High Court of KeralaSingle Judge2023-07-07Petitions allowed; impugned Section 91 notices ...

In The High Court of Kerala at Ernakulam (Criminal Miscellaneous Case Nos. 4922 of 2023 & 4998 of 2023)

Case / Petition Number:CRL.M.C Nos 4922/2023 & 4998/2023; Crime No. 350/2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V
Judgment Date: 2023-07-07
Court Decision / Holding: Petitions allowed; notices under Section 91 quashed. The court left open the possibility for the Investigating Officer to approach the jurisdictional Magistrate for appropriate proceedings if necessary.
Final Disposition: Petitions allowed; impugned Section 91 notices quashed; petitioners not required to produce documents; Investigating Officer may pursue appropriate proceedings via jurisdictional magistrate if warranted.

Parties to the Case

Appellants / Petitioners

Rajesh T.K., 4th accused
Mohandas T., 5th accused

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Station House Officer, Thamarassery Police Station, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• T. D. Susmithkumar
• T. O. Deepa
• C. Sivadas
• Halvik S.
• A. Amruthavidyadharshan

Counsels for Respondents

• Sri MP Prashanth, Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court decision disposing of two Criminal Miscellaneous Petitions (Nos. 4922/2023 and 4998/2023) arising from Crime No. 350 of 2023 registered at Thamarassery Police Station. The 4th accused (Rajesh T.K.) and the 5th accused (Mohandas T.) sought to quash notices issued under Section 91 CrPC by the Station House Officer demanding production of documents related to assets, bank accounts and business records in the course of the investigation. The petitions contend that Section 91 does not empower the police to summon an accused to produce documents, and that such production would amount to compelled testimony violating constitutional immunity against self-incrimination. The prosecution had alleged the theft-related activity in 2017, yielding an unlawful gain and cross-border gold movement, and the accused had already obtained pre-arrest bail. The High Court referred to precedent, including V.S. Kuttan Pillai v. Ramakrishnan and Others and earlier cases (Shyamlal Mohanlal v. State of Gujarat; M.P. Sharma; Swarnalingam Chettiar; State of Bombay v. Kathi Kalu Oghad), to hold that the term “person” in Section 91(1) cannot include an accused, rendering summons to produce documents to an accused impermissible. The court quashed the notices, leaving open the option for proper proceedings via jurisdictional magistrate. The order bears the judge’s name, Raja Vijayaraghavan V, and closes with annexures detailing the facts and notices.

Provisions of Law Cited

Section 91(1) CrPCSection 91 CrPCSection 379 IPC

Legal Doctrines & Maxims

Expression 'person' in Section 91(1) does not include an accused
Immunity against self-incrimination
Summons to produce documents to an accused entails compulsion which violates constitutional rights

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenged notices issued under Section 91 CrPC by which the Thamarassery Police sought production of documents relating to assets, bank accounts and business records for Crime No. 350/2023. They argued that Section 91(1) cannot bind an accused to produce such materials, as the expression 'the person' does not extend to an accused, and doing so would compel testimony and violate the right against self-incrimination. Reliance was placed on Shyamlal Mohanlal v. State of Gujarat, MP Sharma, Swarnalingam Chettiar and State of Bombay v. Kathi Kalu Oghad, as clarified by V.S. Kuttan Pillai v. Ramakrishnan, to contend that summons to an accused under Section 91 is impermissible. They submitted that pre-arrest bail does not confer power to compel production of documents; thus notices should be quashed and any further steps taken only through proper judicial channels with jurisdictional consent.

