Law Web: Supreme Court: Accused Cannot Invoke S.91 CrPC To Compel Prosecution To Produce Things At The Stage Of Framing Of Charge

The learned counsel for the appellant- State has rightly

drawn the attention of this Court to the legal position

settled by this Court in the case of State of Orissa Vs.

Debendra Nath Padhi, (2005) 1 SCC 568, in which a Three

Judge Bench of this Court has held as under: -

“25. Any document or other thing envisaged

under the aforesaid provision can be ordered to

be produced on finding that the same is

“necessary or desirable for the purpose of

investigation, inquiry, trial or other

proceedings under the Code”. The first and

foremost requirement of the section is about

the document being necessary or desirable. The

necessity or desirability would have to be seen

with reference to the stage when a prayer is

made for the production. If any document is

necessary or desirable for the defence of the

accused, the question of invoking Section 91 at

the initial stage of framing of a charge would

not arise since defence of the accused is not

relevant at that stage. When the section refers

to investigation, inquiry, trial or other

proceedings, it is to be borne in mind that

under the section a police officer may move the

court for summoning and production of a

document as may be necessary at any of the

stages mentioned in the section. Insofar as the

accused is concerned, his entitlement to seek

order under Section 91 would ordinarily not

come till the stage of defence. When the

section talks of the document being necessary

and desirable, it is implicit that necessity

and desirability is to be examined considering

the stage when such a prayer for summoning and

production is made and the party who makes it,

whether police or accused. If under Section

227, what is necessary and relevant is only the

record produced in terms of Section 173 of the

Code, the accused cannot at that stage invoke

Section 91 to seek production of any document

to show his innocence. Under Section 91 summons

for production of document can be issued by

court and under a written order an officer in

charge of a police station can also direct

production thereof. Section 91 does not confer

any right on the accused to produce document in

his possession to prove his defence. Section 91

presupposes that when the document is not

produced process may be initiated to compel

production thereof.” {Para 6}

7. The learned counsel for the respondent has relied upon

the decision in the case of Nitya Dharmananda Vs. Gopal

Sheelum Reddy, (2018) 2 SCC 93, to submit that the court

being under the obligation to impart justice, is not

debarred from exercising its power under Section 91

Cr.P.C., if the interest of justice in a given case so

requires. However the said decision is not helpful to the

respondent. In the said decision also, it has been

observed that the accused cannot invoke and would not

have right to invoke Section 91 Cr.P.C. at the stage of

framing of charge. In view of the law laid down by the

Three Judge Bench in State of Orissa Vs. Debendra Nath

Padh i, (supra), we are inclined to accept the present

appeal.

8. In that view of the matter, the impugned order is set

aside. The Criminal Appeal stands allowed accordingly.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.856 OF 2024

STATE OF RAJASTHAN Vs SWARN SINGH @ BABA.

Dated: 12TH FEBRUARY, 2024.

1. Leave granted.

2. Heard learned counsel for the parties.

3. The present appeal arises out of the impugned order dated

18.02.2020 passed by the High Court of Judicature for

Rajasthan at Jodhpur in S.B. Criminal Misc. (Pet.) No.273

of 2020, whereby the High Court while allowing the said

petition has directed all Courts in the State of

Rajasthan that whenever an application is moved to summon

the Call-details by the accused during the criminal

proceedings, the same shall not be deferred and will be

decided forthwith.

4. In the instant case, the respondent-accused is facing the

trial before the Additional Sessions Judge, Sri Karanpur

District Sri Ganganagar in Sessions Case No.18/2019 for

the offences under Sections 8/18, 25 and 29 of the NDPS

Act. The respondent-accused had filed an application

before the Trial Court for summoning of the call details

of the Seizure Officer and some other police officials

for the date of seizure, i.e., 15.02.2019.

5. The said application was rejected by the Trial Court vide

the order dated 03.01.2020, against which the respondent

had filed the Miscellaneous Petition, which has been

allowed by the High Court vide the impugned order.

6. The learned counsel for the appellant- State has rightly