Telangana High Court
Miss B.Rajini vs Pakala Satyanarayana Rao on 11 March, 2024
HON'BLE SMT. JUSTICE T. MADHAVI DEVI
Criminal Petition No.794 of 2024
ORDER:
This criminal petition is filed under Section 482 of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') by the petitioner against the order dated 10.01.2024 in Crl.M.P.No.46 of 2024 in Spl. S.C.No.09 of 2020 passed by the Special Judge for trial of Offences under SCs and STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad.
2. The petitioner is the de facto complainant and respondent No.1 is the accused No.1 in Spl. S.C.No.09 of 2020. The offences charged against the accused No.1 are under Sections 376 (1), 417, 420, 379, 427 of the Indian Penal Code, 1860 (for short 'I.P.C.') and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SCs & STs (POA) Act'). The trial in Spl. S.C.No.9 of 2020 has almost culminated and the matter was posted for judgment and at that point of time, the de facto complainant filed Crl.M.P.No.46 of 2024 in Spl. S.C.No.9 of 2020 under Section 311 read with Section 91 of 2 Cr.P.C. and Section 15-A (4) of the SCs & STs (POA) Act seeking a direction to the respondent/accused to deposit his mobile phone bearing No.99858 61414 before the Court to forward the mobile phone to Cyber Mobile Forensic Unit FSL, Hyderabad to retrieve the messages sent by the respondent/accused and also to examine the service provider/Manager, Jio Mobile Services, Cyberhills Colony, P. Janardhan Reddy Nagar, Gachibowli, Hyderabad, to ascertain that the mobile connection bearing No.99858 61414 was allotted to the respondent/accused.
3. During the course of examination of PW.1, who is the de facto complainant/petitioner herein, she specifically stated that she received all the messages from the accused through his phone No.99858 61414, but the accused denied the same and gave a suggestion that the said phone number did not belong to him, but as per the Phone Pay App, the mobile bearing No.99858 61414 belonged to one P. Satyanarayana Rao i.e., respondent/accused No.1 in the above case and it is a prepaid connection and still the phone 3 number stood in his name. Therefore, the petitioner has filed the subject petition.
4. The learned counsel for the respondent/accused has opposed the said petition stating that the accused cannot be forced to submit his own mobile phone and that the accused cannot be made to give evidence against himself. He placed reliance on some case laws in his favour. After considering the contentions of both the parties, the Crl.M.P.No.46 of 2024 filed by the petitioner however has been dismissed. Against the said dismissal order, the present Criminal Petition has been filed by the de facto complainant.
5. The learned counsel for the petitioner reiterated the above facts and submitted that it is a case where the accused has committed the offence of rape on the de facto complainant by promising to marry her and subsequently cheated her and refused to marry her on the ground that she belonged to S.T. caste. It is submitted that all the chatting and messages from the accused were through his Mobile with phone number No.99858 61414 only and it is 4 for this reason that the mobile phone is required to be produced before the Court.
6. The learned counsel for the respondent/accused, however, vehemently opposed the same and relied upon the following case laws in support of his contentions.
i) State of Gujarat Vs. Shyamlal Mohanlal Choksi and another 1;
ii) V.S. Kuttan Pillai Vs. Ramakrsihnan and another 2;
iii) A. Srinivasa Reddy Vs. State of Telangana 3;
iv) Md. Ghouseuddin Vs. Syed Riazul Hussain and another 4;
v) Copy of the order of a learned single Judge of
A.P. High Court dated 01.11.2022 in
W.P.No.28470 of 2021.
7. Having regard to the rival contentions and the material placed on record, this Court finds that the petitioner herein is the de facto complainant and the trial has not only ended but is also at the conclusion stage, as per the directions of this Court dated 23.12.2022. It is also noticed that the prosecution evidence was closed on 20.07.2023 and 1 1964 SCC OnLine SC 41 2 (1980) 1 SCC 264 3 (2021) 4 ALD 291 4 2021 SCC OnLine SC 3315 5 examination of the accused under Section 313 of Cr.P.C. was also concluded. The written arguments were also filed on behalf of the accused and the matter was reserved for judgment. At this point of time, the de facto complainant filed an I.A. seeking reopening of the case for hearing of oral arguments of the de facto complainant. When the said I.A. was dismissed, the same was challenged before this Court and this Court had permitted the de facto complainant to submit the oral arguments 08.01.2024. It is thereafter that the de facto complainant filed Crl.M.P.No.46 of 2024 under Section 91 of Cr.P.C. seeking a direction to the accused to deposit his subject mobile phone before the Court for the purpose mentioned in the petition.
