ORDER
1. In this petition the petitioner has questioned the order passed by the learned Magistrate directing the petitioner to produce documents sought for by the respondents.
2. The brief facts of the case are, the respondents filed a complaint against the petitioner alleging that he has created certain documents against the interest of the society, thereby he has committed an offence under Section 464, IPC and Section 109(1) of the Karnataka Co-operative Societies Act, 1959, (for short 'the Act'). Along with the complaint, the respondents also made an application under Sections 91 and 93, Cr. P.C. supported with an affidavit. The learned Magistrate however has not taken cognizance of the offence and he has posted the matter for recording sworn statement of the complainant but he passed an order on the application filed by the respondents under Sections 91 and 93, Cr. P.C., the operative portion of which reads:
'Heard Sri M.N.B. and G.B.B., Advocates on the application filed under Sections 91 and 93, Cr. P.C.
Perused the affidavit in support of application filed under Sections 91 and 93, Cr. P.C. and the documents. There are reasonable grounds to summoning the accused for the production of the '9' documents and other new documents if any as shown in the second part of the list, to this Court.
Hence issue summons to the accused for the production of the documents as shown in the second part of the list annexed to the complaint, to this Court on or before 3-2-1997 and also call for the sworn statement of the complainant and his witnesses by 3-2-1997'.
This order is questioned in this petition.
3. Heard.
4. The learned Counsel for the petitioner at the very outset submitted that the impugned order is illegal as the Court cannot direct the accused himself to produce the documents which may be used against him. In support of his argument he placed reliance on a decision in K. Hiriyanna Setty v State of Mysore, wherein this Court has held:
'Summons under Section 94, Cr. P.C. cannot be issued on an accused to produce documents which are incriminatory and may be used against him at the trial'.
This decision came to be rendered by this Court following the decision in State of Gujarat v Shyamlal Mohanlal Chokshi, wherein their Lordships of the Supreme Court also held that Article 20(3) has been construed by the Supreme Court in State of Bombay v Kathi Kalu Ogkad, to mean that an accused person cannot be compelled to disclose documents which are incriminatory and based on his knowledge. Section 94, Cr. P.C. terms the production of all documents including the above mentioned class of documents. If Section 94 is construed to include an accused person, some unfortunate consequences would follow. Under those circumstances, it is clear that the accused cannot be compelled to produce documents before Court. Section 94, Cr. P.C. corresponds to Section 91 of the new Act. Therefore, the impugned order is liable to be quashed.
5. The learned Counsel for the respondents further submitted that the respondents had filed the applications both under Sections 91 and 93, Cr. P.C. and the learned Magistrate has not passed any order. Therefore, the respondents may be permitted to pursue the application under Section 93, Cr. P.C. This submission has some force. There is no prohibition for the Court to issue search warrant under Section 93, Cr. P.C. Therefore, the petition is allowed. The impugned order is quashed directing the learned Magistrate to consider the application filed under Section 93, Cr. P.C. on its own merits and also proceed further, according to law.