(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 caused such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this Section shall be deemed,— (a) To affect Sections 123 and 124 of the Indian Evidence Act, 1872, i.e.
, any unpublished official record relating to any affairs of the State and certain confidential official communications or the Bankers’ Books Evidence Act, 1891; or (b) To apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. According to Section 92 of the Code, if any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court, wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or Court may require the postal or telegraph authority, as the case may be, to deliver the document, parcel or thing to such person as the Magistrate or Court directs. If any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for any such purpose, he may require the postal or telegraph authority, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or Court as mentioned above. The issue of summons under Section 91 of the Code is in discretion of the Court to be exercised judicially and this is an absolute discretion. Before passing the order under Section 91 the Court has to satisfy itself that the document or thing has a bearing upon, and is desirable, necessary and relevant to the case.
Section 91 of the Code does not apply to the accused. The Court cannot issue summons to produce a document or thing by the accused which is incriminatory against him under Article 20(3) of the Constitution. However, the prohibition against testimonial compulsion contained in Article 20(3) does not apply to the case of public records or public documents which the accused has undertaken to keep and produce when called for. A person appearing in obedience to a summons under Section 91 does not become a witness. If he is cited as a witness only for producing a document, he cannot be subjected to examination and cross-examination. The words ‘document’ and ‘thing’ have not been defined in this Code. The word ‘thing’ refers to physical object or material.
The words ‘document or thing’ are general and seem to cover any document or thing, the production and inspection of which are necessary or desire or will serve the ends of justice. The document or thing called for by the magistrate must have some relation to or connection with the subject-matter of the investigation, inquiry or trial. The words “document or thing” cover a postal or money order or telegram. The person called upon to produce need not be a party to the proceedings.
The Magistrate can order the production of things in the possession of the solicitor. When the Court has finished with them, they must be returned to the attorney and not to the complainant. Summons to produce documents whether could be issued to accused person: The term ‘the person’ used in Section 91 did not include ‘accused person’.
As such, order passed by Police Officer issuing summon to accused person to produce documents was liable to be quashed.