( 1 ) HEARD Sri Seshadn Naidu, the learned counsel representing the petitioner/de facto complainant and Sri Somakonda Reddy, counsel representing the 1st respondent/ accused and the learned Public Prosecutor representing the 2nd respondent/state ( 2 ) SRI Seshadn Nadiu, the learned Counsel representing the petitioner would maintain that the prayer which had bee prayed for is for production of account books of M/s R R constructions and this aspect was not taken note of by the learned Magistrate while dismissing the application The learned counsel also had taken this Court through the facts of the case and would maintain that the defacto complainant in fact was informed that the alleged accounts are of two kinds- one account meant for writing actual expenditure and the other account meant for the sake of account The learned Counsel also had taken this Court reasons which had been light of the view expressed in reasons which had been recorded by the learned magistrate and would maintain that in the light of the view expressed in State of Bombay v Kathi Kalu Oghad the view expressed by the learned Magistrate may not be the correct view ( 3 ) PER contra, Sri Somakonda Reddy, the learned Counsel representing the 1st respondent/accused would maintain that virtually the accused is managing the affairs and what had been prayed for is production of account books from his custody It is needless to say that inasmuch as the accused is said to be in the custody of certain documents, the so called incriminating documents, for the purpose of establishing the case of the prosecution an application was moved directing the accused to produce such documents which would be violative of article 20 (3) of the Constitution of India The learned Counsel also placed strong reliance on a decision of the Apex Court in State of gujarat v Shyamlal ( 4 ) THE de facto complainant/petitioner herein moved an application Cr, M P No 508/ 2005 in C C No 640/2002 on the file of Judicial first Class Magistrate, Kurnool under section 91 of the Code of Criminal Procedure, hereinafter in short referred to as "code", praying for the production of account books as specified in the Schedule and it was shown that the said account books are to be produced by M/s R R Constructions As can be seen from the facts of the case, it cannot be in serious dispute or controversy that t Surychandra Reddy, the 1st respondent herein, is managing the affairs and it is needless to say that the specific direction prayed for is for production of account books in the custody of the accused section 91 of the Code, corresponding to section 94 of 1898 Code, dealing with summons to produce document or other thing reads as hereunder - (1) Whenever any Court or any officer- in-charge of a police station considers that the production of any documents or other thing is necessary or desirable for the purposes 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 powersuch 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 complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same (3) Nothing in this section shall be deemed,- (a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers Books evidence Act, 1891, (13of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. This provision does not apply to an accused person The decisions in Debi Datta s case, vinayak v Vikram, Shib Nandan Prosad s case, Sunnder Mohan s case, Dhulipalla v kurra, D Veeraiah Choudary v K Veeraiah and the decision referred (2) supra may be referred to in this context A three Judge bench of Apex Court in State of Orissa v debendra Nath Padhi while dealing with section 91 of the Code held that the said provision does not confer any right on the accused to produce any document in his possession to prove his defence ( 5 ) ARTICLE 20 of the Constitution of India deals with Protection in respect of conviction for offences and Clause (3) of the said Article specific as hereunder "no person accused of any offence shall be compelled to be a witness against himself" thus it prohibits against self-in crimination and it is a rule against testimonial compulsion no doubt some attempt was made to convince the Court in the light of certain of the observations made by the Apex Court in the decision referred (1) supra However, it is needless to say that much water had flown subsequent to the said decision In the said decision (1) referred to supra, Sinha CJ , at baras 11,15 and 16 observed as hereunder "the matter may have to be looked at from another point of the view The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness" "to be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation A person is said to be a witness to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has been, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy Evidence has been classified by text writers into three categories, namely, (1) oral testimony, (2) evidence furnished by document, and (3) material evidence We have already indicated that we are in agreement with the Full Court decision in Sharma s\r\ce case 1954 SCR 1077 (AIR 1954 S C 300) that the prohibition in cl (3) of Art 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him The accused may have documentary evidence in his possession which may throw some light on the controversy If it is a document which is not his statement conveying his personal knowledge relating to the charge against him he may be called upon by the Court to produce that document in accordance with the provisions of Section 139 of the evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that the does not become a witness by the mere fact that the he has produced it, and therefore, he cannot be cross-examined Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents In our opinion therefore the observation of this Court in Sharma s case, 1954 SCR 1077 AIR 1954 S C 300 that Section 139 of the Evidence Ac has no bearing on the connotation of the word witness is not entirely well- founded in law It is well established that cl (3) of Article 20 is directed against self-incrimination by an accused person self-in crimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression The production of such a document with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony when a accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, signature or a specimen of his handwriting he is not giving any testimony of the nature of a personal testimony The giving of a personal testimony must depend upon his volition He can make any kind of statement or may refuse to make any statement But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character Thus, tne giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness in order to bring the evidence within the inhibitions of cl (3) of Art 20 it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement compulsion in the context, must mean what in law is called duress In the Dictionary of english Law by Earl Jowitt, duress is explained as follows"duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the treat of being killed, suffering some grievous bodily harm or being unlawfully imprisoned (sometimes called menace, or duress per mines) Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person"the compulsion in this case is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of tne statement involuntary and therefore, extorted Hence the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of article 20 (3) Hence the mere fact that the accused person, when he made the statement in question was in police custody would not by itself, be