Gopalakrishnan Nayanar & Anr. v. Sasidharan Nambiar & Anr.

Thomas, A.C.J:— A Rotary Club, instead of embarking on implementation of its professed programmes, has unfortunately got itself embroiled in litigious squabbles both in civil and criminal courts. This matter is one of the sideturns of the latter.

2. Criminal case was launched by the President of the Rotary Club through a complaint filed against its Vice President, Secretary and Treasurer alleging offences under Ss. 406 and 468 of the Indian Penal Code. The magistrate before whom the complaint was filed has chosen to conduct an enquiry envisaged in Sec. 202 of the Code of Criminal Procedure (for short ‘the Code’). During such enquiry the magistrate issued a notice to the accused calling upon them to produce certain documents such as the account book etc., pertaining to the club. Accused, who entered appearance, resisted the direction to produce the documents on the ground that they cannot be so compelled in view of Art. 20(3) of the Constitution of India. But learned magistrate repelled the contention as per the impugned order.

3. Learned Magistrate relied on the decision of this court in Raveendran v. T.S Prakasan & Another (1989 (2) KLT 210) to support the order which is now challenged in this Criminal Miscellaneous Case filed under Sec. 482 of the Code. When the matter came up before a single Judge it was pleaded that the principle laid down in Raveendran's case may be reconsidered. The case was, however, referred to a Division Bench and thus it has come up before us.

4. In Raveendran v. T.S Prakasan & Another (1989 (2) K.L.T 210) a learned single Judge has relied on the decision of the Supreme Court in S.S Khanna v. Chief Secretary Patna ((1983) 3 SCC 42 : AIR 1983 SC 595) wherein it was held that during the enquiry stage under Sec. 202 of the Code the person arrayed in the complaint as accused does not in fact become an accused until it is decided to issue process against him. On the strength of the said principle, learned single Judge held that the direction issued to the accused to produce documents during the enquiry stage is not in infringement of Art. 20(3) of the Constitution.

5. It is under Sec. 91 of the Code that a magistrate can issue summons to a person to produce a thing or document This section corresponds with Sec. 94 of the Code of Criminal Procedure, 1898 (old Code). Sec. 93 of the present Code empowers a court to issue search warrant for searching or inspecting any place if the court considers that the person concerned is not likely to produce the document or thing. This Court has held in Jayadeva Panicker v. Velayudhan & Others (1986 KLT 1303) that such a search warrant can be issued even against the accused. But the question whether an order or summons can be issued against an accused under Sec. 91 of the Code has not been considered in the said decision. Nor can the said decision be used for legitimatising any order issued to the accused for compelling him to produce documents.

6. However, learned counsel for the petitioners contended that the decision in Raveendran v. T.S Prakasan & Another (1989 (2) KLT 210) has erroneously placed reliance on the Supreme Court decision which was decided in a different context altogether.

7. In S.S Khanna v. Chief Secretary ((1983) 3 SCC 42 : AIR 1983 SC 595) Supreme Court considered the question whether a person who was dropped out during enquiry stage (envisaged in Sec. 202 of the Code) could have claimed protection under Sec. 300 of the Code if he was sought to be impleaded as accused by virtue of Sec. 319 of the Code. Supreme Court held that an enquiry under Sec. 202 of the Code is not in the nature of a trial since there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the accused. It was in the said context that their Lordships have observed in the decision that “the said proceedings are not strictly proceedings between the complainant and the accused and a person against whom a complaint is filed does not become an accused until it is decided to issue process against him.” Learned single Judge has quoted the above observations to support the finding that the order envisaged in Sec. 91 of the Code could have been issued against such person. The ratio in S.S Khanna's case is clearly distinguishable as the scope of consideration under Sec. 91 of the Code vis-a-vis Art. 20(3) of the Constitution is ostensibly different.

8. Under Section 91 of the Code a court is empowered to issue summons to the person requiring him to produce a document or thing whenever the court considers that production of such document or thing is necessary for the purpose of the inquiry or trial.

9. We may point out, at this stage itself, that a majority of the Constitution Bench of the Supreme Court has held in State of Gujarat v. Shyamlal (AIR 1965 SC 1251) that this section (it was the corresponding section of the old Code which was dealt with in the decision) does not apply to an accused. It was decided so on the premise that the protection contained in Art. 20(3) of the Constitution would insulate an accused from being ordered to produce document or thing. Even today the said ratio stands undisturbed and hence we are bound to follow the same. Hence the only limited question which needs consideration now is whether a person arrayed as accused in a complaint filed before a magistrate is “a person accused of any offence” as contemplated in Art. 20(3) of the Constitution until the magistrate has issued process to him.

10. No decision directly covering this point has been cited before us. However, we find assistance from some other decisions rendered regarding contexts very near to the present situations.

11. The expression “person accused of any offence” is a familiar expression even during the pre-constitution period. Eg. Secs. 25 and 27 of the Evidence Act have employed such expression. Supreme Court has construed it as covering a wide range. Decisions are too many for the same. However, we mention a recent one pronounced by the Supreme Court in Bharu Singh v. State of Rajasthan ((1994) 2 SCC 467). Their Lordships have observed thus:

“The section (Sec. 25) deals with confessions made out only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression accused of any offence in Sec. 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not.”

12. We may point out that at no time has the Supreme Court construed the expression “person accused of any offence” in Art. 20(3) of the Constitution in a narrower focus.

13. A larger Constitution Bench of the Supreme Court (comprising eight Judges) has observd in M.P Sharma v. Satish Chandra (AIR 1954 SC 300) that protection under Art. 20(3) of the Constitution is available “to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.” In later decisions, Supreme Court has expatiated as to what is meant by “a formal accusation” (vide Romesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940). Another Constitution Bench of the Supreme Court in R.B Shah v. D.K Guha ((1973) 1 SCC 696 : AIR 1973 SC 1196) while dealing with the contention that a person who has not been specifically named as accused in an F.I.R is not entitled to protection under Art. 20(3), has held that he is nonetheless “a person accused of an offence”. Their Lordships have reiterated the principle laid down in M.P Sharma's case (AIR 1954 SC 300). A later decision of the Supreme Court has thrown wider light on this area in Balkishan v. State of Maharashtra ((1980) 4 SCC 600 : AIR 1981 SC 379). The relevant passage is extracted thus:

“Formal accusation is ordinarily brought into existence by lodging of an F.I.R or a formal complaint to the appropriate authority or court against the specific individual, accusing him of the commission of a crime which, in the normal course, would result in his prosecution. It is only on the making of such formal accusation that clause (3) of Art. 20 becomes operative covering that individual with its protective umbrella against testimonial compulsion.”

14. The above discussion leads us to the only conclusion that the person against whom offences have been alleged in a complaint filed before the magistrate, is an accused person notwithstanding the fact that an enquiry envisaged in Sec. 202 of the Code was still pending. No order under Sec. 91 of the Code can be issued against such a person. We, therefore, hold that the principle laid down in Raveendran v. T.S Prakasan & Another (1989 (2) KLT 210) is not correct. Hence we quash the impugned order.

15. Criminal Miscellaneous Case is disposed of accordingly.