Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 18 August, 2025
th
Pronounced on: 12 January, 2026
+ CRL.M.C. 1852/2021
CBI
CGO, Complex,
AC-II , New Delhi .....Petitioner
Through: Mr. Atul Guleria, SPP with Mr.
Aryan Rakesh and Mr. Prashant
Upadhyay, Advocates.
versus
I M QUDDUSI
rd
R/o N-7, 3 floor,
Greater Kailash, Part- l, New Delhi .....Respondent
Through: Mr. Prashant Chari and Mr. Ayush
Jindal, Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The present Criminal Miscellaneous Petition under Section 482 of the
Code of Criminal Procedure, 1973 (Cr.P.C.) has been filed by the Central
Bureau of Investigation (hereinafter, “the Petitioner” or “CBI”) seeking to
challenge the Order dated April 1, 2021, of the Learned Special Judge
(CBI), New Delhi, whereby the Application filed by the petitioner for setting
aside Notice under S.91 Cr.P.C. issued by the CBI, has been allowed.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 1 of 22
2. The genesis of the matter is the registration of FIR No. RC
217/2019/A/0009 dated 04.12.2019, by the CBI/AC-II, New Delhi, against
the Respondent, a retired Judge of the Hon‟ble High Court of Chhattisgarh,
along with Justice Shri Narayan Shukla (Judge of the Allahabad High Court,
Lucknow Bench), M/s. Prasad Education Trust , and others, for offences
under S. 120-B of the IPC read with Ss. 7, 8, 12, and 13(2) read with
13(1)(d) of the Prevention of Corruption Act, 1988.
3. The gist of the allegations in the FIR was that a criminal conspiracy
was hatched between the co-accused to obtain a favorable order from Justice
Shri Narayan Shukla for M/s. Prasad Educational Trust (PET), whose
college was debarred by the Ministry of Health and Family Welfare
(MoHFW). This conspiracy allegedly involved the Respondent managing
the matter and delivering illegal gratification to the Hon‟ble Justice.
4. The CBI, in the course of its investigation, a Notice under S. 91
Cr.P.C. dated 11.02.2020 was issued to the Respondent/Accused No. 2,
seeking certain information deemed necessary for the investigation. The
information sought included:
I. Details of mobile numbers being used during the year
2017.
II. Details of all bank accounts (including closed
accounts) with statements for the period May 2017 to
October 2017.
III. Details of drivers/servants employed during May 2017
to October 2017.
5. The Respondent challenged the Notice by filing Miscellaneous
Application No. 1 of 2020 before the Special Judge for CBI Cases,
contending that the Notice violated the fundamental right against self-
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 2 of 22
incrimination guaranteed under Article 20(3) of the Constitution of India, as
S. 91 Cr.P.C. is not applicable to an accused person.
6. The CBI filed a Reply opposing the Application, contending that the
bar under S. 91 was not absolute, and the non-incriminating information
sought was required for a fair investigation.
7. The Learned Special Judge, vide the impugned Order dated
01.04.2021, , relying solely on the majority opinion of the Constitution
Bench in State of Gujarat v. Shyamlal Mohanlal Choksi , (AIR 1965 SC
1251), holding that Section 94 of the Old Cr.P.C. (S.91 under Cr.P.C. 1973)
does not apply to an accused person, and the Notice was bad in law and
violative of Article 20(3) and allowed the Respondent‟s Application .
8. The CBI, in challenging the impugned order under S. 482 Cr.P.C., has
agitated the grounds that the Ld. Special Judge committed a grave error in
law by summarily allowing the Respondent‟s Application, without
appreciating the correct and nuanced legal position.
9. The Ld. Special Judge failed to appreciate that a perceived conflict
exists between the decision in Shyamlal Choksi , which held Section 94
Cr.P.C. does not apply to the accused, and the larger Bench decision in The
State of Bombay v. Kathi Kalu Oghad and Ors. (AIR 1961 SC 1808) which
held that the prohibition in Article 20(3) of the Constitution against “being a
witness” means giving testimony based on personal knowledge, and does
not include the mechanical process of producing non-incriminating
documents in court.
