The central legal point established in the judgment is the interpretation of Art.20(3) of the Constitution in relation to the production of a document as evidence and the protection it affords to the accused.

1. An interesting question arises for consideration in this petition. For understanding the same, short facts are to be narrated. Petitioner filed a private complaint against two persons, arraying them as accused. First person was described in the complaint as the person who published bit notice printed in Akshara Printers, Kara, Kodungallur Taluk. The printer of Akshara Printers, 2nd respondent herein was described as second accused in the complaint. Offence alleged against them was u/s.500 read with S.34 IPC. That complaint was filed on 13-1-1987. Along with the complaint he filed Criminal M.P.109/87 praying for issue of summons to 2nd respondent herein for production of manuscript of the publication. Second respondent in pursuance to the notice issued by the court produced the manuscript before court. Sworn statement of the complainant was recorded on 16-5-1987. After considering the complaint and sworn statement when the court thought it proper to proceed against the accused for offences u/s.500 IPC read with S.34 IPC, summons were issued to the accused. When the case came up for trial, the complainant while giving evidence as P W.1 wanted to mark the manuscript produced by 2nd respondent as evidence in the case. Marking of that manuscript was objected to on the ground that the said document which was compelled to be produced by 2nd respondent cannot be made use of against him and in case it is so done it will contravene his rights under Art.20(3) of the Constitution. This objection was found favour with the learned Magistrate. Accordingly, he dis-allowed the prayer of the petitioner to mark that document in evidence. That order is under challenge.

2. In State of Bombay v. Kathi Kalu (AIR 1961 S.C.1808) the Supreme Court observed:

"It is well established that Cl.(3) of Art.20 is directed against self incrimination by an accused person. Self incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge."

In the instant case, 2nd accused was directed to produce the manuscript which was sent to him for printing defamatory news item. That document was not prepared by 2nd accused. It contains no matter which was in his personal information or knowledge. He was having the custody of that document which was written by another. Production of "that document and its use in the proceedings cannot come within the mischief of Art.20(3) of the Constitution. For Art.20(3) to come into play two facts have to be established. Firstly, the individual concerned should be a person accused of an offence and secondly, he must be compelled to be a witness against himself. If only one of these facts, and not the other, is established, the requirements of Art.20 (3) will not be fulfilled.

3. At the time when the manuscript was produced before court, was second respondent, an accused before court? In the complaint filed on 13-1-1987 2nd respondent was described as 2nd accused. But can he be taken as a person accused in the case? In a private complaint filed before court the Magistrate is bound to examine upon oath the complainant and the witnesses present. He may postpone the issue of process against the accused and enquire into the cases himself for deciding whether or not there is sufficient ground for proceeding with the complaint as contemplated by S.202 of the Code of Criminal Procedure. After such an enquiry, if the Magistrate is of opinion that there is no sufficient ground for proceeding he should dismiss the complaint as provided by S.203 of the Code. If in the opinion of the magistrate there is sufficient ground for proceeding with the trial, then summons or warrant as the case may be, should be issued to the accused. Only when such summons or warrant is