Sunday, December 16, 2018 | ePaper

An accused cannot be compelled to be witness against himself

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High Court Division :
(Criminal Miscellaneous Jurisdiction)
M Enayetur Rahim J
Shahidul Karim J
Kazi Md Shahed ..........Ahmed .............Accused-Petitioner
vs
State and others     
....... Opposite-Parties
Judgment
August 1st, 2017
Constitution of Bangladesh, 1972
Article 35(4)
The word 'accused' employed in Article 35(4) means a person facing trial and punishment. It is only an accused in a trial who cannot be compelled to be witness against himself.
We have already noticed that police by submitting chargesheet recommended for trial of the accused-petitioner for commission of offence under Sections 467/468/471/420/109 of the Penal Code and therefore, it can be said without any shred of doubt that the accused-petitioner is an accused who has been facing trial. In such view of the matter, it goes without saying that the accused-petitioner is entitled to get the protection under Article 35(4) of Constitution and, as such, he cannot be compelled by giving direction under Section 94 of the Code to produce any document kept or believe to be kept in his custody as because it would tantamount to compel him to give evidence against himself .
...... (21 & 22)
Constitution of Bangladesh, 1972
Article 35(4)
No criminal case was started against the petitioners by lodging formal FIR or complaint and, as such, they do not hold the status of an accused as referred to in Article 35(4) of the Constitution. .....(24)
State of Gujarat vs Shyamlal Mohanlal Choiksi, (1965) 6 GLR 698; Giasuddin-al-Mamun vs DG, Bureau of Anti-Corruption, 5 BLC 134; Abu Siddique vs State, 54 DLR (AD) 154; Mustafizur Rahman vs DG, Bureau of Anti-Corruption, 49 DLR 599 and Ramesh Chandra Mehta vs State of West Bengal AIR 1970 SC 940 ref.
Md Shamsul Hoque, Advocate - For the Petitioner.
Shah Muhammad Ezaz Rahman, Advocate - For the Opposite-Party No.2.
Farhad Ahmed, DAG - For the State.
Judgment
Shahidul Karim J : This Rule under Section 561A of the Code of Criminal Procedure (briefly, the Code) was issued calling upon the opposite-parties to show cause as to why the judgment and order dated 27-7-2015 passed by the Sessions Judge, Habigonj in Criminal Revision No. 39 of 2015 rejecting the same and thereby affirming the order dated 22-2-2015 passed by the Senior Judicial Magistrate, Habigonj in Nabigonj Police Station Case No.07 dated 7-11-2013 under Sections 420/467/ 468/471/109 of the Penal Code directing the accused-petitioner to produce the original deed (deed No. 548 dated 3-3-2009 registered with Nabigonj, Sub-Registry Office Habigonj) and refusing to confirm the interim bail granted to him earlier should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
2. Material facts necessary for disposal of the Rule, in short, are that on 7-11-2013 opposite-party No.2 being informant lodged an ejahar with Nabigonj Police Station, Habigonj alleging, inter-alin, that the accused petitioner in collusion with 3 (three) other accused falsely created a deed being No. 548 dated 3-3-2009 and also got it registered from Nabigonj Sub-Registry Office, Habigonj in respect of 67 decimals of land (as mentioned in the schedule of the ejahar) and there by committed offence under Sections 467/468/ 471/420/109 of the Penal Code. On the basis of the above FIR, Nabigonj Police Station Case No. 7 dated 7-11-2013 was started.     
3. After lodgment of the case, police took up investigation of the same and having found prima-facie incriminating materials submitted chargesheet being No. 47 dated 10-3-2014 under the aforesaid sections of law. But, due to non-seizure of the disputed original deed, the relevant Judicial Magistrate did not accept the investigation report rather directed the concerned Officer-in-Charge to hold further investigation and to submit report by order dated 12-3-2014. Thereafter, on the basis of an application submitted by the investigation officer, the relevant Judicial Magistrate, Habigonj directed the accused-petitioner to appear before it along with the deed in question vide his order dated 2-11-2014 and 22-2-2015.
4. Feeling aggrieved by the said order dated 22-2-2015, the accused-petitioner filed a revisional application being Criminal Revision No.39 of 2015 before the learned Sessions Judge, Habigonj which was ultimately disallowed vide order dated 27-7-2015.
5. It is at this stage; the accused-petitioner moved this court by filing an application under Section 561A of the Code and obtained the instant Rule.
6. Mr Muhammad Shamsul Hoque, learned Advocate appearing for the accused petitioner submits that the courts below failed to consider that if any order passed under Section 94 of the Code remains ineffective or unanswered in that event the provision of Section 96 thereof could very well be followed.