10. The CBI submits that the documents/information sought are non-
incriminating information, often public in nature, and do not amount to
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 3 of 22
“ conveying information based upon the personal knowledge ” of the accused
as would fall under the protection of Article 20(3).
11. The fundamental right of the accused must be weighed against the
practical necessity of efficient and effective investigation into crime. The
information sought is necessary to connect links in the investigation, and
denial of production constitutes an obstacle to bringing criminals to justice.
12. The impugned Order failed to adjudicate upon the nature of the
information requested and should not have invoked the principle of
testimonial compulsion without verifying if the requested material was
indeed incriminating or based on the personal statement/knowledge of the
accused.
13. Thus, it is prayed that the Petition be allowed and the Respondent be
directed to comply with the Notice under S.91 Cr.P.C.
14. The Respondent, in defense of the impugned Order and
vehemently opposed the CBI’s petition.
15. Relying on the Constitution Bench judgment in Shyamlal Choksi ,
(supra), the Respondent contends that the law is settled that Section 91
Cr.P.C. (and its analogous predecessor, Section 94) does not apply to an
accused person. This view has been consistently followed by various High
Courts.
16. The information sought i.e. the mobile numbers, bank accounts,
servants/drivers is the information within the personal knowledge of the
Respondent. Compelling the accused to provide this information or
documents/statements based on this knowledge, tantamounts to testimonial
compulsion and directly violates the immunity guaranteed under Article
20(3) of the Constitution.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 4 of 22
17. The Respondent contends that the alleged conflict between Kathi
Kalu Oghad (supra) and Shyamlal Choksi (supra), has been addressed by
Bombay High Court in Vinayak Purushottam Kalantre v. Vikram
Balwantrao Deshmukh, 1979 CRI LJ 71, holding that the ratio of Shyamlal
Choksi (supra), which directly deals with the applicability of Section 91 to
an accused, is the binding precedent on the point. The question of calling
upon an accused to produce an incriminatory document was not directly
posed in Kathi Kalu Oghad (supra).
18. Since the law prohibits compelling an accused to be a witness against
himself, the CBI cannot use the mechanism of Section 91 Cr.P.C. to
indirectly extract self-incriminating information that the law bars them from
obtaining directly, thereby violating the fundamental rights of the
Respondent.
19. The Respondent further contends that if the information sought is
genuinely “public in nature” as claimed by the CBI, then the Investigative
Agency should procure these documents directly from public domain or
concerned authorities i.e. the Banks & Service providers, through regular
investigative channels, as a Notice under Section 91 Cr.P.C. is not
maintainable for easily accessible public documents.
20. Thus, it is prayed that the Petition be dismissed.
Submissions heard and record perused.
21. The Petitioner/CBI challenges the Order of the Learned Special Judge
setting aside the Notice under Section 91 Cr.P.C. seeking documents from
the respondent. The primary contention of the CBI is that the material
sought i.e. details of Bank Accounts, Mobile Numbers, and details about
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 5 of 22
Servants/employees, is merely documentary and public in nature ; thus, not
attracting the protection against “ testimonial compulsion ” under Article
20(3) of the Constitution.
22. Before considering the scope of S.91 Cr.P.C. and its challenge to the
Notice under S.91, it would be relevant to first consider the constitutional
protection of Article 20(3) Constitution of India in respect of being a witness
against oneself. The Full Court of Apex Court in the case of M. P. Sharma
vs. Satish Chandra , (1954) S.C.R. 1077, explained that “ to be a witness‟
includes oral as well as documentary evidence. It was observed as under:
“ Broadly stated the guarantee in Article 20(3) is against
“testimonial compulsion”. It is suggested that this is confined
to the oral evidence of a person standing his trial for an
offence when called to the witness stand. We can see no reason
to confine the content of the constitutional guarantee to this
barely literal import. So to limit it would be to rob the
guarantee of its substantial purpose and to miss the substance
for the sound as stated in certain American decisions. The
phrase used in Article 20(3) is „to be a witness‟. A person can
„be a witness‟ not merely by giving oral evidence but also by
producing documents or making intelligible gestures as in
the case of a dumb witness (see Section 119 of the Evidence
Act) or the like. „ To be a witness‟ is nothing more than „to
furnish evidence‟, and such evidence can be furnished
through the lips or by production of a thing or of a document
or in other modes. So far as production of documents is
concerned, no doubt Section 139 of the Evidence Act says that
a person producing a document on summons is not a witness.
