The question involved in this case is a fairly interesting interplay of - Section 91 of the Code of Criminal Procedure {for short "the Code"} and Sections 131, 139 and 165 of the Evidence Act - in the context of the protection available to a person under Article 20(3) of the Constitution of India. Elaborate arguments were addressed by learned counsel for the petitioner Sri.Santhosh P.Poduval and Sri.John S.Ralph, appearing for the party respondent.

2. The petitioners are accused 1 and 2 in C.C.No.198/00 on the file of the Chief Judicial Magistrate, Thrissur, involving offences under Sections 3, 4 and 5 of the Prize Chit and Money Circulations Banning Act, 1978 {for short 'the Act'}.

3. It is the complainant's case that he is a share holder in the 1st accused company. Accused 2 to 12 are the Directors and 13th accused is the Manager of the 1st accused. Accused 2 to 13 are responsible for the conduct of the business of the company and its day to day affairs. That the accused, with the dishonest intention to cheat the public and cause wrongful loss to them and thereby to achieve illegal gain to the company, decided to conduct 15th monthly chit to be started on 15.12.1998; that the accused had published this in the Malayala Manorama daily dated 5.11.1998. That, after referring to the manner in which the chit was proposed to be conducted, it is alleged, it was conducted as a conventional chit. In other words, the accused have been carrying on a banned activity; that there was a dishonest intention on the part of the accused to cheat the subscribers; to deceive them and to make illegal gain. That the petitioner was a Director. He had raised his voice against the illegal activities of accused 2 to 13, who are responsible for the conduct of the affairs of the company and their actions amounted to offences punishable under Sections 3 to 5 of the Act as also under Sections 417 and 420 of the Indian Penal Code.

4. The court below took cognizance of the complaint and the accused were summoned and proceedings were initiated. Annexure B application was then filed by the complainant under Section 244(2) of the Code, requiring and summoning the attendance of three persons including the Accountant of the 1st accused company and its practising Company Secretary. The 1st witness was also directed to produce certain documents which are: the Kuri Ledger from 15.12.1998 to 31.12.2000, the Monthly Kuri Auction Book, the Monthly Kuri Prizing book and Sitting Fee Register of Board of Directors, Kuri Subscription Address Register, Minutes of the Board of Directors from 1.4.1998 to 31.3.1999 and 1.4.1999 to 31.3.2000 and Auction/Closed Chitty Pass Books of the Kuri.

5. Annexure C counter affidavit was filed by the accused essentially taking up a contention that the prayer made in the application, if allowed, will violate the fundamental right of the accused under Article 20(3) of the Constitution; that essentially the persons sought to be summoned are being compelled to produce documents which are not in their custody and this they cannot be compelled. There was also a contention that the court cannot entertain such an application under Section 245 of the Code.

6. The learned Chief Judicial Magistrate considered all these contentions and insofar as the plea of testimonial compulsion is concerned, the court below went on to hold that the witnesses are not accused, though the first witness is the Accountant, an employee in the 1st accused and that, at any rate, testimonial compulsion under Article 20(3) of the Constitution would not arise in the instant case. The court below found that there was nothing in Section 245 of the Code which stands in the way of the complainant seeking production of documents and seeking the attendance of the witnesses, if it is necessary for the purpose of an effective prosecution. By Annexure D order, the application Annexure B filed by the complainant was, therefore, allowed. This Crl.M.C has been filed challengi