Bombay High Court
Hussenbhoy Abdoolabhoy Lalji vs Rashid B. Vershi on 7 February, 1941
Equivalent citations: (1941)43BOMLR523, AIR 1941 BOMBAY 259
JUDGMENT John Beaumont, Kt., C.J.
1. This is an application in revision against an order made by the Presidency Magistrate, 2nd Additional Court, Mazagaon, granting inspection of documents.
2. The case is one in which the accused are charged with criminal breach of trust in relation to certain charitable funds, which it is alleged that they have improperly applied in their business. We are not in any way concerned with the merits of the prosecution case. On September 23, 1940, the learned Magistrate issued a search warrant, and also issued a summons for production of documents, which were specified in the complainant's application and include various accounts relating to this charity and also the books of account, that is to say ledgers, rojmels and nondh books, for five years of the firm of Abdullabhoy Lalji & Co., which is the accused firm. Subsequently, the complainant wrote to the accused's attorneys claiming inspection of a large number of these documents, and an application was then made to the learned Magistrate asking him to order that the complainant has a right to such inspection.
3. The learned Magistrate took the view that he was bound by a decision of this Court in a revision application on a complaint filed by Shamdasani against the auditors of the Central Bank reported under Central Bank of India, Limited v. Shamdasani (1937) 39 Bom. L.R. 1187, S.B. to give such inspection without considering the relevance of the particular documents. The learned Magistrate considered that in that case this Court had held that, where an order for production of documents is made under Section 94 of the Criminal Procedure Code, the complainant, whether the Crown or a private complainant, is entitled as of right to inspect those documents, and that the order of the Court for production involves allowing inspection. The learned Magistrate, against his own view of the law, considered that he was bound to follow that decision. That decision was discussed by a, special bench of this Court on an application made in the same matter by the Central Bank, who had not been a party to the prior application, and the special bench undoubtedly expressed a view opposed to that which had been taken by the earlier bench; but, as the learned Magistrate rightly points out, the views of the special bench were obiter dicta because the decision turned on the Banker's Books Evidence Act, and not on the Criminal Procedure Code. In our view, assuming that this Court in the earlier case did hold that an order for production made under Section 94 of the Code involves as a necessary consequence a right on the part of the complainant to inspect all the books produced, the decision goes too far, much further than the decision of this Court in In Re: Lakhmidas (1903) 5 Bom. L.R. 980. which the Court purported to follow.
4. We think the true view is that, when an application is made to a Court, or to a police-officer in the mofussil, under Section 94 for production of documents, the Court is bound to consider whether there is a prima facie case for supposing that the documents are relevant. Obviously, if the accused is charged with a crime of violence, it is very unlikely that his business books will have any relevance on the matter. On the other hand, if he is charged with: criminal breach of trust in matters relating to his business, it is probable that a considerable number of his business books will be relevant. But all that the Magistrate or the police-officer can do, when an application for production of books is made, which is usually ex parte, is to consider whether books of a particular type are likely to have a bearing on the matter. If he thinks they are, then he can order production; and, of course, his decision may be influenced by a desire to prevent the books being taken away or tampered with. But I am quite unable to agree that such an order for production involves an obligation on the Court to give inspection of all the books produced to the complainant, though I do not doubt that the Court has power to order such inspection. The Magistrate must consider that question at a later stage of the proceeding, either at the trial or inquiry, or on a special application, at which he can hear the accused as well as the complainant, and he should only order inspection of those books which the complainant satisfies him are really relevant.
5. The learned Magistrate, therefore, in this case should have applied his mind to the question whether the inspection of these documents is relevant to the complainant's case. He has not done so, because he considered the decision of this Court precluded him from doing so. We think the decision of this Court, in the case of Shamdasani against the auditors of the Central Bank above referred to if it went so far as that, was wrong and must be overruled. The learned Magistrate must apply his mind to the question whether the documents, of which inspection is sought, are relevant or not.