But that section is meant to regulate the right of cross-
examination. It is not a guide to the connotation of the word
„witness‟, which must be understood in its natural sense i.e. as
referring to a person who furnishes evidence. Indeed, every
positive volitional act which furnishes evidence is testimony,
and testimonial compulsion connotes coercion which procures
the positive volitional evidentiary acts of the person, as
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 6 of 22
opposed to the negative attitude of silence or submission on
his part. Nor is there any reason to think that the protection in
respect of the evidence so procured is confined to what
transpires at the trial in the court room. The phrase used in
Article 20(3) is „to be a witness‟ and not „to appear as a
witness‟. It follows that the protection afforded to an accused
insofar as it is related to the phrase „to be a witness ‟ is not
merely in respect of testimonial compulsion in the court room
but may well extend to compelled testimony previously
obtained from him. It is available therefore to a person against
whom a formal accusation relating to the commission of an
offence has been levelled which in the normal course may
result in prosecution. Whether it is available to other persons
in other situations does not call for decision in this case. ”
23. It was thus, observed that “ to be a witness against himself ” is nothing
more than “to furnish evidence ”, and includes not only oral testimony or
statement in writing of the accused, but also production of a thing or
evidence by other modes.
24. Now, Section 91 Cr.P.C. may be considered in the light of
constitutional protection guaranteed under A.20 (3) Constitution of India.
S.91 Cr.P.C. empowers a Court or officer to issue a summons for the
" production " of any " document or other thing ". It reads as under:
“ 91. Summons to produce document or other thing .
(1) Whenever any Court or any officer-in-charge of a police
station considers that the production of any document or
other thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this
Code by or before such Court or officer, such Court may
issue a summons, or such officer a written order, to the
person in whose possession or power such document or
thing is believed to be , requiring him to attend and produce
it, or to produce it , at the time and place stated in the
summons or order.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 7 of 22
(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 causes 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 (1 of 1872), or the Banker's Books
Evidence Act, 1891(13 of 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 telegram authority.”
25. 11 Judges Constitutional Bench in the case of State of Bombay vs.
Kathi Kalu Oghad , 1961 SCC OnLine SC 74, considered the question as to
whether the accused can be said to be a witness against himself, if asked to
produce the handwriting specimen and whether mere fact of giving
specimen in writing while in police custody by itself would amount to an
compulsion, which is in contravention of Article 20(3) of the Constitution of
India, which provides that no person accused of any offence shall be
compelled to be a witness against himself.
26. In Kathi Kalu Oghad ( supra ), it was observed that in M. P. Sharma
( supra ), the issue was not of calling an accused to give impressions of his
thumbs, palm or fingers or of sample handwriting or signature comes within
the ambit of “to be a witness” which has been equated to “to furnish
evidence” .
27. The Court focused on the natural language of Article 20(3),
interpreting “to be a witness” as “to furnish evidence.” It distinguished
between testimonial evidence, which involves imparting personal
knowledge through oral or written statements, and material evidence, such
as fingerprints or specimen writings.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 8 of 22
28. The Court reasoned that while testimonial evidence directly
implicates the individual by revealing personal knowledge, material
evidence like fingerprints serves as auxiliary identification and does not,
in itself, convey testimonial evidence against the accused. The decision
emphasized that compulsion must involve coercion or duress, not merely
the act of requesting or directing the accused to provide such material
evidence.
