RAJ NATH Vs. HONBLE JUSTICE AVADH BEHARI

JUDGEMENT

(1.) The questions that this petition under Article 226 of the Constitution of India raises are (a) whetter a judicial order made by a learned Single Judge of this Court in the trial of a Civil Suit on the Original side can breach the fundamental right of a citizen, (b) whether, assuming that it does, such an order would be amenable to the writ jurisdiction of this court either for the enforcement of the fundamental right or for any other purpose. The petition has been filed in the following circumstances :

(2.) In the course of proceedings of a civil suit pending before a learned Single Judge of this Court, the petitioner filed an affidavit that property bearing No. 8225-26, Ward No. XVI, situated on plot No. 61/4, Ramjas Road, W.F.A. Karol Bagh, New Delhi, belonged to respondent No. 3 before us. Respondent No. 2 applied under Sections 476. 479A and 561A of the Code of Criminal Procedure read with Article 215 of the Constitution with the allegations that the affidavit contained false statements and called for action against the petitioner. In support of the application, respondent No. 2, to substantiate his case, summoned the petitioner and required him to produce certain accounts books in evidence. Petitioner took exception to this and contended that he could not be required to appear as a witness as the proceedings being criminal in nature and he being in the position of an accused, the requisition would militate against the fundamental guarantee against self-incrimination as embodied in Article 20(3) of the Constitution of India.

(3.) The learned Single Judge overruled the objection and held. basing the decision on the case of Raja Narbyahanlal Bansilal v. Naneck Phiroz Mistry State of Bombay Hathi Kalu and certain other cases, that the constitutional protection of Article 20(3) was not available to the petitioner at that stage as he could riot be considered to be a "person accused of an offence" in that no formal accusation had as yet been made against him and consquently directed the petitioner to comply with the requisition failing which warrants for his arrest "will be issued to enforce his attendance in Court". It is this order which is sought to be quashed by the petition. Apart from the parties to the proceedings, the learned Single Judge has also been impleaded.