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2013 DIGILAW 533 (RAJ)

Govind Puri v. Laxmi Narayan

2013-03-04

SANDEEP MEHTA

body2013
Hon'ble MEHTA, J.—The instant misc. petition has been filed by the petitioner against the order dated 1.3.2011 passed by the learned Sessions Judge, Jodhpur Metropolitan; whereby the learned Sessions Judge affirmed the order dated 5.6.2010 passed by the learned Additional Chief Judicial Magistrate No. 4, Jodhpur in Case No. 504/10 allowing the application filed by the complainant under Section 91 of the Cr.P.C. and directing the petitioner accused to place the written agreement on the record of the case. 2. Succinctly stated the facts of the case are that the respondent Laxmi Narayan filed a complaint against the petitioner under Section 138 of the Negotiable Instrument Act. The case is pending for cross examination of defence witnesses. The complainant at that stage filed an application under Section 91 Cr.P.C. It was claimed in the application that during the course of the evidence of defence witnesses, a fact came to light that the house in question had been agreed to be sold for a sum of Rs. 7,00,000/-. The defence denied the existence of any written agreement in this regard. The complainant contended that there exists a written agreement dated 24.9.2005 executed between the parties, which is in possession of the accused. The complainant also alleged that the accused had filed a complaint against Bharat Sankhla, the learned counsel for the complainant before the Bar Council of Rajasthan, Wherein a copy of the said written agreement was produced by the accused. The complainant's case was that as the original written agreement is in the possession of the accused, the Court should summon the same for eliciting the truth. The complainant requested for summoning the original written agreement from the accused as well as the original file of the complaint filed by the accused before the Bar Council by way of the application under Section 91 of the Cr.P.C. 3. The accused submitted a reply to the application filed by the complainant under Section 91 of the Cr.P.C. and took an objection that the Court has no powers to direct an accused to produce any document under Section 91 of the Cr.P.C. 4. The trial Court by the order dated 5.6.2010 partly allowed the application filed by the complainant and directed the petitioner accused to produce on record the original agreement dated 24.9.2005. However, the complainant's prayer for summoning the file of the complaint from Bar Council was rejected. The trial Court by the order dated 5.6.2010 partly allowed the application filed by the complainant and directed the petitioner accused to produce on record the original agreement dated 24.9.2005. However, the complainant's prayer for summoning the file of the complaint from Bar Council was rejected. The petitioner accused challenged the order dated 5.6.2010 by filing a revision before the learned Sessions Judge, Jodhpur Metropolitan who also by the order dated 1.3.2011 affirmed the order passed by the Magistrate directing the petitioner to produce the document on record. Now the petitioner has approached this Court by way of this Misc. Petition assailing the orders passed by the Courts below. 5. Mr. Kishore Ranga, learned Counsel for the petitioner submitted that the Court cannot direct any accused to produce any document by exercising powers under Section 91 Cr.P.C. because such an order virtually amounts to directing the accused to give evidence against himself which is violative of the accused's right against self incrimination as guaranteed under Article 20(3) of the Constitution of India. He has placed reliance on the decision rendered by Hon'ble the Apex Court in the case of State of Gujarat vs. Shyamlal ( AIR 1965 SC 1251 ) in support of his contention. 6. Per contra, Mr. Bharat Sankhla, learned counsel for the respondent submitted that the Court, in order to elicit the truth is empowered to summon any document from any of the parties to the case. In support of the argument, he placed reliance on the decision of Hon'ble the Apex Court in the case of Smt. Selvi & Ors. vs. State of Karnataka reported in AIR 2010 SC 1974 = 2010(2) RLW 1688 (SC) and the decision and the decision of Kerala High Court in Crl. M.C. No. 2403 of 2007 decided on 5.9.2008 Kuriland (P.) Ltd., Thrissur & Anr. vs. V. PJ. Thomas & Anr. He further contended that by virtue of Section 165 of the Evidence Act, the Court can direct any of the parties to the case to produce the document and the party cannot object to such direction. He thus prayed that the order passed by the trial Court directing the accused to submit the original agreement on record does not call for any interference by this Court in the instant Misc. Petition. He thus prayed that the order passed by the trial Court directing the accused to submit the original agreement on record does not call for any interference by this Court in the instant Misc. Petition. He submitted that for the sake of arguments even if it is assumed that the Court does not have the power to summon a document from the accused under Section 91 Cr.P.C. then the order dated 5.6.2010 should be deemed to have been passed by the Court while exercising the powers under Section 165 of the Evidence Act. 7. Heard and considered the arguments advanced at the bar, perused the order impugned and record as well as the relevant provisions of law. So far as Sec. 91 of the Cr.P.C. is concerned, the legal position is well settled by Hon'ble the Apex Court in the case of State of Gujarat vs. Shyamlal wherein, the Apex Court laid down that the words "to the person" used in the said sec-tion do not cover an accused thus, while exercising powers under Sec. 91 Cr.P.C. the Court cannot direct for summoning of any document from the accused. However, the question which this Court has to examine is as to whether the Court can direct the accused u/Sec. 165 of the Evidence Act to produce any document. Sec. 165 is reproduced hereunder for easy reference: "165. Judge's power to put questions or order production.-The Judge may, in order to discover or to obtain proper proof of relevant facts, ask may question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such ques-tion or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce any Secs. Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce any Secs. 