Whether accused can seek direction U/S 91 of CRPC for supply of call details and location chart of investigating officer?

 I have heard learned counsel for the parties at length & gone through the available records. After hearing the arguments advanced by counsel for the petitioner and the rival contention and after perusal of the order passed by the Trial Court, it appears that the petitioner is seeking direction from this Court for the supply of the call details of the calls made from the mobile phone of the investigating officer. The grievance of the petitioner is that the calls made from the mobile of the investigating officer would indicate the presence, location and the activities of the investigating officer whereas the case of the State is that in the details of mobile calls of the investigating officer, it is not suggested to be the calls relating to the present case and apart from the present case, the investigating officer being a police officer, had been dealing with the other matters and activities of various other accused and with regard to the duty assigned to him. Further contention made by the prosecution is that the accused could not claim the record of various activities of the investigating officer and he has to restrict to the activity of the investigating officer in the present case only. The prosecution has claimed that accused does not have any right to have the information about the final activities of the investigating officer and that cannot be limited to the activity in the present case. So, the accused could not be said to be entitled for seeking the details of records of all the calls made or calls received from the mobile phone of the investigating officer. {Para 8}

9. The Seamed Magistrate has delivered a reasoned order for the denial of the claim of the petitioner. Similar reasoned order has also been passed by the revisional Court i.e. Court of Sessions. This Court is not of any different view than the one taken by learned Metropolitan Magistrate as well as by the Court of Sessions. So the view of the Trial Court as well as the Court of Sessions is upheld by this Court also. Consequently, the present petition is dismissed.

 IN THE HIGH COURT OF DELHI

Crl. M.C. No. 406/2016

Decided On: 18.07.2016

Attar Singh Vs. State (NCT of Delhi)

Hon'ble Judges/Coram: P.S. Teji, J.

Citation: 2016 SCC OnLine Del 3907,MANU/DE/2928/2016.

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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.

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Whether accused can seek production of documents submitted by him to investigating officer not filed with chargesheet at the time of framing of charge?

 It is the specific case of the Petitioner that he has

furnished several documents to the Investigating Officer and the

list of documents furnished included the relevant extract of

WhatsApp and i messages exchanged between the Accused and

the Complainant, relevant photographs, flight and hotel

reservations, to demonstrate the consensual relationship between

the couple. The bank statements reflecting the amount

transferred to the complainant and by furnishing the documents

the Petitioner attempted to dispel the case of the prosecution of

forcible sexual intercourse and instead intended to plead a case of

consensual relationship between two adults.

No doubt, these documents were furnished by the

Petitioner to the Investigating Officer, but when he seek these

documents under Section 91, he has to establish necessity or

desirability of its production, which would have to be seen with

reference to the stage, when a prayer is made for its production.

The impugned Judgment has recorded that it is the

accused who had tendered the documents to the Investigating

Officer and therefore he is already in possession of these

documents and hence there is no justification for him seeking

production of these documents.

The aforesaid reasoning has missed out an important

aspect being the documents which the Petitioner is seeking are

sourced from the Investigating Officer since during the course of

investigation they have been submitted to him to rebut the case of the complainant of forcible sexual intercourse and since the

documents are collected during the course of investigation,

though tendered by the Petitioner himself, they are deemed to be

in custody of the Investigating Officer.{Para 21}

22 Through an Application being made under Section 91 of the Code, the Petitioner sought production of those documents, which is desirable for the purpose of trial as the documents collected during the course of investigation by whatever source will have a different connotation if they are produced through the Investigating Officer, as being received by him during investigation instead of the accused producing the same before the Court in his defence.

In the case of Criminal Trials Guidelines Regarding

Inadequacies and Defciencies, in RE (supra), the explanation

appended to Rule 4 has made it imperative to furnish a list of

documents/material which is collected by the Investigating offcer

through whatsoever source, but which do not form part of the

charge sheet and this may include several exculpatory

documents, statements, material etc. which has the potential to

weaken the case of the prosecution and benefit the accused.

23 In order to ensure fair investigation and fair trial to

the accused the Apex Court has formulated guideline No.4 in the

draft rules of Criminal Procedure Code, which contemplate an

indication to the accused about the documents collecting during

the investigation by classifying them, into the documents which

are annexed alongwith the charge sheet to which the accused is

undisputedly entitled to, in the wake of Sub Section (5) of Section

173 of CrP.C. and in another category would fall those documents/ evidence/material which though collected by the Investigating Officer has not been furnished to the Court alongwith the charge sheet/final report. Once the accused is aware that any material/ documents collecting during the investigation process, which has potential of absolving him of the guilt, which is made known to him through the list of documents, exhibits etc. furnished in terms of the explanation to Rule 4 of the Draft Rules, then the accused is entitled to seek those documents through an application under Section 91 of the Code by establishing its necessity and desirability, for the purpose of trial and upon such an application being made the Court shall issue summons to the person in whose possession or power such document or material is believed to be and the Court shall require him to attend and produce it or to produce it as directed.