Contentions of Respondents

The respondents defended the notices as issued under Section 91 CrPC to assist ongoing investigation into Crime No. 350/2023, arguing that Section 91 authenticates police power to call for production of documents relevant to assets and potential unlawful gain. They contended that the production of documents from an accused does not amount to testimonial compulsion and that pre-arrest bail does not bar investigative powers. They relied on the statutory framework and prior judicial interpretations to argue for the necessity of such production for effective investigation, while acknowledging the tension with the right against self-incrimination and the need for proper delimitation of powers.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
V.S Kuttan Pillai v. Ramakrishnan and Others	(1980) 1 SCC 264	Positive	Cited to support that Section 91(1) cannot empower summons to an accused; reinforces the principle that an accused cannot be summoned to produce documents under Section 91.
Shyamlal Mohanlal v. State of Gujarat	AIR 1965 SC 1251	Positive	Cited for the proposition that the expression 'person' in Section 91(1) does not include an accused; lay groundwork for immunity against self-incrimination.
M.P Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others	AIR 1954 SC 300	Positive	Cited to establish that not all persons can be summoned under Section 91; guards against compulsory production from accused.
Swarnalingam Chettiar v. Assistant Inspector of Labour, Karaikudi	AIR 1955 Mad 716	Positive	Cited as authority that Section 91 cannot compel production from an accused; supports immunity argument.
State of Bombay v. Kathi Kalu Oghad and Others	(1961) 3 SCR 230? or SC 1808	Positive	Cited for the principle limiting Section 91 against accused; aligns with the immunity principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV FRIDAY,THE7[TH]DAYOFJULY2023/16THASHADHA,1945 CRL.MCNO.4922OF2023 CRIMENO.350OF2023OFTHAMARASSERYPOLICESTATION ``` ## **`PETITIONER/4TH ACCUSED:`** ``` RAJESHT.K AGED44YEARS S/O.RAJANT.K,KOTHALATHHOUSE,CHELAVOORP.O, - KOZHIKODE.,PIN673571 BYADVS. T.D.SUSMITHKUMAR T.O.DEEPA C.SIVADAS ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM.,PIN682031 2STATIONHOUSEOFFICER THAMARASSERYPOLICESTATION,THAMARASSERY., - PIN673573 ``` ``` SRI.MPPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON07.07.2023,ALONGWITHCrl.MC.4998/2023,THECOURTONTHE SAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos 4922 & 4998 of 2023 2 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV FRIDAY,THE7[TH]DAYOFJULY2023/16THASHADHA,1945 ``` ``` CRL.MCNO.4998OF2023 CRIMENO.350OF2023OFTHAMARASSERYPOLICESTATION ``` ## **`PETITIONER/5TH ACCUSED:`** ``` MOHANDAST AGED53YEARS S/O.VELAYUDHANT,THANNIYOTTUMALHOUSE, - RAROTH,THAMARASSERYP.O,KOZHIKODE.,PIN673573 BYADVS. HALVIK.S. A.AMRUTHAVIDYADHARAN ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM.,PIN682031 2STATIONHOUSEOFFICER THAMARASSERYPOLICESTATION,KOZHIKODE., - PIN673573 ``` ``` SRI.MPPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON07.07.2023,ALONGWITHCrl.MC.4922/2023,THECOURTONTHE SAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C Nos 4922 & 4998 of 2023 3 ## **ORDER** The petitioner in Crl.M.C 4922 of 2023 is the 4[th] accused, and the petitioner in Crl. M.C 4998 of 2023 is the 5[th] accused in Crime No.350 of 2023 of the Thamarassery Police Station. The petitioners have approached this Court seeking to quash the notice issued by the Station House Officer, Thamarassery Police Station under Section 91 of the Code of Criminal Procedure by which the petitioners have been called upon to produce certain documents for the purpose of investigation into Crime No.350/23 registered under Section 379 of the IPC. 2. The prosecution allegation is that sometime in the year 2017, the accused in the aforesaid crime, with the intention to commit theft of gold from Saudi Arabia, illegally transported gold to India and thereby obtained unlawful gain. 3. The petitioners state