LexSHYAMLAL MOBANLAL versus STATE OF GUJARAT
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A SBYAMLAL MOBANLAL v. STATE OF GUJARAT December 14, 1964 [P. B. GAJENDRAGADKAR, c. J., M. H!DAYATULLAH, J. c. SBAB. B S. M. Snw AND R. S. BACHAWAT, JJ.) Code of Criminal Procedure (Act S of 1898), 1. 94(1)->-lf applla to tll!CUSed persons. The respondent, who wu a registered mooey-lender, wu proeecuted for failure to maintain boob in accordance with the Moaey-"enden' Act and Rules made thereunder. An application under 1. 94(1) Criminal C Procedure Code, was filed before the Magistrate by tho prosecution for orderins the reapondent to produce certain aCCOUllt boob. The Magistrate, relying on Art. 20( 3) of the Cooatitution refused to do ao. The State filed a revision before the Sessions Judge, who disagreed with the Magis- trate and made a reference to tho High Court with a recommendation that tho matter be referred back to tho Magistrate with . auitable directions. The High Court came to the conclusion that a. 94 doea not apply to m accused penon and agreed with tho Magistrate in rejecting tho application. D On appeal to the Supremo Court. HELD (Per P. B. Gajendragadkar, CJ., Hidayatullah, Silai and Badlawat, JJ.) : The High Court wu right in ita construction of L 94, that it does not apply to an accuaed peraon. (465 F] Having regard to the general acheme of tho Codo and tho bulc con- cept of criminal law, tho generality of the word "person" used in the aection is of no significance. If the legislature were minded to make the E ~ applicable to an accused penon, it would have said so in spocillc words. If the section is construed ao as to include an accused peraon)t ii likely to lead to grave hardship for the accused and make investigation unfair to him, f6r, if he refused to produce the document before the police oflicer, he would be faced with a Prosecution under 1. 17S, Indian Pcml Code. [462 F-0; 463 C. B-F] The words "atteiid and produce" wed in the sectioo are in~ to c:over l the case of an accused peraon, especially when the order ia mued by a, police officer to an accused peraon in his custody. [464 Bl It cannot be said that the thing or document produced would not be admitted in evidence if on examination it is found to incriminate tho accused, because, on most occasions the yo,wer under the section would be resorted to omy when it is likely to incriminalo tho accused and support the prosecutioo. [464 F·Hl G Even if tho construction that tho section doea not apply to accused' penoos renders a. 96 useless because, no search warrant collld be issued for documenta known to be in the poaesaion of tho accuaed, atill, u far u the police officer is concerned, he can mo a. 165 of the Codo of Criminal Procedure and order a general search or inspection. (464 H; 465 A] H Stuya Kin/car Ray v. NlkhR Chandra lyottrhopodhaya, I.LR. (1952] Z Cal. 106, F.B., overruled. Per Shah, J. (DiSllellting) : The words in 1. 94( 1) are ~ : they cootain no express limitation, nor do they imply any restriction es.elud- ing the penon accused of an offence from its operation, The scheme of· the Codo a1ao appears to bo coasistent with that ~lion. If L 94( l) 458 SUPREME COURT REPORTS [1965) 2 S.C.R. • does not authodse a Magistrate to issue a summons to a person accused A of an offence for the production of a document or thing in bis possession, no warrant may be issued under s. 96(1) to search for a document or thing in bis possession. To assume that the police officer in charge of investigation may, in the course of investigation, exercise powers under s. 165, which cannot be exercised where the court issues a warrant, would be wholly illogical. [465 A, C; 474 A, GJ The use of the. words "requiring him to attend and produce it" inJi- B cates the nature of the command to be contained in the sununons .ind does not imply that the person to whom the summons is directed r.iust necessarily be possessed of unrestricted freedom to physically attend and produce the document or thing demanded. [467 J>..EJ The pbservations madt by the Supreme Court in the State of Bambay v. Kathi Ka/u Oghad, [1962J 3 S.C.R. 10, that an accused may be called upon. by the couft to produce documents in certain circumstances, relate to the power exercisable under s. 94(1) only. [468 BJ C The rule of protection against self-incrimination prevailing in the . U.K. or as interp~ed by courts in the U.S.A. has never been accepted in India. Scattered through the main body of the Statute
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