24 The documents though furnished by the Petitioner to

the Investigating Officer, when directed to be produced through

the orders passed by the court under Section 91 will change its

context, as what is relevant is the source from which the

documents are being produced before the court, i.e. through the

Investigating Officer, which would assume significance. Moreover, there shall be a clarification at this sage about what documents are furnished by the accused as at the time of trial, the Investigating Officer may dispute the documents/material and its contents and therefore if the accused/Petitioner intends to have these documents produced at the time of framing of charge, provided the court is satisfied about its necessity and desirability for the purpose of trial, such application deserve to be granted.

25 Unfortunately, the impugned order failed to consider

this aspect of the matter and the learned Judge has not even

bothered to ensure compliance of Rule 4 of the Draft Criminal

Amendment Rules, which contemplate that a list of

statements/documents, material objects and exhibits that are not

relied upon by the Investigating officer is furnished to the

accused.

Since the inaction on part of the court to exercise the

power under Section 91 of the Code would cause severe and grave prejudice to the Petitioner, who is entitled to summon production of documents, which he had tendered to the Investigating Officer, by setting aside the impugned order, the matter is remanded to the Additional Sessions Judge to secure production of documents sought by the Petitioner in the Application filed under Section 91, as the documents are necessary and desirable for the purpose of trial, which are exculpatory in nature and would enable the accused to prove his innocence, though it is at the stage of framing of charge, as this will assure him, fairness in the trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION(ST) NO.17507 OF 2023

Dr.Sublendu Prakash Diwakar Vs State of Maharashtra 

CORAM : BHARATI DANGRE, J

PRONOUNCED ON : 4th DECEMBER, 2023

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Whether court can allow accused to inspect documents kept in Malkhana?

 The issue raised in the present petition is to a great extent dealt by the Hon'ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 wherein the Hon'ble Supreme Court issued guidelines regarding inadequacies and deficiencies in criminal trial and while the necessary draft rules were approved, in relation to the documents collected during the course of investigation and not relied upon by the prosecution thus not permitting copy thereof to the accused, the Hon'ble Supreme Court in Para 11 noted as under:

“11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. PC. for their production during the trial, in the interests of justice. It is directed accordingly; the draft rules have been accordingly modified. [Rule 4(i)]”

10. Further, reproducing Section 91 Cr.P.C. in the footnote does not qualify the directions in Para 11 of the judgment for the reason Hon'ble Supreme Court in response to the suggestion of the learned amicus curiae pointed out that there may be material with the Police or the prosecution which may be exculpatory in nature, or absolve or help the accused, however the accused is kept in dark with the said material. Hon'ble Supreme Court clearly directed that while furnishing the list of statements, documents and the material objects under Section 207/208 Cr.P.C., the Magistrate should also ensure that a list of other materials (such as statements, or objects/documents seized, but not relied upon) should be furnished to the accused so as to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders under the Code of Criminal Procedure for their production during the trial. The draft Rules were accordingly modified and considering the efficacy of the draft Rules, the Hon'ble Supreme Court directed all High Courts to take expeditious steps to incorporate the said draft Rules 2021 as part of the Rules governing criminal trial within six months from the date of the order i.e. April 2020.

11. In view of the decision of the Hon'ble Supreme Court, CBI cannot take the plea that since the Rules have not been notified as yet pursuant to the decision of the Hon'ble Supreme Court, the directions as laid down in Para 11 of the judgment whereby the draft Rules were amended, would not have the force of law till the Rules are notified. Hon'ble Supreme Court also noted that Draft Rules of Criminal Practice 2020 as formulated and directed to be notified were not contrary to the provisions of Cr.P.C. 

13. In the present case after the Court has taken the cognizance and is in the process of supplying documents, applications have been filed under Section 207 Cr.P.C. wherein to ensure a fair trial, the impugned order has been passed by the learned Special Court keeping due regard to the fact that at that stage it was deciding neither the relevancy of the unrelied documents nor whether they were of sterling quality.

