PETITIONER:
PARMESHWARI DEVI
Vs.
RESPONDENT:
STATE AND ANR.
DATE OF JUDGMENT23/11/1976
BENCH:
SHINGAL, P.N.
BHAGWATI, P.N.
GUPTA, A.C.
CITATION:
1977 AIR 403 1977 SCR (2) 160
1977 SCC (1) 169
ACT
Code of Criminal Procedure (5 of 1868), Ss. 94. 96 and
98 and Evidence Act (1 of 1872)--Person summoned to produce
documents, when may be examined and cross-examined.
Code of Criminal Procedure (2 of 1974) S. 397(3) Interloc-
utory order, what is.
HEADNOTE
Section 94(1), Cr. P.C., 1898, which deals with summons to
produce any document, authorises the court to issue a sum-
mons to the person in whose, possession or power such docu-
ment is believed to be, requiring him to attend and produce
it. or to produce it at the time and place stated in the
summons. According to sub-s.(2) a person required merely to
produce a document shall be deemed to have complied with the
requisition if he causes such document to be produced in-
stead of attending personally to produce it.
In the present case, during a criminal trial, the complain-
ant flied art application under s. 94, for a direction to
the accused to produce a document. The accused stated that
the document was not in their possession. The complainant
then made another application under the section praying that
the appellant may be directed to produce the document. The
appellant was not a party to the case and no reason .whatso-
ever was given by the complainant in the application why the
document was likely to be in appellant’s possession or
power. The Magistrate then passed an order summoning the
appellant with the document. The appellant, in her reply,
professed ignorance of the document and stated that as she
was a "pardanashin" lady she may not be sumoned to court.
The Magistrate thereupon passed another order directing her
to attend the Court so that if she made a ’statement on
oath’ that she was not in possession of the document, the
Court may get a chance to put her a few questions for satis-
fying itself regarding the whereabouts of the document. The
appellant’s revision petitions against the order to the
District Court and High Court were dismissed.
Allowing the appeal to this Court,
HELD: (1) There is nothing in the Criminal.Procedure Code
providing that the person who appears in Court, in pursuance
of a summons under s. 94(1), becomes a witness and can be
examined and cross-examined even though he has not been
cited as a witness. Section 139, Evidence Act, also pro-
vides that if a person produces the document for which a
summons has been issued to him, he does not thereby become a
witness and that he cannot be cross-examined until he is
called as a witness. All that the Magistrate could do was
to issue search warrants under s. 96(1) or s. 98 if the,
requirements of those sections were satisfied. The Court
could not therefore record the appellant’s statement on oath
on her inability to produce the document, or put her a few
questions for satisfying itself regarding its whereabouts.
[163C-E]
(2) The order, which was thus not according to law adversely
affected the appellant who was not a party to the enquiry or
trial. Obviously she could have no opportunity to challenge
it at the end of the trial, and such belated challenge would
also be purposeless. Therefore, the order could not be said
to be an interlocutory order and the revisional courts erred
in raising the bar of s. 397(3), Cr. P.C. 1974. [164C-D]
Mohan Lal Magan Lal Thacker v. State of Gujarat [1968] 2
S.C.R. 685, followed.
161
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 411
of 1976.
Appeal by Special Leave from the Judgment and Order
dated the 22nd April, 1975 of the Delhi High Court in Crimi-
nal Revision No. 258 of 1974.
Frank Anthony and D. Gobrudhan for the Appellant.
R.N. Sachthey-‘(Not present) for Respondent No. 1.
G.S. Vohra, S.K. Gambhir and K.L. Taneja for Respondent
No. 2.
The Judgment of the Court was delivered by
SHINGHAL, J. This appeal of Smt. Parmeshwari Devi, by
special leave, arises from the judgment of the Delhi High
Court dated April 22, 1975 dismissing her application for
revision of the order of the Additional Sessions Judge of
Delhi dated August 29, 1974, confirming the order of a
Metropolitan Magistrate of Delhi dated August 8, 1974. The
facts giving rise to the appeal are quite simple and may be
shortly stated.
