SHEVNANDAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners are accused in a case under Section 468 of the Indian Penal Code. Shortly stated the case of the prosecution is that the father of the complainant and one Manik Mahto were brothers. Manik became a Sadhu and is now. traceless. It is alleged that the petitioners and some others set up Rameshwar Mahto (petitioner No. 3) in place of Manik Mahto and got a registered sale deed executed in respect of a land of Manik Mahto. It is further alleged that Rameshwar Mahto put his thumb impression in place of Manik Mahto on the sale-deed. Petitioner Brahmdeo Prasad is said to have acted as an identifier. It appears that on 27,5.76 on a petition filed by the complainant the Judicial Magistrate directed the accused persons to file the original registered sale deed in the case. Later on the said order was recalled by the successor-in-office of the said Judicial Magistrate on a petition filed by the accused persons. The learned Judicial Magistrate took the view that the petitioners could not be compelled to become witnesses against themselves. In a revision application by the complainant the learned Sessions Judge observed that the learned Magistrate will reconsider the order passed by him, although he dismissed the revision application summarily, it has been observed by the learned Sessions Judge that the new Criminal Procedure Code empowers the Court to ask the accused to produce and not only to produce, but also to admit or deny the genuineness of documents produced by the other side. Learned Counsel appearing for the parties have not been able to point out any such provision in the new Code, which compels an accused to produce a document incriminating him in the case.

(2.) The question for consideration in this case is as to whether an accused can be compelled to produce a document, which may ultimately incriminate him in the case. Section 91 of the Code of Criminal Procedure, 1973 (Section 94 of the old Code) provides that whenever any court considers that the production of any document or other thing is necessary it may issue a summons to the per-son, in whose possession or power such document or thing is believed to be requiring him to attend and produce it. Learned Counsel appearing for the complainant opposite party tried to interpret that the word "the person-mentioned in Section 91 includes also an accused. He submitted that such a direction could be given under Section 91 itself. This was repelled by a majority judgment of the Supreme Court in the case of State of Gujrat v. Shyamlal A.I.R. 1965 S.C. 1251. It was held that Section 94 of the old code doss not include an accused. It is one of the fundamental Cannons of Anglo-American Jurisprudence that an accused cannot be compelled to incriminate him. He cannot be compelled to discover that which, it answered, may tend to subject him to any punishment or penalty. Article 20(3) of the Constitution of India has been construed to mean that an accused person cannot be compelled to disclose document, which are incriminatory and based on his knowledge. A reference may be made to the case of State of Bombay v. Katie . In the present case the petitioners are alleged to have made certain forgery in the sale-deed. They are being prosecuted for an offence under Section 468 of the Indian Penal Code. Obviously the court cannot compel them to produce that document which may become evidence against them in the prosecution. The learned Judicial Magistrate was therefore, right in recalling the previous order. The learned Sessions Judge seems to think that Section 315 of the new Code empowers the court to ask to produce such documents. If Section 315 was in his mind, the learned Sessions Judge is not right. The proviso to Section 315 makes it clear that an accused shall not be called as a witness except on his own request in writing. If an accused wants to examine himself as a witness in a case against him, he is free to do so, but the court cannot compel him to become a witness against himself. That being the position, this application is allowed and the observations made by the learned Sessions Judge in Criminal 5 Revision no 13 of 1977, on 13.1.1977 is quashed.