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Sec.148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted." 8. This section gives unbridled powers to the Court to compel any of the parties to the case to produce a document or to put a question to a party, when the Court is of the opinion that the production of such a document or the putting of the question to the witness is essential for eliciting the truth. This Section does not give a right to any of the parties to request the Court to summon the document or to put the question. Under this Section suo-moto powers are provided to the Court which are to be exercised only when the Court is convinced during the trial of the case that the putting of the question or the production of the document is essential for the just decision of the case. 9. In the present case, the direction issue by the learned Magistrate was not passed while exercising the suo moto powers under Section 165 of the Evidence Act after forming the opinion that the document had to be summoned as the production there of was essential for the just decision of the case. It was only on the application of the party i.e., the complainant that the document was summoned. From a bare perusal of the order impugned it is not disclosed that the Court has exercised the power suo moto for summoning the document feeling the need to do so far a just decision of the case. That apart, the scope of the right against self incrimination as guaranteed under Article 20(3) of the Constitution of India cannot be curtailed by any other provision of law. That apart, the scope of the right against self incrimination as guaranteed under Article 20(3) of the Constitution of India cannot be curtailed by any other provision of law. Thus, Section 165 of the Evidence Act cannot be held to overriding the fundamental right against self incrimination available to the accused under Article 20(3) of the Constitution of India so as to empower the Court to direct the accused to produce any document. Clothing the Court with such a power would run contrary to the right against self incrimination available to every accused under Article 20(3) of the Constitution of India. 10. The judgment rendered by Hon'ble the Apex Court in Smt. Selvi & Ors. vs. State of Karnataka which has been relied upon by the learned counsel for the respondent rather runs contrary to the theory propounded by him in his arguments. The relevant portion of the judgment is quoted hereinbelow:- "The inter relationship between the `right against self-incrimination' and the `right to fair trial' has been recognised in most jurisdictions as well as international human rights instruments. For example, the U.S. Constitution incorporates the `privilege against self-incrimination' in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising it's inter-relationship with other constitutional rights such as the protection against `unreasonable search and seizure' (Fourth amendment) and the guarantee of `due process of law' (Fourteenth amendment). In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that 'Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law.' The guarantee of 'presumption of innocence' bears a direct link to the `right against self-incrimination' since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt 82. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights. Since this approach was recognised in Maneka Gandhi's case. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights. Since this approach was recognised in Maneka Gandhi's case. (1978) 1 SCC 248 : ( AIR 1978 SC 597 ). Hence, we must examine the `right against self-incrimination' in respect of its relationship with the multiple dimensions of `personal liberty' under Article 21, which include guarantees such as the `right to fair trial' and `substantive due process'. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency. In this regard, Article 359(1) of the Constitution of India reads as follows:- "359. Suspension of the enforcement of the rights conferred by Part III during emergences. (1) Where a Proclamation of Emergency is in operation, the President may be order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order..." 83. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co-operate with on going investigations. For instance reliance has been placed on Section 39, Cr.P.C. which places a duty on citizens to inform the nearest Magistrate or Police Officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), Cr.P.C. which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without a order from the jurisdictional Magistrate. Attention has also been drawn to the language of Section 156(1), Cr.P.C. which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without a order from the jurisdictional Magistrate. Likewise, our attention was drawn to Section 161(1), Cr.P.C. which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens' co-operation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the Cr.P.C. itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), Cr.P.C. prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture. 84. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the Cr.P.C. places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of Cr.P.C. mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), Cr.P.C. enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same Code, adverse inferences cannot be drawn on account of the accused person's silence during the trial stage. Historical origins of the `right against self-incrimination.' 85. Historical origins of the `right against self-incrimination.' 85. The right of refusal to answer questions that may incrimination a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the `right to fair trial.' There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period. In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the Judges and prosecutors during the trial and the failure to do so wound attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a `right to silence.' 86. In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self-incrimination could be traced back to the Latin maxim `Nemo tenetur seipsum prodere' (i.e. no one is bound to accuse himself) and the evolution of the concept of `due process of law' enumerated in the Magna Carta. (Refer: Leonard Levy, `The right against self-incrimination : history and judicial history,' 84(1) Political Science Quarterly 1-29 (March 1969) The use of the ex officio oath by the ecclesiastical courts in medieval England had come under criticism from time to time, and the most prominent cause for discontentment came with its use in the Star Chamber and the High Commissions. Most scholarship has focused on the sedition trial of John Lilburne (a vocal critic of Charles I, the then monarch) in 1637, when he refused to answer questions put to him on the ground that he had not been informed of the contents of the written complaint against him. John Lilburne went on to vehemently oppose the use of ex officio oath, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641.This event is regarded as an important landmark in the evolution of the `right to silence'. 