29. Moreover, the Court highlighted legislative intent, acknowledging
that the Constitution-makers did not intend to impede law enforcement‟s
ability to obtain non-testimonial evidence crucial for effective criminal
investigations.
30. The taking of impressions or parts of the body of an accused person ,
very often becomes necessary to help the investigation of a crime. It is as
much necessary to protect an accused person against being compelled to
incriminate himself, as to arm the agents of law and the law courts with
legitimate powers to bring offenders to justice.
31. Furthermore, Section 73 of the Evidence Act or Sections 5 and 6 of
the Identification of prisoners Act (XXXIII of 1920) authorises a Magistrate
to direct any person to allow his measurements or photographs to be taken,
if he is satisfied that it is expedient for the purposes of any investigation or
proceeding under the Code of Criminal Procedure. It is further contemplated
that if such person allows his measurements or photographs to be taken
resists or refuses to do so, all necessary measure to secure the taking of the
measurements or photographs may be lawfully taken in terms of Section 6
of the Evidence Act. Section 73 of the Evidence Act also authorises the
Court to permit the taking of finger impression or a specimen handwriting or
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 9 of 22
signature of a person present in Court, if necessary for the purpose of
comparison.
32. It was further noted that giving finger impression or specimen
signature or handwriting, strictly speaking, is not „ to be a witness‟ , which
means imparting knowledge in respect of relevant fact, by means of oral
statements or statements in writing, by a person who has personal
knowledge of the facts to be communicated to a court or to a person holding
an enquiry or investigation. Such person is said to be a witness, to a certain
state of facts which has to be determined by a Court or authority authorised
to come to a decision, by testifying to what he has seen, or something he has
heard which is capable of being beard and is not hit by the rule excluding
hearsay or giving his opinion, as an expert, in respect of matters in
controversy.
33. Evidence has been classified into three categories, namely, (1) oral
testimony; (2) evidence furnished by documents; and (3) material
evidence.
34. The accused may have documentary evidence in his possession,
which may throw some light on the controversy. If it is a document, which is
not his statement conveying his personal knowledge relating to the charge
against him, he may be called upon by the Court to produce that document
in accordance with the provisions of Section 139 of the Evidence Act, which
in terms, provides that a person may be summoned to produce a document in
his possession or power and that he does not become a witness by the mere
fact that he has produced it.
35. Furthermore, Clause 3 of Article 20 of the Constitution of India is
directed against self-incrimination by an accused person. Self-incrimination
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 10 of 22
must mean conveying information based upon the personal knowledge of the
person giving the information and cannot include merely the mechanical
process of producing documents in Court which may throw a light on any of
the points in controversy. The production of such a document, with a view to
comparison of the writing or the signature or the impression, is not the
statement of an accused person which can be said to be of the nature of a
personal testimony. His finger impressions or handwriting, in spite of efforts
at concealing the true nature of it by dissimulation, cannot change their
intrinsic character. Therefore, the giving of finger impressions or of
specimen writing or of signatures by an accused person, in the larger sense,
is not included within the expression „to be a witness‟.
36. A specimen handwriting or signature or finger impressions by
themselves are no testimony at all by themselves being wholly innocuous
because they are unchangeable except in rare cases where the ridges of the
fingers or the style of writing have been tampered with. They are only
materials for comparison in Order to lend assurance to the Court that its
inference based on other pieces of evidence is reliable. They are neither
oral nor documentary evidence but belong to the third category of material
evidence, which is outside the limit of „testimony‟.
37. The giving of a personal testimony must depend upon his volition. He
can make any kind of statement or may refuse to make any statement. In the
case of Kathi Kalu Oghad ( supra ), it was further observed that a testimony
by an accused person may be said to have been self-incriminatory, the
compulsion of which comes within the prohibition, of the Constitutional
provision. I t must be of such a character, that by itself it should have the
tendency of incriminating the accused, if riot also of actually doing so. In
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 11 of 22
other words, it should be a statement, which makes the case against the
accused person at least probable, considered by itself.