8. Thus, it is noticed that this petition in Crl.M.P.No.46 of 2024 is filed by the de facto complainant at the fag end of the trial. The Hon'ble Supreme Court in the case of Shyamlal Mohanlal Choksi (cited supra) has held that the accused cannot be compelled to disclose the documents which are incriminatory and based on his knowledge. It is observed that Section 94 of Cr.P.C. permits the production 6 of all documents including the class of documents. Thus, the Hon'ble Supreme Court in the said case held that the provisions of Section 94 of Cr.P.C. on its true construction, do not apply to an accused person. The relevant paras are reproduced hereunder for the sake of clarity and ready reference.
"31. It seems to us that in view of this background the Legislature if it were minded to make Section 94 applicable to an accused person would have said so in specific words. It is true that the words of Section 94 are wide enough to include an accused person but it is well-recognised that in some cases a limitation may be put on the construction of the wide terms of a statute (vide Craies on Statute Law p.
177). Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be if possible construed as not to alter the common law (vide Craies on Statute Law p. 187).
32. There is one other consideration which is important.
Article 20(3) has been construed by this Court in Kalu Oghad's case [(1962) 3 SCR 10] to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Section 94 Criminal Procedure Code permits the production of all documents including the above-mentioned class of documents. If Section 94 is construed to include an accused person some unfortunate consequences follow. Suppose a police officer-and here it is necessary to emphasize that the police officer has the same powers as a Court-directs an accused to attend and produce or produce a document. According to the accused he cannot be compelled to produce this document under Article 20(3) of the Constitution. What is he to do? If he refuses to produce it before the Police Officer he would be faced with a prosecution under Section 175 Indian Penal Code and in this prosecution he could not contend that he was not legally bound to produce it because the order to produce is valid order if Section 94 applies to an accused person. This becomes clearer if the language of 7 Section 175 is compared with the language employed in Section 485 Cr. P.C. Under the latter section a reasonable excuse for refusing to produce is a good defence. If he takes the document and objects to its production there is no machinery provided for the police officer to hold a preliminary enquiry. The Police Officer could well say that on the terms of the section he was not bound to listen to the accused or his counsel. Even if he were minded to listen would he take evidence and hear arguments to determine whether the production of the document is prohibited by Article 20(3). At any rate his decision would be final under the Code for no appeal or revision would lie against his order. Thus it seems to us that if we construe Section 94 to include an accused person this construction is likely to lead to grave hardship for the accused and make investigation unfair to him.
33. We may mention that the question about the constitutionality of Section 94(1) Cr. P.C. was not argued before us because at the end of the hearing on the construction of Section 94(1) we indicated to the counsel that we were inclined to put a narrow construction on the said section and so the question about its constitutionality did not arise. In the course of arguments however it was suggested by Mr. Bindra that even if Section 94(1) received a broad construction it would be open to the Court to take the view that the document or thing required to be produced by the accused would not be admitted in evidence if it was found to incriminate him and in that sense Section 94(1) would not contravene Article 20(3). Even so since we thought that Section 94(1) should receive a narrow construction we did not require the advocates to pursue the constitutional point any further.
34. Keeping the above considerations in mind let us look at the terms of the section. It will be noticed that the language is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce are rather inept to cover the case of an accused person. It would be an odd procedure for a court to issue a summons to an accused person present in court to attend and produce a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to attend and produce a document.
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35. The argument pressed on us that the "person" referred to in the latter part of Section 94(1) is broad enough to include an accused person does not take into account the fact that the person in the latter part must be identical with the person who can be directed to produce the thing or document and in the production of the thing or document cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of Criminal Law the generality of the word "the person" is of no significance.
36. Mr. Bindra invited our intention to Section 139 of the Evidence Act which provides that a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness. But this section has no application to the police officer and it will be noticed that Section 94 provides for two alternative directions; the first is "attend and produce" and the second "produce" a document. If a police officer directs him to attend and produce he cannot comply with the direction by causing a document to be produced.
37. If after a thing or a document is produced its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person the order to produce the thing or document would seem to serve no purpose; it cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasions the power under Section 94(1) would be resorted to so that on the alternative view which seeks to exclude incriminating documents or things the working of Section 94(1) would yield no useful result.
38. It is urged by Mr. Bindra that this construction of Section 94 would under Section 96 useless for no search warrant could be issued to search for documents known to be in the possession of the accused. This may be so but a general search or inspection can still be ordered. As far as the police officer is concerned he can use Section 165 Criminal Procedure Code.
