Alagesan and Others vs State

M. Jeyapaul, J.—The revision is filed challenging the order of dismissal passed by the learned Principal Sessions Judge, Thiruvallur in

Crl.M.P. No. 1940 of 2007 filed u/s 91 of the Code of Criminal Procedure.

The petitioners are the accused in a case of major offence of murder. During the pendency of the trial, the petitioners filed an application u/s 91

of the Code of Criminal Procedure to summon as many as five documents from the respondent.

It is relevant to refer to the averment in the petition filed u/s 91 of the Code of Criminal Procedure and the counter filed by the respondent.

The petitioners have contended in the aforesaid petition seeking to summon the case diary of the present case, case diary of the counter case,

general diary of the present case, the proceedings u/s 107 of the Code of Criminal Procedure including the statement of one Geja Thomas, the

copy of the accident register of the deceased Thirupathi and the case sheet of A2, A3, A4 and one Parimala that if the aforesaid records are kept

in the custody of the respondent police, there is every chance for alteration and manipulation of the records. The custody of the aforesaid

documents is just and necessary for trial, it has been further contended by the petitioners in the petition filed by them.

In the counter, the respondent police has contended that the petition has been filed at a belated stage. The case of murder which was committed

in the year 2006 is still pending disposal. The present petition was filed after examination of the material witnesses. The vexatious petition has been

filed just to delay the criminal proceedings with a view to defeat the ends of justice. The petitioners are not entitled to summon the case diaries of

the present case and the counter case and the general diary of the present case. As far as the proceedings u/s 107 of the Code of Criminal

Procedure initiated by the Executive Magistrate is concerned, the petitioners would have been supplied with those documents by the Executive

Magistrate. As far as the copy of the accident register of the deceased Thirupathi and the wound certificate and case sheet of A2, A3, A4 and

Parimala, the same have already been supplied even during the year 2003 u/s 207 of the Code of Criminal Procedure by the committal court.

Therefore, the respondent would contend that the petition is not sustainable.

The Trial Court, having observed that the petitioners have not putforth any justifiable reason to satisfy the court to summon those documents u/s

91 of the Code of Criminal Procedure, chose to dismiss the petition filed u/s 91 of the Code of Criminal Procedure.

Learned Counsel appearing for the petitioners would submit that the petitioners cannot be directed to disclose the defence set up by them in the

petition filed u/s 91 of the Code of Criminal Procedure. Only during the course of pendency of trial, the petitioners have filed the petition u/s 91 of

the Code of Criminal Procedure. Further, the case diary relating to the counter case, the proceedings initiated earlier by the Executive Magistrate

u/s 107 of the Code of Criminal Procedure, the accident register copy of the deceased accused and the wound certificate and case sheet of A2,

A3, A4 and Parimala are very much relevant for the purpose of strengthening the case of the defence. The petitioners should be given an

opportunity to contradict the versions of the witnesses examined on the side of the prosecution with that of their statements given before the

Executive Magistrate. Therefore, he would submit that the Trial Court has totally ignored the plea of the petitioners and erred in dismissing the

petition depriving the right of the petitioners to defend them properly with the documents available with the respondent.

The learned Government Advocate (Criminal Side) would vehemently submit that the trial is pending for quite a long time. No reason has been

assigned in the petition praying to send for the documents from the custody of the respondent. The petitioners are bound to satisfy the Trial Court

that the documents sought for are very much necessary for the disposal of the criminal case. The petitioners have come out with this untenable

petition at a belated stage seeking to send for even the documents which had been supplied to the petitioners u/s 207 of the Code of Criminal

Procedure by the committal court. He would lastly submit that the petitioners are not entitled to the case diary of the present case.

As per Section 91 of the Code of Criminal Procedure, when the court considers that production of any document is necessary or desirable for

the purpose of trial of a criminal case, such court may issue summons for the production of the document sought for. The court has to judicially

consider whether production of the document is relevant for the purpose of trial. Section 91 of the Code of Criminal Procedure does not confer an

absolute right on the accused to seek for production of any documents. The party who prays for issuance of summons for production of document

has to necessarily demonstrate before the court that production of such document is material for arriving at a just decision in the case. If the

petitioners fail to establish that a particular document is necessary and desirable to be summoned, then the court shall not summon the document.