38. Similarly, during the investigations of a crime by the police, if an
accused person points out the place where the corpus delicti was lying
concealed and in pursuance of such an information being given by an
accused person, discovery is made within the meaning of Section 27
Evidence Act, such information and the discovery made as a result of the
information, may be proved in evidence even though it may tend to
incriminate the person giving the information, while in police custody.
39. The validity of Section 27 of the Evidence Act was also considered by
the Hon‟ble Apex Court in the case of State of U. P. vs. Deomen
Upadhyaya , AIR 1960 SC 1125, wherein it was observed that Section 27 of
the Evidence Act did not offend Article 14 of the Constitution of India. In
Kathi Kalu Oghad ( supra ), in Paragraphs 15 & 16, it was observed as under:
“ 15. In order to bring the evidence within the inhibitions of
clause (3) of Article 20 it must be shown not only that the person
making the statement was an accused at the time he made it and
that it had a material bearing on the criminality of the maker of
the statement, but also that he was compelled to make that
statement. “Compulsion” in the context, must mean what in law
is called “duress”. In the Dictionary of English Law by Earl
Jowitt, “duress” is explained as follows:
“Duress is where a man is compelled to do an act by injury,
beating or unlawful imprisonment (sometimes called duress
in strict sense) or by the threat of being killed, suffering
some grievous bodily harm, or being unlawfully imprisoned
(sometimes called menace, or duress per mines). Duress
also includes threatening, beating or imprisonment of the
wife, parent or child of a person.”
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 12 of 22
The compulsion in this sense is a physical objective act
and not the state of mind of the person making the
statement , except where the mind has been so conditioned
by some extraneous process as to render the making of the
statement involuntary and, therefore extorted. Hence, the
mere asking by a police officer investigating a crime
against a certain individual to do a certain thing is not
compulsion within the meaning of Article 20(3). Hence, the
mere fact that the accused person, when he made the
statement in question was in police custody would not, by
itself, be the foundation for an inference of law that the
accused was compelled to make the statement. Of course, it
is open to an accused person to show that while he was in
police custody at the relevant time, he was subjected to
treatment which, in the circumstances of the case, would
lend itself to the inference that compulsion was in fact
exercised. In other words, it will be a question of fact in
each case to be determined by the court on weighing the
facts and circumstances disclosed in the evidence before it.
16. xxxxxx
(1) xxxx
(2) The mere questioning of an accused person by a police
officer, resulting in a voluntary statement, which may ultimately
turn out to be incriminatory, is not “compulsion”.
(3) “To be a witness” is not equivalent to “furnishing evidence”
in its widest significance; that is to say, as including not merely
making of oral or written statements but also production of
documents or giving materials which may be relevant at a trial to
determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or
fingers or specimen writings or showing parts of the body by way
of identification are not included in the expression “to be a
witness”.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 13 of 22
(5) “ To be a witness” means imparting knowledge in respect of
relevant facts by an oral statement or a statement in writing,
made or given in court or otherwise.
(6) “To be a witness” in its ordinary grammatical sense means
giving oral testimony in court. Case law has gone beyond this
strict literal interpretation of the expression which may now bear
a wider meaning, namely, bearing testimony in court or out of
court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of
Article 20(3), the person accused must have stood in the
character of an accused person at the time he made the
statement. It is not enough that he should become an accused,
any time after the statement has been made.
40. It was observed that the expression „ to be a witness‟ must be limited
to a statement whether oral or in writing by an accused person imparting
knowledge of relevant facts; but that mere production of some material
evidence, whether documentary or otherwise, would not come within
the ambit of this expression.
41. It was further noted that protection of Article 20(3) of the
Constitution of India is available even at the stage of investigation.
Moreover, it is not only by imparting of his knowledge that an accused
person assists the proving of a fact; he can do so even by other means, such
as the production of documents which though not containing his own
knowledge, would have a tendency to make probable the existence of a fact
in issue or a relevant fact.
