# lGO PARMESHW ARI DEVI v. STATE AND ANR

- **Citation:** [1977] 2 S.C.R. 160
- **Court:** Supreme Court of India
- **Decided:** 1976-11-23
- **Case number:** Criminal Appeal No. 411 -Of 1976
- **Bench:** P. N. Bhagwati, A C. Gupta, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lgo-parmeshw-ari-devi-v-state-and-anr-7019
- **Pages:** 5

## Headnote

Code of Criminal Procedure (5 of 1868), Ss. 94. 96 and 98 and Evfrience
Act (1 of 1872)-Person summoned to produce documents, when may be examined and cross-examined.
Code of Criminal
Procedure (2 ti! 1974) S. 397(3)
Interlocutory order,
what is.
Section 94(1),_ Cr. P. C., 1898, which deals with summons to produce any
document, authonses the court to issue a summons to the person in whose
possession or power such document is believed to be, requiring him to attend
and produce it, or to produce it at the time and place strvted in the summons.
According to sub-s.(2) a person required merely to produce a document shall
be deemed to have complied with the requisition if he causes such document
to be produced instead of attending personally to produce it.
In the present case, during a criminal trial, the complainant filed an a.pplication under s. 94, for a direction to the accused to produce a document. . The
accused stated that the document was not in their possession. The complainant
then made another a·pplication under the section praying that the appellant may
be directed to produce the document.
The appellant Was not a party to the
case and no reason whatsoever was given by the complainant in the application
why the document was likely to be in appellant's possession or power.
The
Maigistrate then passed an order summoning the appellant with the document.
The appellant, in her reply, professed ignorance of the document and stated
that as she was a "pardanashin" lady she may not be sumoned to court. The
Magistrate thereupon passed another order directing her to attend the
Court
so tha·t if she made a 'statement on oath' that she was not in possession of
the document, the Court may get a chance to put her a few questions for
satisfying itself regarding the whereabouts of the document.
The appellant's
revision petitions against the order to the District Court and High Court were
dismissed.
Allowing the appeal to this Court,
HELD : ( 1) There is nothing in the Criminal Procedure Code providing 1
that the person who appears in Court, in pursuance of ai summons under s.
-
94( 1) becomes a witness and can be
examined and
cross-examined even
though he has not been cited as a witness.
Section 13~, Evidence Act, also
provides that if a person produces the document fo_r which a summons has
been issued to him, he does not thereby become a witness a·nd that he cannot
be cross-examined nntil he is called as a witness.
AU that the Magistrate could
do was to issue search warrants under s. 96( 1) or s. 98 if the requirements of
those sections were satisfied. The Court could not therefore record the appellant's statement on oath on her inability to produce the document, or put her a
few questions ror satisfying itself regarding its whereabouts. [163C-EJ
(2) The order, which was thus not acco~ding to !aw adver~ely affected the
appellant who was not a party to. the enquuy or tnr,1. . Obv10usly she could
have no opportunity to challenge 1t at the end of the tnal, and such belat<:d
challenge would also be purposeless.
'.fJ:i.erefore, th7 ordei; col\14 not be said
to be an interlocutory order and the rev1s1onal courts erred ·Ill ra1smg the bar of
s. 397 (3 ), Cr. P. C. 1974. [164C-DJ
Mohan Lal Magan Lal Thacker v. State of Gujarat [1968] 2 S.C.R. 685,
followed.
PARMESHWARI DEVI v. STATE (Shinghal, !.)
161

## Text

A
B
c
D
E
F
G
H
lGO
PARMESHW ARI DEVI
v.
STATE AND ANR.
November 23, 1976 '
[P. N. BHAGWATI, A C. GUPTA AND P. N. SHINGHAL, JJ.j
Code of Criminal Procedure (5 of 1868), Ss. 94. 96 and 98 and Evfrience
Act (1 of 1872)-Person summoned to produce documents, when may be examined and cross-examined.
Code of Criminal
Procedure (2 ti! 1974) S. 397(3)
Interlocutory order,
what is.
Section 94(1),_ Cr. P. C., 1898, which deals with summons to produce any
document, authonses the court to issue a summons to the person in whose
possession or power such document is believed to be, requiring him to attend
and produce it, or to produce it at the time and place strvted in the summons.
