CHANDUBHAI JETHABHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two Revision Applications arise out of a peculiar application made by the complainant and a still more peculiar order made by the learned Magistrate on such application. The accused was charged for the offence of defamation in the Court of the Judicial Magistrate First Class Nadiad. It is not necessary to set out the facts leading upto the filing of the complaint against the accused; but it is sufficient to state that the complaint was filed against the accused on the ground that at a meeting which was held by the Commissioner, the accused used a word derogatory of the complainant. The case was fixed for hearing on 16 November 1960 and on that date the evidence of the complainant commenced. After the examination-in-chief of the complainant was concluded the advocate of the accused who is the petitioner before me in Revision Application No. 256 of 1961 started the cross-examination of the complainant. In the course on the cross-examination the advocate of the accused asked certain questions to the complainant. The questions and the answers given by the complainant were as follows:-

(2.) The advocate of the accused then asked the following question:-

(3.) Mr. B. K. Amin learned advocate appearing on behalf of the accused and the advocate of the accused contended that it was not competent to the learned Magistrate to make the order requiring the advocate of the accused to produce the said letter since the production of the said letter could not be compelled by reason of the provisions of section 126 of the Indian Evidence Act. Mr. B. K. Amin contended that the provisions of section 94 of the Code of Criminal Procedure should be read along with the provisions of section 126 of the Indian Evidence Act and that the learned Magistrate could not avoid the prohibition contained in section 126 of the Indian Evidence Act by having resort to the provisions of section 94 of the Code of Criminal Procedure. Now sub-section (1) of section 94 of the Code of Criminal Procedure provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any inquiry trial or other proceeding under the Code of Criminal Procedure such Court may issue a summons to the person in whose possession or power such document is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons. The discretion conferred on the Court is thus an absolute discretion the only condition for the exercise of the discretion being that in the opinion of the Court the production of the document should be necessary or desirable for the purposes of the inquiry trial or other proceeding before the Court. Certain limitations are however placed on the exercise of the discretion of the Court by sub-section (3) of section 94 which provides that nothing in section 94 shall be deemed to affect sections 123 and 124 of the Indian Evidence Act or to apply to a letter postcard telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities. It is therefore clear that the Court cannot by making an order under sub-section (1) of section 94 set at naught the provisions of sections 123 and 124 of the Indian Evidence Act. The argument of Mr. P. B. Desai learned advocate appearing on behalf of the complainant was that sections 123 and 124 of the Indian Evidence Act are specifically mentioned in sub-section (3) of section 94 so that no order can be made under sub-section (1) of section 94 in derogation of the right conferred by sections 123 and 124 of the Indian Evidence Act; but section 126 of the Indian Evidence Act is not so mentioned and the provisions of that section cannot therefore be relied upon to negative the existence of the power the Court to make an order under sub-sec.(1) of section 94. I think Mr. P. B. Desai is right in this contention. Where the Legislature wanted that the provisions of sections 123 and 124 of the Indian Evidence Act should prevail against the provisions of subsection (1) of section 94 of the Code of Criminal Procedure the Legislature has made specific provision to that effect in sub-section (3) of section 94 but no such provision has been made in regard to section 126 of the Indian Evidence Act. The intention of the Legislature is therefore plain that in an appropriate case an order can be made under sub-section (1) of section 94 which would override the provisions of section 126 of the Indian Evidence Act. It cannot be urged that an order under sub-section (1) of section 94 is illegal merely because it violates the privilege conferred by section 126 of the Indian Evidence Act. It must of course be remembered that in making an order under sub-section (1) of section 94 the Court has to exercise a judicial discretion and the Court ordinarily would not in the exercise of its discretion make an order which violates the privilege conferred by section 126 of the Indian Evidence Act. But it cannot be urged as a matter of construction that no order can be made under sub-section (1) of section 94 which infringes the privilege of professional communication embodied in section 126 of the Indian Evidence Act. Mr. B. K. Amin drew my attention to a decision of the High Court of Bombay reported in Emperor v. Bilal Mahomed (A.I.R. 1940 Bombay 361). I respectfully agree with all that is stated by Beaumont C.J. in that decision. That decision however establishes no more than this namely that the discretion under sub-section (1) of section 94 must be exercised judicially and it should be ordinarily exercised in such a way as not to conflict with the policy of the Legislature as disclosed in section 162 of the Code of Criminal Procedure and sections 123 to 125 of the Indian Evidence Act. To these sections may be added on a parity of reasoning section 126 of the Indian Evidence Act. Beaumont C.J. has however emphasized in clear and unmistakable terms that the discretion under sub-section (1) of section 94 is an absolute discretion. The true principle therefore seems to be that the power of the Court to make an order under sub-section (1) of section 94 is not limited by the provision of section 126 of the Indian Evidence Act but that the discretion under subsection (1) of section 94 is a judicial discretion and it should not ordinarily be exercised in such a way as to conflict with the privilege against disclosure conferred by section 126 of the Indian Evidence Act. The present contention of Mr. B.K. Amin must therefore fail.