42. It was further explained that compulsion is inherent in the receipt of
information from an accused person in the custody of a police officer, where
an accused in custody is compelled to give the information later on sought to
be proved under Section 27 of the Evidence Act. It would be infringement of
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 14 of 22
Article 20(3) of the Constitution of India, but there is no such information
when he gives the information without any compulsion . Therefore, the
compulsion not being inherent or implicit in the fact of the information
having been received from a person in custody, the contention that it
infringes Article 20(3) of the Constitution of India is not acceptable.
43. A person cannot be said to have been compelled within the meaning
of Article 20(3) of the Constitution of India only when there is an element of
constraint or coercion in the physical sense, before it can be said that an
accused person has been compelled. So long as there is no such coercion
or compulsion on the accused to furnish the information, the
apprehension of Article 20(3) of the Constitution of India would not
become operative.
44. This principle was further considered at length in the case of State of
Gujarat vs. Shyamlal Mohanlal Choksi , 1964 SCC OnLine SC 41, wherein
reference was made to Section 94 of the Code of Criminal Procedure, 1898
(Section 91 of Cr.P.C., 1973) and it was observed that to apply Section 94 of
Cr.P.C., 1898 to an accused person would result in unfortunate
consequence . If the accused refuses to produce the documents before the
Police Officer, he would be faced with prosecution under Section 195 IPC
and in this process; he cannot contend that he was not legally bound to
produce it, because the Order to produce the documents is valid, if Section
94 of Cr.P.C, 1898 is held applicable to an accused person. In paragraph 37
it was observed as under :
“ 37. If, after a thing or a document is produced, its admissibility
is going to be examined and the document or thing in question is
not going to be admitted in evidence if it incriminates the
accused person, the order to produce the thing or document
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 15 of 22
would seem to serve no purpose; it cannot be overlooked that it
is because the document or thing is likely to be relevant and
material in supporting the prosecution case that on most
occasions the power under Section 94(1) would be resorted to, so
that on the alternative view which seeks to exclude incriminating
documents or things, the working of Section 94(1) would yield no
useful result. ”
45. It was thus, held that Section 94 of Cr.P.C. 1898 ( S.91 Cr.P.C., 1973 )
in its true construction, does apply to an accused person.The operational
word is production . This presupposes the existence of a specific, tangible
document or thing in the possession of the person .
46. The facts of this case, in the light of aforesaid discussion, may now be
considered. A perusal of the Notice dated 11.02.2020 reveals that the CBI
sought the following documents from the Respondent:
(i) Details of mobile numbers being used during the year
2017.
(ii) Details of all bank accounts (including closed accounts)
with statements for the period May 2017 to October 2017.
(iii) Details of drivers/servants employed during May 2017
to October 2017.
47. These requests do not call for the production of a specific, pre-
existing document like a specific mobile number, bank accounts or the
Servants/Drivers. Instead, the Petitioner, by way of Application under S.91
Cr.P.C, has demanded that the accused to provide the information about
the number of mobile phones, names of servants/drivers and Bank
account details, by applying their mind to their memory and creating a new
record in the form of a statement which contains the details sought by the
Petitioner.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 16 of 22
48. Cr.P.C. provides distinct mechanisms for gathering evidence. Section
91 Cr.P.C is the machinery for securing real evidence which exists in the
forms of a document or a thing. S.161 Cr.P.C. is the machinery for securing
oral evidence and information through interrogation of the accused. If the
Investigating Officer requires details of the accused‟s drivers or bank
accounts, the legally appropriate route is to examine the accused orally and
during such interrogation, the Officer is free to ask these questions. The
accused may answer them, or if the answers are self-incriminatory, may
choose to remain silent as per Article 20(3).
49. The Notice under S.91, infact is a request for information and not the
production of documents. Section 91 is a provision for compelling the
production of evidence that already exists; it is not a provision to compel an
accused to create evidence or draft a memorandum of facts, for the
convenience of the investigating agency.
