Diwakar Gautam vs State of M.P.

Challenge in this petition u/s 482 of the Code of Criminal Procedure, 1973 is made to an order-dated 16.8.2013 passed by Special Judge, Prevention of Corruption Act, Morena in Special Case No. 11/2012, whereby an application filed by the petitioner u/s 91 Cr.P.C. for production of certain documents before framing of charge, has been rejected. Petitioner herein was President of a Cooperative Society and in the matter of distribution of benefits in accordance to various government schemes in the year 1990-91 upto 1995-96 as various irregularities have been committed and defalcation to the tune of more than Rs. 3,10,409/- was detected, he is being prosecuted under the provisions of the Prevention of Corruption Act.

Charge-sheet has been filed and the case is at the stage of framing of charges. Petitioner filed an application u/s 91 Cr.P.C., for summoning of certain documents which is said to be in the possession of the prosecution. The documents pertain to disbursement of the benefits under the government scheme, resolutions, notifications of the Cooperative Society, and records with regard to the functioning of the society, for the relevant period i.e. from 1990-91 to 1995-96. The application has been rejected by the trial court mainly on the ground that the charge-sheet has been filed, the charges are to be framed based on the documents filed by the prosecution along with the charge-sheet and at the time of framing of charge, summoning of documents is not necessary. Reliance in this regard has been placed by the trial court on a judgment of the Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi, and, two other judgments in the case of State Anti Corruption Bureau, Hyderabad and another Vs. P. Suryaprakasam, (2008) 14 SCC 13: Rukmini Narvekar Vs. Vijaya Satardekar and Others, to say that at this stage the documents cannot be summoned.

That apart, learned trial court has found that from the assertion made by the prosecution it is seen that these documents were never seized by the prosecution, they are not available with the prosecution and, therefore, they cannot be produced.

Challenge to this order is made in this petition u/s 482 Cr.P.C., mainly on two grounds. The first ground is that the documents are necessary for establishing the defence of the petitioner and, therefore, the learned Court has committed an error in refusing to summon the documents. That apart, it is stated that under similar circumstances in the case of certain other co-accused, this Court in Criminal Revision No. 261/2007 has directed for summoning of the documents, and similar order passed u/s 91 Cr.P.C. has been dismissed, therefore, similar treatment should granted to the petitioner.

Shri S. Chaturvedi, learned counsel for the respondent, refuted the aforesaid and referred to the findings recorded by the trial court in paragraphs 4 and 5, to say that the discretion exercised by the trial court in the matter does not call for any interference in exercise of the limited jurisdiction available to this Court in a proceeding u/s 482 Cr.P.C.

That apart, Shri Chaturvedi argued that the documents sought for by the petitioner were never seized nor confiscated by the prosecuting authority at the time of investigation. The documents are not in their possession and, therefore, in rejecting the application, the trial court has not committed any error.

We have heard learned counsel for the parties and perused the records.

It is clear from the records that it had been the case of the prosecution that the documents called for are not available with the prosecuting authority, as it was never seized or taken into custody by the prosecuting agency at the time of investigation.

If that be the position, there is no question of prosecution being directed to produce the documents, once it is established that the documents were never seized by the prosecuting agency.

That apart, petitioner has not adduced any material or evidence to say that the assertions made in this regard by the prosecution is not correct. Under such circumstances, we find no error in the order passed by the trial court.

That apart, in the case of Debendra Nath Padhi (supra), after taking note of the provisions of Section 91 read with sections 227 /228 of the Cr.P.C., it has been held by the Supreme Court that summons to produce documents at the stage of framing of charge is not relevant. It has been held by the Supreme Court that Section 91 cannot be invoked by the accused to compel production of a documents at the stage of framing of charge to show his innocence. This judgment rendered by the Supreme Court also disentitles the petitioner from claiming of summoning the documents at this stage, when only charge is to be framed.

That apart, in the other judgments rendered by the Supreme Court in the case of P. Suryaprakasam (supra) and Rukmini Narvekar (supra), even though the principle laid down in the case of Debendra Nath Padhi (supra) has been approved, and it has been held by the Supreme Court that while framing charge, the defence can produce certain documents which can be looked into only in exceptional cases, but not as a matter of course in all the cases. Taking note of the totality of the circumstances and the peculiar facts of the present case, which goes to show that the documents were never seized by the prosecution, we see no error in the order passed by the trial court warranting interference at this stage in a proceeding u/s 482 Cr.P.C.

As far as the order passed in the matter of other co-accused in Cr. Revision No. 261/2007 is concerned, this fact has been taken note of by the learned trial court in paragraph 7 of the order and it has been found that the documents in those cases and the facts are entirely different and the said order cannot be made applicable in the case of the present petitioner.

Considering the totality of the circumstances, we find no reason to interfere into the matter. It seems that the petition has been filed only to delay the proceedings. Accordingly, the petition stands dismissed.