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2005 DIGILAW 940 (RAJ)

Vishal v. State of Rajasthan

2005-03-30

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Heard Counsel for the parties. 2. The learned Sessions Judge vide its order dated 011.2002 extended benefit of Section 438 CrPC to the petitioners and granted them anticipatory bail in FIR No. 235/2002. While granting anticipatory bail, the learned Sessions Judge imposed condition No. 4 to the effect that accused petitioner would produce Mukhtyar Nama dated 211.2001 before the Investigating Officer, which is under challenge in this petition. 3. The Public Prosecutor later on filed an application under Section 439(2) CrPC for cancellation of bail granted to the accused petitioners on the ground that the petitioners have failed to comply with the condition No. 4 as imposed by the learned Sessions Judge in his order dated 011.2002. In this back ground, the learned Sessions Judge while exercising powers under Section 439(2) CrPC cancelled the anticipatory bail granted to the petitioners on 011.2002. 4. The petitioners then invoked inherent jurisdiction of this Court by filing a petition under Section 482 CrPC. This petition was registered as S.B. Cr. Miscellaneous Petition No. 724/2003. This Court vide order dated 09.07.2003, after taken into consideration the fact that the conditions including condition No. 4 were to be complied with by the petitioners in the event of their arrest and on submission of bail bonds but such situation did not arise in this case at all, allowed the miscellaneous petition and set aside the order dated 12.06.2003 passed by the learned Sessions Judge cancelling the anticipatory bail granted to the petitioners. Thereafter the State of Rajasthan has also filed a miscellaneous petition bearing No. 5765/2004 in which this Court has issued notices. 5. Now the Deputy Superintendent of Police City (North) Ajmer has issued notices to the petitioners on different dates, under Section 91 CrPC asking them to produce original Mukhtyarnama Aam. 6. The only grievance of the petitioners is that the condition No. 4 incorporated in the order dated 011.2002 passed by the Learned Sessions Judge, Ajmer on Cr. Misc. Application No. 946/2002, thereby granting anticipatory bail be waived/deleted from the aforesaid order. 7. Section 91 CrPC deals with summons to produce document or other thing. 6. The only grievance of the petitioners is that the condition No. 4 incorporated in the order dated 011.2002 passed by the Learned Sessions Judge, Ajmer on Cr. Misc. Application No. 946/2002, thereby granting anticipatory bail be waived/deleted from the aforesaid order. 7. Section 91 CrPC deals with summons to produce document or other thing. To proceed further, it would be appropriate to quote Section 91, which read as under: (1) Whenever any Court or any Officer-in-charge of a police station considers that the production of any document or other thing is necessary for desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have compelled with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same." 8. From a bare reading of Section 91 CrPC it is evident that the words "the person" used in Section 91 does not include, an accused and, therefore, the accused persons cannot be compelled to incriminate himself and cannot be asked to disclose or produce any document. While dealing with similar controversy in Sheonandan Prasad & Ors. vs. The State of Bihar, ( 1979 CrLJ 26 Pat), the Patna High Court held as under: "The words "the person" in Section 91 does not include an accused. It is one of the fundamental cannons of Anglo American Jurisprudence that an accused cannot be compelled to incriminate himself . He cannot be compelled to discover that which if 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 documents, which are incriminatory and based on his knowledge." 9. In State of Gujarat vs. Shyam Lal Mohanlal Choksi & Ors. Article 20(3) of the Constitution of India has been construed to mean that an accused person cannot be compelled to disclose documents, which are incriminatory and based on his knowledge." 9. In State of Gujarat vs. Shyam Lal Mohanlal Choksi & Ors. connected appeals reported in AIR 1965 SC 1251, the Constitution Bench after examining the point at considerable length, observed as under: "Keeping the above considerations in mind, let us look at the terms of the section. It will be noticed that the language is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce are arather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court to attend and produce a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to attend and produce a document." 10. Thus, in view of the provisions of Section 91 CrPC and the law laid down by the Gujarat High Court and the Apex Court, referred to above, I am of the considered view that the Police Officer could not have issued notices to the petitioners asking them to produce any document under Section 91 CrPC as this section does not include the accused. 11. Coming to the grievance of the petitioners, suffice it to observe that condition No. 4 as imposed by the learned Sessions Judge in his order dated 011.2002 while granting anticipatory bail to the accused petitioner is against the provisions of Section 91 CrPC inasmuch as the accused petitioners cannot be compelled to disclose or produce Mukhtyarnama-Aam which is incriminatory as being subject matter of the offence and that the accused petitioners cannot be compelled to incriminate themselves. In other words compelling the accused petitioner to produce such document would lead to a situation where the petitioners would be implicating themselves in the commission of crime. In Alladeen & Anr. vs. State of Rajasthan (1977 CrLR (Raj.) 669), while granting anticipatory bail, the Sessions Judge imposed a condition on the accused to produce stolen article before the Investigating Officer. In Alladeen & Anr. vs. State of Rajasthan (1977 CrLR (Raj.) 669), while granting anticipatory bail, the Sessions Judge imposed a condition on the accused to produce stolen article before the Investigating Officer. This Court found it to be a fit case for exercising inherent powers and concluded that the learned Sessions Judge committed a grave error in directing or calling upon the accused persons to produce the watch and the money which were the subject matter of the alleged theft. 12. For the reasons aforesaid, this petition succeeds and is hereby allowed. The condition No. 4 as imposed in the order dated 011.2002 passed by the learned Sessions Judge, Ajmer is ordered to be deleted and the order stands modified accordingly.