Point of law: Section - 91 of Cr.P.C. cannot be invoked against the person accused of an offence and the said Section does not apply to the accused persons and that the Court and Police Officer is not having power to call for incriminating material from an accused.

ORDER :

Kunuru Lakshman, J.

1. Heard learned counsel for the petitioner and learned Assistant Government Pleader for Home appearing on behalf of respondents.

2. The only grievance of the writ petitioner in the present writ petition is the action of respondent No.4 in directing him to furnish the information vide Notice No. 27/OW/ACP/WCO Team VIII/CCS/2021, dated 09.03.2021 issued under Section - 91 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is illegal.

3. Vide the aforesaid notice, respondent No. 4 directed the petitioner - accused No. 1 to produce the following information:

"1. Whether you have kept documents of mortgaged house property with you/ with your agents as security or not.

2. If you kept house property documents as security whether you have returned the documents at the time of revoking/ cancelling the mortgage deed.

3. If you kept the documents as security and not returned to the owner Sri Madhusudana Rao, where are there."

4. According to the learned counsel for the petitioner, respondent No. 4 is not having power to call for any incriminating material from the accused under Section - 91 of Cr.P.C. In support of the same, he has placed reliance on the principle laid down by the Hon'ble Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi, AIR 1965 SC 1251.

5. A perusal of the record would reveal that the petitioner herein is accused No. 1 in Crime No. 146 of 2020 of Central Crime Station Police Station, Hyderabad Commissionerate, and the offences alleged against him are under Sections - 406, 403 and 420 of IPC. The allegations against the petitioner, his wife - accused No. 2 and other accused are that the complainant obtained loan from the petitioner by mortgaging his property and by executing a mortgage deed. He has paid an amount of Rs. 1.00 Crore towards interest and principal. But, the petitioner herein did not release the property, instead trespassed into the said property along with unsocial elements and took away the original documents of the property, blank signed cheques, blank signed non-judicial stamp papers and blank signed promissory notes forcibly. Respondent No. 4 vide notice dated 09.03.2021 under Section -91 of Cr.P.C. directed the petitioner herein to produce the information as mentioned above.

6. In view of the above said submissions, it is relevant to extract Section - 91 of Cr.P.C., which is as under:

"91. Summons to produce document or other thing.

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

7. A Five-Judge Bench of the Apex Court in Shyamlal Mohanlal Choksi, AIR 1965 SC 1251 categorically held that if by summoning a person who is accused before the Court to produce documents or things he is compelled to be a witness against himself, the summons and all proceedings taken thereon by order of the Court will be void. This protection must undoubtedly be made effective, but within the sphere delimited by the judgment of the Supreme Court in