The Delhi High Court has clarified that a notice under Section 91 of the CrPC cannot be issued to an accused person to compel them to furnish information that is based on their personal knowledge. Reference was made to the binding precedent of the Constitution Bench in the case of State of Gujarat vs Shyamlal Mohanlal Choksi [AIR 1965 SC 1251] which explicitly held that Section 91 CrPC does not apply to an accused person.
Further, the Court also clarified that the scope of Section 91 of the CrPC is limited to the “production” of an existing “document or other thing”. It cannot be used to compel an individual to create a new document or statement by recalling facts from memory, as this amounts to “testimonial compulsion” and violates the protection against self-incrimination guaranteed by Article 20(3) of the Constitution.
The Court therefore quashed the notice issued by the CBI under Section 91 CrPC to the respondent because it contravened the constitutional prohibition against self-incrimination and sought to extract information rather than secure the production of existing documents, thereby exceeding the statutory scope of Section 91 CrPC. Accordingly, the Court upheld the order of the Special Judge and dismissed the CBI’s petition.
A Single Judge Bench of Justice Neena Bansal Krishna observed that the constitutional protection under Article 20(3) against being a “witness against oneself” is a guarantee against “testimonial compulsion”, which encompasses not only oral testimony but also the compelled production of documents that furnish evidence.
Reference was made to the decision in the case of State of Bombay vs. Kathi Kalu Oghad [AIR 1961 SC 1808], which clarified that “to be a witness” means imparting personal knowledge, and does not include the mechanical process of providing material evidence like fingerprints or handwriting specimens, which are used for comparison and do not constitute testimony.
Reference was also made to the decision of State of Gujarat vs. Shyamlal Mohanlal Choksi, which was decided after Kathi Kalu Oghad and specifically interpreted Section 94 of the old CrPC (equivalent to the current Section 91), concluding that it does not apply to an accused person.
The Bench noted that the CBI’s notice did not demand the production of a specific, pre-existing document but required the respondent to search his memory and create a new statement listing his mobile numbers, bank accounts, and employees. This act was deemed to be testimonial in nature, as it forced the accused to impart personal knowledge, which could potentially form a link in the prosecution’s chain of evidence.
The Bench further observed that Section 91 CrPC is a tool for securing existing real evidence, whereas Section 161 CrPC is the appropriate mechanism for obtaining information from an accused through oral examination, during which the accused retains the right to remain silent. The Bench pointed out that the CBI was attempting to bypass this procedure and convert an oral examination into a mandatory order for production, which is impermissible.
The investigating agency has alternative powers, such as conducting searches under Section 165 CrPC or obtaining information from third parties like banks and telecom providers, added the Bench.
Briefly, the case originated from an FIR registered by the CBI against the respondent, I M Quddusi (a retired High Court Judge), and other co-accused, including Justice Shri Narayan Shukla and M/s. Prasad Education Trust. The FIR alleged a criminal conspiracy under Section 120-B of the IPC and offences under the Prevention of Corruption Act, 1988, wherein the co-accused conspired to obtain a favourable judicial order for the Prasad Educational Trust, which had been debarred by the Ministry of Health and Family Welfare.
During the investigation, the CBI issued a notice under Section 91 of the CrPC, requiring the respondent to provide details of mobile numbers, bank accounts, and employees for the period between May and October 2017. The respondent challenged this notice before the Special Judge (CBI), arguing that it compelled him to be a witness against himself, violating his fundamental right under Article 20(3) of the Constitution.
The Special Judge, relying on the Supreme Court’s decision in State of Gujarat v. Shyamlal Mohanlal Choksi, allowed the respondent’s application and set aside the notice. The CBI then filed the petition in the High Court of Delhi under Section 482 CrPC to challenge the Special Judge’s order.
Appearances:
SPP Atul Guleria, along with Advocates Aryan Rakesh and Prashant Upadhyay, for the Petitioner
Advocates Prashant Chari and Ayush Jindal, for the Respondent