According to sub-s.(2) a person required merely to produce a document shall
be deemed to have complied with the requisition if he causes such document
to be produced instead of attending personally to produce it.
In the present case, during a criminal trial, the complainant filed an a.pplication under s. 94, for a direction to the accused to produce a document. . The
accused stated that the document was not in their possession. The complainant
then made another a·pplication under the section praying that the appellant may
be directed to produce the document.
The appellant Was not a party to the
case and no reason whatsoever was given by the complainant in the application
why the document was likely to be in appellant's possession or power.
The
Maigistrate then passed an order summoning the appellant with the document.
The appellant, in her reply, professed ignorance of the document and stated
that as she was a "pardanashin" lady she may not be sumoned to court. The
Magistrate thereupon passed another order directing her to attend the
Court
so tha·t if she made a 'statement on oath' that she was not in possession of
the document, the Court may get a chance to put her a few questions for
satisfying itself regarding the whereabouts of the document.
The appellant's
revision petitions against the order to the District Court and High Court were
dismissed.
Allowing the appeal to this Court,
HELD : ( 1) There is nothing in the Criminal Procedure Code providing 1
that the person who appears in Court, in pursuance of ai summons under s.
-
94( 1) becomes a witness and can be
examined and
cross-examined even
though he has not been cited as a witness.
Section 13~, Evidence Act, also
provides that if a person produces the document fo_r which a summons has
been issued to him, he does not thereby become a witness a·nd that he cannot
be cross-examined nntil he is called as a witness.
AU that the Magistrate could
do was to issue search warrants under s. 96( 1) or s. 98 if the requirements of
those sections were satisfied. The Court could not therefore record the appellant's statement on oath on her inability to produce the document, or put her a
few questions ror satisfying itself regarding its whereabouts. [163C-EJ
(2) The order, which was thus not acco~ding to !aw adver~ely affected the
appellant who was not a party to. the enquuy or tnr,1. . Obv10usly she could
have no opportunity to challenge 1t at the end of the tnal, and such belat<:d
challenge would also be purposeless.
'.fJ:i.erefore, th7 ordei; col\14 not be said
to be an interlocutory order and the rev1s1onal courts erred ·Ill ra1smg the bar of
s. 397 (3 ), Cr. P. C. 1974. [164C-DJ
Mohan Lal Magan Lal Thacker v. State of Gujarat [1968] 2 S.C.R. 685,
followed.
PARMESHWARI DEVI v. STATE (Shinghal, !.)
161
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 411
-Of 1976.
Appeal by Special Leave f~om. the Jud~ent ~n~ Order ?~ted the
22nd April, 1975 of the Delhi High Court m Cnmmal RevlS!on No.
258.of 1974.
Frank Anthony and D. Gobrudhan for the Appellant.
R. N. Sachthey-(Not present) for Respondent No. 1.
G. S. Vohra, S. K. Gambhir and K. L. Taneja for Respondent
No. 2.
The Judgment of the Court was delivered by
SHINGHAL, J. This appeal of Smt. Panneshwari Devi, by special
leave, arises from the judgment of the Delhi High Court dated April
22, 1975 dismissing her application for revision of the order of the
Additional Sessions Judge of Delhi dated August 29, 1974, confirming the order of a Metropolitan Magistrate of Delhi dated August 8,
1974. The facts giving rise to the appeal are quite simple and may_
be shortly stated.
A complaint was filed by respondent N. L. Gupta on behalf of
Smt. Patashi Devi for the commission of offences under si:ctions 181,
182, 193, 197, 199, :ioo, 465, 466 and 471 of the Indian Penal Code
by Naud Kishore, Ghanshyam Das. and Sanwar Mal. It was alleged
that Smt. Patashi Devi had one-fifth share in the firm of M/s Gupta
Electric and Machinery Stores of which Smt. Parmeshwari Devi (the
present appellant), Smt. Dropadi Devi and Madan Lal Gupta were
the· other partners. According to the complaint, the business of the
firm was mainly looked after by Smt. Parmeshwari Devi's husband
Mohan Lal and accused No. 1 who was here brother.
Smt. Patashi
Devi and· two other partners "retired" from the business
on
April
1, 1968 without settling the accounts.
Smt.
