Article 20(3) Protects Accused Against Compulsory Testimonial And Therefore S. 91 CrPC Isn't Applicable To Accused: Chhattisgarh HC

The Chhattisgarh High Court has recently observed that article 20(3) of the Constitution of India is a protection to the accused against compulsory testimonial and consequently, Section 91 of the CrPC [Summons to produce document or other thing] is not applicable to the accused.

The bench of Justice Sanjay K. Agrawal and Justice Radhakishan Agrawal observed thus while allowing two writ pleas filed by a Father-Daughter duo (accused in a cheating case) challenging two notices issued by the officer in charge of a police station during the investigation directing them to produce certain documents.

It was their case that directing them to produce documents would be violative of their right to remain and maintain silence during the investigation which is the guaranteed constitutional and legal right under Article 20(3) of the Constitution.

They also stated before the Court that they cannot be compelled to be a witness in their own cause and as such, the notices issued directing the production of certain documents under Section 91 CrPC deserve to be quashed. 

Here it may be noted that Section 91(1) of the CrPC empowers the Court or any officer in charge of a police station if the Court or officer in charge of the police station considers necessary that the production of any document or other thing is necessary or desirable for the purposes of investigation, inquiry, trial or other proceedings under the Code of Criminal Procedure by passing a reasoned order.

On the other hand, defending the actions of the police station in charge in issuing the notices, the Deputy Government Advocate submitted before the HC that the petitioners are bound by the terms and conditions by which they have been admitted to the privilege of anticipatory bail and enjoying the privilege of anticipatory bail, they cannot deny producing the documents which they are otherwise required to produce.

It was also submitted that after completion of the investigation in the case against the petitioners, a charge sheet has also been filed against them for the offences punishable under Sections 420, 409, 120B, 201, 467, 468 & 471 of the IPC.

Court's observations and order

At the outset, taking into account the arguments of the counsel for the petitioners, the Court observed that as per Article 20(3) of the Constitution, no man is bound to accuse himself.

The Court also added that Article 20 (3) confers immunity from compelling an accused person to be a witness against himself by giving self-incriminating evidence and an accused has the right to maintain silence and not to disclose defence.

The Court further observed that the protection would be available firstly, to a person against whom a formal accusation has been made and secondly, if such accusation relates to the commission of an offence which in the normal course may result in prosecution.

Regarding the question as to whether Section 91 would be applicable to the accused persons, the Court noted that in the case of State of Gujarat v. Shyamlal Mohanlal Choksi AIR 1965 SC 1251, the Top Court had held that Section 94 of the CrPC, 1898 (Section 94 of the CrPC, 1898 is now corresponding to Section 91 of the present Code of Criminal Procedure, 1973) does not apply to an accused person.

In this very case, the Apex Court had examined the said provision of CrPC in light of Article 20 (3) Of the Constitution of India.

The Court also noted that in the matter of V. S . Kuttan Pillai v. Ramakrishnan and another (1980) 1 SCC 264, the Top Court had again held that a summons to produce a thing or document as contemplated by Section 91(1) cannot be issued to a person accused of an offence calling upon him to produce document or thing considered necessary or desirable for the purpose of an investigation, inquiry, trial or another proceeding under the Code of Criminal Procedure

Now, applying the said principle to the case at hand, the Court noted that since the petitioners are accused of offences mentioned above and a formal accusation relating to the commission of offence has already been levelled which has resulted in their prosecution before the jurisdictional criminal court, and thus, they would be entitled to protection as contemplated under Article 20 (3) and hence, Section 91 CrPC won't be applicable to them.

In the result, the writ petitions were allowed in part. Notices dated 13-5-2022 & 28-5-2022 issued to the petitioners were quashed to the extent of directing them to produce documents and they will appear before the Station House Officer for recording their statements.

Appearances

For Petitioners: Kishore Bhaduri, Senior Advocate with Advocate Sabyasachi Bhaduri.

For Respondents / State: Deputy Government Advocate Sudeep Verma and Panel Lawyer Avinash Singh

Case title - Ku. Urja Jain vs. State of Chhattisgarh and another along with a connected writ plea

Case Citation: 2023 LiveLaw (Chh) 6

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