Jharkhand High Court
Tarsem Singh vs The State Of Jharkhand on 13 January, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.727 of 2024
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1. Tarsem Singh, aged about 73 years, son of Late Tara Singh,
Vice President (now President), Guru Gobind Singh
Educational Society, Bokaro, 85, Sardar Colony, Chas, P.O. and
P.S. Chas, District Bokaro, Jharkhand.
2. Surendra Pal Singh, aged about 67 years, son of Late Jaswant
Singh, Member (now Secretary), Guru Gobind Singh
Educational Society, Bokaro, Qr. No. 3031, Sector V/B, P.O.
and P.S. Bokaro Steel City, District Bokaro, Jharkhand.
3. Jaspal Singh, aged about 60 years, son of Kesara Singh,
Member, Guru Gobind Singh Educational Society, Bokaro, 102,
Sardar Colony, Chas, P.O. and P.S. Chas, District Bokaro,
Jharkhand.
... Petitioners
Versus
1. The State of Jharkhand
2. Manoj Kumar Mishra, son of Raghunandan Mishra, resident of
Qr. No. PH-7, Lal Banglow, P.O. Jamadobha, P.S. Jorapokhar,
District Dhanbad, Jharkhand
… Respondents
——
For the Petitioner : Mr. Vijoy Pratap Singh, Sr. Advocate
Mr. Rama Kant Tiwari, Advocate
Mrs. Bandana Kumari Sinha, Advocate
For the State : Mr. Manish Kumar, Sr. SC-II
Ms. Nirupama, AC to Sr. SC-II
Mr. Deepankar, AC to Sr. SC-II
For the Resp. No.2 : Ms. Diksha Dwivedi, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
1 W.P. (Cr.) No.727 of 2024
2. This Writ Petition (Cr.) under Articles 226 of the Constitution of India
has been filed with a prayer to quash the order dated 01.08.2024 passed by the
Chief Judicial Magistrate, Bokaro in connection with Complaint Case No.1184
of 2012 whereby and where under the learned Chief Judicial Magistrate,
Bokaro has allowed the petition under Section 91 of the Code of Criminal
Procedure and directed the petitioners who are undisputedly the accused
persons of the said Complaint Case No.1184 of 2012 to produce the following
documents:-
(1) Self attested copies of all the annexures, Registration related
documents, Certificates, Applications, Society Rules etc. related to
Guru Gobind Singh Educational Society before and after
Reorganization of Jharkhand State;
(2) All the Minutes, of the meetings, Lists of members, Invitation
Letters to the members, their attendance and agenda etc.
(3) From the Academic year 2005-06 to 2014-15, the details of the
Statement of Accounts, Income- expenditure, Source of Income,
Audit report Projects- Incomplete or completed, actual expenditure
in the projects, amount invested Recommendation letter of GB etc.
all the Four Schools constituted under School Management
Committee (SMC) and Guru Gobind Singh Educational Society.
The Banks associated with them, the names of the Account-
Holders and the Applications sent for opening those accounts;
(4) The self attested Copy of Letter No. GGES/Cors/G-B-/194-
2011 dated 18.05.2011 issued by the Guru Govind Singh
Educational Society;
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(5) The self attested copy of the correspondences made with the
ex-member of Guru Gobind Singh Educational Society.
3. The learned senior counsel for the petitioners relies upon the judgment
of the Constitution Bench of the Hon’ble Supreme Court of India in the case of
State of Gujarat vs. Shyamlal Mohanlal Choksi reported in AIR 1965 SC 1251,
para-31 of which reads as under:-
“31. There is one other consideration which is important. Art.