But in spite of that the learned Magistrate erroneously directed the accused-petitioner to submit the document in question in the court which tantamounts to compel him to give evidence against his own interest.
7. He further submits that by the impugned order the accused-petitioner is being compelled to give evidence against himself which is unconstitutional being contrary to Article 35(4) of the Constitution. He lastly submits that the impugned order directing the accused-petitioner to submit the original deed in question is liable to be set-aside since it is violative of his fundamental right guaranteed under Article 35(4) of the Constitution. In order to bolster up his submissions Mr Hoque placed reliance on the case of State of Gujarat vs Shyamlal Mohanlal Choiksi, reported in (1965) 6 GLR 698.
8. Conversely, Mr Shah Muhammad Ezaz Rahman, learned Advocate representing the opposite-party No.2 supports the impugned order contending that as per section 94 of the Code the learned Magistrate is empowered to issue direction upon any person including an accused to produce any document kept or believe to be kept in his possession and in so doing Article 35(4) of the Constitution would not stand on the way as such.
In support of his submission Mr Rahman has placed reliance in the cases of Giasuddin-al-Mamun vs DG, Bureau of Anti-Corruption, reported in 5 BLC 134; Abu Siddique vs State, reported in 54 DLR (AD) 154 and Mustafizur Rahman vs DG, Bureau of Anti-Corruption, reported in 49 DLR 599.
9. Heard the learned Advocates of both the parties, perused the application filed under Section 561A of the Code along with the annexures appended thereto and also considered the facts and circumstances of the case minutely including the law bearing on the subject.
10. The crux of the matter is whether an accused person can be directed under section 94 of the Code to produce any document kept or believe to be kept in his possession and further that whether such direction will come in conflict with Article 35(4) of the constitution.
11. With a view to come to a correct decision, we need to have a close look at the relevant provision of section 94 of the Code which runs as under:
"94. Summons to produce document or other thing.
(1) Whenever any court, or, any officer in charge of a police station considers that the production of any document or other thing in necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:
Provided that no such officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XVIII of 1891) and relates, or might disclose any information which relates, to the bank account of any person except, --
 (To be continued)
 (a) for the purpose of investigating an offence under Sections 403, 406, 408 and 409 and Sections 421 to 424 (both inclusive) and Sections 465 to 477 A (both inclusive) of the Penal Code with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the .prior permission in writing of the High Court Division.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the Evidence Act, 1872, Sections 123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or Telegraph authorities."
12. From a plain reading of the above provision of law it appears manifestly that in exercise of power under Section 94 of the Code any court or any officer in charge of a police station for the purposes of any investigation, inquiry, trial or other proceeding has the authority to issue a summons or written order to any person in whose possession or power such document of thing is believed to be, requiring such person to attend and produce it at the time and place indicated in the summons or order.
13. Now, the most pertinent question is, whether the term 'person' as employed in Section 94 of the Code includes an accused also. Our answer to such question would certainly be in the negative  for the simple reason that no accused can be compelled to disclose documents which are incriminating in nature. If for argument sake we took the view that an accused can also be directed under section 94 of the code to produce document in the court which incriminates him in that case it would amount to compel the accused to give evidence against himself which directly contradicts the provision of Article 35(4) of the Constitution. Thus, the argument press on us that the word 'person' occurred in Section 94 is broad enough to include an accused person does not hold water.
14. In this context we may profitably refer to the case of State of Gujarat vs Shyamlal Mohanlal Choiksi, reported in (1965) 6 GLR 698 wherein the Indian Supreme Court observed as underneath: ".........................
30. It seems to us that in view of this background the Legislature if it were minded to make Section 94 applicable to an accused person would have said so in specific words. It is true that the words of Section 94 are wide enough to include an accused person but it is well-recognised that in some cases a limitation may be put on the construction of the wide terms of a statute (vide Craise  on Statute Law, page 177). Again it is a rule as to the limitation of the meaning of general words used in a statute that they are to be if possible construed as not to alter the common law (vide Craies on Statute Law page 187)."
33. Keeping the above considerations in mind let us look at the terms of the Section. It will be noticed that the language is general and prima facie apt to include an accused person. But there are indications that the Legislature did not intend to include an accused person. The words attend and produce are rather inept to cover the case of an accused person. It would be an odd procedure for a court to issue a summons to an accused person present in court to attend and produce a document. It would be still more odd for a police officer to issue a written order to an accused person in his custody to attend and produce a document.
34. The argument pressed on us that the person referred to in the latter part of" section 94(1) is broad enough to include an accused person does not take into account the fact that the person in the latter part must be identical with the person who can be directed to produce the thing or document and in the production of the thing or document cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of Criminal Law the generally of the word the person is of no significance.
