned in Section 91 of Cr.P.C. is not an accused person but some one
else and since the petitioner being the accused in the case registered by the
respondent for specific offences alleged to have been committed and therefore,
the respondent cannot invoke his powers under Section 91 of Cr.P.C. against
the petitioner who is the accused in this case.
16. Even though on the part of the learned Public Prosecutor,
he would cite from the case reported in A.I.R.1978 SC 1025, wherein the Full
Bench of the Honble Apex Court has held that under Section 161 of Cr.P.C.
any person includes the accused person also thus enabling the police to
examine the accused during investigation, still, the case cited on the part of
the learned senior counsel appearing on behalf of the petitioner reported in
(1965) MLJ (Crl) 417 (STATE OF GUJARAT V. SHYAMLAL MOHANLAL CHOKSI) is direct
to the point dealing with Section 91 Cr.P.C. with which the subject matter is
concerned, wherein it has been held by the Honble Apex Court in no uncertain
terms, while answering the point, that the term the person employed in
Section 91 Cr.P.C. does not include the accused person true to its
construction and therefore, adhering to the said judgment of the Honble Apex
Court, this Court has to only answer that the respondent has no authority or
reason to summon the petitioner who is an accused in the case in which summons
have been sent to cause production of those materials mentioned supra and
hence the following order:
(i) the above Criminal Original Petition succeeds and the same is allowed.
(ii) The notice sent by the respondent to the petitioner under Section 91 of
Cr.P.C. dated 4.7.2003 requiring the petitioner to cause production of the
documents/articles and particulars as detailed therein is quashed.
Consequently, Crl.M.P.No.6234 of 2003 is closed.
1.The Inspector of Police,
CBCID, Metro, Chennai.
2.The VII Metropolitan Magistrate,
George Town, Chennai.
3.The Public Prosecutor,
High Court, Madras.