Allowed

A.Srinivas Reddy v. The State of Telangana

Telangana HC31 Mar 2021WP/7333/2021

Case brief

AI extract

What is this about?

The High Court of Telangana held that Section 91 of CrPC cannot be invoked against an accused person to call for incriminating documents from their possession. The court relied on Supreme Court precedents establishing that such compulsion violates Article 20(3) and Article 226 of the Constitution.

What did the court decide?

The impugned notice dated 09.03.2021 issued under Section 91 of CrPC is quashed.

A.Srinivas Reddy Vs The State of Telangana — Civil Procedure and Limitation | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT^HYDERABAD (Special Original J urisdiction)

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WEDNESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HON'BLE SRI JUSTICE K.LAKSHMAN

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WRIT PETITION NO.7333 0F 2021

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Between:

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A.Srinivas Reddy, S/o. Late^{A. Narayana Reddy,52 years, Occ: Business,R/o.} Villa No. 93, lndu Aranya Harita, GSI^{post, Bandlaguda, Nagole,} 1.}Si{IJ$r

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AND

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1 The State of Telangana, rep. by^{its Principal Secretary,HomeDepartment,} Secretariat Buildings, Hyderabad 2 ihe Commissione'r of^'Police, Hyderabad^{Commissionerate,at Basheerbagh,} Hyd erabad. 3 The Station House Officer, Central Crime^{Station, Hyderabad.} 4 The Sub lnspector of Police,^{WCO, Team-Vlll, Central CrimeStation,} HYderabad

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...RESP.NDENTS

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Petition under Article 226 of^{the constitutionof lndia prayingthat in the} circumstances stated in the affidavit^{filed therewith,the High court may be pleased} to issue an appropriate^{writ, order or direction more in the nature of writ of} mandamus, declaring the action^{of the 4th respondentin issuing notice U/s. 91 of} cr.P.c dated 09.03.2021 to^{the petitioneras illegal, arbitraryand in violationof} settted principles of law and^{Judgments by Hon',bleApex courtconsequentlyset} aside the same.

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IANO: 1O F 2021

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Petition under section 151 CPC^{prayingthat in the circumstancesstated in} the affidavit filed in support of^{the petition,the High court may be pleasedto} suspend the operation^{of the noticeissued by 4th respondent notice U/s. 91 of Cr.P.C} dated O9/03/2021^{pendlng disposal of the abovewrit petition.}

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Counsel for the Petitioner:^{M/S' PILLIXLAW FIRM}

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Counsel for the Respondents:^{AGP FOR HOME}

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The Court made the following:^ORDER

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ryY

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IION'BI-II SIi.I JUS-I]ICE K. LAKSIINIAN

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WRIT PE'IITION No.7333 OF 2021

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ORDER:

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

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l'he only grievar-rce of the writ petitioner in the present writ petition is the action of rcspondent No.4 in directing him to firrnish the inlbrmation vide Notice No.27iOW/ACI'}IWCO^'l'eam VIII/CCS/202 I. dated 09.03.202 I issuecl unclct' Section - 9l ol the Cocle of Criminal Procedurc, 1973^(tbr short^'Cr.P.C.') is illegal.

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

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

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Ifyou kept house property documents as security whether^yott have returned the documents at the time of revoking/ cancelling the mortgage deed,

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If y'ou kept the documents os securit.tt and not returned to tlrc ov'ner Sri Madhusudona Rao, wltere ore Ihere.^"

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According to the learnecl counscl lbr the petitioner, lesponclent No.4 is not having power to call lor urr1, incrimiuating nraterial liorn the accused undcl Sectirln - 9l ol'Cr.l).C. In support ol' the same, he has placed reliance on the principle laid down by the

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&^ -7.a

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FIon'ble Suprente Court in Statc of Cujarat v. Shyamtal Mohanlal Chohsir.

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A perusal of the record would reveal that the petitioner herein is accused No.l in Crime No.l46 of 2020 of Central Crime Station Police Station, Hyderabad Commissionerate, and the offences alleged against hi,r 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 rnortgaging his property and by executing a rnortgagc deed. IJe has paid an arrount ol Rs. r.00 crore towards i.terest and principal. But, thc petitioner herein clid nor release the property, instead trespassed into thc said propefty along with ur.rsocial elements and took away the original docunrents 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.

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

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"91, Sunrmons to produce document or othcr thing.

