Can't Force Accused To Create Evidence, Draft Facts Memo U/S 91 CrPC: Delhi High Court Upholds Quashing Of CBI Notice To Ex-HC Judge
The Delhi High Court, has held unsustainable a notice issued by the Central Bureau of Investigation (CBI) under Section 91 CrPC, to a retired judge of the Chhattisgarh High Court, Justice Ishrat Masroor Qureshi, holding that such a notice could not be used to "compel the accused" to furnish information requiring disclosure of facts based on personal knowledge.
The Court held that the impugned notice, which sought details of bank accounts, mobile numbers, and employees from the accused, amounted to testimonial compulsion barred under Article 20(3) of the Constitution as it forced the accused to 'create' evidence rather than merely produce existing documents.
Accordingly, Justice Neena Bansal Krishna dismissed the CBI's petition under Section 482 CrPC and upheld the order of the Special Judge setting aside the Section 91 notice.
The case arose from an FIR registered by the CBI against the retired judge, along with other accused, including Retired Allahabad HC Judge, Justice Shri Narayan Shukla, for offences under Section 120B IPC read with Sections 7, 8, 12 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.
In the course of the investigation, the CBI issued a notice dated 11 February 2020 to the respondent under Section 91 CrPC seeking details of mobile numbers used by him during 2017, details of all bank accounts (including closed accounts) with statements for the period May 2017 to October 2017, and details of drivers and servants employed during the same period.
Thereafter, the respondent challenged the notice before the Special Judge (CBI), contending that Section 91 CrPC could not be invoked against an accused person and that compelling him to furnish such information would violate the constitutional protection against self-incrimination.
The Special Judge allowed the application and set aside the notice, relying on the Constitution Bench decision in State of Gujarat v. Shyamlal Mohanlal Choksi. Aggrieved, the CBI challenged this order before the High Court.
The principal issue before the High Court was whether a notice under Section 91 CrPC could be issued to an accused person requiring him to furnish information such as details of bank accounts, mobile numbers, and employees, and whether such a notice violated the protection against testimonial compulsion under Article 20(3) of the Constitution.
The CBI contended that the information sought was documentary and public in nature and did not amount to testimonial compulsion. it was argued that the Special Judge failed to appreciate the distinction between "testimonial evidence" and "material evidence" as explained by the 11-Judge Constitution Bench in State of Bombay v. Kathi Kalu Oghad.
Conversely, the respondent relied on Shyamlal Mohanlal Choksi to contend that Section 91 CrPC does not apply to an accused person and specifically argued that the information regarding servants and drivers was within his personal knowledge.
The High Court examined the scope of Article 20(3) of the Constitution and the interpretation of the expression "to be a witness" as explained by the Supreme Court in M.P. Sharma v. Satish Chandra and Kathi Kalu Oghad.
In this context, the Court noted that "to be a witness" includes furnishing evidence based on personal knowledge, whether oral or documentary, and that testimonial compulsion involves coercion to impart such knowledge.
Proceeding further, the Court considered Section 91 CrPC in the light of the constitutional protection under Article 20(3) and observed that Section 91 is a mechanism for securing the production of existing documents or things. It does not contemplate compelling an accused to create evidence or compile information by applying his mind and memory.
On examining the CBI notice, the Court found that it did not seek the production of any specific pre-existing document. Instead, it required the respondent to identify and list the mobile numbers used, the bank accounts held, and the drivers or servants employed by him.
Terming the notice as essentially a 'questionnaire', the Court held that such a demand required the accused to "apply his mind, search his memory, and compile information" based on personal knowledge, thereby amounting to testimonial compulsion.
The Court further held that Section 91 CrPC cannot be used as a substitute for interrogation under Section 161 CrPC or to bypass the accused's right to silence.
Placing reliance on the Shyamlal Mohanlal Choksi case, the Court affirmed that Section 91 CrPC does not apply to an accused person regarding the production of incriminating documents.
Even otherwise, the Court held that applying the test laid down in Kathi Kalu Oghad, the impugned notice violated Article 20(3) as it sought information amounting to testimonial evidence rather than a “mechanical process” of production.
It further observed that the investigation was not rendered ineffective, as the CBI was free to obtain the relevant information from independent sources such as banks and service providers under the Bankers' Books Evidence Act, or by exercising powers of search under Section 165 CrPC.
In view of the above, holding that the notice issued under Section 91 CrPC was legally unsustainable, both on account of the constitutional bar under Article 20(3) and because it sought to extract information rather than secure existing documents, the High Court upheld the order of the Special Judge and dismissed the CBI's petition.