A person appearing in response to a summons under this section to produce a document or a thing, does not become a witness merely because he has produced that document/thing, and, therefore, he cannot be cross-examined until and unless he is called as a witness.
As to the question whether a summons or an order under this section could be issued to an accused person, the Supreme Court has held that if Section 91 is construed as to include an accused person, such a construction is likely to lead to cause grave hardship for the accused and will make investigation unfair for him.
Moreover, it would also be violative of Article 20 (3) of the Constitution which embodies protection against compulsion of self-incrimination. Obviously, an accused person cannot be compelled to disclose document which are incriminating and based on his knowledge.
In Surendra Mohan Sarin v. K.P. Mani Tripathi, the High Court of Allahabad observed that merely because an order made by an investigating officer to produce books of accounts and other things would cause great inconvenience to the person from whom it is summoned, it could not be said that the order was beyond the purview of Section 91 of the Code.
The Supreme Court in Assistant Customs Collector, Bombay v. L.R. Mel warn, has ruled that it is essentially in the discretion of the trial Court whether a particular document or thing should be summoned or not, and the High Court should not normally interfere with that discretion unless there are valid reasons therefore.
Though this section empowers a Court or a police officer to issue summons to produce any document or thing but this power is subject to Sections 123 and 124 of the Evidence Act. Again, the Court ordinarily does not allow the production of Bankers’ Books and letters, postcard etc., which are in custody of the Post and Telegraph authorities.
The word ‘thing’ used in the section gives it a very wide import. Literally speaking, it includes anything tangible and movable which is capable of being produced. But no such absolute discretion is contemplated. The Magistrate has no power to order production of money by way of converting into a draft.
But it can certainly summon production of documents for inquiry. The Courts’ jurisdiction in regard to power under Section 91 should be exercised judicially. In State of Kerala v. Babu, the Apex Court has ruled that a case diary is undoubtedly a ‘document ‘under Section 91 and, therefore, it can be summoned by the trial Court.