Patashi
De~i asked
Mohan Lal and accused No. 1 who was her brother Smt. Patashi
ing accounts. Accused No. 2 filed an attested copy of a deed of dissolution, alleged to be signed by Smt. Patashi Devi, in the office of the
Registrar of Firms on November 14, 1968, along with an intimation
of the dissolution of the firm which also purported to be signed by
her.
The complainant filed an application under section 94 of the Code·
A
B
c
D
E
F
of Criminal Procedure, 1898, hereinafter referred to as the Code. for
G
a direction to the accused to file the original deed of dissolution. 'The
accused however stated in the court that they were employees of the
firm and the document was not in their possession.
The comolainant
then made another application on March 28, 1974 under sec'tion 94
with a prayer that Smt. Parmeshwari Devi may be directed to produce
the document.
The court made an order on March 28. 197.4 summoning Smt. Parmeshwari Devi, with the document.
She stated in
H
her reply that she did not know anything about the document and
that after her husband's death the complainant had taken away all the
records of the firm.
She stated {urther that she was a 'pardanashin'
12 -1458SCI/76
.
162
SUPREME COlJRI REPORTS
[1977) 2 S.C.R.
A
lady living in Calcutta and need not be summoned in the court. The
Metropolitan Magistrate thereupon made order dated August 8, 1974
as follows,-
"ln my view when a person is summoned to attend the
Court it is desirable that such summoned person attends and
made statement on oath that he is not in the possession of
B
the documents summoned, so that the court may take further steps to secure the production of the documents as envisaged u/s 96 · Cr.P.C. Merely sending a reply through an
Advt. that the document is not in his possession is not sufficient compliance of the order.
The request
of the Ld.
counsel for Parmeshwari Devi that a commission may be
issued for recording the statement of Smt. Parmeshwari Devi
c
cannot be granted as the case is already getting old and
issuance of a commission would mean undesirable delay of
the case. The counsel for Smt. Parmeshwari Devi Shri C. L.
Mahl is now requested to intimate Smt. Parmeshwari Devi
forthwith to attend this court and produce the document if in
her possession on 30th August, 1974.
D
The Ld. counsel for Parmeshwari Devi has also stated
that Smt. Parmeshwari Devi is prepared to file an affidavit
even to say that she is not in the possession of the documents
summoned but in my view this also 'does not serve the purpose as calling of Smt. Parmeshwari Devi in the court and
recording her statement on an oath will give a chance to the
court to put her a few questions for satisfying itself regardE
ing the whereabouts of the document in question."
As has been stated, Smt. Parmeshwari Devi's applications for revision
of this order have been dismissed by the Additional Sessions Judge
and the High Court and this is how she has come in appeal to this
Court.
F
· It will be recalled that it was the complainant·who made an application \mder section 94 of the Code stating that as the deed of dissolution of the partnership was essential for the trial of the case, Smt.
Parmeshwarl Devi may be directed to produce it. Smt. Parmcshwari
Devi was not a party to the case, and no reason whatsoever was given
in the application why the document was likely to be in her possession
or power beyond stating that the accused had stated in their reply .fu
G
the earlier application under section 94 that they were employees of
the firm and were not in possession of the document, and she was the
widow of the late Mohan Lal Gupta. The Magistrate therefore "summoned" her "with the document" by his order dated March 28, 1974
which is not, however, the subject matter of controversy before us.
The question is whether the subsequent order of the Magistrate dated
August 8, 1974 is according to law by which Smt. Parmeshwari Devi
H
has been directed to attend the court so that if she made a "statement
on oath" that she is not in possession of the document, the court may
get a chance to "put her a few questions for. satisfying itself regarding
.the whereabouts of the documents ? •
PARMESWARI DEVI v. STATE (Singhal, !.)
163
Chapter VII of the Code deals, inter alia, with process to compel
the production of documents.
Sub-section ( 1) of section 94: which
deals with summons to produce any document, merely authonses the
court to issue a summons to the person in whose possession or power
such document is believed to be, requiring him to "attend and produce
it, or to produce, it, at the time and place stated in the summons."