35. Mr Bindra invited our intention to Section 139 of the Evidence Act which provides that a person summoned to produce a document does not become" a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness. But this section has no application to the police officer and it will be noticed that Section 94 provides for two alternative directions: the first is attend and produce and the second produce a document. If a police officer directs him to attend and produce he cannot comply with the direction by causing a document to be produced.
36. If after a thing or a document is produced its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person the order to produce the thing or document would seem to serve no purpose; it cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasions the power under Section 94(1)would be resorted to so that on the alternative view which seeks to exclude incriminating documents or things the working of Section 94(1) would yield no useful result."
15.    After ana1ysing various cases the Indian Supreme Court in the aforesaid case" eventually hold that Section 94 does not apply to an accused person.
16.    Being fortified with the above decisions we also held the same view' that the word 'person' as employed in .section 94 of the Code does not include an accused person standing for trial.
17.    In the case of Ramesh Chandra Mehta vs The State of West Bengal reported in AIR "1970 SC 940, the observations of the Indian Supreme Court are couched in the following terms:
"Normally, a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or to whom a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. When a customs officer arrests a person and informs that person of the ground of his arrest (which he is bound to do under Article 22(1) of the Constitution) for the purposes of holding an inquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent on that behalf before the Magistrate."
18.    Now, coming to the case at our hand it appears that as per assertions made in the FIR, the accused-petitioner in furtive league with other accused created a deed being No.548 dated 03-03-2009 taking resort to forgery and eventually got it registered. Material on record go to show that police after causing investigation into the allegations submitted chargesheet recommending trial of the accused petitioner under Section 467/468/ 471/109 of the Penal Code. Thus, it is patent that during investigation the allegations brought against the accused-petitioner was found to be prima facie true and, as such, he was recommended for trial. In such a backdrop, the accused-petitioner can be regarded as an accused person standing for trial.
19. Let us now have a peep at Article 35 of our Constitution to see who are eligible to get the protection given therein.
20.    Article 35 reads as under:
"35. Protection in respect of trial and punishment: (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3)    Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court or tribunal established by law.
(4)    No person accused of any offence shall be compelled to be a witness against himself.

(5)    No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
(6)    Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial." (Emphasis supplied)
21.    From the aforesaid constitutional provision it is patent that Article-35 of the Constitution gives protection to an accused person faced with trial and punishment. The word 'accused' employed in Article 35(4) means a person facing trial and punishment.
Therefore, our considered view is that it is only an accused in a trial who cannot be compelled to be witness against himself.
22.    We have already noticed that police by submitting chargesheet recommended for trial of the accused-petitioner for commission of offence under Sections 467/468/471/420/109 of the Penal Code and therefore, it can be said without any shred of doubt that the accused petitioner is an accused who has been facing trial. In such view of the matter, it goes without saying that the accused-petitioner is entitled to get the protection under Article-35(4) of our Constitution and, as such, he cannot be compelled by giving direction under Section 94 of the Code to produce any document kept or believe to be kept in his custody as because it would tantamount to compel him to give evidence against himself.
23.    In the aforementioned premises, we are of opinion that both the learned Magistrate as well as the learned Sessions Judge committed gross illegality in passing the impugned orders directing the accused-petitioner to produce the forged deed in question which failed to withstand the test of legal scrutiny and therefore, are liable to be struck down.
24.    We have gone through the decisions cited on behalf of opposite-party No.2 and we are in complete deference to the same of which, one is binding on us being the verdict of our Apex Court. But it is regrettable to note that the cited principles have no manner of application in the instant case as because the facts and circumstances of the same do not fit in with that of the instant one. However, it is suffice to say that in the cited cases notices issued by the Anti-Corruption Commission during inquiry stage to the respective petitioner asking him to submit statements with full particulars of acquisition of properties including the properties of his wife and other person dependent upon him and source of income and liabilities were challenged taking the ground amongst others that the notices are violative of the fundamental rights guaranteed under Article 35(4) of the Constitution. But such contention was negated in view of the fact that no criminal case was started against the petitioners by lodging any formal FIR or complaint and, as such, they do not hold the status of an accused as referred to in Article 35(4) of the Constitution.
25.    In the aforementioned premises, we find merit in the Rule.
26.    Accordingly, the Rule is made absolute.
27.    The orders impugned against herein are set-aside.
28. Stay order granted at the time of the issuance of the Rule which was extended time to time is hereby recalled and vacated.
29.    The court concerned is directed to  proceed with the case in accordance with law.
Communicate a copy of the judgment forthwith.

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