the foundation for an inference of law that the accused was compelled to make the statement Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was in fact exercised In otherwords. it will be aquestion of fact in each case to be determined by the court on weighing the facts and circumstances disclosed in the evidence before it in view of these considerations we have come to the following conclusions - (1) An accused person cannot be said to have been compelled to be a witnesses against himself simply because he made a statement while in police custody, without anything more In other words, the mere fact of the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion . (3) To be a witness is not equivalent to furnishing evidence in its widest significances; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm orfingers or specimen writings orshowing part of the body by way of identification are not included in the expression to be a witness . (5) To be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or giving in Court or otherwise. (6) To be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that the should become an accused, any time after the statement has been made. Das Gupta. (7) To bring the statement in question within the prohibition of Article 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that the should become an accused, any time after the statement has been made. Das Gupta. J. , delivering Judgment on his behalf and on behalf of S. K. Das and a. K. Sarkar, JJ. , in the light of the majority view at para-35 observed:"we agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of article 20 (3) of the Constitution by compelling an accused person to give his specimen handwriting, or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act; though we have not been able to agree with the view of the learned brethren that "to be a witness in Art. 20 (3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own had writing even through it may tend to prove facts in issue or relevant facts against him. "in the said decision at para-11 the learned judges observed that they are in agreement with the Full Court decision in M. P. Sharma and others v. Satish Chandra, District magistrate, Delhi and others that. prohibition in Clause (3) of Article 20 of the Constitution of India covers not only oral testimony given by an accused of offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. ( 6 ) IN the decision referred (2) supra, while dealing with Section 94 (1) of the Code of 1989 in the context of testimonial compulsion in the light of Article 20 (3) of the Constitution of India overruling the view expressed by the full Bench of Calcutta High Court in Satya kinkar Ray. ( 6 ) IN the decision referred (2) supra, while dealing with Section 94 (1) of the Code of 1989 in the context of testimonial compulsion in the light of Article 20 (3) of the Constitution of India overruling the view expressed by the full Bench of Calcutta High Court in Satya kinkar Ray. v. Nikhil Chandra per majority held at paras 29, 31 and 33 as hereunder:"the Indian Legislature was aware of the above fundamental canon of criminal jurisprudence because in various sections of the Criminal Procedure Code it gives effect to it For example, in s 175 it is provided that every person summoned by a Police Officer in a proceeding under Section 174 shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to criminal charge or to a penalty or forfeiture Section 343 provides that except as provided in sections 337 and 338, no influence by means of any promise or threat or otherwise shall be used to an accused person to induce him to disclose or withhold any mater within his knowledge Again, when the accused is examined under Section 342, the accused does not render himself liable to punishment if he refuses to answer any questions put to him Further, now although the accused is a competent witness, the cannot be called as a witness except on his own request in writing It is further provided in section 342a that his failure to give evidence shall not be made the subject of any comment by any parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial there is one other consideration which is important Article 20 (3) has been construed by this Court in Kalu Oghad s case, (1962) 3 SCR 10 (AIR 1961 s C 1808), to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge Section 94, criminal Procedure Code, permits the production of all documents including the abovementioned class of documents If Section 94 is construed to include an accused person some unfortunate consequences follow suppose a police officer and here it is necessary to emphasize that the police officer has the same powers as a Court - direct and accused to attend and produce or produce a document according to the accused, he cannot be compelled to produce this document under Article 20 (3) of the constitution what is he to do? If he refuses to produce it before the Police Officer he, would be faced with a prosecution under section 175, Indian Penal Code, and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid if Section 94 applies to an accused person This becomes clearer if the language of Section 175 is compared with the language employed in section 485 Cr P C Under the latter section a reasonable excuse for refusing to produce is a good defence If he takes the document and objects to its production, there is no machinery provided for the police officer to hold a preliminary enquiry The Police Officer could well say that on the terms of the section he was not bound to listen to the accused or his Counsel Even if he were minded to listen, would he take evidence and hear arguments to determine whether the production of the document is prohibited by article 20 (3) At any rate, his decision would be final under the Code for no appeal or revision would lie against his order Thus it seems to us that if we construe Section 94 to include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him keeping the above considerations in mind let us took at the terms of the section It will be noticed that the language is general, and prime fac/p 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 rather 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"sikri, J , speaking for himself and gajendragadkar CJ , Hidayatullah and bachawat ,jj , while delivering the majority judgment in fact had taken note of the observations made by the majority in the decision referred (1) supra and the same had been dealt with at length at para 25 No doubt shah , J , had expressed contra opinion ( 7 ) TESTIMONIAL compulsions to make a person to be a witness against himself are prohibited This view in fact had been highlighted at the earliest point of time by the apex Court in the decision referred (10) supra wherein the Apex Court specifically held that production of documentary evidence also is included The view expressed in nandini Satpathi v P L Dani also may be usefully referred to in this context Viewed from any angle, in the light of the reasons recorded by the learned Magistrate, especially at para-5 of the impugned order, this Court is thoroughly satisfied that the petitioner/de facto complainant is making an attempt for production of some incriminating material from the custody of the accused which is impermissible by virtue of the bar imposed by the Article 20 (3) of the Constitution of India ( 8 ) IN any view of the matter, this Court is satisfied that the impugned order does not suffer from any illegality whatsoever and accordingly the Criminal Petition shall stand dismissed