S.91 CrPC Can't Compel Accused to Create Evidence: Delhi HC

Introduction

In a significant ruling reinforcing constitutional safeguards against self-incrimination, the Delhi High Court has upheld the quashing of a notice issued by the Central Bureau of Investigation (CBI) under Section 91 of the Code of Criminal Procedure (CrPC) to a retired High Court judge. Justice Neena Bansal Krishna dismissed the CBI's petition under Section 482 CrPC, affirming that such notices cannot compel an accused person to create or compile evidence based on personal knowledge, as this would violate Article 20(3) of the Constitution. The case involves retired Chhattisgarh High Court Judge Ishrat Masroor Qureshi, accused in a corruption probe alongside other judicial and institutional figures. This decision underscores the boundaries of investigative powers during ongoing probes under the Prevention of Corruption Act, 1988, and serves as a reminder that Section 91 CrPC is limited to securing pre-existing documents, not extracting testimonial information from suspects.

The ruling, pronounced on January 12, 2026, stems from a CBI investigation into alleged bribery and conspiracy involving favorable judicial orders for an educational trust. By quashing the notice, the court emphasized the accused's right to silence and protection from compelled testimony, balancing individual rights against the needs of effective law enforcement. This development is particularly relevant for legal practitioners handling white-collar crime cases, where investigative agencies often seek broad access to personal financial and communication records.

Case Background

The origins of this case trace back to December 4, 2019, when the CBI registered FIR No. RC 217/2019/A/0009 against multiple parties, including the respondent, Justice Ishrat Masroor Qureshi (a retired judge of the Chhattisgarh High Court), Justice Shri Narayan Shukla (a judge of the Allahabad High Court, Lucknow Bench), and M/s. Prasad Education Trust (PET), along with its associates. The allegations centered on a criminal conspiracy under Section 120B of the Indian Penal Code (IPC), read with Sections 7, 8, 12, and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

According to the FIR, the conspirators allegedly colluded to secure a favorable judicial order from Justice Shukla to lift a debarment imposed on PET's college by the Ministry of Health and Family Welfare. The respondent was implicated in managing the case and facilitating the delivery of illegal gratification to Justice Shukla. This probe highlighted systemic concerns about judicial integrity and the influence of external pressures on court decisions.

During the investigation, on February 11, 2020, the CBI issued a notice under Section 91 CrPC to the respondent, seeking specific details to aid the probe: (i) mobile numbers used by him in 2017; (ii) details of all bank accounts (including closed ones) with statements from May to October 2017; and (iii) details of drivers and servants employed during the same period. These requests were framed as necessary for tracing potential links in the alleged conspiracy, such as financial transactions or communications.

The respondent, represented by advocates Prashant Chari and Ayush Jindal, challenged the notice through Miscellaneous Application No. 1 of 2020 before the Special Judge (CBI), New Delhi. He argued that Section 91 CrPC does not apply to accused persons and that compelling such disclosures would infringe upon his fundamental right against self-incrimination under Article 20(3). The Special Judge, relying on the Supreme Court's Constitution Bench decision in State of Gujarat v. Shyamlal Mohanlal Choksi (AIR 1965 SC 1251), allowed the application on April 1, 2021, setting aside the notice as legally invalid.

Aggrieved, the CBI, through Special Public Prosecutor Atul Guleria and advocates Aryan Rakesh and Prashant Upadhyay, filed the present petition under Section 482 CrPC before the Delhi High Court. The core legal questions before Justice Neena Bansal Krishna were: (1) Whether a Section 91 CrPC notice can be issued to an accused requiring disclosure of information based on personal knowledge, such as bank details or employee lists; (2) Whether such a notice constitutes testimonial compulsion prohibited by Article 20(3); and (3) The applicability of Section 91 CrPC to accused persons in light of established precedents.

The timeline reflects a protracted investigative process, with the FIR dating back over six years and the High Court judgment coming nearly two years after the Special Judge's order, underscoring the delays inherent in challenging investigative actions.