The petitioners need not disclose the defence he is going to set up through the documents summoned. But, they have to state the circumstances

which necessitated summoning the documents for the just decision of the criminal case. Unless the petitioners disclose as to why the document is

required, the court will not be in a position to satisfy itself as to the necessity or the desirability of the production of such document in the custody

of any other person.

Section 172(3) of the Code of Criminal Procedure imposes a bar in summoning the case diary by the accused. But, as far as summoning of the

case diary relating to yet another criminal case, the Honourable Supreme Court in State of Kerala v. Babau 1999 SCC (Cri.) 611 has held that if

the court comes to the conclusion that the production of a case diary of another case is necessary or desirable, then the court is entitled to summon

such a case diary of another case u/s 91 of the Code of Criminal Procedure de hors the provision of Section 172 of the Code of Criminal

Procedure for the purpose of using the statements made in the said case for contradicting a witness. Here in the instant case, the petitioners have

also prayed for summoning production of case diary of the present case which is not permissible under law.

As far as the case diary in the counter case and the general diary of this case are concerned, of course, the petitioners can invoke the provision

of Section 91 of the Code of Criminal Procedure seeking production of those documents, but, the petitioners have to satisfy the court that those

documents are necessary or desirable for the trial of the case. It is found that the petition filed u/s 91 of the Code of Criminal Procedure is

completely bereft of any particulars reflecting the necessity or desirability of production of those documents for the purpose of trial of this case. A

very vague averment is found to the effect that production of such documents would bring truth to light and the custody of the same is necessary for

the trial. Such averments are not sufficient to convince the court to arrive at a conclusion that those documents are necessary for trial.

The Andhra Pradesh High Court in S. Srinivasan and Another Vs. Deccan Petrolium Ltd. and Others, has held that the Trial Court has to

consider the nature of the documents called for and the nature of allegations levelled against the accused to determine whether the documents have

any bearing on the question involved in the case.

That was a case where the accused has come out with an averment in the petition filed u/s 91 of the Code of Criminal Procedure that the

recoveries relied upon by the prosecution were not at all genuine. No such specific averment is found in the application filed u/s 91 of the Code of

Criminal Procedure by the petitioners herein.

The Delhi High Court in Pawan Duggal Vs. State, has observed that the documents which the accused cannot procure for the purpose of

putting his defence have to be requisitioned by invoking Section 91 of the Code, if the court is satisfied that those documents are necessary or

desirable for the purpose of trial. Here, in this case, as already pointed out by this court, there is no averment which reflects the necessity or

desirability of production of the documents sought for.

This court in Karuppathal v. Palanisami Gounder and Ors. 1990 L.W. Crl. 305 has held that

As long as the Court is satisfied that the document or thing sought for, has a bearing or is relevant to the case and that production or inspection will

be necessary or desirable or will serve the ends of justice, the discretion will have to be exercised even at a stage before the accused enters into

defence. The document or thing called for must have some relation or connection with the subject matter of investigation, enquiry or trial or other

proceeding or some link in the chain of evidence.

Therefore, unless the accused demonstrates that the documents sought for are relevant and necessary to serve the ends of justice, the court cannot

exercise its discretion u/s 91 of the Code in favour of the accused/petitioner.

As far as the statement u/s 107 of the Code of Criminal Procedure in Na.Ka. No. 7630/03/A-2, dated 4.9.2003 is concerned, it is found that

the petitioners were parties to such proceedings. It is not the case of the respondent that those documents are lying with them. These documents

would have been circulated to the petitioners. Even if these documents have not been circulated, the petitioners can apply for those documents and

obtain the same. When the document is not with the respondent police, the question of summoning such document from the respondent police does

not arise.

Coming to the copy of the accident register of the deceased accused Thirupathi and the would certificate and case sheet of A2, A3, A4 and

Parimala, the prosecution has taken a stand that those documents have already been furnished to the accused by the committal court u/s 207 of the

Code of Criminal Procedure. Even otherwise, the court finds that the petitioners have come out with a very vague averment in the petition seeking

production of those documents. No particulars have been furnished facilitating the Trial Court to arrive at a conclusion that those documents

warrant summoning on account of their relevancy to the case and the necessity to meet the ends of justice.

The court finds that the Trial Court has rightly come to the conclusion that the petitioners have not made out a case for summoning those

documents for the purpose of the trial of the case. There is no illegality or impropriety in the order passed by the learned Trial Judge. Therefore,

the petition fails and the same stands dismissed. The connected Miscellaneous Petition also stands dismissed.