50. By issuing a Notice under Section 91 for what is essentially a
questionnaire, the Petitioner is attempting to bypass the interrogation
process. This is an attempt to convert an oral examination, subject to the
accused‟s volition and rights, into a mandatory order for production. To treat
a demand for details as a demand for a document, would be to stretch the
statutory language of Section 91 beyond its permissible limits.
51. As held in Shyamlal Mohanlal Choksi , (supra) the legislature did not
intend Section 91 to apply to an accused, and the terms attend and produce,
are inept for such a purpose. This ineffectiveness is magnified when the
Order effectively demands to attend and write the information sought.
52. The scheme of the Indian Evidence Act further demonstrates why
Section 91 is the wrong route for this information.
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 17 of 22
53. Section 27 of the Evidence Act becomes relevant. The same is as
under:
“ 27. How much of information received from accused may
be proved .
Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused
of any offence, in the custody of a police-officer, so much of
such information, whether it amounts to a confession or not,
as relates distinctly to the fact thereby discovered, may be
proved.”
54. If the IO interrogates the accused under S. 161 Cr.P.C. and the
accused provides information (e.g., I employed Driver X) which leads to the
discovery of a fact (e.g., Driver X confirms the employment), that
information becomes provable. This is the correct legal method for the IO to
utilize information within the accused‟s knowledge.
55. The Petitioner is free to collect this information. They are free to ask
the accused for these details during custodial or non-custodial interrogation.
They are free to source these details from independent authorities ( Banks,
Telecom Service Providers) using Section 91 notices addressed to those
third parties. However, the Petitioner cannot compel the accused to prepare a
sheet of facts against themselves by seeking information through a Section
91 Notice. If the accused is compelled to write down this information under
a Section 91 Notice, it becomes a compelled statement. If this statement is
incriminatory, it is hit by Article 20(3). If it is not incriminatory, it is still not
executory because Section 91 does not mandate the creation of a document.
56. The Petitioner/CBI has contended that the information sought, viz.
details of bank accounts, mobile numbers, and employees - is merely
documentary and does not constitute “ testimonial compulsion” as defined in
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 18 of 22
Kathi Kalu Oghad (supra). However, as discussed above, it is an endeavour
to get the information conveniently, without having to interrogate, which is
not permissible under law.
57. Pertinent observation in this regard was made in Kathi Kalu Oghad
(supra), warning against such an approach being permitted, das J. observed
as under:
“Much has been written and discussed in England and
America as regards the historical origin and development of
the rules against “testimonial compulsion” . These matters
of history, however, interesting they be, need not detain us
and we must also resist the temptation of referring to the
numerous cases especially in America where the concept of
"'testimonial compulsion" has been analysed. It is sufficient
to remember that long before our Constitution came to be
framed the wisdom of the policy underlying these rules had
been well recognised. Not that there was no view to the
contrary; but for long it has been generally agreed among
those who have devoted serious thought to these problems
that few things could be more harmful to the detection of
crime or conviction of the real culprit, few things more
likely to hamper the disclosure of truth than to' allow
investigators or prosecutors to slide down the easy path of
producing by compulsion, evidence, whether oral or
documentary, from an accused person. It has been felt that
the existence of such an easy way would tend to dissuade
persons in charge of investigation or prosecution from
conducting diligent search for reliable independent
evidence and from sifting of available materials with the
care necessary ascertainment of truth. If it is permissible in
law to obtain evidence from the accused person by
compulsion, why tread the bard path of laborious
investigation and prolonged examination of other men,
materials and documents? It has been well said that an
abolition of this privilege would be an incentive for those
in charge of enforcement of law "to sit comfortably in the
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 19 of 22
shade rubbing red pepper into a poor devil‟s eyes rather
than to go about in the sun hunt' up evidence”. (Stephen.,
History of Criminal Law, p. 442). Of all these dangers the
Constitution-makers were clearly well aware and it was to
avoid them that Art. 20 (3) was put in the Constitution. It is
obvious however that these dangers remain the same
whether the evidence which the accused is compelled to
furnish is in the form of statements, oral or written about
his own knowledge or in the shape of documents or things,
which though not transmitting knowledge of the accused
person directly helps the Court to come to a conclusion
against him.”
