Rajasthan High Court - Jaipur
Amar Singh vs State on 9 March, 1965
Equivalent citations: AIR1965RAJ160, 1965CRILJ408
JUDGMENT I.N. Chhangani, J.
1. This is an application by Amar Singh under Section 561-A, Criminal P. C. praying that the two orders of the District Magistrate, Udaipur, dated 17th August, 1964 (Ex. 1) and 21st September, 1964 (Ex. 2) be quashed. The parties have not joined any controversy over the facts at this stage of the case and the following statement of facts with the consent of the counsel for the parties may be given for a proper disposal of the application.
2. The petitioner had started institutions under the name and style of "Board of General Knowledge Education" and "Rajasthan Hindi Vidya Peeth" at Udaipur for conducting examinations in general knowledge and Hindi. He is alleged to have started other institutions also but at present we are not concerned with that controversy. The parties are also at some controversy whether the institutions run by the petitioner are recognised or not but it is not necessary to go into this controversy also. According to the State the police was informed of the bogus character of these institutions and a few cases under Sections 420 and 468, Indian Penal Code have been registered against the petitioner. The petitioner, however, has information only of one first information report No. 51 of 1964 under Section 420, Indian Penal Code. It appears that in connection with investigation of the case No. 51 of 1964 the Superintendent of Police, Udaipur considered the need of an appropriate order under Section 95, Criminal P. C. and he, therefore, approached the District Magistrate for the purpose.
The District Magistrate on 17th August, 1964 passed an order Ex. 1 which may be reproduced here :--Ex. 1 "No. Jud/6122-26 Dated the 17th August, 1964.
ORDER In pursuance of Section 95 (1), Criminal P. C., I, M. S. 'Sadasivan, District Magistrate, Udaipur, do hereby order to the Superintendent of Post Offices, Udaipur that all documents, parcels, money orders, registered letters, letters, postal orders, saving bank transactions etc. which have been received with the following addresses by him, may be handed over to the Station House Officer, Surajpole, Udaipur, in connection with the investigation of case F. I. R. No. 51/64, under Section 420, I. P. C. against Shri Amar Singh Mehta.
I. A. S. Mehta (Amar Singh Mehta), Secretary, Board of General Knowledge Education, Rajasthan, Udaipur.
2. A. S. Mehta (Secretary, Rajasthan Hindi Vidya Peeth (Hindi Vishwa Vidyalaya), Udaipur.
3. Secretary of the above two institutions.
Sd.
District Magistrate, Udaipur."
3. Again, presumably at the instance of the Superintendent of Police, Udaipur, the District Magistrate, Udaipur, passed a second order Ex. 2 dated 21st September, 1964 which reads as follows :
"No. Jud/7351/54 Dated the 21st September, 1964. ORDER
In pursuance of Section 95 (1), Criminal P. C., and in continuation to this office order No. Jud/6122-26, dated the 17th August, 1964, I, M. S. Sadasivan, District Magistrate, Udaipur, do hereby further order that all documents, parcels, money orders, registered letters, letters, postal orders, savings bank transactions etc. which may be received with the following addresses may be continued to be delivered to the Station House Officer, Surajpole, Police Station, Udaipur by the Post Master General Post Office, Udaipur till the completion of the investigation of the said case No. 51/64 under Section 420,1. P. C. P. S. Surajpole, Udaipur, against Shri Amar Singh Mehta.
1. A. S. Mehta (Amarsingh Mehta) Secretary, Board of General knowledge Education, Rajasthan, Udaipur
2. A. S. Mehta, Secretary, Rajasthan Hindi Vidya Peeth, (Hindi Vishwa Vidyalaya), Udaipur.
3. Secretary of the above two institutions.
Sd.
District Magistrate, Udaipur."
The petitioner felt aggrieved by these orders and presented the present petition on the following grounds :--
1. "Obviously he (District Magistrate) has not applied his mind to the question whether the letters, money orders etc. in respect of which he was passing orders were necessary to be produced for the purpose of Section 94, Cr. P. C. "
2. That Postal Orders and money orders receivable by the petitioner in respect of examination fees conducted by the petitioner do not fall within the expression "document or thing".
3. That the order of the District Magistrate passed in relation to the Saving Bank transaction amounting to a direction to the payment of the Saving Bank deposits of the petitioner to the Station House Officer is wholly illegal.
4. That Section 95 Criminal P. C. does not authorise the District Magistrate to pass orders for the delivery of documents, parcels, things which might in future come into custody of the postal authorities."
4. The State submitted a written reply and opposed the application.
5. At the hearing of the application the counsel for the petitioner did not press the grounds mentioned at Nos. 1 & 2 earlier. He, however, pressed grounds Nos. 3 & 4 and contended that the second order Ex. 2 dated 21st September, 1964 of the District Magistrate may be set aside and that the first order Ex. 1 dated 17th August, 1964 may be modified by deleting the words "saving bank transactions etc."
6. It will be convenient to take up ground No. 4 first. It is concerned with the order Ex. 2. The order purports to have been passed under Section 95 Sub-section (1), Criminal P. C. Section 95 appears in Chapter VII of the Criminal Procedure Code which deals with processes to compel the production of documents and other moveable property and for the discovery of the persons wrongfully confined. It has further been subdivided under five heads A, B, C, D & E. Sub-division "A" consists of two Sections 94 and 95. Section 94 is general and empowers any court and any officer incharge of Police Station in any place beyond the towns of Calcutta and Bombay to require a person having possession or power over a document or thing to produce it, provided the production of the document or the thing is considered necessary or desirable for the purposes of any investigation, enquiry, trial or other proceeding under this Code by or under such Court or officer. Sub-section (3) makes exceptions inter alia in respect of a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities.
