When accused can not seek protection against self incrimination?

 Therefore, this Court directs the learned Judicial Magistrate No.5, Coimbatore to conduct an enquiry on the aspect of whether there was any tampering of document Ex.D.1, as alleged by the complainant. This enquiry would have no bearing on the outcome of the prosecution under Section 138 of N.I.Act.  As stated earlier, this would unearth whether there was any tampering of court records.  In fact, if a record after comes into the custody of the Court is tampered, an offence under Section 193 IPC will stand attracted and a police investigation is permissible, though for the purpose of taking cognizance of the offence, procedure as contemplated under Section 195 Cr.PC has to be followed.  Therefore, the police investigation cannot be precluded in a case of this nature.  The accused also has the duty to assist the court in administration of justice and he cannot shirk his responsibility by taking cover under Article 20(3) of the Constitution of India. In this enquiry, the present respondent (accused in the trial court) does not stand in the shoes of an accused person to seek protection against self incrimination. Therefore, for the limited purpose of conducting an enquiry, the learned Magistrate is empowered to call for the accused to produce the original of Ex.D.1 and take further action in accordance with law.
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  03.01.2014

C O R A M

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH

Criminal Original Petition No.15623 of 2008

M/s.Gee Yes Iswarya Real Estate

Versus

M/s.Harish Constructions
Citation; 2014(2) crimes 362 Madras



This Criminal Original Petition is filed challenging the order dated 21.4.2008 passed by the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore in Criminal Revision Petition No.158 of 2007.  
2. The facts leading to the Criminal Revision Petition is as follows:
The petitioner herein is the accused in C.C.No.59 of 2005 and the respondent herein is the complainant in the said proceedings (hereinafter for brevity, the parties herein would be referred to as "complainant" and "accused").  The complainant launched the prosecution against the accused under Section 138 of Negotiable Instruments Act.  The crux of the allegations in the said prosecution revolves around an agreement dated 1.7.2005 alleged to have entered between the complainant and the accused.  As per the said agreement, a photocopy of the same was given to the complainant and the original was retained by the accused. The complainant filed photocopy of the said agreement before the trial court.  It is alleged by the complainant that the photocopy of the said agreement was tampered after it was filed in the court and thereafter it was marked as Ex.D.1.  It is his further contention that if the original of the agreement, which is in the possession of the accused, is brought to the court and compared with the photocopy of Ex.D.1, then the fabrication made thereon will come to light.  Therefore, the complainant filed a petition under Section 91 of Cr.P.C., in C.M.P.No.9092 of 2007 before the trial Court.  It was allowed by the trial court by order dated 8.10.2007 directing the accused to produce the original document.  Aggrieved by this, the accused approached the Sessions Court under Section  397 of Cr.P.C and filed a Criminal Revision Petition No.158 of 2007, which came to be dismissed on 21.4.2008, thereby affirming the trial court order.  Aggrieved by this, the accused has come by way of an application under Section 482 Cr.P.C., to quash the order of the Sessions Court. 

3. While this matter was heard by the Hon'ble Ms.Justice K.B.K.Vasuki, the learned Judge has passed the following order on 1.8.2013:
"Heard both sides.
2. In the course of arguments, it is brought to the notice of this Court by the learned counsel for the respondent/complainant that Ex.D.1 is the xerox copy of the original document dated 1.7.2005 styled as undertaking agreement and the same is admittedly in the custody of the respondent/complainant and the accused filed an application to direct the complainant to produce the same and the same was  produced before the trial court, as per the order made in CMP No.9092/2007.  Thereafter, the document was tampered with and such tampered document was marked through PW1 as Ex.D.1 in the course of cross examination on behalf of the accused.  It is further stated that oral enquiry was conducted by the court below with regard to tampering of the document with reference to the concerned staff members.
3. Hence, the lower court is directed to submit a detailed affidavit regarding the date on which, the document was prepared, the relevant period at which the document was altered, the period during which the oral enquiry was held by the concerned court and the manner of enquiry as to whether the parties were enquired into etc., to ascertain the actual state of affairs and the outcome of so called oral enquiry held by the lower court so as to enable this Court to take appropriate further action in this regard."


4. Mr.T.Munirathna Naidu, learned counsel for the accused would submit that an application under Section 91 of Cr.P.C cannot be filed to compel the accused to produce the document because that would amount to violation of Article 20 of the Constitution of India.  In support of this proposition, he relied upon the Constitutional Bench judgment of the Supreme Court in State of Gujarat vs. I.Shyamlal Mohanlal Choksi and another, AIR 1965 SC 1251. There cannot be much dispute on the proposition that the accused cannot be compelled to produce an incriminating evidence.  But, the facts in this case appear to be different.  

5. Here, the complainant is not wanting to produce the document from the accused in order to sustain his prosecution against the accused.  A very serious allegation has been made whereby a record that has been filed in the Court has been tampered with and this allegation will seriously impair the very administration of criminal justice system. No Court can brook such activities.  

6. Therefore, this Court directs the learned Judicial Magistrate No.5, Coimbatore to conduct an enquiry on the aspect of whether there was any tampering of document Ex.D.1, as alleged by the complainant. This enquiry would have no bearing on the outcome of the prosecution under Section 138 of N.I.Act.  As stated earlier, this would unearth whether there was any tampering of court records.  In fact, if a record after comes into the custody of the Court is tampered, an offence under Section 193 IPC will stand attracted and a police investigation is permissible, though for the purpose of taking cognizance of the offence, procedure as contemplated under Section 195 Cr.PC has to be followed.  Therefore, the police investigation cannot be precluded in a case of this nature.  The accused also has the duty to assist the court in administration of justice and he cannot shirk his responsibility by taking cover under Article 20(3) of the Constitution of India. In this enquiry, the present respondent (accused in the trial court) does not stand in the shoes of an accused person to seek protection against self incrimination. Therefore, for the limited purpose of conducting an enquiry, the learned Magistrate is empowered to call for the accused to produce the original of Ex.D.1 and take further action in accordance with law.  With this direction, the Criminal Original Petition is closed.  The connected Miscellaneous Petition is also closed.