87. John Lilburne went on to vehemently oppose the use of ex officio oath, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641.This event is regarded as an important landmark in the evolution of the `right to silence'. 87. However, in 1648 a Special Committee of Parliament conducted an investigation into the loyalty of members whose opinions were offensive to the army leaders. The Committee's inquisitional conduct and its requirement that witnesses take an oath to tell the truth provoked opponents to condemn what they regarded as a revival of Star Chamber tactics. John Liburne was once again tried for treason before this Committee, this time for his outspoken criticism of the leaders who had prevailed in the struggle between the supporters of the monarch and those of the Parliament in the English civil war. John Liburne invoked the spirit of the Magna Carta as well as the 1628 Petition of Right to argue that even after common-law indictment and without bath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of `due process of law' which had been stated in the Magna Carta. 88. John H. Langbein (1994) has offered more historical insights into the emergence of the `right to silence'. (John H. Langbein, `The historical origins of the privilege against self-incrimination at common law', 92(5) Michigan Law Review 1047-1085 (March 1994) He draws attention to the fact that even though ex officio oaths were abolished in 1641,the practice of requiring defendants to present their own defence in criminal proceedings continued for a long time thereafter. The Star Chamber and the High Commissions had mostly tried cases involving religious non-conformists and political dissenters, thereby attracting considerable criticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer (`right to counsel') or the right to request the presence of defence witnesses (`right of compulsory process'). Hence, defendants were more or less compelled to testify on their own behalf. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer (`right to counsel') or the right to request the presence of defence witnesses (`right of compulsory process'). Hence, defendants were more or less compelled to testify on their own behalf. Even though the threat of physical torture on account of remaining silent had been removed, the defendant would face a high risk of conviction if he/she did not respond to the charges by answering the material questions posed by the Judge and the prosecutor. In presenting his/her own defence during the trial, there was a strong likelihood that the contents of such testimony could strengthen the case of the prosecution and lead to conviction. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition. A watershed in this regard was the Treason Act of 1696 which provided for a `right to counsel' as well as `compulsory process in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was limited in the early years. For instance defence lawyers could only help their clients with questions of law and could not make submissions related to the facts. 89. The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system, i.e. the testimony of the accused is viewed as the 'best evidence' that can be gathered. The premise behind this is that innocent persons should not be reluctant to testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the Judge. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the rights of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated, that it was only with the subsequent emergence of the `right to counsel' that the accused's `right to silence' became meaningful. With the consolidation of the role of defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as an essential feature of a fair trial so as to ensure a level-playing field between the prosecution and the defence. In addition to a defendant's `right to silence' during the trial stage, the protections, were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage." 11.Thus, taking cue from the above observations made by Hon'ble the Apex Court it is abundantly clear that the right against self incrimination available to the accused under Article 20(3) of the Constitution of India is a non-defeasable right which cannot even be suspended during the course of emergency. 12.The provisions of Section 313(3) of the Cr.P.C. empower the Court to put any question to the accused but under Sub clause (3) of the said provision the accused has a right to refuse to answer such question. 12.The provisions of Section 313(3) of the Cr.P.C. empower the Court to put any question to the accused but under Sub clause (3) of the said provision the accused has a right to refuse to answer such question. This provision gives an indication about the intention of the legislature wherein, the legislature has curtailed all such powers of the Court which tend to infringe the right against self incrimination guaranteed to every accused under Article 20(3) of the Constitution of India. Thus the trial Court while exercising the powers under Section 165 of the Evidence Act has no jurisdiction or authority to direct an accused to produce a document or to answer any question as the same would be violative of the fundamental right against self incrimination available to every accused under Article 20(3) of the Constitution of India. 13. The upshot of the above discussion is that the order impugned passed by the learned Additional Chief Judicial Magistrate No. 4, Jodhpur directing the accused petitioner to place on record the original agreement is illegal rather the same amounts to a gross abuse of process of the Court and cannot be sustained. 14.Resultantly, this misc Petition No.497/2011 succeeds and is hereby allowed and the order dated 5.6.2010 passed by the learned Additional Chief Judicial Magistrate No. 4, Jodhpur directing the petitioner to produce the document on record is hereby quashed. 15. Stay petition is also disposed of. 16. Record of the learned trial Court be sent back forthwith.