The main legal point established in the judgment is that no order under Section 91 of the Code can be issued against a person accused of an offence during the enquiry stage, in accordance with the protection under Article 20(3) of the Constitution of India.

THOMAS, Acg. C.J.

A Rotary club instead of embarking on implementation of its professed programmes, has unfortunately got itself embroiled in litigious squabbles both in civil and criminal Courts. This matter is one of the side turns of the latter.

2. Criminal case was launched by the President of the Rotary club through a complaint filed against its vice President, Secretary and Treasurer alleging offences under Sections 406 and 468 of the Indian Penal Code. The Magistrate before whom the complaint was filed has chosen to conduct an enquiry envisaged in Section 202 of the Code of Criminal Procedure (for short 'the Code'). During such enquiry the Magistrate issued a notice to the accused calling upon them to produce certain documents such as the account book etc., pertaining to the club. Accused who entered appearance, resisted the direction to produce the documents on the ground that they cannot be so compelled in view of Article 20(3) of the Constitution of India. But learned Magistrate repelled the contention as per the impugned order.

3. Learned Magistrate relied on the decision of this Court in Raveendran v. Prakasan, (1989) 2 Ker LT 210, to support the order which is now challenged in this Criminal Miscellaneous Case filed under Section 482 of the Code. When the matter came up before a single Judge it was pleaded that the principle laid down in Raveendran's case may be reconsidered. The case was, however, referred to a Division Bench and thus it has come up before us.

4. In Raveendran v. Prakasan, (1989) 2 Ker LT 210, a learned single Judge has relied on the decision of the Supreme Court in S. S. Khanna v. Chief Secretary, Patna, AIR 1983 SC 595 : (1983 Cri LJ 1044), wherein it was held that during the enquiry stage under Section 202 of the Code the person arrayed in the complaint as accused does not in fact become an accused until it is decided to issue process against him. On the strength of the said principle, learned single Judge held that the direction issued to the accused to produce documents during the enquriy stage is not an infringement of Art. 20(3) of the Constitution.

5. It is under Section 91 of the Code that a Magistrate can issue summons to a person to produce a thing or document. This section corresponds with Section 94 of the Code of Criminal Procedure, 1898 (old Code). Section 93 of the present Code empowers a Court to issue search warrant for searching or inspecting any place if the Court considers that the person concerned is not likely to produce the document or thing. This Court has held in Jayadeva Panicker v. Velayudhan, 1986 Ker LT 1303, that such a search warrant can be issued even against the accused. But the question whether an order or summons can be issued against an accused under Section 91 of the Code has not been considered in the said decision. Nor can the said decision be used for legitimatising any order issued to the accused for compelling him to produce documents.

6. However, learned counsel for the petitioners contended that the decision in Raveendran v. Prakasan, (1989) 2 Ker LT 210), has erroneously placed reliance on the Supreme Court decision which was decided in a different context altogether.

7. In S. S. Khanna v. Chief Secretary, AIR 1983 SC 595 : (1983 Cri LJ 1044), Supreme Court considered the question whether a person who was dropped out during enquiry stage (envisaged in Section 202 of the Code), could have claimed protection under Section 300 of the Code if he was sought to be impleaded as accused by virtue of Section 319 of the Code. Supreme Court held that an enquiry under Section 202 of the Code is not in the nature of a trial since there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the accused. It was in the said context that their Lordships have observed in the decision that 'the said proceedings are not strictly proceedings between the complainant and the accused and a person again