The High Court
Case Details
In the High Court of Jharkhand at Ranchi Cr.M.P.no.2434 of 2012 1.Daya Sunder Pasad Sinha @ Daya Sunder P. Sinha 2. Amita Kumari Sinha ……………………………………………..Petitioners V E R S U S State of Jharkhand and another………………………..Opposite Parties CORAM: HON’BLE MR. JUSTICE R.R.PRASAD For the Petitioners : Mr.Gautam Kumar For the O.P.No.2 :Mr. S. Thakur 9/ 29.8.13. This application filed under Section 482 of the Code of Criminal Procedure is directed against that part of the order dated 5.9.2012 passed by the Judicial Magistrate, Deoghar in Deoghar P.S. case no.298 of 1998 (G.R.No.920 of 1998) whereby and whereunder learned Magistrate on a petition filed on behalf of the prosecution directed the petitioners to produce original agreement dated 17.9.1996 along with Sulahnama. Before adverting to the submissions advanced on behalf of the parties, the case of the prosecution needs to be taken notice of. It is the case of the prosecution that the informant had constructed a kachha house consisting of two rooms over the land bearing plot no.16 situated at Bela Bagan, Deoghar. He does have also a tea shop near the civil court. The said shop is being run by him as well as his son and they remain busy there for the whole day. The other day when they after closing the shop came home, they saw accused persons inside the house from where their personal belongings had been removed. When they asked from them as to why they have entered into the house, the accused persons abused them and told them to go away as they have already sold the house. They claimed the house to be their own on the basis of forged agreement over which his signature had been forged. On such allegation, a case was registered as Deoghar P.S case no. 298 of 1998 under Sections 448, 420, 467, 468, 471, 380/34 of the Indian Penal Code. On submission of the charge sheet, cognizance of the offence was taken and the accused persons were put on trial.
Legal Reasoning
In course of trial, a petition was filed on 6.2.2012 on behalf of the prosecution praying therein to direct the accused to produce original agreement dated 17.9.1996 along with Sulahnama and at the same time, prayer was made to call for the record of Misc. Case No.126-A from the court of Sub-divisional Magistrate, Deoghar. That prayer was objected on behalf of the accused persons. However, the court, vide its order dated 5.9.2012 allowed the prayer of the prosecution. Being aggrieved with that order, this application has been filed.
Legal Reasoning
However, according to learned counsel appearing for the petitioners that challenge would be only to that part of the order whereby the petitioners have been directed to produce the document. Mr.Gautam Kumar, learned counsel appearing for the petitioners submits that by virtue of the provision as contained in Article 20(3) of the Constitution of India one cannot be compelled to be an witness against himself but the court by directing the petitioners to produce the document, over which signature of one of the petitioners is there which has been alleged to be the forged, has virtually passed an order for giving evidence which would be self incriminating which is prohibited under Article 20(3) of the Constitution of India and as such, the impugned order is fit to be quashed. As against this, Mr.S.Thakur, learned counsel appearing for the opposite party no.2 submits that the petitioners have already used that document in other case and therefore, they cannot be allowed to take a plea of not producing the document on the ground that it would be self incriminatory. Thus, the question does arise as to whether the order under which document over which signature alleged to be forged is there was directed to be produced amount to testimonial compulsion ? Before proceeding further in the matter, one needs to take notice of the provision as contained in clause 3 of Article 20 of the Constitution of India which reads as under: “ No person accused of any offence shall be compelled to be an witness against himself.” The aforesaid provision came up for consideration before the Full Bench of the Hon’ble Supreme Court in a case of M.P.Sharma vs. Satish Chandra (AIR 1954 SC 300) where the question came up for consideration as to whether search and seizure of document under the provision of Section 94 and 96 of the Code of Criminal Procedure comes within the ambit of prohibition of clause (3) of Article 20 of the Constitution of India. The Court while coming to the conclusion that the search and seizure complained of were not within the prohibition. It observed as follows: “ Broadly stated the guarantee in Article 20(3) is against “testimonial compulsion”. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is ‘to be an witness’. A person can ‘be a witness’ not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see section 119 of the Evidence Act) or the like. ‘To be a witness’ is nothing more than ‘to and such evidence can be furnish evidence’, furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a persons producing a document on summons is not a witness. But that section is meant to regulate the right of cross- examination. It is not a guide to the connotation of the word ‘witness’, which must be understood in its natural sense i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is ‘to be a witness’ and not ‘to appear as a witness’. It follows that the protection afforded to an accused insofar as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.” The Court was also pleased to hold that the guarantee against testimonial compulsion is to be confined not only to oral testimony rather to statements in writing also which incriminated the maker when figuring as an accused. At the same time, it was also held that “to be a witness” means “to furnish evidence” which includes not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. The said observation which has been referred to just hereinabove and has been underlined came up for consideration before the Larger Bench of the Supreme Court in a case of State of Bombay vs. Kathi Kulu Oghad (AIR 1961 SC 1808). The Court while accepting the proposition laid down by the earlier decision in a case referred to above that the guarantee against testimonial compulsion is not only to be confined to oral testimony but it also include statements in writing which incriminated the maker when figuring as an accused person, raises doubt over the observation made by the Court in earlier decision to the effect that “to be an witness” means “to furnish evidence” and includes not only oral testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. The Court having deliberated upon came with majority view which has been observed in paragraph 11 which reads as follows: “We are in agreement with the Full Court decision in Sharma case that the prohibition in clause (3) of Article 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 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 he does not become a witness by the mere fact that 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 statement in court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observation of this Court in Sharma case that Section 139 of the Evidence Act has no bearing on the connotation of the word “witness” is not entirely well-founded in law. Further the Court did observe as under: “It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination 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 an accused person is called upon by the court of any other authority holding an investigation to give his finger impression or signature or specimen of his hand writing, 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 reuse to make any statement. But his finger impressions or his hand writing, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the 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 view of the law laid down by the Hon’ble Supreme Court production of a document containing signature of one of the petitioners even if it is forged cannot be said to be self-incriminating in terms of the provision as contained in clause (3) of Article 20 of the Constitution of India. Accordingly, I do not find any illegality with the order impugned. Hence, this application stands dismissed. ND/ (R.R. Prasad, J.)