A complaint was filed by respondent N.L. Gupta on behalf
of Smt. Patashi Devi for the commission of offences under
sections 181, 182, 193, 197, 199, 200, 465, 466 and 471 of
the Indian Penal Code by Nand Kishore, Ghanshyam Das and
Sanwar Mal. It was alleged that Smt. Patashi Devi had one-
fifth share in the firm of M/s Gupta Electric and
Machinery.Stores of which Smt. Parmeshwari Devi (the present
appellant), Smt. Dropadi Devi and Madan Lal Gupta were the
other partners. According to the complaint, the business of
the firm was mainly looked after by Smt. Parmeshwari Devi’s
husband Mohan Lal and accused No. 1 who was here brother.
Smt. Patashi Devi and two other partners "retired" from the
business on April 1, 1968 without settling the accounts.
Smt. Patashi Devi asked Mohan Lal and accused No. 1 who
was her brother Smt. Patashi settling accounts. Accused No.
2 filed an attested copy of a deed of dissolution, alleged
to be signed by Smt. Patashi Devi, in the office of the
Registrar of Firms on November 14, 1968, along with an
intimation
of the dissolution of the firm which also purported to be
signed by her.
The complainant filed an application under section 94 of
the Code of Criminal Procedure, 1898, hereinafter.. referred
to as the Code, for a direction to the accused to file the
original deed of dissolution. The accused however stated in
the court that they were employees of the firm and the
document was not in their possession. The complainant then
made another application on .March. 28, 1974 under section
94 with a prayer that Smt. Parmeshwan Devi may be directed
to produce the document. The court made an order on March
28, 1974 summoning Smt. Parmeshwan Devi, with the document.
She stated in her reply that she did not know anything about
the document and that after her husband’s death the com-
plainant had taken away all the records of the firm. She
stated further that she was a ’Pardanashin’ 12---1458SCI/76
162
lady living in Calcutta and need not be summoned in the
court. The Metropolitan Magistrate thereupon made order
dated August 8, 1974 as follows,--
"In my view when a person is summoned
to attend the Court it is desirable that such
summoned person attends and made statement on
oath that he is not in the possession of the
documents summoned, so that the court may take
further steps to secure the production of the
documents as envisaged u/s 96 Cr.P.C. Merely
sending a reply through an Advt. that the
document is not in his possession is not
sufficient compliance of the order. The
request of the Ld. counsel for Parmeshwari
Devi that a commission may be issued for
recording the statement of Smt. Parmeshwari
Devi cannot be granted as the case is already
getting old and issuance of a commission would
mean undesirable delay of the case. The
counsel for Smt. Parmeshwari Devi Shri C.L.
Mala is now requested to intimate Smt.
Parmeshwari Devi forthwith to attend this
court and produce the document if in her
possession on 30th August, 1974.
The Ld. counsel for Parmeshwari Devi
has also stated that Smt. Parmeshwari Devi is
prepared to file an affidavit even to say that
she is not in the possession of the documents
summoned but in my view this also does not
serve the purpose as calling of Smt.
Parmeshwari Devi in the court and recording
her statement on an oath will give a chance to
the court to put her a few questions for
satisfying itself regarding the whereabouts of
the document in question."
As has been stated, Smt. Parmeshwari Devi’s applications for
revision of this order have been dismissed by the Additional
Sessions Judge and the High Court and this is how she has
come in appeal to this Court.
It will be recalled that it was the complainant who made
an application under section 94 of the Code stating that as
the deed of dissolution of the partnership was essential for
the trial of the case, Smt. Parmeshwari Devi may be directed
to produce it. Smt. Parmeshwari Devi was not a party to the
case, and no reason whatsoever was given in the application
why the document was likely to be in her possession or power
beyond stating that the accused had stated in their reply
the earlier application under section 94 that they were
employees of the firm and were not in possession of the
document, and she was the widow of the late Mohan Lal Gupta.
The Magistrate therefore "summoned" her "with the document"
by his order dated March 28, 1974 which is not, however, the
subject matter of controversy before us. The question is
whether the subsequent order of the Magistrate dated August
8, 1974 is according to law by which Smt. Parmeshwari Devi
has been directed to attend the court so that if she made a
"statement on oath" that she is not in possession of the
document, the court may get a chance to "put her a few
questions for satisfying itself regarding the whereabouts of
the documents ?
163
Chapter VII of the Code deals, inter alia, with process
to compel the production of documents. Sub-section (1 ) of
section 94, which deals with summons to produce any docu-
ment, merely authorises the court to issue a summons to the
person in whose possession or power such document is be-
lieved to be, requiring him to "attend and produce it, or to
produce, it, at the time and place stated in the summons."