Arguments Presented

The CBI, as petitioner, advanced several contentions to justify the notice and challenge the Special Judge's order. Primarily, they argued that the information sought—details of mobile numbers, bank accounts, and employees—was documentary and often public in nature, not amounting to testimonial compulsion under Article 20(3). Drawing from the 11-judge Constitution Bench in State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808), the CBI distinguished between "testimonial evidence" (imparting personal knowledge) and "material evidence" (mechanical production of documents). They asserted that producing bank statements or call records is akin to furnishing non-incriminating material, essential for connecting evidentiary links in a complex corruption case.

The agency emphasized the practical necessities of investigation, contending that denying such information would obstruct justice and render probes ineffective. They criticized the Special Judge for failing to examine the non-incriminating character of the requests and for overlooking the balance between the accused's rights and the state's duty to investigate serious offenses like corruption involving judicial figures. The CBI also argued that Section 91 CrPC's bar is not absolute and can extend to accused persons for neutral documents, urging the court to set aside the quashing order and direct compliance.

In opposition, the respondent robustly defended the Special Judge's ruling, relying heavily on Shyamlal Mohanlal Choksi to assert that Section 91 CrPC (or its predecessor, Section 94 of the 1898 CrPC) does not apply to accused persons. He contended that the notice effectively required him to "create" evidence by compiling and disclosing information from personal memory, such as listing employed servants or identifying used mobile numbers, which directly engaged his volition and knowledge.

The respondent highlighted that this process violated Article 20(3) by amounting to compelled testimony, as it forced him to furnish evidence against himself without the safeguards of interrogation under Section 161 CrPC. He distinguished Kathi Kalu Oghad , noting that while it permitted mechanical production (e.g., fingerprints), the present demands involved testimonial acts. Citing the Bombay High Court's Vinayak Purushottam Kalantre v. Vikram Balwantrao Deshmukh (1979 CRI LJ 71), he argued that Shyamlal remained binding on Section 91's inapplicability to accused.

Furthermore, the respondent pointed out alternative avenues for the CBI, such as obtaining records directly from banks under the Bankers' Books Evidence Act, 1891, or telecom providers, or conducting searches under Section 165 CrPC. He warned that allowing Section 91 as a "shortcut" would undermine the accused's right to silence and enable investigative overreach, especially in high-profile cases involving retired judges.

Both sides presented detailed factual points: the CBI stressed the notice's role in verifying conspiracy timelines through financial and communication trails, while the respondent underscored the notice's vagueness, lacking specificity to any pre-existing document, thus resembling an interrogatory questionnaire.

Legal Analysis

The Delhi High Court's reasoning meticulously navigated the interplay between statutory provisions and constitutional protections, centering on the scope of Section 91 CrPC vis-à-vis Article 20(3). Justice Krishna first invoked M.P. Sharma v. Satish Chandra ((1954) SCR 1077), where the Supreme Court expansively interpreted "to be a witness" under Article 20(3) to include not just oral testimony but also furnishing documentary or other evidence through volitional acts. The court observed that testimonial compulsion involves coercion to impart personal knowledge, extending protection beyond courtroom proceedings to investigative stages.

Turning to Section 91 CrPC, the judgment clarified its purpose: empowering courts or police officers to summon production of existing documents or things necessary for investigations. It does not authorize compelling accused persons to create new records or compile information, as this would blur into testimonial evidence. The court reconciled apparent conflicts between precedents, affirming Shyamlal Mohanlal Choksi —a post- Kathi Kalu Oghad Constitution Bench decision—as authoritative on Section 91's non-applicability to accused. In Shyamlal , the Supreme Court held that applying the section to accused would lead to absurd outcomes, like prosecuting them under Section 175 IPC for non-compliance while denying self-incrimination defenses.

Applying Kathi Kalu Oghad 's test, the court distinguished mechanical production (e.g., handing over identified documents) from imparting knowledge. The CBI notice failed this test, as it required the respondent to mentally search, select, and list items like bank accounts or employees—acts involving personal cognition and potentially incriminating admissions (e.g., acknowledging employment ties relevant to the conspiracy). The judgment critiqued the notice as a "questionnaire" masquerading as a production summons, bypassing Section 161 CrPC's interrogation framework where the accused can invoke silence.