58. It was thus concluded that “to be a witness” in Article 20(3) means to
impart personal knowledge, which tantamounts to be a witness and to
furnish evidence, which is against the protection provided in Article 20(3)
Constitution of India.
59. This Court finds merit in the reasoning adopted by the Learned
Special Judge and the arguments advanced by the Respondent. While Kathi
Kalu Oghad (supra) laid down the broad contours of Article 20(3) of the
Constitution regarding “being a witness against oneself,” the judgment in
Shyamlal Choksi (supra) specifically interpreted the statutory machinery of
the Code of Criminal Procedure and the specific language of theS.91, being
“attend and produce” , and concluded that the legislature did not intend to
include an accused person within the ambit of the section. The Court in
Shyamlal Choksi (supra) explicitly held: “ that Section 94 [now Section 91]
on its true construction does not apply to an accused person.”
60. Crucially, the judgment in Shyamlal (decided in 1964) was delivered
after Kathi Kalu Oghad (decided in 1961). It cannot be assumed that the
Constitution Bench in Shyamlal was unaware of the principles laid down by
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 20 of 22
the larger bench three years prior. Rather, Shyamlal carved out a specific
statutory exception regarding Section 91 based on the structure of the
Cr.P.C. and the potential exposure of the accused to prosecution under
Section 175 IPC for non-compliance. Therefore, regarding the specific
invocation of Section 91 Cr.P.C. against an accused, Shyamlal Choksi
(supra) remains the binding authority.
61. Even applying the test laid down in Kathi Kalu Oghad (supra), the
notice issued by the CBI falls foul of Article 20(3). The distinction drawn in
Kathi Kalu Oghad (supra) is between “mechanical production ” (like
fingerprints, measurements) and “ imparting knowledge ”.
62. The Notice under S.91 dated 11.02.2020 requires the Respondent to
identify and list the mobile numbers used by him, bank accounts held by
him, and drivers/servants employed by him. This is not a demand for the
mere production of a physical object already identified by the police (like a
weapon or stolen property). It is a demand for the accused to apply his mind,
search his memory, and compile information based on his personal
knowledge . By providing a list of “drivers employed,” the accused is
making a testimonial statement acknowledging an employer-employee
relationship, which could be a vital link in the chain of conspiracy alleged
by the CBI. Compelling the accused to provide this information is forcing
him to create evidence against himself, which is strictly prohibited. As noted
in Shyamlal Choksi (supra), if the document or thing is likely to be relevant
and material in supporting the Prosecution case, compelling the accused to
produce it would be contrary to the protection against self-incrimination.
63. The protection under Section 91 does not handicap the investigation.
As observed by the Supreme Court, the police officer has ample powers
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 21 of 22
under Section 165 Cr.P.C. to search for documents or things necessary for
the investigation. The details of bank accounts can be obtained from bankers
under the Bankers‟ Books Evidence Act; call records can be obtained from
service providers. The Petitioner cannot use Section 91 as a shortcut to
compel the accused to assist in building the case against himself when the
agency has the statutory power to collect this evidence from independent
sources.
Conclusion:
64. In the light of above discussion, it is held that the Notice under
Section 91 is legally unsustainable not only because of the constitutional bar
affirmed in Shyamlal Mohanlal Choksi , (supra) but also because it sought to
extract information rather than secure existing documents, which is beyond
the scope of S. 91 CrPC.
65. The Ld. Trial Court was therefore, correct in dismissing the
Application. The Order of the Ld. Special Judge is upheld, and the Petition
is dismissed .
66. Pending Application(s), if any, are accordingly disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 12, 2026/ N
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.01.2026
17:36:32
CRL.M.C. 1852/2021 Page 22 of 22