STATE OF GUJARAT Vs. NEW SWADESHI MILLS

JUDGEMENT

(1.) * * * *

(2.) The contention made out by Mr. Khambhatta the learned counsel for the petitioners was that the learned Magistrate has misconceived the position of laying stress on the ground of relevancy of documents and has also misread the two decisions of the Bombay High Court referred to in the judgment. According to him the same test as required to be fulfilled under sec. 94 of the Criminal Procedure Code has to be applied for the purpose of production of any documents or things namely whether they were necessary or desirable for the purposes of any investgation inquiry trial or other proceeding. That test is fulfilled by showing that the documents records etc. have a bearing on the allegations leveled in the first information report and in the application and therefore there should not arise any question of relevancy in relation to those documents as it would not be possible to show without inspection thereof. Not to allow the same he contended would amount to interference by the Court with the investigation which it cannot do. On the other hand it was urged by Mr. Nanavati the learned counsel for the opponents that neither the Supreme Court nor the decision given by Mehta J. lays down that any such right is conferred on the investigating authorities to have all such documents which had come to be seized by them under sec. 165 produced or inspected and all that they say is that they have a right to approach the Court for production etc. and that way they were required to move the Court. The claim for inspection or looking into the same would have perhaps arisen to the prosecuting authorities if the seizure of documents etc. was validly effected under sec. 165 of the Code. In fact they had even time to look into the same if they so wished before any stay order was issued as they had remained in their custody for some time. He also pointed out that if any order was passed by them under sec. 94 of the Criminal Procedure Code and if in compliance thereof the documents etc. were produced perhaps they would have been able to look into and as to the first part about their having or bearing or rather their being necessary or desirable could not have been challenged. But according to him neither of these powers can be availed of by them the former by reason of the order of seizure found to be invalid by this Court and the latter by reason of the fact that no such order has been passed by them nor complied with by the opponents. They cannot therefore ipso facto in the name of the powers of investigation claim the same merely as they are in custody of the Magistrates Court obviously intended to be returned to the accused after carrying out certain directions set out in the order passed by the Supreme Court. According to him the applicant has therefore and in fact can be said to have invoked the aid of the Court for production and for delivery of the documents etc. for inspection and that has therefore to be regulated by the Court in accordance with law. He laid stress on the Full Bench decisions of the Bombay High Court followed by the learned Magistrate since they lay down correct view of the powers contained in sec. 94 of the Criminal Procedure Code and once they apply to the facts of the present case this Court is bound to follow the same they being prior to 1-5-60. Unless therefore they were to show how and which of those documents records account books etc. were truly relevant to the charges alleged against them they cannot be given any right to make a roving or fishing inquiry by looking into all of them.

(3.) Now there is no provision other than contained in secs. 165 and 94 of the Criminal Procedure Code which gives any power to a police officer investigating any matter to claim production or/and custody of any such documents from the possession or keeping of any person. Nor do we find any particular provision in the Criminal Procedure Code which entitles the police officer to claim inspection of documents records etc. if recovered from the accused in the case. That power also can be invoked either arising out of seizure of such material under sec. 165 or obtained under sec. 94 of the Criminal Procedure Code. It was while exercising powers under sec. 165 of the Code that the documents etc. came to be seized by the investigating officer from the possession of the opponents. In a writ petition filed by the opponents in that respect the Division Bench of this High Court held that the action taken thereunder was invalid inasmuch as necessary requirements contained in sec. 165 of the Code were not complied with by the investigating officer and consequently the opponents were entitled to the restoration of these articles books and documents etc. (See New Swadeshi Mills v. S. N. Rattan IX G.L.R. 364) In the meantime at the request of the petitioner those books documents account books and other articles etc. were directed to be placed in effective custody of the Magistrate and were not returned to the opponents. In an appeal preferred against that decision by the petitioner to the Supreme Court an order based on consent terms of the parties was passed by the Supreme Court which I have set out here above. In effect the final order passed by the High Court came to be superseded by one contained therein and at the same time the appeal was dismissed. The preamble thereof does only appear to protect or rather save the rights of the parties to raise contentions such as relating to the validity of investigation or otherwise as also of the petitioner to approach the proper Court for such orders for production of documents etc. as they may be advised to take. In other words the invalidity of the seizure does not appear to have been disturbed and consequently having regard to the other terms set out therein the petitioner gets no right or authority as such to claim custody thereof so much so that he can inspect the same for the purpose of investigation of the matter. His right to move the Court for that purpose is safeguarded and it would follow therefrom that he cannot claim any benefit arising from sec. 165 of the Code. The effect of this order came to be considered by Mehta J. in Special Civil Application No. 660 of 1968 which as already pointed out above was that all these documents records account books etc. which were seized by the C.B.I. authorities were to remain in the custody of the learned Magistrate and the right was reserved to the C.B.I. authorities to approach the proper Court for orders for production of documents etc. He further observed that until such orders were passed by the competent Court which may be even the Magistrate himself after applying his mind to the requirements of law in that connection the next stage could not arise for giving inspection of such documents etc. Thus the first stage would be for the Magistrate to apply his mind to the question as to what documents should be first ordered to be produced out of those lying before him. However as he found that the application filed by the petitioner was not as clear as it ought to have been and since the learned counsel for him was willing to file a fresh application for having the documents produced and for the consequential directions for inspection of such documents as the Court deems fit he did not remand the matter and directed the Magistrate to pass orders for production of the documents and for their inspection even before these documents were returned to the opponents as contemplated under Clause 1 of the order passed by the Supreme Court. The order passed by Mehta J. does not even remotely suggest that inspection of these documents etc. should be allowed to be given as a matter of course without satisfying the test of their relevancy to the charges against the opponents. The position therefore is that the petitioner cannot claim their custody for the purpose of inspection as of right by reason of any orders passed by the Supreme Court or by this Court or under sec. 165 of the Criminal Procedure Code. There is no such inherent power vested or given by any provision of law to claim an absolute right to have all documents etc. taken over and examined or inspected by them irrespective of any conditions only on the ground that the investigation would suffer and that it cannot be interfered with by the Court.