Andhra Pradesh HC quashes notice issued to accused person under section 91 of CrPC to produce document

The High Court of Andhra Pradesh recently quashed a notice issued by the police on to the accused to produce documents, which was in his possession relating to a criminal case.

Justice Cheekati Manavendranath Roy said:

“Therefore, the Investigating Officer is at liberty to secure evidence in this regard by adopting the methods permissible under law. Resultantly, the Writ Petition is allowed and the impugned notice issued under Section 91 Cr.P.C. to the petitioner, who is an accused in a crime, is quashed. No costs.”

The petition was filed by a person seeking a declaration that notice issued under Section 91 Cr.P.C. to him to produce the original sale agreement of the year 1998 before the Police is illegal and without jurisdiction and consequently, prayed to quash the said notice.

A person, namely Gurrala Venkata Krishna Rao, lodged a report against the petitioner stating that Sri Naidu Veera Venkata Satya Pratap is the original owner of the vacant site in an extent of 311.11 sq. yards covered by Plot No.B-2, situated in Prakash Nagar-2, Near AKC College of Rajamahendravaram. It was stated that he purchased the said land in the year 1994 and, thereafter, left for America. It is stated that the petitioner Sri Kadiyala Simhachalam @ Vijay Kumar of Rajamahendravaram created a fake document as if the said Naidu Veera Venkata Satya Pratap, the original owner of the said site, executed a sale agreement in respect of the said land in favour of the petitioner with the forged signature of the said Naidu Veera Venkata Satya Pratap and on the strength of the said document he had leased out the said site to a person namely Baji to do chicken business in the said land. In view of the above situation, the police served notice upon the petitioner to produce the said document. The notice was issued under section 91 of CrPC. Aggrieved by the notice, the petitioner moved High Court to challenge it.

Petitioner contended that as per the language employed in Section 91 Cr.P.C., the word “person” is used stating that if the Court or any officer in charge of the police station considers that the production of any document is necessary for the purpose of investigation or other proceeding, that the Court may issue summons or the police officer may issue a written order to the “person” in whose possession or power such document is believed to be, requiring him to attend and produce the said document. He also contended that the word “person” used in the said Section does not include an accused and Section 91 Cr.P.C. has no application to the accused in a crime or in a criminal case and no such notice under Section 91 Cr.P.C. can be issued to the accused to produce any document, which is in his possession relating to the said crime or the criminal case.

Counsel for the government on the other hand contended that the word “person” used in Section 91 Cr.P.C. is wide enough to include even accused in a crime or in a criminal case and it cannot be restricted to witnesses or any other person and no such narrow construction is permissible in interpreting the said expression “person”.

He contended that if any such narrow interpretation is given to the said word “person” and if it is restricted to persons other than the accused, or only to a witness, it would affect fair investigation and the Investigating Officer would be deprived of an opportunity of collecting material evidence relating to the offence of forgery and fabrication of a document, which is involved in this case.

He further stated that if accused is in possession of the documentary evidence, which may throw light on the controversy and if the document is not containing his statement conveying his personal knowledge relating to the charge against him, then, undoubtedly, he can be called upon by a police officer to produce the document and it does not amount to testimonial compulsion.

The Court had to now decide whether Section 91 Cr.P.C. applies to an accused person and whether impugned notice issued under Section 91 Cr.P.C. to the accused is valid under law or not.

After perusal of precedents, the court noted that whether Section 91 Cr.P.C. applies to an accused person or not, directly fell for consideration before the Five-Judge Bench of the Apex Court in the case of Shyamlal Mohanlal Choksi. It was noted that whether Section 94 Cr.P.C. applies to the accused person or not is the question before the Five-Judge Bench of the Apex Court. Section 94 of old Cr.P.C. corresponds to the present Section 91 Cr.P.C. The Five-Judge Bench of the Apex Court held in unequivocal terms that Section 94 Cr.P.C. does not apply to accused person.

“After tracing the origin relating to the concept of testimonial compulsion as per the fundamental canons of the British system of Criminal Jurisprudence and American Jurisprudence, the Apex Court held that Section 94 Cr.P.C. cannot be made applicable to an accused person. Also held that even though the words in Section 94 Cr.P.C. are wide enough to include an accused person, but it is well recognized that in some cases a limitation may be put on the construction of the wide terms of a statute and thereby held that it does not include an accused person. Thus, the Five-Judge Bench of the Apex Court has set at rest the controversy and clearly held that Section 91 Cr.P.C. has no application to accused person. The said judgment of the five-Judge Bench of the Apex Court still holds the field on the said legal position and it is a binding precedent on the said legal issue,” the court noted.

Finally, the court was of opinion that whether Section 91 Cr.P.C. applies to the accused person is no more res integra and the same has been well settled.

While parting, the court stated that "while giving a reply to the notice issued under Section 91 Cr.P.C., the accused did not even say in specific terms that it is a genuine document or that the signature of the owner of the land was not forged on it. He simply parried the said material question. It would have a bearing on the accusation made against him. Therefore, the Investigating Officer is at liberty to secure evidence in this regard by adopting the methods permissible under law".

In view of the above, the notice was quashed.