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Judgment
425 paragraphs · 9,765 wordsSandeep Sharma, J.
1.Petitioner, who is facing proceedings in Sessions Trial No. 50/16 pending before Special Judge-II, Kullu, Himachal Pradesh, preferred an application
under Section 91 CrPC, averring therein that he has been falsely implicated in the case and as such, in order to establish his innocence, requires the
assistance of the copies of call details, location and documents given for issuance of SIM cards of following mobile phone number:-
(i)Mukesh Kumar holder of Cell No. 98179-73425 (Reliance); Manoj Kumar holder of Cell No. 94181-83325 of BSNL
(ii)Vijay Kumar holder of Cell No. 94182-69680 of BSNL, and;
(iii)Ram Lal Thakur, holder of Cell No. 94184-50373 of BSNL
2.Petitioner-accused further averred that the service providers may be directed to produce requisite information i.e. copies of call details and tower
location for the period from 23.5.2016 to 24.5.2016 as also the identity documents and application forms alongwith photographs qua aforesaid mobile
phone numbers. In support of aforesaid prayer having been made by way of application under Section 91 CrPC, petitioner also invited attention of the
court below to the judgment rendered by High Court of Delhi in Suresh Kalmadi vs. CBI, Crl. M.C. No. 2143/2015 decided on 22.5.2015 and claimed
that the power under Section 91 is to discover truth and to do complete justice to the case and, as such, discretion vested in the Court must be
exercised judiciously while keeping in mind Constitutional mandate and purpose of Section 91.
3.Aforesaid application came to be opposed vehemently by the respondent-State, who claimed that the application is not maintainable at this stage and
same is barred under provisions of Sub-section (3)(b) of Section 91, wherein it is specifically provided that nothing in this Section shall apply to any
document or thing which is in the custody of Telegraph Authority. Respondent-State further alleged that the accused had not given reasoning showing
any urgency in filing the application and in the given facts and circumstances of the case, call details and other documents
furnished by persons named in the application for issuance of SIM cards of mobile numbers would not serve any purpose and, as such, application
deserves to be dismissed. Prosecution further claimed that the evidence adduced on record duly establishes  the case of the prosecution and
application has been filed solely with a view to prolong the trial. Apart from above, prosecution further claimed that the accused himself is not barred
to apply for said call  details, tower location, documents etc. and there is no provision of law, which empowers/casts a duty upon the court to create
evidence for the accused.
4.Learned court below, vide order dated 21.12.2017 rejected the aforesaid application. Court below taking note of the averments contained in the
application, reply filed by the prosecution and the arguments advanced by the learned counsel representing the parties, passed following order:
“7. From the perusal of the case file, it is transpired that on 21.11.2017, the applicant/accused has examined two witnesses and as per the separate
statement of the learned counsel for the applicant/accused, the defence evidence was closed. Thereafter, the case was fixed for arguments on
05.12.2017, on which date the learned counsel for the applicant/ accused sought time for arguments and the case was listed for arguments on
16.12.2017. From the perusal of the record, it also transpired that the applicant/ accused had also filed similarly application, which was dismissed vide
order dated 02.12.2017. Moreover, there is no provision of law where the Court will create defence evidence for the applicant/ accused. Therefore,
the law cited above by the learned counsel of the applicant/accused is not applicable in this case. Hence, the present applications deserves dismissal.
8.Hence, in view of my above discussions, the present application is hereby dismissed. It be tagged with main case file after due completion.â€
5.It may be noticed that para Nos. 1 to 6 of the order contain only rival contentions of the parties and reasoning, if any, for rejection of the application
has been given in para Nos. 7 and 8. In the aforesaid background, petitioner-accused being aggrieved and dissatisfied with the rejection of his
application referred to herein above has approached this Court in the instant proceedings filed under Section 482 CrPC, praying therein for setting
aside impugned order dated 21.12.2017 passed by learned Special Judge-II, Kullu and for allowing his application under Section 91 CrPC.