20(3) has been construed by this Court in Kalu Oghad’s case,
(1962) 3 SCR 10 : (AIR 96l SC 1808), to mean that an accused
person cannot be compelled to disclose documents which are
incriminatory and based on his knowledge: S. 94, Criminal
Procedure Code, permits the production of all documents
including the above-mentioned class of documents. If S. 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 Art. 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 S. 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 S. 94 applies to an accused person. This
becomes clearer if the language of S. 175 is compared with the
language employed in S. 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 or 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 Art. 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 S. 94 to include
an accused person, this construction is likely to lead to grave
hardship for the accused and make investigation unfair to him.”
and submits that albeit the said judgment was passed in respect of
Section 94 of the Code of Criminal Procedure, 1898 but the said Section is pari
materia with Section 91 of the Code of Criminal Procedure, 1973 and thereafter,
3 W.P. (Cr.) No.727 of 2024
the Hon’ble Supreme Court of India has held that an accused cannot be
compelled to disclose the documents which are incriminatory and based on his
knowledge in view of the Article 20(3) of the Constitution of India.
4. Learned senior counsel for the petitioners next relies upon the judgment
of the Co-ordinate Bench of this Court in the case of Kanti Kumari & Others
vs. State of Jharkhand reported in 2012 SCC OnLine Jhar 394, para-5 of which
reads as under:-
“5. Thus, from plain reading of Section 91 of the Cr.P.C., it is
apparent that though the Court has the power to require any
person in whose possession any document is believed to be, which
is required for trail of the case, to attend and produce such
document, but the Section nowhere empowers the Court to compel
an accused to produce any evidence against him. Article 20(3) of
the Constitution of India clearly lays down that no person accused
of any offence shall be compelled to be witness against himself.”
as also the judgment of another Co-ordinate Bench of this Court in the
case of M/s Tata Construction Project Ltd. vs. The State of Jharkhand &
Another reported in 2008 SCC OnLine Jhar 707, para-8 of which reads as
under:-
“8. This section 91 of the Cr. P.C. 1973 is equivalent to section
94 of the Code of Criminal Procedure 1898. The Supreme Court
in the aforesaid case held that the word used the person in section
91 does not include the accused of the case. The present case is
fully covered by the decision of the Supreme Court in the Case
of State of Gujarat v. Shyamlal Mohanlal Choksi (supra).”
and submits that as the petitioners who are undisputedly the accused
persons of the case have been directed to produce documents which will
amount to compelling them to produce documents incriminating them. Hence,
the impugned order dated 01.08.2024 passed by the Chief Judicial Magistrate,
Bokaro in connection with Complaint Case No.1184 of 2012 passed by the the
learned Chief Judicial Magistrate, Bokaro be quashed and set aside.
4 W.P. (Cr.) No.727 of 2024
5. Learned counsel appearing for the State as well as the learned counsel
for the respondent No.2 on the other hand vehemently opposes the prayer
made in this Writ Petition (Cr.). Ms. Diksha Dwivedi, learned counsel for the
respondent No.2 relies upon the judgment of the Hon’ble Supreme Court of
India in the case of Varsha Garg vs. State of Madhya Pradesh & Others
reported in 2022 SCC OnLine SC 986 and submits that in para-40 therein the
Hon’ble Supreme Court of India has held that that summons to produce a
document or other thing under Section 91 of the Code of Criminal Procedure
can be issued where the court finds that the production of the documents is
necessary or desirable for the purpose of an investigation, trial or other
proceedings under the Code of Criminal Procedure and in this case documents
sought to be produced are necessary and desirable for the trial. Hence, it is
submitted that no illegality has been committed by the learned Chief Judicial
Magistrate, Bokaro in passing the impugned order.
6. Ms. Dwivedi- learned counsel for the respondent No.2 next relies upon
the judgment of the Hon’ble Supreme Court of India in the case of Om Prakash
Sharma vs. CBI, Delhi reported in (2000) 5 SCC 679 and submits that in para-6
therein the Hon’ble Supreme Court of India has also reiterated the settled
principle of law that Section 91 of the Code of Criminal Procedure is enabling
provision inter alia arming the court to enforce and to ensure the production of
any document and other thing of “necessary or desirable”. Therefore, it is next
submitted that keeping in view of the nature of allegation, the documents
sought to be produced are “necessary and desirable”. Therefore, the learned
Chief Judicial Magistrate, Bokaro has not committed any error.
