Beaumont, C.J:—
[after stating the facts set out above continued]. Mr. Shamdasani, the complainant, contends, in the first instance, that this Court has no jurisdiction to interfere with the order made by a Bench of this Court on April 14, and it is, of course, clear that this Court has no jurisdiction in appeal or revision in respect of an order made by an appellate bench of this Court. The order stands as between the complainant and the accused, but the contention of the Bank is that the order does not bind them, and that we must determine what their rights in the matter are, irrespective of the order which was made in their absence.
The judgment of this Court was given by Mr. Justice Broomfield, and he seems to me to lay down the following propositions. First, that the order for production of documents was made under section 94 of the Criminal Procedure Code; secondly, that such an order confers by implication a right on the part of the complainant to inspect the documents produced under the order; thirdly, that there is nothing in the Banker's Books Evidence Act inconsistent with such a right; and, fourthly, that even if the Magistrate's order did not involve the granting of a right to inspect the documents, nevertheless on the merits such right should be given since inspection is necessary to enable the complainant to present his case properly. With all deference to the learned Judges who were parties to that decision, it seems to me that none of those propositions can be supported. For reasons which I will give in a moment, I am of opinion that the case does not really turn on section 94 of the Criminal Procedure Code. But, as the matter was dealt with in some detail by Mr. Justice Broomfield, I would say that, in my view, there is no justification whatever for the suggestion that when a Magistrate makes an order for production under section 94 of the Criminal Procedure Code, which he can do whenever he thinks such an order necessary or desirable for the purposes of the proceedings before him, he thereby commits himself to the proposition that inspection of all the documents production of which is ordered must necessarily follow. The cases on which Mr. Justice Broomfield relied for that proposition, viz., Mahomed Jackariah & Co. v. Ahmed Mahomed and In re Lakhmidas do not, in my opinion, go nearly as far as that. Certainly the Bombay case does not. I think all that those cases decide is that the power to order production under section 94 involves a power in the Court to grant inspection of the books after the order to produce has been complied with. But it would be very inconvenient if the Magistrate could not order production of books until he had arrived at a point in the case at which he was in a position to consider whether a right of inspection should be granted or not. Usually inspection should only be given of particular documents shown to fee relevant, and not of documents in bulk. In point of fact, in this case I do not think that any order for production was ever made against the Bank. When the Magistrate wrote the word “Comply” on the application for an order for production, that seems to have been a direction to the office which was followed by a mere letter of request to the Bank, and the suggestion that the Magistrate in writing the word “Comply” on the application intended to commit himself to the view that the whole of this lorry load of books production of which he was requesting could properly be inspected by the applicant, and the further suggestion that the Bank, in complying with the letter of request without raising any question as to their obligation to do so, thereby precluded themselves from subsequently objecting to inspection, seem to me wholly untenable.
As I have said, however, I think that really the case does not arise under section 94 of the Criminal Procedure Code. It seems to me to arise under the Bankers' Books Evidence Act. That is a special Act dealing with the subject-matter of bankers' books, and being a special Act, the provisions of the Criminal Procedure Code do not in any way conflict: see section 1(2). Section 4 of the Bankers' Books Evidence Act deals with the mode of proof of entries in bankers' books, and section 5 deals with the obligation of the Bank to produce their books, and directs that in any legal proceedings to which a Bank is not a party no officer of a Bank shall be compelled to produce any banker's book the contend of which can be proved under this Act, that is, by certified copies, unless by order of the Court or a Judge made for a special cause. It is apparent that in this case no order was ever made by the Magistrate for a special cause under that section. But we are not really concerned with orders for production, but with an order for inspection, and that matter is dealt with in section 6 of the Act. That section provides: “On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in banker's book for any of the purposes of such proceeding” and sub-section (3) directs that “The bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such order, and thereupon the same shall not be enforced without further order”. So that the Bank have a statutory right to object to any order directing inspection to be given of their books. The Bank, as I have pointed out, did successfully oppose the applications of the complainant both of September 2 and of October 2, 1936, asking that they should be required to give inspection, and, in my opinion, this Court in setting aside the order of December 22 made on the application of October 2, without hearing the Bank, in effect disregarded the Bank's statutory right. No doubt that order purported to be made under section 94 of the Criminal Procedure Code, but, for the reasons I have given, I think that in law it must be taken to have been made under section 6 of the Bankers' Books Evidence Act, since, in my opinion, that is the only Act under which the Court can deal with the right to inspect a banker's book. Even had the order been made under section 94 of the Criminal Procedure Code, I think that it would have been contrary to the ordinary practice of this Court, and indeed to principles of natural justice, to have set aside an order which had been made at the instance of the Bank without giving the Bank an opportunity of being heard. However; if the order was made under the Bankers' Books Evidence Act, the Bank had a statutory right to be heard. In my opinion, therefore, the order of this Court must be held not to be binding upon the Bank, and it follows, therefore, that the order of the learned Magistrate made on May 15 must be set aside, unless we come to the conclusion, after hearing the Bank, that on the merits inspection of these documents ought to be given to the complainant.
