A.H. SAIKIA, J.:
Heard Mr. I.S. Laskar, learned counsel for the petitioner and also heard Mr. F.U. Barbhuyan, learned counsel for the respondent.
2. Notice of motion was issued on 2.2.95 and since then this revision has been pending for Admission. At the time of issuance of notice of motion, this Court was pleased to pass an interim order staying the impugned judgment and order dated 11.11.94 passed by the learned Sessions Judge, Hailakandi in Crl. Motion No. 15(3) of 1994.
3. Let a Rule issue calling upon the respondents to show cause as to why the impugned order dated 11.11.94 should not be set aside as prayed for; or why such further or other order(s) should not be passed as to this Court may seem fit and proper.
Rule is made returnable forthwith.
4. As agreed by the learned counsel for the parties, I propose to dispose of this revision petition on the following terms.
5. The learned Sessions Judge in passing the impugned judgment held that the orders dated 7.5.94 as well as 22.8.94 passed by the learned Chief judicial Magistrate were ex-facie illegal only on the ground that the said orders were violative of Article 20(3) of the Constitution inasmuch as by those orders the accused/petitioner was directed to produce some documents which if so produced, would go against the accused himself. The learned Sessions Judge also held that if the said orders were allowed to continue that would hit the fundamental rights of the petitioner because that would amount to "self incrimination" meaning thereby compelling the accused to be witness against himself.
6. Assailing the impugned judgment rendered by the learned Sessions Judge, Mr. Laskar, learned counsel for the petitioner, has contended that the view expressed by the learned Sessions Judge is contrary to the established principle of law inasmuch as by the orders dated 7.5.94 as well as 22.8.94, the learned Magistrate had only directed to produce the documents. According to him, mere asking for production of documents will not violate the fundamental right guaranteed to the petitioner under Article 20(3) of the Constitution. In an effort to bring home this submission, Mr. Laskar has relied on a decision of the Apex Court in AIR 1961 SC 1808 (State of Bombay Vs. Kathi Kalu Oghad) wherein the Apex Court ruled that mere production of documents or giving information by an accused is not "to be a witness". According to him, in the case in hand, the accused petitioner was only directed to produce documents and such production, according to the learned counsel for the petitioner, cannot be said to compel him to be a witness.
7. After going through the Kathi Kalu Oghad's case (supra), it is found that the ratio of the said case is that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Accordingly this Court is not inclined to accept the said submission of the learned counsel for the petitioner. The Apex Court in State of Gujarat Vs Shyamlal Mohanlal Choksi (AIR 1965 SC 1251) referring to Article 20(3) of the Constitution as well as Section 94( 1) of the Code of Criminal Procedure (1898) now Section 91 Cr.P.C. (1973) and relying on Kathi Kalu Oghad's case (supra) observed that the accused cannot be compelled to produce any document which would be incriminating against himself. In other words, testimonial compulsion would be violative of Article 20(3) of the Constitution which guarantees that 'no person accused to any offence shall be compelled to be the witness against himself. More so, Section 94(1) of the Cr.P.C. (old), now Section 91 Cr.P.C. does not include an accused person. Section 91 Cr.P.C. permits the production of any document by any person at the instance of the Court or a police officer. In the light of Shyamlal Mohanlal Choksi's case (supra) it can be said that if Section 91 is construed to include an accused person, some unfortunate consequences would follow and accordingly, this Court is of the considered view that Section 91 Cr.P.C. does not apply to an accused person.
8. In M.P. Sharma Vs. Satish Chandra (AIR 1954 SC 300) the Apex Court explained 'formal accusation' in order to appreciate the expression "person accused of any offence" as enshrined in Article 20(3). According to the Supreme Court, 'formal accusation' is ordinarily brought into existence by lodging of an FIR 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 Article 20 becomes operative covering that individual with its protective umbrella against the testimonial compulsion. In the instant case, it is admitted position that the Respondent is an accused person and accordingly this Court unhesitatingly holds that the Respondent is entitled to get the protection of Article 20(3) of the Constitution which stands as fundamental right in order to protect the accused person under the concept of "prohibition against self-incrimination".
9. In the light of the above judicial pronouncements of the Apex Court, this Court is of the view that upon consideration of the factual situation of the case in hand, the protection under Article 20(3) of the Constitution is available to the Respondent and as such no illegality, irregularity or jurisdictional error has been committed by the learned Sessions Judge in setting aside the order dated 7.5.94 as well as 22.8.94 passed by the learned Magistrate asking the accused/respondent to produce the documents under his possession.
10. Consequently, this revision is dismissed.
11. Stay order, as passed earlier, shall stand vacated.