STETE OF GUJAIAT Vs. SHYAARIAL MOHANLAL CHOKSIMANUBHAI PATEL

JUDGEMENT

(1.) The question which falls to be determined in these appeals is whether in exercise of the power under sec. 94(1) of the Code of Criminal Procedure a Court has authority to summon a person accused of an offence before it to produce a document or a thing in his possession. The words of the clause are general:- they contain no express limitation nor do they imply any restriction excluding the person accused of an offence from its operation. In terms the section authorises any Court or any officer in charge of a police-station to issue a summons or written order to the person in whose possession or power such document or thing is believed to be requiring such person to attend and produce it at the time and place indicated in the summons or order. The scheme of the Code also appears to be consistent with that interpretation. Chapter VI of the Code deals with process to compel appearance. A Court may under sec. 68 issue a summons for the attendance of any person whether a witness or accused of an offence vide Forms Nos. 1 and 31:- Sch. V). Section 75 and the succeeding sections deal with the issue of warrants of arrest of witnesses and persons accused of offences. Chapter VII of the Code deals with process to compel the production of documents and other moveable property and to compel appearance of the persons wrongfully confined and general provisions relating to searches. Section 94 confers on a Court power to issue summons and on a police officer to make an order to any person demanding Production of document or thing believed to be in possession of that person. Indisputably the person referred to in sub-sec. (2) of sec. 94 is the same person who is summoned or ordered to produce a document or thing. Sections 96 to 99 deal with warrants to search for documents or things. The first paragraph of sec. 96 authorises the issue of a search warrant in respect of a place belonging to any person whether he be a witness or an accused person. The inter-relation between sec. 94 and the first paragraph of sec. 96(1) strongly indicates that the power to issue a search warrant under paragraph one of sec. 96(1) is conditional upon the person who it is apprehended will not or would not produce a thing or document being compellable to produce it in pursuance of a summons under sec. 94(1). If under sec. 94(1) a summons cannot be issued against a person accused of an offence a search warrant under sec. 96(1) paragraph 1 can evidently not be issued in respect of a document or thing in his possession. The second and the third paragraphs of sec. 96(1) confer power to issue general warrants. The generality of the terms of sec. 98 which enable specified Magistrate to issue warrant under search places used for certain purposes also indicates that the power may be exercised in respect of any palace whether it is occupied by an accused person or not. The terms of sec. 103 which provide for the procedure for search of any place apply to the search of the house of a person accused of an offence or any other person.

(2.) Raju J. against whose judgment these appeals are filed opined that sec. 94(1) confers no power to issue a summons against an accused person to produce a document or thing in his possession principally on two grounds (i) that Chapters XX to XXIII of the Code do not authorise the issue of a summons or a warrant against a person accused of an offence and (ii) that a direction to attend and produce a document or thing cannot appropriately be made against the person accused. The first ground has no validity and has not been relied upon before us for good reasons.

(3.) The scheme of the Code clearly discloses that the provisions of Chapters VI and VII which fall in Part III intituled General provisions are applicable to the trial of cases under Chapter XX to XXIII. Specific provisions with regard to the issue of a summons or warrant to secure attendance of witnesses and accused and production of documents and things are not found in Chapters XX to XXIII because they are already made in Chapters VI & VII. Again the use of the words requiring him to attend and produce it indicates the nature of the command to be contained in the summons and does not imply that the person to whom the summons is directed must necessarily be possessed of unrestricted freedom to physically attend and produce the document or thing demanded.