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HIGH COURT OF CALCUTTA
Harries, Banerjee, Das Gupta
SATYA KINKAR ROY - Appellant
Versus
NIKHIL CHANDRA JYOTISHOPADHAYA - Respondent
F. B. Ref. 1 Of 1951 (In Cr. Revn. No. 614 Of 1950)
Decided On : MARCH 19, 1951
CRIMINAL PROCEDURE CODE - SECTION 94 - APPLICABILITY TO ACCUSED PERSONS - SEARCH WARRANT - SECTION 204, PENAL CODE - SECRETING OF DOCUMENTS - INTERPRETATION.
Fact of the Case:
The accused was served with a notice under Section 94, Cr.P.C. to produce a receipt for rent paid to the complainant. The accused refused to produce the receipt and a search warrant was issued. The receipt was not found during the search and the accused was charged with secreting the document under Section 204, Penal Code. The accused contended that Section 94, Cr.P.C. did not apply to accused persons and that he could not be compelled to produce the receipt.
Finding of the Court:
The court held that Section 94, Cr.P.C. applies to accused persons and that a search warrant could be issued against an accused person who was known to be in possession of a document and who had refused to produce it after a summons for production had been served upon him. The court further held that the accused's refusal to produce the receipt and the subsequent search of his premises constituted evidence of secreting the document under Section 204, Penal Code.
Issues: 1. Whether Section 94, Cr.P.C. applies to accused persons? 2. Whether a search warrant can be issued against an accused person who refuses to produce a document? 3. Whether the accused's refusal to produce the receipt and the subsequent search of his premises constituted evidence of secreting the document under Section 204, Penal Code?
Ratio Decidendi: 1. Section 94, Cr.P.C. is framed in wide terms and does not exclude accused persons from its ambit. 2. Section 96, Cr.P.C. provides for the issuance of a search warrant where a person fails to produce a document as required by a summons under Section 94, Cr.P.C. 3. The accused's refusal to produce the receipt and the subsequent search of his premises constituted evidence of secreting the document under Section 204, Penal Code.
Final Decision: The court set aside the order of discharge of the accused and remanded the case to the Court of the Presidency Magistrate to be disposed of in accordance with law and the observations made in the judgment.
( 1 ) THIS is a reference made to a F. B. by a Bench of this Court in a criminal matter.
( 2 ) IN order to appreciate the points involved it will be necessary shortly to set out the facts giving rise to the proceedings culminating in this reference.
( 3 ) THE opposite party was a tenant of the petnr. On 11/8/1949 the petnr. gave a receipt for Rs. 101 which sum, it is alleged, was paid by the opposite party as rent in advance. On 13/1/1950 the petnr. through a pleader, gave to the opposite party a notice to quit alleging that there had been default in the payment of rent for three consecutive months, namely, from September to November 1949. On 6/2/1950 the opposite party, through his pleader, wrote stating that the rent in question was not in arrear and that it had actually been paid in advance. On 7/2/1950 the petnr. filed a complaint in the Court of the Presidency Mag. Under Sections 468 and 471, Penal Code. It was alleged that the opposite party had altered the receipt for Rs. 101 paid as rent and that the receipt as altered showed a payment of Rs. 1101. Consequently, it was said that the opposite party was guilty of the offence of forgery and using as genuine a forged document.
( 4 ) ON 7/2/1950 a notice was issued on the opposite party by the Court to produce the receipt granted by the peter, for Rs. 101 which had been forged to show a receipt of Rs. 1101 in place of Rs. 101. In the alternative the opposite party was called upon to show cause why the document should not be produced.
( 5 ) ON 9/2/1950 the opposite party, through his pleader, denied forgery and on 28-2-1950 the opposite party showed cause in answer to the notice to produce. He contended that if he produced the document it might prejudice him in his defence in civil proceedings which were apparently pending before the Rent Controller. As he refused to produce the document the learned Mag. on the same day issued a search warrant. The house of the opposite party was searched but the receipt was not found and on 4/4/1950 a case Under Section 204 of the Penal Code was filed for alleged secreting of this document. The matter was consd. by the learned Presidency Mag. who by an order of 23/6/1950 discharged the opposite party Under Section 253, Cr. P. C. , holding that there was no prima facie case against him. In the view of the Presidency Mag. the opposite party could never be held guilty of secreting this document because all that he had done was to refuse to produce it when called upon to do so. In the view of the learned Mag. , mere refusal to produce on notice given, did not amount to secreting a document and therefore no case Under Section 204, Penal Code could possibly be made out against him.
( 6 ) THE petnr. apld. to this Court by way of revn. that the order of discharge be set aside and that the matter be decided upon the merits. The case came before a Bench of this Court and before that Bench it was contended that the opposite party could never be guilty of an offence Under Section 204, Penal Code because no summons to produce any document could be served upon him Under Section 94, Cr. P. C. and therefore he could not be guilty of secreting any document which he could lawfully be compelled to produce as evidence in a Court It was pointed out to the Bench hearing the revn. case that the authorities of this Court were conflicting. In some cases such as Mahomed Jackariah and Co. v. Ahmed Mahomed, 15 Cal. 109, it had been expressly held that Section 94, Cr. P. C. appld. to accused persons and a summons under that section could be served on an accused person. A contrary view had been expressed in another case Ishwar Chandra v. Emperor, 12 C. W. N. 1016. There it had been held that the provisions of Section 94, Cr. P. C. could not apply to the case of an accused person on his trial and no notice under that section to produce an incriminating document could be served upon him. Faced with this conflict of authority the Bench found itself una
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