The summons for document production does not violate Article 20(3) as the documents are not self-incriminating and a court must ascertain their necessity before issuing summons under Section 91.

ORDER :

The petitioner, a multi speciality hospital represented by its Chairman, is arrayed as the 1^st accused in Crl.M.P. No.1386 of 2022 pending on the files of the Additional Chief Judicial Magistrate, Thiruvananthapuram. The complaint is filed by the 2^nd respondent alleging that the certification of brain death and transplantation of human organs in the case of Smt.Laly Gopakumar was done by the hospital and its doctors in violation of the procedure prescribed in the Transplantation of Human Organs and Tissues Act, 1994. As per proceedings dated 12.08.2024, the learned Magistrate directed to take steps to produce the treatment records of Smt.Laly Gopakumar. Thereafter, vide proceedings dated 02.09.2024, summons was issued to the hospital to produce the entire treatment records for the period from 04.05.2020 to 06.05.2020, as also additional document Nos.1 to 13 mentioned in the process memo filed by the complainant. Thereupon, the petitioner entered appearance and sought time for producing the documents. Later, on noticing that the summons for production of documents was issued under Section 61 of Cr.P.C, the court, vide proceedings dated 15.11.2024, directed to issue fresh summons to produce the treatment records and other documents. This Crl.M.C is filed challenging the order dated 15.11.2024, primarily on the ground that the petitioner being an accused, compulsion to produce self incriminating evidence runs counter to the guarantee under Article 20(3) of the Constitution of India. In support of the contention that Article 20(3) prohibits persons accused of an offence to be a witness against himself, reliance is placed on the decisions of the Apex Court in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Another [ AIR 1961 SC 29 ], State of Bombay v. Kathi Kalu Oghad [ AIR 1961 SC 1808 ] and State of Gujarat v. Shyamlal Mohanlal Choksi [ AIR 1965 SC 1251 ].

2. Learned counsel for the 2^nd respondent contended that the direction is only to produce the treatment records of a patient at the hospital. Being the custodian of those documents, the petitioner is bound to produce them, as he is not an accused at present. The direction to produce documents is issued for the purpose of considering whether the allegations in the complaint are prima facie sufficient for issuance of summons to the accused.

3. Indisputably, the petitioner is only shown as an accused in the complaint and he will become an accused formally only on the court taking cognizance and issuing summons. As held in Raja Narayanlal Bansilal (supra), for invoking the constitutional right against testimonial compulsion guaranteed under Article 20(3), there must be formal accusation against the party pleading the guarantee and such accusation must relate to the commission of an offence which in the normal course may result in prosecution. The decision in Kathi Kalu Oghad (supra) makes it clear that, self incrimination means conveying information based upon the personal knowledge of the person giving the information and cannot include the mechanical process of producing documents in court which may throw a light on the points in controversy. In the case at hand, the petitioner is directed to produce documents pertaining to the treatment of Smt.Laly Gopakumar, which are not self-incriminating documents containing information based upon the personal knowledge of the petitioner. Therefore, the direction to produce documents does not violate the guarantee against self incrimination contained in Article 20(3).

4. The next question is whether the court can mechanically issue summons under Section 91 of the Code. The answer to this question is available