Section 95 has been enacted to provide for the production of document, parcel or thing in the custody of the Postal or Telegraph authorities which were exempted from the operation of Section 94. In Section 95 Sub-clause (1) the use of the expression "in such custody" relates to Section 95. Consequently, Section 95 cannot be read in isolation but must be read and interpreted along with Section 94. A combined reading of the two sections leads to the conclusion that in order to pass an order or issue a summons for the production of the document or thing two conditions must be satisfied :
1. The production of documents or things should be necessary or desirable for the purposes of investigation, inquiry or other proceeding.
2. They must be under the custody of the Postal or Telegraph authorities.
7. As observed by Shrivastava J. in Textile Traders Syndicate Ltd., Bulandshahr v. State of U. P. AIR 1960 All 405 they can be in such custody only if they are in existence. Documents or things not in existence, which are to come into the custody of the authorities in future cannot, therefore, be the subject-matter of an order under Section 95. In this view of the matter the contention of the petitioner that a District Magistrate acting under Section 95 cannot pass an order in respect of a document, parcel or thing to be received by the Postal or Telegraph authorities in future appears to be well founded. The counsel for the State, however, 'contended that a contrary view has been taken in Kailash Chandra Sharma v. Supdt. of Post Offices, New Delhi, A I R 1960 Punj 412 and that it should be preferred to the view taken in A I R 1960 All 405. In AIR 1980 Punj 412, a District Superintendent of Police passed an omnibus order under Section 95 (2) directing the Postal and Telegraph Department to detain the entire mail addressed to the petitioner. The omnibus order of the Superintendent of Police was challenged before the Punjab High Court. Clause (1) of Section 95 did not come directly for interpretation before the Punjab High Court. Even so, the following observations were made with regard to Section 95 (1) :--
"The learned counsel for both the sides, however, agree that when an order has to be made under Section 95 (1) the document, parcels or thing must be specified."
It was only in connection with an order under Section 95 Sub-section (2) that observations were made to support an omnibus order. It is also not clear whether the order of the Superintendent of Police in the case AIR 1960 Punj 412, purported to cover documents not in the custody of the Postal or Telegraph Department. The controversy that was determined by the Punjab High Court was with regard to the need of specifying the document in respect of which an order under Section 95 Sub-section (2) is to be passed. In the circumstances, the counsel for the State cannot derive much assistance from the desision of the Punjab High Court in AIR 1960 Punj 412. Considering the scheme of Sections 94 and 95 and the reasoning of the case AIR 1960 All 405, I have no hesitation in coming to the conclusion that no order under Section 95 Sub-section (1) can be passed in respect of a parcel, document or thing not in the custody of the Postal or Telegraph authorities at the time of the passing of the order but which are expected to be received in future. It is also significant that before the District Magistrate passed an order under Sub-section (1) he ;has to be satisfied whether the production of the document or thing is necessary or desirable for the purposes of inquiry, investigation or any other proceeding. Prima facie, there can be no such consideration by the District Magistrate in respect of a document which is not in existence at the time of the passing of the order and which may come into existence subsequently and may be received by the Postal for Telegraph authorities. The order Ex. 2 dated 21st September, 1964 is, therefore, legally untenable on proper interpretation of Section 95 Sub-section (1) and deserves to be set aside.
8. As regards the order Ex. 1 dated 17th August, 1984, the petitioner initially had taken objection to the order in respect of postal orders, money orders' and saving bank transactions. As during the course of arguments the counsel for the petitioner did not press his case in respect of money orders and postal orders, I need not express any opinion on this part of the case.
9. Taking up the case of the saving bank transactions, the counsel for the petitioner contended that the order is defective in form because there can be no question of receipt of saving bank transactions by the Postal or Telegraph authorities. He also contended that the Postal Department carries on functions of the savings bank and is essentially a banker and the handling of the savings bank transactions by the Postal Department cannot be equated with the handling of. parcels, letters etc. by the Postal Department. In respect of the savings bank account, the relations between the Postal Department and the petitioner are that of a debtor and a creditor and the petitioner has only an actionable right against the Postal Department. Any money which is due to be paid to the petitioner cannot be said to be in custody of the Postal Department as such. The Postal Department remains in possession of its own money assets out of which the Postal Department is liable to repay the debt due to the petitioner. A Court under Section 95, therefore, cannot pass an order in respect of money due to the petitioner under the savings bank account.
According to him, the order of the District Magistrate is in the nature of an attachment before judgment which is not permissible under the provisions of the Criminal Procedure Code. The counsel for the State, however, contended that no decision should be taken on the submissions made on behalf of the petitioner. On the other hand, he suggested that the order with regard to saving bank transactions should be set aside on the ground of vagueness. He conceded that the order of the District Magistrate in respect of saving bank transaction is not capable of precise interpretation. The District Magistrate has not made it clear how the saving bank transactions are to be received by the Postal and Telegraph authorities in future. He has also not made it clear as to what he meant by the saving bank transactions, namely, whether he meant the money due under saving bank transactions to the petitioner or the books of account in respect of the petitioner's dealings with the Postal Department. As the learned counsel for the State has agreed to the setting aside of the part of the order Ex. 1 dated 17th August, 1964 relating to the saving bank transactions on the ground of vagueness, I need not express any final opinion on the submission made by the petitioner.
10. In the result, I partially allow the application, set aside the order of the District Magistrate dated 21st September 1964 (Ex. 2) and partially modify the order Ex. 1 dated 17th August, 1964 by deleting the words "saving bank transactions". The learned, counsel for both the parties also agree that the word "etc" in the order Ex. 1 of the District Magistrate also is responsible for vagueness and should be deleted. It is also consequently deleted.