According to sub-section (2) a person required under
the section
· merely to produce a document shall be deemed to ha'.ve complied
with the requisition if he "causes such document .... to be produced
instead of attending personally to produce the same". There is noth-·
ing in the chapter to provide that the person who appears in the court,
· in pursuance of its summons under sub-section (1) of seclion 94,
thereby becomes a witness and can be examined and cross-examined
by the court although he has not been cited as a witness in the proceedings. Even if a person produces the document for which a summons
has been issued to him, section 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that
he produces it, and he cannot be cross-examined unless and until he
is called as a witness. So when Smt. Parmeshwari Devi filed a reply
to· the application of the compfainant under section 94 of the Code
stating that she did not know anything about the deed of dissolution
and it was not in her possession, the utmo<t th2' the l\fagistratc could
do was to issue a search-warrant under sub-section ( 1) of section 96
if he had reason to believe that she will not or would not produce the
document as required by the summons.
It was also permissible for
the Magistrate to order rt search of Smt. Parmeshwari Devi's house
under section 98 of the Code if it appeared to him that . the requirements of that section had been fulfilled.
But there is no provision in
the Code under which the court could record her statement on oath,
on her inability to produce the document, or "put her a few questions
for satisfying itself regarding the whereabouts of the document." In
the facts and circumstances of the case, no further action is in fact
called for against the appellant.
The Additional Sessions Judge and
the High Court went wrong in taking a contrary view.
A
B
c
D
E
It has been argued that the order of the Magistrate dated August _ F
8, 1974 was an interlocutory order and the power of revision conferred by sub-section (1) of section 397 of the Code of Criminal Procedure, 1974, could not be exercised in relation to it by virtue of
sub-section (2).
.
The Code does not define an interlocutory order, but it obviously
is an intermediate order, made during the preliminary stages of an
G
enquiry or trial.
The purpose of sub-section (2) of section 397 is
to keep such an order outside the purview of the power of revision so
_ .
that the enquiry or trial may proceed without delay. This is not likely
to prejudice the aggrieved party for it can always challenge it in due
course if the fina•l order goes against it. But it does not follow that if
the order is directed against a person who is not a party to the enquiry
or trial, and he will hav.e no opportunity to challenge it after a final
H
order is made affecting the parties concerned, he cannot apply for its
revision even if it is directed against him and adversely affects
his
rights.
1
•,
.l 64
SUPREME COURT REPORTS
[1977] 2 s.c.R.
A
A somewhat similar argument came up for consideration before
this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat(!).
The controversy there centred round the meaning of article 134(1) (c)
of the Constitution and the Court examined the meaning of the words
"final" and "interlocutory". It was held that the meaning "had to be
considered separately in relation to the particular purpose for which
it is required" to be interpreted. No single test can be applied to
determine whether an order is final or interlocutory. Then it has been
B
held by this Court in that case as follows ,-
"An interlocutory· order, though not conclusive of the
main dispute may be conclusive as to the subordinate matter with which it deals."
It may thus be conclusive with reference to the stage at which it is
made, and it may also be conclusive as to a person, who is not a party
C
to the enquiry or trial, against whom it is directed. As has been shown,
the order of the Magistrate dated August 8, 1974 was not according
to law and it adversely affected the appellant, who was not a party to
the enquiry or trial, as it was solely directed against her. A~ is obviQus,
she could have no opportunity to challenge it after the making of
the final order, and such a belated challenge would have been purposeless for it would have given her no relief. So in so far as ihe appel0
lant is concerned, the order of the Magistrate could not be said to be
an interlocutory order and the revisional courts erred in raising the
bar of sub-section (2) of section 397 agai!1st it.
We have gone through Dhola and others v. State(2) and The
Central Bank of India Ltd. v. Gokal Chand(8 ) cited by Mr. Vohra.
Dhola's case related to the grant of bail, and Gokal Chand's case
E
related to a right of appeal under section 38(1) of the Delhi Rent
Control Act- against an order made inter partes.
They cannot therefore avail the respondent in this case.·
For the foregoing reasons, the appeal is allowed and the impugned ·
orders of the High Court dated April 22, 1975 and of the Metropolitan Magistrate dated August 8, 1974 are set aside.
V.P.S.
(I) [1968] 2 S.C.R. 685.
(3) A.i.R. 1967 S.C. 799·
Appeal allowed.
(2) (1975) Cr!. L.J. (I) 1274.