An order under Section 94 of the Criminal Procedure Code compelling an accused person to produce documents in support of the prosecution case is hit by the prohibition contained in Article 20 (3) of the Constitution.

Gurdev Singh, J.

1. This order will dispose of a set of eleven appeals (Criminal Appeals Nos. 1194 to 1204 of 1962) against the acquittal of the respondents as they involve a common question of law for decision.

2. The respondents, Prabhu Singh and Narindar Singh Lamba, are the Chairman and Managei of the Transport Company known as Messrs, Loharu Motor Service (Private) Limited. On the complaint of the Provident Fund Inspector that they had failed to pay the contribution of the employees and the employers share and submit the necessary return as required by the Employees Provident Fund Scheme, 1952, they were tried by Shri Hardial Singh, Magistrate First Class, Bbiwani, on eleven different charges under Section 14 of the Employees Provident Fund Act, 1952, read with Section 76 of the Employees Provident Fund Scheme, 1952, The respondents pleaded not guilty to all the charges and contended that since the number of their employees was below 20, the Employees Provident Fund Act could not apply to their concern. The complainant did not examine any evidence in support of his case but relied solely on the records 01 the Transport Company kept by the respondents, and applied to the Court under Section 94 of the Criminal Procedure Code for their production by the accused. The respondents resisted the application contending that in view of the prohibition contained in Article 20 (3) of the Constitution against testimonial compulsion they could not be forced to produce the relevant documentary evidence against themselves. The learned trial Magistrate upheld their objection holding that the respondents could not be compelled to be witnesses against themselves and in absence of any other material to support the case against the respondents acquitted them in all the eleven cases. Against these orders of acquittal, dated 3rd September, 1962, the State has preferred these eleven appeals under Section 417 of the Criminal Procedure Code.

3. The application of the complainant for the production of documents and books of the respondents company was admittedly made under Section 94 of the Criminal Procedure Code which empowers any Court or an officer in charge of the police station to order the person in whose possession such documents are to attend and produce the relevant documents. The decision of the trial Magistrate that in view of the provisions of Article 30 (3) of the Constitution no such order compelling an accused to produce incriminating documents against hunk can be made, finds support from two Division Bench authorities reported as R. C. Gupta V/s. The State, and State of Maharashtra V/s. Nagpur Electric Light and Power Co., Ltd., .

In the former case it was held that an order under Section 94 directing a person to produce documents before the Court was clearly an order to furnish evidence, and such an order, therefore, attracted the prohibition contained in Clause. (3) of Article 20 of the Constitution. The Bombay decision, is more in point, as be sides holding that Article 20 (3) of the Constitution prohibited a summons being issued under Section 94 of the Criminal Procedure Code against an accused-person requiring him to produce documents in support of the prosecution case, the learned Judges of that Court held that the production of a document in a criminal case in support of the prosecution case was a testimonial act, and the protection against self-incrimination given to the accused under Article 20 (3) was available not only to natural individuals but to companies as well.

4. learned Counsel, appearing on behalf of the State, has, however, argued that both these decisions, which proceeded on the scope of Article 20 (3) of the Constitution as laid down in M. P. Sharma V/s. Satish Chandra, , ignored certain observations contained in that judgment of the Supreme Court and could not be considered as good law in view of the subsequent decision of a Bench of eleven Judges of that Court in State of Bombay V/s. Kathi Kalu, .

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