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2008 DIGILAW 653 (PAT)

Lakshman Bhagat v. State Of Bihar

2008-04-30

ABHIJIT SINHA

body2008
Judgment Abhijit Sinha, J. 1. The Petitioner who is one of the accused in G.R. No. 2978 of 1997, arising out of Vaishali P.S. Case No. 175 of 1997, is aggrieved by and prays for the quashing of the Order dated, 18th January, 2007 passed by Sri S.K.Tripathi, Judicial Magistrate, first Class, Vaishali at Hajipur, whereby he has directed the Petitioner to produce the document which is not in his possession. 2. One Satrughan Bhagat, impleaded as Opposite party No. 2 herein, the Complainant, filed a Complaint Petition No. 2138 of 1997 before the learned Chief Judicial Magistrate, Hajipur, which was transmitted to the concerned Police station under Section 156(3) Cr.P.C and on the basis thereof the aforesaid Vaishali P.S. Case No. 175 of 1997 was registered under Sections 420, 417, 467, 468, 472 and 120-B I.P.C. 3. Briefly stated, the prosecution case is that the informant has three other brothers of whom the youngest brother, Ramji Bhagat, is handicapped, the third brother, Ramanand Bhagat, resides in his Sasural at Simra and looks after the lands gifted to him by his father-in-law. It is alleged that all the accused persons having entered into a conspiracy had transferred 25 1/4 decimals of land appertaining to Plot No. 652, Khata No. 108/114 and 12 decimals of land appertaining to Plot No. 653, Khata No. 161, jointly belonging to their parents and all the brothers through a forged Atainama executed on 28th July, 1997 after the death of their father by impersonating his mother. It is alleged that this overt act had taken piace when the informant had gone to his Sasural to obtain money for the treatment of his ailing mother and that Sukhdeo Sah and Mathura Dubey had figured as the identifier and witness respectively in the said Atainama. It is further alleged that when the informant came to know about the same and inquired from the accused persons, the Petitioner, Pappu Bhagat and Dilip Bhagat, allegeldly caught hold of the informant, threw him on the ground and attempted to kill him by strangulation. 4. It is further alleged that when the informant came to know about the same and inquired from the accused persons, the Petitioner, Pappu Bhagat and Dilip Bhagat, allegeldly caught hold of the informant, threw him on the ground and attempted to kill him by strangulation. 4. The grievance of the Petitioner is that after the entire arguments on behalf of the prosecution and his defence had concluded and the case was fixed for Judgment on 31st August, 2006, the prosecution on 31st August, 2006 filed a petition for advancing arguments on legal points and the case was adjourned to 16th September, 2006 for further hearing and on this date the prosecution filed another petition purportedly under Section 91 Cr. PC. read with Section 165 of the Indian Evidence Act, stating therein that the sale deed in the name of Devanand Bhagat was in the possession of the accused persons and they be directed to produce the same before the Court and notwithstanding the same the objections raised by the Petitioner the Court mechanically directed the Petitioner to produce the said document. In this connection, it has been submitted that the accused persons in their defence had specifically denied of having committed any overt act as alleged and had also denied being in possession of any such document. 5. The learned Counsel for Opposite party No. 2, on the other hand, submitted that it was the Petitioner who was instrumental in transfer of the said lands by creating a fabricated document through impersonation of his mother by another lady and the said Atainama was, in fact, in his possession. The first and foremost requirement of Section 91 Cr.P.C. is about the document being necessary or desirable and this necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production thereof. Admittedly, it appears that the entire case was based on the allegedly fabricated Atainama and the prosecution at no point of time had made any effort to produce the same or made a prayer before the Court for the production of the same from the possession of the accused. It was too late in the day, when the case was fixed for Judgment, for the prosecution to make a prayer for production of the same from the possession of the accused persons. 6. There is another aspect of the matter. It was too late in the day, when the case was fixed for Judgment, for the prosecution to make a prayer for production of the same from the possession of the accused persons. 6. There is another aspect of the matter. The majority view of a Constitution Bench of the Apex Court in the case of State of Gujarat V/s. Shyamlal Mohanlal Choksi, AIR 1965 SC 1251 in dealing with Section 94 of the Code of Criminal Procedure 1898 which correspondence to Section 91 of the Code of Criminal Procedure 1973, had held that one of the fundamental canons of the British system of criminal jurisprudence and American jurisprudence had been that the accused should not be compelled to incriminate himself and the Indian legislature was aware of the fundamental canons of criminal jurisprudence because in various Sections of the Criminal Procedure Code gives effect to it. Their Lordships were aware of the fact that the words of Section 94 were wide enough to include an accused person but it is well recognized that in some cases a limitation may be put on the construction of the wide terms of statute. Similar is the view propounded in V.S. Kuttan V/s. Radhakrishnan, AIR 1980 SC 185 where their Lordships specifically ruled that no summons to produce documents or other thing by Court or no written Order by Officer Incharge of a Police Station to produce document or other thing can be issued against any person, accused of the offence in which such summon or Order is issued. 7. Their Lordships in the case of State of Bombay V/s. Kathi Kulu Oghad, 1962 3 SCR 10 while interpreting Article 20(3) of the Constitution of India have observed that accused persons cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Due regard being had to discussions made above, I am of the opinion that the learned Trial Court had erred in summoning for the documents from the accused persons. 8. Accordingly, the impugned Order is hereby quashed and the application is allowed.