that both the petitioners had approached the Court of Session and were granted pre-arrest bail by the Addl Sessions Judge-II, Kozhikode. While so, a notice, purportedly under Section 91 of the Code was issued by the Investigating officer calling upon the petitioners Crl.M.C Nos 4922 & 4998 of 2023 4 to produce documents relating to the assets of the petitioners, including properties, bank accounts, and business records on the premise that the production of the same is required for the purpose of investigation of the crime. The petitioners contend that neither the Code nor any other provision enacted by the legislature confers any power on the investigating officer to issue directions to cause for the production of the documents mentioned in the said order. It is further contended that the words 'the person' in Section 91 of the Code will not include an accused, and therefore, the petitioners cannot be compelled to produce documents or information pursuant to a written order. 4. I have heard the learned Public Prosecutor and have considered the submissions advanced. 5. In these cases, the challenge is against the notice issued under Section 91 of the Code to the accused. The Apex Court in **V.S Kuttan Pillai v. Ramakrishnan and Others** (1980) 1 SCC 264, after referring to the law laid down in **Shyamlal Mohanlal v. State of Gujarat** (AIR 1965 SC 1251), **M.P Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others** (AIR 1954 SC 300), **Swarnalingam** Crl.M.C Nos 4922 & 4998 of 2023 5 **Chettiar v. Assistant Inspector of Labour, Karaikudi** (AIR 1955 Mad 716), **State of Bombay v. Kathi Kalu Oghad and Others** (1961 SC 1808) have concluded that it is indisputable that the expression “person” in Section 91(1) does not take within its sweep a person accused of an offense. In other words, a summons issued to an accused person to produce a thing or document considered necessary or desirable for the purpose of an investigation, inquiry or trial would imply compulsion, and the document or thing so produced would be compelled testimony and would be violative of the constitutional immunity against self-incrimination. 6. In paragraph No 10 of **V.S. Kuttan Pillai** (supra) it was observed as under : 10. In view of the decision in Shyamlal Mohanlal case [AIR 1965 SC 1251 one must proceed on the basis that a summons to produce a thing or document as contemplated by Section 91(1) cannot be issued to a person accused of an offense calling upon him to produce document or thing considered necessary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under the Code of Criminal Procedure. 7. In that view of the matter, the impugned notices requiring the petitioners to produce documents mentioned therein cannot be sustained Crl.M.C Nos 4922 & 4998 of 2023 6 under law. Leaving open the rights of the Investigating Officer to approach the jurisdictional Magistrate by initiating appropriate proceedings as illustrated in **Kuttan Pillai** (supra), these petitions are allowed. Annexure-A3 notices in Crl.M.C.No.4922 of 2023 and Crl.M.C.No.4998 of 2023 are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C Nos 4922 & 4998 of 2023 7 ## **`APPENDIX OF CRL.MC 4998/2023`** ``` PETITIONER’SANNEXURES: ``` ``` AnnexureA-1ATRUECOPYOFFIRINCRIMENO.350OF2023 OFTHETHAMARASSERYPOLICESTATION ``` ``` AnnexureA-2ATRUECOPYOFTHEORDERDATED01/06/2023 INCRIMINALMISCELLANEOUSCASENO. 894/2023,ONTHEFILEOFTHEADDITIONAL SESSIONSJUDGE-II,KOZHIKODE ``` ``` AnnexureA-3THEORIGINALNOTICEDATED18/06/2023ISSUED BYTHESTATIONHOUSEOFFICER,THAMARASSERY POLICESTATION ``` Crl.M.C Nos 4922 & 4998 of 2023 8 ## **`APPENDIX OF CRL.MC 4922/2023`** ``` PETITIONER’SANNEXURES: ``` ``` AnnexureA-1ATRUECOPYOFFIRINCRIMENO.350OF2023 OFTHETHAMARASSERYPOLICESTATION,DATED 17/05/2023. ``` ``` AnnexureA-2ATRUECOPYOFTHEORDERDATED09/06/2023 INCRIMINALMISCELLANEOUSCASENO.870/2023, ONTHEFILEOFTHECOURTOFSESSION, KOZHIKODE. ``` ``` AnnexureA-3THEORIGINALNOTICEDATED18/06/2023ISSUED BYTHESTATIONHOUSEOFFICER,THAMARASSERY POLICESTATION. ```