The Delhi High Court has upheld the quashing of a notice issued by the Central Bureau of Investigation under Section 91 of the Code of Criminal Procedure to a retired High Court judge, holding that a Section 91 notice cannot be used to compel an accused person to generate or compile information. In the case before the court, a retired judge of the Chhattisgarh High Court was issued a notice requiring him to provide detailed information about mobile numbers he used in 2017, particulars of his bank accounts including closed accounts with statements for a defined period, and details of drivers and servants employed by him during that same period. The judge challenged the notice on the ground that Section 91 CrPC does not apply to an accused and that requiring him to compile and disclose facts based on his personal knowledge would violate his constitutional right against self-incrimination under Article 20(3) of the Constitution.
The dispute arose from a First Information Report registered by the CBI against the retired judge and others, including a retired Allahabad High Court judge, in a case alleging conspiracy and offences under the Indian Penal Code and the Prevention of Corruption Act. During the investigation, rather than seeking specific pre-existing documents, the CBI issued a Section 91 notice that effectively asked the accused to identify and list information by applying his mind and memory. The judge moved the Special Judge (CBI) challenging the notice, contending that Section 91 cannot be invoked against an accused and that the demand constituted compelled testimony, contrary to the constitutional protection against self-incrimination. The Special Judge agreed, setting aside the notice on the ground that forcing an accused to furnish such information was impermissible. The CBI then filed a petition under Section 482 CrPC before the High Court seeking to reinstate the notice.
The principal question before the Delhi High Court was whether a notice under Section 91 CrPC could be issued to an accused person requiring him to provide such information and whether doing so violated the protection against self-incrimination under Article 20(3). The court noted that Section 91 is designed to secure the production of existing documents or things that are necessary or desirable for an investigation, inquiry, trial, or proceeding, but it does not contemplate compelling an accused to create evidence or compile information from memory. It held that the impugned notice was essentially a questionnaire, requiring the accused to apply his mind and search his memory to compile information, which would amount to testimonial compulsion and violate Article 20(3).
In interpreting the constitutional protection, the court observed that “to be a witness” includes furnishing evidence based on personal knowledge, and that compelling an accused person to provide such knowledge, whether oral or documentary, amounts to testimonial compulsion. The court underscored that Article 20(3) bars not only direct confessions but also any compulsion that effectively forces an accused to supply evidence against himself. In this context, the court emphasized that Section 91 cannot be used as a substitute for interrogation under Section 161 CrPC or to bypass the accused’s right to remain silent.
The court examined the CBI’s argument that the information sought was documentary and public in nature and therefore did not amount to testimonial compulsion. It rejected this argument, noting that the notice did not ask for specific pre-existing documents but instead required the accused to identify and assemble details such as mobile numbers, bank accounts, and employment information. Such compilation would require the accused to employ his memory and personal knowledge, effectively “creating” evidence rather than producing documents that already existed in identifiable form. The court also affirmed that investigative agencies are free to obtain relevant information from independent third parties such as banks, telecom service providers, or through lawful powers of search and seizure, ensuring that the investigation is not rendered ineffective by restricting the use of Section 91 in this manner.
Placing reliance on established legal principles, the Delhi High Court held that a Section 91 notice cannot be used against an accused in a manner that violates constitutional protections. In holding the impugned notice to be legally unsustainable, the court upheld the order of the Special Judge and dismissed the CBI’s petition. The ruling makes clear that investigative agencies must respect the accused’s right against self-incrimination and that procedural tools like Section 91 cannot be misused to compel the accused to compile or create information that is testimonial in nature.
The decision reinforces the constitutional safeguard under Article 20(3) and clarifies the scope of Section 91 CrPC in the context of criminal investigations, especially in cases involving high-profile accused, by underscoring the need to distinguish between compelling production of existing documents and coercing an accused to generate new evidence from personal knowledge.
Justice Neena Bansal Krishna delivered the judgment, which upholds the importance of balancing investigative needs with fundamental rights, ensuring that procedural provisions like Section 91 are not stretched to override constitutional protections afforded to accused persons.
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