6.Mr. B.L. Soni, learned counsel representing the petitioner vehemently argued that the impugned order passed by learned Special Judge is not
sustainable in the eye of law as such same deserves to be quashed and set aside. Referring to the reasoning assigned by learned Court below, while
rejecting application preferred by petitioner-accused, Mr. Soni strenuously argued that the court below has failed to render cogent and convincing
reasoning, if any, to disallow the prayer made in the application, rather the court below in a most mechanical manner proceeded to reject the prayer
made by the petitioner and as such, grave prejudice has been caused to the petitioner-accused, who otherwise is facing trial under Section 20 of the
Narcotic Drugs & Psychotropic Substances Act. While inviting attention of this Court to the judgment rendered by High Court of Delhi in Suresh
Kalmadi (supra), which was also cited before learned Special Judge below, Mr. Soni contended that very purpose and object of Section 91 is to
discover truth and to do complete justice to the case. While considering the prayer made under aforesaid provision of law, court is not expected to
reject the application in a mechanical manner, rather accused is required to be afforded a fair opportunity to prove his innocence. While referring to
the provisions contained under Section 91 CrPC, learned counsel representing the petitioner contended that the application under this provision of law
can be made at any stage of trial. He further contended that the scope of Section 91 is very wide and it can neither be restricted only to the
documents on which the prosecution relies nor to the stage contemplated by Section 233 or 243 of the Code. Mr. Soni further contended that Section
91 empowers a Court to ensure production of any document or other thing, ""necessary or desirable"", for the purpose of any investigation, inquiry, trial
or other proceedings under the Code, by issuing a summons or a written order to those in possession of such materials. Therefore, sine qua non of an
order under this Section is consideration of the Court that the production of the document concerned is desirable and necessary for the purposes of
trial. But, in the case at hand, there is no attempt, if any, on the part of court below to see necessity or desirability of documents sought to be produced
on record by the accused, as such, impugned order being contrary to the basic provision of law deserves to be quashed and set aside. Lastly, Mr. Soni
contended that the petitioner is facing trial for an offence, which may entail him severe punishment as such court below ought to have acceded to his
request and ordered for production of document as detailed in the application so that a fair opportunity is afforded to the petitioner to prove his
innocence.
7.Per contra, Mr. Dinesh Thakur, learned Additional Advocate General argued that there is no illegality or infirmity in the impugned order passed by
the court below, as such, same needs to be upheld. Mr. Thakur, learned Additional Advocate General, further contended that the judgment relied upon
by the learned counsel representing the petitioner in support of his contention is not applicable in the present case and court below has rightly not
placed reliance upon the same, while considering prayer having been made by the petitioner under Section 91. Learned Additional Advocate General,
further contended that bare perusal of application under Section 91 nowhere reveals urgency or necessity, if any, for summoning call details and other
documents, as such, learned court below rightly rejected the same. Mr. Thakur further contended that the application has been filed solely with a view
to prolong the trial because prior to filing the application at hand, accused had examined two witnesses on 21.11.2017 and defence evidence was
closed. He further contended that when matter was fixed for arguments, application under Section 91 came to be filed, which is not maintainable.
While referring to earlier order dated 2.12.2017, passed by learned Special Judge, learned Additional Advocate General contended that similar
application under Section 91 CrPC was filed on same and similar grounds before the learned Special Judge and same was rejected vide order dated
2.12.2017 and as such, another application on same and similar grounds is not maintainable. Lastly, Mr. Dinesh Thakur, learned Additional Advocate
General contended that the learned defence counsel specifically asked prosecution witnesses in the cross-examination that they possess mobile phones
and as such, application, if any, for production of documents as mentioned in the application in question, ought to have been filed at that stage and not
after closure of evidence. He further contended that otherwise also, application filed by petitioner is barred under the provisions of Sub-section 3(b) of
Section 91 CrPC.
8.I have heard the learned counsel for the parties and gone through the record carefully.