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(l) Whcnevcr anv C'oult or any of)icel in oharge ofa poliuu station consicicrs that thc ploduction ol any docuntcnt or otlrer thing is necessary or desirablc fbr the purposcs rtf any invostigation. inquiry. trial or othor proceeding undcr this

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].-AIR lqr,s sc t:5 t

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Code^{by or before such Courtor officer'such Couft may} issue a^{summons,or suchofficer a writtenorder'to the} person in^{whose possession or power such document or thing} is believed^{to be, requiringhim to attendand produce it' or to} produce^{it, at tlie time and placestated in the summons or} order

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(2) Any^{personrequircd under this section merely to producc} a document^{or other thingshall be deemeclto have oomplied} with^{the requisition if hc causessuch clocument or thingto be} produced^{insteacl of attending personally to produce the same'}

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(3) Nothing^{in this section sirallbe deer.nerl-}

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(a) to atlect^{scctiot.ls123 and 124 of tlicInclian Eviclence Act'} 1872^{(l ol 1872} ),^{or thc Bankers'BooksEvidencc Act'1891} (13 ol l89t)^oL

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(b) to apply to^{a letter, postcarcl'telegramor otherdocument} or any^{parcel or thing in the custocly of the postal or telegrapl.r} authoritY."

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A^{Five-Judge Benchof the" Apex Court in Shyamlal} Mohanlal^{Choksir categoricallyheld that if by summoninga person} who is accused^{beforethe Court to produce documentsor things he is} compelled^{to be a witness against himself' the summonsand all} proceedings^{taken thereon by order of the Courlwill be void' This} protection must^{undoubtecllybe macle ef-tective'but within the sphere} delirnited by^{the juclgmentol the Sr'tpreme Cor'rrt in Kathi-Kalu} Oghad's^{Case. lt needs howeverto be attlrmedthat the prolection} againstwhatiscalledtestimonialcompulsionunderAfticle-20(3)o1. the constitution^{of India is against proceedingsin court; it does not} apply to the^{orders whichmay be made by a Police Officerin the} The Courl cannot^{therefore be called upon to} course ofr^{nvestigation.}

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consider whether the action of a police Of ficer calling upon a person charged with the cornmission of an of-fbnce to produce a docunre.t or thing in his possession infringes the guarantee under Article _ 20 (3) of the Constitution.

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The combined High court of Andhra pradesh in tremalatha v. P. Suryachandra Reddy2, Girika Nagalakshmi v. State of Andhra Pradeshs and the Apex Court in Rajesh Talwar v. Central Bureau Investigationa, Om prakash Sharma v. CBI Delhis, State of Orissa v, Debendra Nath padhi6 and also the Madras High Courl in K. Scnthanrarai v. StateT helci that Section - 9l of'Cr..l).C. cannot be invoked against the person accusccl of an of-tencc and thc saicl Section does not apply to the accused pcrsons and that tl-re Court and I']olice Offlccr is not having power to call fbr incrirninating ntaterial tl'onr an accused.

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In view of the above authoritative pronouncements, conring to the facts of the case on hand, admittedly, the petitioner herein is accused No.l in Crime No.146 of 2020, registered for the offences under Sections - 403, 406 and 420 of IPC. Respondent No.4 - Investigating Officer directed the petitioner herein to produce the aforesaid information liom hin.r vide impugned notice under Section - 9l olCr.P.C. The said inlorrnation / documents sought by

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I lr)o: 1t -'\l-D (a rt ) fr5s I .\t,) ' totr, 1r) ,\r I)⁽⁽ rl )^rlr) I (_rr -^ -rrirll . , r' \ t (:tt(t,)) 5 sr: a r,:q 'l^{to"'r5) I s({t r(.\

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the^{lnvestigatingOfficeris fromthe possessionofpetrtioner- accused} No.l^{and the same is incriminatingmaterialwhich the lnvestigating} Officer^{cannot call for from the petitioner - accusedNo'1 under} Section^{- 91 of Cr'P'C' Therefbre' the impugned notice is iilegaland} the action^{of respondent No.4 in calling for the said information'} rvhich^{is incriminatingmaterial,from the possessionof accused No' i} under^{Section- g1 0f cr.p.C. is illegal, violativeof the principre raid} down^{in the aforesaicljudgmentsancragainstthe protectionguaranteecl} uncler^{Afticle - 20 (3) of the Constitutionof lndia' Furlher'respondent} No.4 has^{no powerto direct the petitioner - accusedNo' 1 to prodnce} the incriminating^{materiallrom his possession'}

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Accordingly,^{the presentCriminal Petition is allowed and} the impugned^{notice dated09'03'2021 issuedby respondent No'4} under Section^{- 91 of CI'P'C' to the petitioner - accused No'1in Crime} No.146 of2020^{is herebY quashed'}

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As a sequel,^{miscellaneouspetitions'if any' pendingin the}

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Clrirninal^{Petition shal1 stand closed'}

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