LODHA, J (In Chambers)—The revision on which this reference has been made by the learned Additional Sessions Judge, Banswara, is directed against the order of the Munsif Magistrate, Kushalgarh, dated 7-12-70 by which the application of the complainant in a complaint under sec. 420 and 406, I.P.C., for calling upon the accused to produce the stolen property was allowed and the accused were directed to produce the she-buffaloes alleged to have been stolen by them in the Court on 8-1-71 when the complainants evidence was to be recorded. The learned Additional Sessions Judge has recommended that the order of the Magistrate should be set aside inasmuch as sec. 94, Criminal Procedure Code, under which summons to produce the stolen property had been ordered to be issued does not apply to the accused.

2. In State of Gujarat vs. Shyamlal (1) it it was held (per majority) that sec. 94 on its true construction does not apply to an accused person under trial. It was observed that—

"One of the fundamental canons of the British system of criminal jurisprudence and the American jurisprudence has been that the accused should not be compelled to incriminate himself. The Indian Legislature was aware of the above fundamental canon of criminal jurisprudence because in various sections of the Criminal Procedure Code it gives effect to it."

Their Lordships were further pleased to observe as follows—

Thus it seems to us that if we construe sec. 94 to include an accused person, this construction is likely to lead to grave hardship for the accused and make investigation unfair to him."

Then again their Lordships observed—

"It will be noticed that the language is general, and (prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce" are rather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court to attend and produce a document."

3. Thus the matter is concluded by the judgment of their Lordships of the Supreme Court referred to above.

4. Accordingly I allow the reference and set aside the order of the learned Munsif Magistrate, Kushalgarh, dated 7-12-70. Let the file of the case be sent back for proceeding further according to law.

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