9.Before ascertaining correctness of impugned order passed by learned Special Judge, vis-Ã -vis provisions of law contained under Section 91 CrPC
and exposition of law laid down by Hon'ble Apex Court, this Court wishes to observe that definitely the court below has not applied its mind before
passing impugned order, rather, application has been decided in a most mechanical manner without assigning reasons. Interestingly, court below
despite having taken note of judgment rendered by High Court of Delhi in Suresh Kalmadi (supra) has not bothered/cared to look into the observations
and parameters culled out by the High Court of Delhi, for dealing with application under Section 91 CrPC. Learned Court below has simply stated in
the order that there is no provision of law, where court will create evidence for the accused as such law cited by the accused is not applicable in the
case. Bare observation made hereinabove by court below itself suggests that the court below has dealt with the matter at hand in a most casual
manner. Had the court below bothered itself to peruse the judgment passed by High Court of Delhi, it would have definitely not recorded in the order
that there is no provision of law where court will create defence evidence for the accused. Section 91 CrPC, empowers court to issue summons to
produce document or other thing, 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 proceedings under this Code. Section 91 is reproduced
herein below:
“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.â€
10.Scope of Section 91 is very wide, rather, it casts a duty upon the court to cause production of document or a thing believed to be in possession of
some other person, if it considers production of such document necessary or desirable for the adjudication of the case. No doubt, court will not create
evidence in favour of an accused or prosecution but, at the same time, it is bounden duty of the court to discover truth about allegations against the
accused. Issuance of direction, if any, under Section 91, whereby court enjoys power to cause production of document or a thing believed to be in
possession of some person, definitely cannot be considered to be creation of evidence in favour of the accused, who makes an application under
Section 91.
11.Under Section 91, court can consider production of a document through a person, in whose possession or power such documents are believed to
be, if it is necessary or desirable for the purpose of trial, but, interestingly, in the case at hand, learned court below, while passing impugned order has
not made any attempt /endeavour to explore necessity or desirability of the document sought to be produced by the accused with the aid of the court.
In the application under Section 91, petitioner-accused has categorically stated that he has been falsely implicated in the case, as such, with a view to
establish his innocence, he requires assistance of the copies of call details, location and documents given for the issuance of SIM cards of numbers
detailed in the application. Petitioner has also mentioned the period i.e. 23.5.2016 to 24.5.2016, qua which call details are required. As per petitioner-
accused, he was picked up on 23.5.2016 by Head Constable Vijay Kumar from Bus Stand Larji, when he was waiting for the bus alongwith Dine
Ram and Sangat Ram, whereas, as per police story, petitioner-accused was nabbed by the police party at 4 am on 24.5.2016 at a place known as
Dalashani. As per police version, police party consisting of ASI Ram Lal, Head Constable Mukesh Kumar No. 45, LHC Manoj Negi and HHC
Dinesh Kumar etc. had laid Naka at Dalashani at about 4 am on 24.5.2016, petitioner came from Hurla side, on seeing the police, threw a bag on the
road, which was got retrieved and Charas weighing 1.4 kg was recovered therefrom.
12.Accused solely with a view to prove that he was not apprehended at Dalashani on 24.5.2016, by the police party consisting of ASI Ram Lal, HC
Mukesh Kumar etc. rather he was picked up from Bus Stand at Larji on 23.5.2016, sought production of call details, time and location of mobile
numbers possessed by the police officials named above to prove his innocence, by way of application under Section 91.
13.PW-2 HHC Janesh Kumar No. 250 of Police Station Bhuntar, in his statement also admitted that he was not present on the spot on 24.5.2016,
whereas Dine Ram testified that he was with the petitioner on 23.5.2016 at Larji when he was picked up by police officials and in these
circumstances, petitioner-accused in order to prove his version, moved an application under Section 91 seeking assistance of the court for production
of call details, time and location of mobile numbers of police officials namely Manoj Kumar, Mukesh Kumar, Vijay Kumar and Ram Lal (IO) between
23.5.2016 and 24.5.2016, so that their location/movement on 23.5.2016 and 24.5.2016 is ascertained.
14.At this stage, it may be noticed that the petitioner had filed similar application earlier also, averring therein that he has been falsely implicated in the
case and as such, in order to establish his innocence, he requires assistance of copies of call details, location and documents given for issuance of SIM
cards of Mukesh Kumar, Manoj Kumar, Vijay Kumar and Ram Lal Thakur.
15.Interestingly, in that application, prosecution had raised same defence, as has been taken in the present application. On the top of everything,
learned Court below vide order dated 2.12.2017, while disposing of earlier application filed by petitioner under Section 91 also chose not to assign any
reason and simply rejected the application on the ground that perusal of application shows that applicant has nowhere mentioned the date and period of
each CDR and locations of aforesaid phone numbers required by him, nor had applicant shown any urgency for production of said documents in the
court, when case was fixed for evidence of prosecution and as such, application was dismissed. It is quite apparent from the perusal of order dated
2.12.2017 that earlier application under Section 91 came to be filed by petitioner much prior to commencement of evidence of prosecution, but, as has
been observed above, same was dismissed on the ground that the applicant has not mentioned the date and period of CDR’s and location of
aforesaid phone numbers.