15. Further contention of CBI is that the documents can be sought under Section 91 Cr.P.C. only at the stage of defence and hence the stage for seeking inspection of the un-relied documents in possession of the CBI and kept in CBI Malkhana has not arrived. It is trite law that an accused can build the defence not only by leading defence evidence but even while cross-examining the prosecution witness. Further, a document which is relevant and is of sterling quality can also be looked into by the Court at the time of framing of charge and the Court is not barred to exercise its power to summon or rely upon the said document at the stage of charge, if it is of sterling quality and has a crucial bearing on the issue of framing of charge. Therefore, at the time of framing of charge an accused can bring to the notice of the Court that an un-relied document recovered during the course of investigation and kept back by the investigating agency is relevant and has a bearing on the prosecution case only if the accused is aware of the said document.

16. Indubitably, while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on. 

18. In the decision reported as (2012) 9 SCC 771 V.K. Sasikala v. State Hon'ble Supreme Court noted a common feature that seizure of a large number of documents takes place in the course of investigation in a criminal case and that after completion of the process of investigation and before submission of the report under Section 173 Cr.P.C., the investigating officer is bound to apply its mind to the two sets of documents i.e. the one which support the prosecution case and the other which support the accused, however it is not impossible to visualise a situation where the documents favouring the accused are not forwarded to the Court, even though the prayer in the said case was in relation to the documents forwarded to the Court but not relied by the prosecution.

19. Further, Clause 12.32 of the CBI (Crime) Manual 2020 also lays down the procedure of inspection of documents kept in the Malkhana on Court order. Thus Clause 12.32 of the CBI (Crime) Manual 2020 recognizes the right of the accused to carry out inspection as per the procedure laid down in the Manual of the CBI.

20. In view of the discussion aforesaid and the judgment of the Hon'ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 this Court finds no infirmity in the impugned order passed by the learned Special Judge.

In the High Court of Delhi at New Delhi

(Before Mukta Gupta, J.)

Central Bureau of Investigation Vs INX Media Pvt. Ltd. and Others 

Crl.M.C. 1338/2021 and Crl.M.A. 7654/2021(stay)

Decided on November 10, 2021,

Citation: 2021 SCC OnLine Del 4932

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How to decide application of accused for production of documents and examination of witnesses?

 Clearly the documents production of which is sought for by the petitioner, are relevant for the just decision of the case. Petitioner had earlier filed an application seeking production of these documents as well as summoning of the concerned witnesses at the stage when prosecution evidence was being led. Said application was permitted to be withdrawn on 04.07.2018, with liberty to summon the relevant record and witnesses at the stage of defence evidence. Once liberty was granted to the petitioner to summon the relevant record and the witnesses at the stage of defence evidence, subject application could

not have been rejected on the ground of delay or having been moved at the belated stage.

25. The reasoning given by the Trial Court that specific particulars or dates of meetings have not been given is ex-facie unsubstantiated. The list of documents, as extracted hereinabove, clearly shows that the petitioner has given requisite particulars so as to identify the relevant documents. It may further be noticed that subject application was filed along with an application under Section 315 Cr.P.C filed by the petitioner as well as the other co-accused. Applications under Section 315 Cr.P.C. of the accused were allowed and accused were permitted to examine themselves as witnesses.

26. Under Section 243 Cr.P.C. it is obligatory on the part of the Trial Court to issue process when the accused seeks summoning of any witness or production of any document in his defence. The only ground on which such an application can be refused is if the same was vexatious, delayed or would defeat the ends of justice.

27. In the instant case, no such findings have been returned by the Trial Court. On the contrary, the Trial Court has erred in not noticing that the petitioner had moved an application even at the stage when prosecution evidence was being led and was permitted to withdraw that application with liberty to move an appropriate application at the stage of defence evidence and that is exactly what the petitioner has done.

28. Further, the Trial Court has clearly erred in holding that it is within the discretion of the court, under Section 243 Cr.P.C. to decline such an application. On the contrary, as per section 243 Cr.P.C., it is obligatory on the part of the Trial Court to issue process, unless, it for the reasons to be recorded, holds that the application is vexatious, delayed or defeats the ends of justice.

29. Further reasoning given by the Trial Court, that the petitioner is seeking re-summoning of the witnesses, who have already been examined, is also not correct. Petitioner has not sought summoning of the witnesses, who have already been examined as prosecution witnesses for re-examination/cross-examination. Petitioner has merely sought production of the relevant record of the association from the custodian thereof. Admittedly, the record would come from an undisputed source. Petitioner has not sought re-summoning of any witness already examined, by name but has only sought production of the documents from the custodian thereof. Once the documents are produced, it would be open to the petitioner to prove the same in accordance with the Evidence Act.

