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Discussion > Criminal Law > Procedure > 91 Cr.P.C. help needed..   Unanswered Threads Post New Topic

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Ravikant Soni


LAWYER IN JAIPUR
[ Scorecard : 3577]
Posted On 24 June 2010 at 18:16 Report Abuse

Learned Friends,

Your Chhota Bhai is in problem.

In a 138 case that i defending the prosecution filed an application fro production of original notice from accused which sent by the counsel of complainant u/s 138 NI Act. The application filed was under sec. 91 of Cr.P.C.

Q. Can an accused be compelled to produce such notice. Is it not infringement of art. 20 of Constitution???

Please refer any Apex court rulling...



Legal Fighter


Advocate
[ Scorecard : 1752]
Posted On 24 June 2010 at 18:48 Report Abuse

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

DATED: 28/07/2003

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

CRIMINAL ORIGINAL PETITION No.21724 OF 2003
AND
CRL.M.P.No.6234 OF 2003.

M.Kalanithi Maran                              ... Petitioner

-Vs-

State, by
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
                Mrs.Gita Asokan

For respondent :  Mr.I.Subramaniyam,
                Public Prosecutor,
                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.,
dated 4.7.2003.

                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
am.:


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
event.

                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
incriminated.

                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:

In result,
(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.



Index:Yes
Internet:Yes

gr/Rao

To

1.The Inspector of Police,
CBCID, Metro, Chennai.

2.The VII Metropolitan Magistrate,
George Town, Chennai.

3.The Public Prosecutor,
High Court, Madras.

 

 



Total thanks : 2 times

Ravikant Soni


LAWYER IN JAIPUR
[ Scorecard : 3577]
Posted On 24 June 2010 at 20:36 Report Abuse

thanks legal fighter...


sweta singh


n/a
[ Scorecard : 223]
Posted On 24 June 2010 at 21:41 Report Abuse

i wanted to ask just out of curiosity........y the accused is being asked 2 produce the notice???


Ravikant Soni


LAWYER IN JAIPUR
[ Scorecard : 3577]
Posted On 25 June 2010 at 13:10 Report Abuse

Sweta

yes it was 15 days notice which was given by lawyer of complainant.


Ayub S. Pathan


Legal Adviser
[ Scorecard : 130]
Posted On 06 July 2010 at 21:48 Report Abuse

Mr.Soni,

You Can Check the citation of Bombay High Court.

Manjula Ramlal Barot v/sishwarlal P.Barot

2006(2)Bom Cr.C.727=2006 Cri.LJ 3779.

Ayub S.Pathan,Legal Adviser, Mah. State, CID,Pune.


Girish M. S.


Advocate
[ Scorecard : 119]
Posted On 10 January 2011 at 18:49 Report Abuse

Thank you very much



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