5 W.P. (Cr.) No.727 of 2024
7. In support of her contention that the powers of a court under Section 91
of the Code of Criminal Procedure can be invoked by all the stake-holders
including the complainant, Ms. Dwivedi- learned counsel for the respondent
No.2 next relies upon the judgment of the Hon’ble High Court of Madhya
Pradesh in M.Cr.C. No.60404 of 2021 dated 21.01.2022 passed by the Division
Bench of the said court. Hence, it is submitted that this Writ Petition (Cr.),
being without any merit, be dismissed.
8. Having heard the submissions made at the Bar and after carefully going
through the materials available in the record, it is pertinent to refer to Section
91 of the Code of Criminal Procedure which reads as under:-
“91. Summons to produce document or other thing.–
(1) Whenever any Court or any officer in charge of a police
station considers that the production of any document or other
thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this Code
by or before such Court or officer, such Court may issue a
summons, or such officer a written order, to the person in whose
possession or power such document or thing is believed to be,
requiring him to attend and produce it, or to produce it, at the
time and place stated in the summons or order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to have
complied with the requisition if he causes such document or thing
to be produced instead of attending personally to produce the
same.
(3) Nothing in this section shall be deemed–
(a) to affect Sections 123 and 124 of the Indian Evidence
Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891
(13 of 1891), or
(b) to apply to a letter, postcard, telegram or other
document or any parcel or thing in the custody of the postal or
telegraph authority.”
a plain reading of Section 91 of the Code of Criminal Procedure will go to
show that such power can be exercised by any court or any officer-in-charge of
the police station and the condition precedent for exercising that power is that
any document or other thing envisaged under Section 91 of the Code of
6 W.P. (Cr.) No.727 of 2024
Criminal Procedure to be produced is that such documents or other things
must be necessary or desirable for the purpose of investigation, enquiry, trial or
other proceeding under the court. Whether the documents or such thing is
necessary or desirable would have to be seen with reference to the stage when a
prayer is made for the production but the only rider is that in exercise of the
power under Section 91 of the Code of Criminal Procedure, an accused cannot
be compelled to produce or disclose documents which are incriminatory and
based on his knowledge, in view of the protection envisaged under Article
20(3) of the Constitution of India, as has been held by the Hon’ble Constitution
Bench of the Hon’ble Supreme Court of India in the case of State of Gujarat vs.
Shyamlal Mohanlal Choksi & Another (supra).
9. Now coming to the facts of the case, the undisputed fact is that the
accused persons have been called upon to produce self-attested copies of
documents which is contended by the petitioners to be incriminatory against
the petitioners, who are the accused persons of the case.
10. Under such circumstances, in view of the settled principle of law as
discussed above, this Court is of the considered view that the impugned order
dated 01.08.2024 passed by the learned Chief Judicial Magistrate, Bokaro in
connection with Complaint Case No.1184 of 2012 is not in consonance with the
settled principle of law, which prohibits and protects the accused persons from
being called upon to produce documents which are incriminatory and can be
used against them.
11. Under such circumstances, the said order dated 01.08.2024 passed by the
learned Chief Judicial Magistrate, Bokaro in connection with Complaint Case
7 W.P. (Cr.) No.727 of 2024
No.1184 of 2012 passed by the learned Chief Judicial Magistrate, Bokaro is
quashed and set aside.
12. The Writ Petition (Cr.) is disposed of accordingly.
13. The interim relief granted earlier vide order dated 25.09.2024 is vacated.
14. Registry is directed to intimate the court concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 13th of January, 2025
AFR/ Saroj
8 W.P. (Cr.) No.727 of 2024