30. Further reasoning given by the Trial Court, that the petitioner could have obtained copies of the documents under the Right to Information Act and then cross-examined the witnesses on the said documents, is also erroneous. Even if a person were to obtain copies of the documents under the Right to Information Act, said copies would not become primary evidence in terms of the Evidence Act and

a party would still need to summon the original record from the custodian thereof.

31. Since it is admittedly not the case of the respondent that the documents are not relevant or have no bearing on the just decision of the case, I am of the considered opinion that the Trial Court in the facts, as noticed hereinabove, has clearly erred in dismissing the application of the petitioner filed under Section 91 read with Section 311 Cr.P.C.

32. In view of the above, impugned order dated 03.12.2018 is set aside. Consequently, the application, filed by the petitioner, under Section 91 read with Section 311 Cr.P.C. dated 14.11.2018 is allowed,

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 01st July, 2019

 CRL.REV.P. 1169/2018

SHYAM MANOHAR SAXENA Vs  CENTRAL BUREAU OF INVESTIGATION & ORS

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

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Whether accused can invoke S 91 of CRPC at the stage of framing of charge?

It is settled law that at the stage of framing of charge, the Accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the Accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge.

 Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Code of Criminal Procedure de hors the satisfaction of the court, at the stage of charge.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2114 of 2017 

Decided On: 07.12.2017

Nitya Dharmananda  Vs Gopal Sheelum Reddy and Ors.

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Citation: (2018) 2 SCC 93

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Supreme Court: Accused has no right to produce documents at the time of framing of charge.

 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.

In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 497 of 2001 and 46 of 2004 and S.L.P. (Crl.) No. 1912/2003

Decided On: 29.11.2004

State of Orissa Vs. Debendra Nath Padhi

Hon'ble Judges/Coram:

Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee, JJ.

Citation: (2005) 1 SCC 568,AIR 2005 SC 359

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Whether accused can put up his defence at the time of framing of charge?

We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207 (A) omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submssions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.

Supreme Court of India

State Of Orissa vs Debendra Nath Padhi on 29 November, 2004

Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee

           CASE NO.:
Appeal (crl.)  497 of 2001

Citation:(2005)1 SCC 568

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Whether accused can seek production of documents at the stage of framing of charge?

 Before we proceed to dwell upon the power of the
Magistrate to grant permission for not pressing the
application, we think it necessary to delve into legality of the
direction issued by the High Court to the Magistrate to
consider the documents filed by the accused persons along
with the application preferred under Section 91 Cr.P.C.
Section 91 Cr.P.C. reads as follows:-
“Section 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.

(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 Bankers'
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 telegraph authority.”
44. The scope and ambit of the said provision was
considered in State of Orissa v. Debendra Nath Padhi

 (2005) 1 SCC 568
,
wherein this Court has held thus:-
“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 relevantat 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. Inso-


far 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, whetherpolice 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.”
The aforesaid enunciation of law clearly states about
the scope of Section 91 Cr.P.C. and we are in respectful

agreement with the same.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 99 OF 2016
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 801 OF 2016)
(@ CRIMINAL M.P. NO. 16992 OF 2015)

M/s V.L.S. FINANCE LTD. Vs S.P. GUPTA AND ANR.

Dated:February 05, 2016
Citation: 2016 ALLMR(CRI)1300 SC

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Whether accused can seek production of document U/S 91 of CRPC at the stage of framing of charge?

 On behalf of the accused a contention about production of documents relying upon Section 91 of the Code has also been made. Section 91 of the Code reads as under:

"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.

(2)........................................................................... (3)..........................................................................."

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 invokingSection 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. In so far 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. UnderSection 91 summons for production of document can be issued by Court and under a written order an officer in charge of 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. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI, Delhi [(2000) 5 SCC 679]. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra's case (supra). The contentions based on Satish Mehra's case have been noticed in para 4 as under:

"The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v.

Delhi Admn. ((1996) 9 SCC 766) laying emphasis on the fact the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State ((1999) 49 DRJ 202). Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings.

In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.

We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. 

