High Court of KeralaSingle Judge2023-07-07Petitions allowed; Section 91 CrPC notices to p...

Rajesht.K v. State of Kerala; Mohandas.T v. State of Kerala (Crl.M.C Nos 4922/2023 and 4998/2023)

Case / Petition Number:CRL.M.C Nos 4922 & 4998 of 2023; Crime No. 350 of 2023 (Thamarassery Police Station)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2023-07-07
Court Decision / Holding: The petitions are allowed; Annexure notices under Section 91 CrPC requiring the accused to produce documents are quashed. The court preserved the right of the Investigating Officer to approach the jurisdictional Magistrate through appropriate proceedings if needed, in line with Kuttan Pillai ( supra). The matter is disposed with a direction that the rights of the accused to avoid compelled self-incrimination remain intact.
Final Disposition: Petitions allowed; Section 91 CrPC notices to produce documents quashed; Annexures quashed; Investigating Officer may approach the jurisdictional Magistrate for appropriate proceedings; rights of the accused against self-incrimination preserved.

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
Sri MP Prashanth, Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

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

Counsels for Respondents

• Sri MP Prashanth, Public Prosecutor

Case Synopsis & Summary

This is a joint criminal miscellaneous petition before the Kerala High Court, seeking to quash notices issued under Section 91 CrPC by the Thamarassery Police Station in Crime No. 350 of 2023 (IPC 379). The petitioners, the 4th and 5th accused, had earlier secured pre-arrest bail from the Kozhikode Sessions Court. The SHO’s notices demanded production of documents relating to assets, bank accounts, and business records for investigation. The petition contends that Section 91 CrPC cannot compel an accused person to produce documents, and that the phrase “the person” in Section 91(1) does not cover an accused, thereby violating the constitutional immunity against self-incrimination. The State counters that Section 91 empowers production of documents necessary or desirable for investigation, inquiry, or trial, and that the notices are within the officer’s powers. The court, relying on established precedents (V.S. Kuttan Pillai v. Ramakrishnan; Shyamlal Mohanlal v. State of Gujarat; MP Sharma; Swarnalingam Chettiar; State of Bombay v. Kathi Kalu Oghad), held that a summons under Section 91(1) cannot be issued to an accused. The notices were quashed, Annexures A3 in both petitions were set aside, and the court left open the option to approach the appropriate jurisdictional Magistrate for proceedings. The judgment was delivered by Justice Raja Vijayaraghavan V. The petitions are allowed.

Provisions of Law Cited

Section 91 CrPCSection 379 IPC

Legal Doctrines & Maxims

Immunity against self-incrimination
Expression 'person' in Section 91(1) CrPC does not include an accused

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the notice issued under Section 91 CrPC to the accused cannot be sustained since the provision contemplates production of documents by witnesses or other persons during investigation, not by an accused. The words 'the person' in Section 91(1) do not extend to an accused, thereby infringing constitutional immunity against self-incrimination. They submitted that the notices must be quashed and that any production of documents should proceed only through appropriate proceedings before a jurisdictional Magistrate.

Contentions of Respondents

The State submitted that Section 91 empowers the production of documents deemed necessary or desirable for investigation, inquiry, or trial. The officer’s notice seeks documents related to assets and financial records relevant to the investigation of Crime No. 350/23; the phrase 'the person' is not restricted to non-accused persons, and the police must be able to collect information to advance investigation.

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 the expression 'person' in Section 91(1) CrPC does not include an accused; hence a summons to an accused to produce documents would infringe self-incrimination protections.
Shyamlal Mohanlal v. State of Gujarat	AIR 1965 SC 1251	Positive	Cited for the proposition that an accused cannot be summoned to produce documents under Section 91(1) CrPC.
M. P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others	AIR 1954 SC 300	Positive	Provides precedent on the scope of Section 91 and its application vis-a-vis an accused.
Swarnalingam Chettiar v. Assistant Inspector of Labour, Karaikudi	AIR 1955 Mad 716	Positive	Supports the principle that Section 91 cannot compel an accused to produce documents.
State of Bombay v. Kathi Kalu Oghad and Others	(1961) SC 1808	Positive	Affirms that the word 'person' in Section 91(1) does not include an accused.

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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. ```