On that question Mr. Justice Broomfield took the view that the complainant alleges that specific items in the balance-sheet of the Bank for the year 1925 were false and fraudulent, that many of the books of the Bank, though, I imagine, certainly not all those included in the list X to X/23, must have been before the auditors when they certified the balance-sheet as correct, and that the complainant cannot properly present his complaint without inspecting the books of the Bank. The proposition really comes to this, that if a complainant makes a charge sufficiently specific against his opponent, then he is entitled to inspect all his opponent's books and the books of a third party, which would be relevant, assuming the charge to be well-founded. Clearly if the charge is not well-founded, no books can be relevant to support it. It is contended by the complainant that proposition of Mr. Justice Broomfield is correct, that he has made a complaint on oath, and that the Court must assume in the first instance that the complaint is well-founded, and that unless he is allowed to inspect the books of the Bank his prosecution will be stifled. In my opinion, however, the proposition laid down by Mr. Justice Broomfield is much too wide. There is no doubt truth in the contention that it may be difficult, or even impossible, for the complainant to prove his case without inspection of the Bank's books, but the Court has to have regard to other aspects of the matter. The legislature has endowed the Courts with wide powers of ordering production of documents necessary for the determination of matters before the Courts, and for directing inspection of those documents; but it must always be borne in mind that an order directing a person to produce or give inspection of his books in a dispute to which he is not a party involves a serious inroad upon his normal rights as a citizen, and the Courts have always set their faces against giving anything in the nature of a roving or fishing commission to inspect documents. The Court does not allow a man to say, “I make such and such a charge against my opponent, and now if you will let me look into his books I will see whether I can find some evidence to support it.” If the Courts were to make orders for inspection of books merely on an allegation that certain facts are true, the practice would be open to very serious abuse, and the Court might easily become something of a menace to a mercantile community. It would be open to an unscrupulous person to make a false charge, possibly against a business rival, and then get inspection of that business rival's books. In saying that I am not suggesting that the complainant in this case is making a false charge. I am not at present in a position to express any opinion upon that, but in framing rules for its own guidance the Court cannot ignore the fact that a good many unscrupulous people exist, and that false complaints are not uncommon, notwithstanding the penalty which may be invoked against a man, who presents a false complaint, under section 211 of the Indian Penal Code. In my opinion it is not the practice of the Court to allow inspection of bankers' books under the Banker' Books Evidence Act unless a prima facie case is made out for thinking that there is some matter on which the books of the Bank are bound to be relevant. The complainant here has given evidence. He has not yet been cross-examined, and as far as I can see, he has produced no evidence beyond his own assertion that these items in the balance-sheet which he challenges are false. He gives in the case of bad debts specific figures. He says that bad debts which have been included at a sum of rupees five lakhs, ought to have been included at a figure of Rs. 28 lakhs odd. He gives the actual amount in rupees, annas and pies, but he gives no evidence whatever to show how he arrives at that figure and why he suggests that the figure in the balance-sheet is wrong. That being so, in my opinion, he has not at the present moment made out any case for inspecting the books of the Bank.
In my opinion we must set aside the order of the learned Magistrate made on May 15, 1937, and direct that, notwithstanding the order of this Court dated April 14, 1937, which was made in the absence of the Central Bank, the Bank is not bound to give inspection of all the documents X to X/23, but if the complainant makes out a prima facie case for supposing that any particular item in the balance-sheet which is challenged is false, and that any particular document or documents will be relevant to support that charge, then the Magistrate can give inspection of any such document after hearing what the Bank may have to say under section 6 of the Bankers' Books Evidence Act, and if necessary, after allowing cross-examination of the complainant by the accused.
Rangnekar, J.:—I agree and have nothing to add.
Norman, J.:—I agree and have nothing to add.
Rule made absolute.
J.G.R