According to sub-section (2) a person required under the
section merely to produce a document shall be deemed to have
complied with the requisition if he "causes such
document ...... to be produced instead of attending person-
ally to produce the same". There is nothing in the chapter
to provide that the person who appears in the court, in
pursuance of its summons under sub-section (1) of section
94, thereby becomes a witness and can be examined and
cross-examined by the court although he has not been cited
as a witness in the proceedings. Even if a person produces
the document for which a summons has been issued to him,
section 139 of the Evidence Act clearly provides that he
does not thereby become a witness by the mere fact that he
produces it, and he cannot be cross-examined unless
and .until he is called as a witness. So when Smt. Parmesh-
wari Devi filed a reply to the application of the complain-
ant under section 94 of the Code stating that she did not
know anything about the deed of dissolution and it was not
in her possession, the utmost that the Magistrate could
do was to issue a search-warrant under sub-section (1 ) of
section 96 if he had reason to believe that she will not or
would not produce the document as required by the summons.
It was also permissible for the Magistrate to order a search
of Smt. Parmeshwari Devi’s house under section 98 of the
COde if it appeared to him that the requirements of that
section had been fulfilled. But there is no provision in
the Code under which the court could record her statement on
oath, on her inability to produce the document, or "put her
a few questions for satisfying itself regarding the where-
abouts of the document." In the facts and circumstances of
the case, no further action is in fact called for against
the appellant. The Additional Sessions Judge and the High
Court went wrong in taking a contrary view.
It has been argued that the order of the Magistrate dated
August 8, 1974 was an interlocutory order and the power of
revision conferred by sub-section (1) of section 397 of the
Code of Criminal Procedure, 1974, could not be exercised in
relation to it by virtue of sub-section (2).
The Code does not define an interlocutory order, but it
obviously is an intermediate order, made during the prelimi-
nary stages of an enquiry or trial. The purpose of sub-
section (2) of section 397 is to keep such an order outside
the purview of the power of revision so that the enquiry or
trial may proceed without delay. This is not likely to
prejudice the aggrieved party for it can always challenge it
in due course if the final order goes against it. But it
does not follow that if the order is directed against a
person who is not a party to the enquiry or trial, and he
will have no opportunity to challenge it after a final order
is made affecting the parties concerned, he cannot apply for
its revision even if it is directed against him and adverse-
ly affects his rights.
164
A somewhat similar argument came up for consideration
before this Court in Mohan Lal Magan Lal Thacker v. State of
Gujarat(1). The controversy there centred round the meaning
of article 134(1) (c) of the Constitution and the Court
examined the meaning of the words "final" and "interlocuto-
ry". It was held that the meaning "had to be considered
separately in relation to the particular purpose for which
it is required" to be interpreted. No single test can be
applied’ to determine whether an order is final or interloc-
utory. Then it has been held by this Court in that case as
follows ’-
"An interlocutory order, though not conclusive of
the main dispute may be conclusive as to the subordinate
matter with which it deals.".
It may thus be conclusive with reference to the stage at
which it is made, and it may also be conclusive as to a
person, who is not a party to the enquiry or trial, against
whom it is directed. As has been shown, the order of the
Magistrate dated August 8, 1974 was not according to law and
it adversely affected the appellant, who was not a party to
the enquiry or trial, as it was solely directed against her.
As is obvious, she could have no opportunity to challenge it
after the making of the final order, and such a belated
challenge would have been purposeless for it would have
given her no relief. So in so far as the appellant is
concerned, the order of the Magistrate could not be said to
be an interlocutory order and the revisional courts erred in
raising the bar of sub-section (2) of section 397 against
it.
We have gone through Dhola and others v. State(2) and
The Central Bank of India Ltd. v. Gokal Chand(3) cited by
Mr. Vohra. Dhota’s case related to the grant of ball, and
Gokal Chand’s case related to a right of appeal under sec-
tion 38(1) of the Delhi Rent Control Act against an order
made inter partes. They cannot therefore avail the respond-
ent in this case.
For the foregoing reasons, the appeal is allowed and the
impugned orders of the High Court dated April 22, 1975 and
of the Metropolitan Magistrate dated August 8, 1974 are set
aside.
V.P.S. Appeal al-
lowed.
(1) [1968] 2 S.C.R. 685. (2) (1975) Crl. L.J. (1)
1274.
(3) A.I.R. 1967 S.C. 799
165