Supreme Court of India

State Of Orissa vs Debendra Nath Padhi on 29 November, 2004

Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee

    Citation;AIR2005SC359,, (2005)1SCC568, 

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Bombay HC: Accused can not be asked to produce documents U/S 91 of CRPC in cheque dishonour case

 Learned Advocate on behalf of the petitioner submitted that such application under Section 91, Cr.P.C. that too at the stage when defence evidence was already led in the trial, was not permissible according to law. He criticised the impugned order as 

unjust and contrary to law in view of judicial precedent regarding rt

provision contained in Section 91 of Cr.P.C. and submitted that the 

impugned order is not at all sustainable according to law. Regarding the legal position, it is submitted that Division Bench of 

Bombay High Court in the ruling of Vinayak Purushottam Kalantre v. Vikram Balwantrao Deshmukh and ors., reported in 1979 CRI.L.J.71, considering the Constitution Bench 

judgments in State of Bombay v. Kathi Kalu Oghad reported 

in AIR 1961 SC 1808, State of Gujarat v. Shyamlal Mohanlal, reported in AIR 1965 SC 1251, as also ruing in 

M.P.Sharma v.Satish Chandra, reported in AIR 1954 SC 300 the contention advanced before the Division Bench that the 

documents in custody of the accused can be called for by the 

Court and is admissible in evidence was not accepted. In view of the later decision in Shyamlal's case that Section 91 (old Sec.94 of om

Cr.P.C.) does not apply to the accused person at all. Therefore, where it is intended by the complainant to require the accused to produce document, which is incriminatory in nature, the summons 

cannot be issued. In the present case also there is no dispute that the complainant wanted the accused to produce documents in view of Section 91, Cr.P.C. The legal position appears clear that summons to produce documents calling upon the accused under Section 91 of Cr.P.C. to produce incriminatory documents is not permissible.

Bombay High Court

Mahendrakumar Kanhyalal Jain v Shri Mahavir Urban Co-operative on 19 June, 2013

Bench: A.P. Bhangale

Cri.W.P.409 of 2005

DATE : 19th June 2013

Citation; 2013 (6) MH L J 161

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Whether it is necessary to prove Documents produced U/S 91 of CRPC?

Since the learned counsel for the complainant strongly objected to the consideration of documents, namely, Article 1 Memo No. MMHS-CI. II/T.A. Bill/PPG/5445 of 1977, office of the Medical Superintendent, Daga Memorial Government Hospital dated 10-11-1977 and the letter dated 7-8-1975, which according to the learned counsel for the complainant were not proved in accordance with law and, therefore, could not have been considered. I would first take up this argument of the learned counsel for the complainant. It would be seen that the accused persons moved an application under Section 91, of the Cr PC on 18-8-1981 for directions to the concerned authorities for production of the said documents for cross-examination of the complainant. The complainant objected to the said application and after hearing both the learned counsel for the parties, the trial Court by its order dated 5-11-1981 allowed production of the said documents and directed the concerned authorities to produce the documents mentioned in the application under Section 91, of the Cr PC and the concerned authorities produced those documents before the Court. It is also apparent from the record that the revision was filed against the said order of production of documents by the concerned authorities and the said revision was dismissed by this Court and, thereafter, the accused persons also gave a notice to the complainant to admit or deny these documents vide their application dated 7-7-1984. That application by way of notice to admit or deny the documents was also contested by the complainant by moving an application dated 16-8-1984 for deciding the preliminary issue/point about the relevancy or otherwise of the documents and trial Court by its order dated 16-8-1984 observed that the counsel for the complainant did not want to admit or deny the documents, but wanted to get the question decided on the ground that the said documents sought to be admitted or denied have no relevance in the case. The trial Court observed that unless the complainant examines the witnesses and they are cross-examined, the relevancy of the documents cannot be decided at this stage of trial and to ask the relevance of every document would amount to compel the accused to disclose the defence and line of cross examination, which would certainly be prejudicial to the accused. The trial Court also observed that the accused persons have made it clear that these documents are to be used only for contradicting the complainant and therefore relevancy could be decided only with reference to the examination-in-chief and questions put in cross-examination. The complainant examined herself as witness No. 1, and these documents were put to her in cross examination and she did not deny the correctness of the said documents in her cross examination. In this view of the matter, the argument of the learned counsel for the complainant that the said documents have not been formally proved is devoid of any merit. While the genuineness of the documents was not disputed dispite opportunity having been given after notice was served on the complainant and even in cross-examination by the complainant when she was confronted with the said documents, it cannot be said that any error of procedure or law has been committed by the trial Court. The said documents were produced before the Court under Section 91, of the Cr PC by the competent authorities, who were in possession of the said documents and despite opportunity being given to the complainant, the said documents were not denied. It may be observed that the documents which were produced under Section 91, of the Cr PC are not required to be proved like the documents which are produced by the prosecution or the accused.

Bombay High Court

Dr. Mrs. Pratibha W/O Prabhakar ... vs State Of Maharashtra And Other on 27 September, 1994

Bench: R Lodha

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