39. It is not necessary to review all the cases cited before us. It will be sufficient if we deal with the Full Bench decision of the Calcutta High Court in Satya Kinkar Ray v. Nikhil Chandra 9 Jyotishopadhya [(1952) 2 ILR Cal 106] for the earlier cases are reviewed in it. Three main considerations prevailed with the High Court: First that giving Section 94 its ordinary grammatical construction it must be held that it applies to accused persons as well as to others; secondly that there is no inconsistency between Section 94 and other provisions of the Code and thirdly that this construction would not make the section ultra vires because calling upon an accused person to produce a document is not compelling the accused to give evidence against himself. Regarding the first two reasons we may point out that these reasons do not conclude the matter. The High Court did not advert to the importance of the words "attend and produce" in Section 94 or the background of Article 20 (3). The third reason is inconsistent with the decision of this Court in M.P. Sharma v. Satish Chandra [(1954) SCR 1077 at p 1083] and the learned Chief Justice might well have arrived at a different result if he had come to the conclusion that to call an accused person to produce a document does amount to compelling him to give evidence against himself.
40. We may mention that the construction which we have put on Section was also placed in Ishwar Chandra Ghoshal v. Emperor [12 CWN 1016], Bajrangi Gope v. Emperor [ILR 38 Cal 304], Raj Chandra Chakravati v. Hare Kishore Chakravarti [9 IC 564].
41. Therefore agreeing with the High Court we hold that Section 94 on its true construction does not apply to an accused person. The result is that the appeal is dismissed."
9. In V.S. Kuttan Pillai's case (cited supra), the above decision of Hon'ble Supreme Court in the case of Shyamlal Mohanlal Choksi has been followed to hold that summons to produce a thing or document as contemplated by Section 91 (1) of Cr.P.C. 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 10 investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure. These decisions have also been followed by this Court in the case of A. Srinivas Reddy (cited supra), wherein this Court held as under:
"8. The combined High Court of Andhra Pradesh in Hemalatha v. P. Suryachandra Reddy [2007 (1) ALD (Crl.) 658 (AP)], Girika Nagalakshmi v. State of Andhra Pradesh [2016 (1) ALD (Crl.) 320] and the Apex Court in Rajesh Talwar v. Central Bureau Investigation [(2014) 1 SCC 628], Om Prakash Sharma v. CBI Delhi [(2000) 5 SCC 679], State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568] and also the Madras High Court in K. Senthamarai v. State [1998 (1) ALD (Crl.) 658 (Mad.)] held that Section - 91 of Cr.P.C. cannot be invoked against the person accused of an offence and the said Section does not apply to the accused persons and that the Court and Police Officer is not having power to call for incriminating material from an accused.
9. In view of the above authoritative pronouncements, coming to the facts of the case on hand, admittedly, the petitioner herein is accused No.1 in Crime No.146 of 2020, registered for the offences under Sections - 403, 406 and 420 of IPC. Respondent No.4 - Investigating Officer directed the petitioner herein to produce the aforesaid information from him vide impugned notice under Section - 91 of Cr.P.C. The said information / documents sought by the Investigating Officer is from the possession of petitioner - accused No.1 and the same is incriminating material which the Investigating Officer cannot call for from the petitioner - accused No.1 under Section - 91 of Cr.P.C. Therefore, the impugned notice is illegal and the action of respondent No.4 in calling for the said information, which is incriminating material, from the possession of accused No.1 under Section
- 91 of Cr.P.C. is illegal, violative of the principle laid down in the aforesaid judgments and against the protection guaranteed under Article - 20 (3) of the Constitution of India. Further, respondent No.4 has no power to direct the petitioner - accused No.1 to produce the incriminating material from his possession.11
10. The High Court of Andhra Pradesh in W.P.No.28470 of 2021 has also considered the above judgment to hold that Section 91 of Cr.P.C. cannot be invoked against the accused persons and it does not apply to the accused.
11. In view of the above decisions, particularly of the Hon'ble Supreme Court which have been followed by the coordinate Bench of this Court, this Court is also of the opinion that the order of the trial Court in Crl.M.P.No.46 of 2024 in Spl.S.C.No.09 of 2020 needs no interference of this Court and it is liable to be dismissed.
12. Accordingly, the Criminal Petition is dismissed.
Miscellaneous applications, if any pending in this criminal petition, shall stand closed.
____________________________ JUSTICE T. MADHAVI DEVI Date: 11.03.2024 isn