The court also referenced State of U.P. v. Deoman Upadhyaya (AIR 1960 SC 1125) to uphold Section 27 of the Evidence Act's validity, noting that information from accused leading to discoveries can be used, but only through proper channels, not compelled creation. It rejected the CBI's "public nature" argument, observing that even accessible information cannot be extracted from the accused if it engages their testimony.

This analysis draws a clear line: Section 91 is for real, pre-existing evidence, not investigative convenience. It reinforces that agencies must use independent sources—like third-party subpoenas or searches—preserving the accused's constitutional shield without unduly hampering probes. The ruling aligns with broader principles in evidence law, preventing Section 91 from substituting for interrogation and upholding the CrPC's scheme.

Key Observations

The judgment is replete with incisive observations that illuminate the court's rationale. Key excerpts include:

• On the nature of the notice: "These requests do not call for the production of a specific, pre-existing document like a specific mobile number, bank accounts or the Servants/Drivers. Instead, the Petitioner, by way of Application under S.91 Cr.P.C, has demanded that the accused to provide the information about the number of mobile phones, names of servants/drivers and Bank account details, by applying their mind to their memory and creating a new record in the form of a statement which contains the details sought by the Petitioner." This highlights how the demand exceeded Section 91's scope.

• Interpreting Article 20(3): "‘To be a witness’ is nothing more than ‘to furnish evidence’, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes... every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person." (Quoting M.P. Sharma ). This underscores the broad protection against compelled acts of disclosure.

• Reconciling precedents: "While Kathi Kalu Oghad (supra) laid down the broad contours of Article 20(3) of the Constitution regarding 'being a witness against oneself,' the judgment in Shyamlal Choksi (supra) specifically interpreted the statutory machinery of the Code of Criminal Procedure... regarding the specific invocation of Section 91 Cr.P.C. against an accused, Shyamlal Choksi (supra) remains the binding authority." This resolves the CBI's claimed conflict.

• On investigative alternatives: "The protection under Section 91 does not handicap the investigation... The details of bank accounts can be obtained from bankers under the Bankers' Books Evidence Act; call records can be obtained from service providers." This emphasizes non-intrusive methods available to agencies.

• Warning against misuse: "If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation... It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law 'to sit comfortably in the shade... rather than to go about in the sun hunt up evidence'." (Quoting Kathi Kalu Oghad ). This cautions against diluting rights for expediency.

These observations, drawn verbatim from the judgment, encapsulate the court's commitment to constitutional fidelity while ensuring investigative viability.

Court's Decision

In its concluding paragraphs, the Delhi High Court unequivocally dismissed the CBI's petition, upholding the Special Judge's order dated April 1, 2021. The operative language states: "In the light of above discussion, it is held that the Notice under Section 91 is legally unsustainable not only because of the constitutional bar affirmed in Shyamlal Mohanlal Choksi, (supra) but also because it sought to extract information rather than secure existing documents, which is beyond the scope of S. 91 CrPC. The Ld. Trial Court was therefore, correct in dismissing the Application. The Order of the Ld. Special Judge is upheld, and the Petition is dismissed."

The court ordered the disposal of any pending applications, closing the matter without directing further compliance. Practically, this means the CBI must pursue the sought information through alternative legal routes, such as issuing notices to banks, telecom companies, or conducting targeted searches under Section 165 CrPC, without compelling the respondent's direct input.

The implications are profound for criminal investigations, particularly in corruption and conspiracy cases. It curtails the expansive use of Section 91 CrPC against accused persons, mandating specificity in summonses and adherence to the distinction between production and testimony. For legal professionals, this reinforces advocacy strategies emphasizing Article 20(3) challenges to overbroad investigative demands, potentially reducing self-incriminatory disclosures in white-collar probes.

Broader effects include strengthening judicial oversight of agency actions, especially involving high-profile figures like retired judges, and promoting diligent, rights-respecting investigations. Future cases may see increased reliance on third-party evidence gathering, possibly slowing some probes but enhancing fairness. This ruling, building on foundational precedents, reaffirms that while the state wields robust powers to combat corruption, these must never erode core constitutional protections. In an era of digital trails and financial scrutiny, it guides investigators toward ethical, lawful paths, ensuring the justice system's integrity remains uncompromised.