16.Earlier application came to be rejected on 2.12.2017, whereafter immediately on 4.12.2017, another application under Section 91 came to be filed
by petitioner specifically mentioning therein that CDR’s qua the period i.e. 23.5.2016 and 24.5.2016, time and location of mobile numbers and
identity documents furnished alongwith applications are required to be produced with the assistance of the court, as such, there appears to be no force
in the contention of the learned Additional Advocate General that the application came to be filed solely with a view to prolong the proceedings, rather,
petitioner taking cue from the observations made in order dated 2.12.2017 passed in earlier application, filed fresh application immediately after two
days, disclosing therein better particulars to enable court to see the necessity and desirability of the documents sought to be produced with the
assistance of the court. But, as has been observed herein above, there is no attempt if any, on the part of court below to ascertain necessity and
desirability of documents sought to be produced on record by the petitioner with the assistance of the court.
17.Section 91 pre-supposes that when a document is not produced, process may be initiated to compel production thereof. Any document or thing as
envisaged under Section can be produced if it is found that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other
proceedings under the Code. First and the foremost requirement of the section is of the document being necessary or desirable. Necessity or
desirability would have to be seen with reference to the stage when prayer is made for the production. If any document is necessary or desirable for
the defence of the accused, 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 this section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under this 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 this Section.
In so far as accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of his defence.
18.Reliance is placed upon judgment of Hon'ble Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, wherein it has been held
as under:
“23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no
right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at
the stage of Section 227 of the Code has not been correctly decided.
24.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.
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 91at 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. Under Section 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.
26.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.
27.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 6to 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.
28.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.
29.Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling
quality, the width of the powers of the High Court under Section 482of the Code and Article 226 of Constitution of India is unlimited whereunder in the
interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the
ends of justice within the parameters laid down in Bhajan Lal's case.â€
19.It is quite apparent from the aforesaid exposition of law that necessity and desirability of document sought to be produced with the assistance of the
court is to be examined considering the stage when such prayer for summoning and production is made and party which makes such prayer, either
police or the accused. But, definitely, application, if any, under Section 91 on the part of accused can be made at the stage of defence.
20.Ratio laid down in aforesaid judgment came to be reiterated in the recent judgment of Hon'ble Apex Court in M/s V.L.S. Finance Ltd. v. S.P.
Gupta and anr, Criminal Appeal No. 99 of 2016 decided on 5.2.2016, wherein it has been held as under:
“43. 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:- “Section91. 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.â€
44.The scope and ambit of the said provision was considered in State of Orissa v. Debendra Nath Padhi[17], 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 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.†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.â€
21.In the case at hand, admittedly, petitioner is facing trial for an offence, which may entail him punishment i.e. imprisonment for a minimum of ten
years. By way of application, he is seeking production of those documents, which according to prosecution even appear to be non-existent and which
he feels shall help in defending himself as such, prosecution can not be allowed to argue that he is trying to make any roving or fishing inquiry or is
making a request which may be unreasonable.
22.It has been repeatedly held by Hon'ble Apex Court that in criminal trial, prosecution has to be absolutely fair and impartial because main purpose of
criminal trial is not to get someone convicted rather, its object is to discover truth and punish the accused, if found guilty. Document, which petitioner
cannot himself procure for the purpose of proving his defence, are certainly to be requisitioned by invoking powers under Section 91, if the court is
satisfied that these are necessary or desirable.
23.Hon'ble Apex Court in V.K. Sasikala v. State (2012) 9 SCC 771, has held that the courts must ensure fairness of the investigative process so as to
maintain the citizens’ rights under Articles 19 and 21 and also active role of the court in a criminal trial. Hon'ble Apex Court has further held that it
is responsibility of the investigating agency as well as of Court to ensure that every investigation is fair and does not erode the freedom of an individual
except in accordance with law. It is also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to
ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. Hon'ble Apex Court has
held as under:
“11. The parameters governing the process of investigation of a criminal charge; the duties of the investigating agency and the role of the courts
after the process of investigation is over and a report thereof is submitted to the court is exhaustively laid down in the different Chapters of the Code
of Criminal Procedure, 1973 (Cr.P.C.). Though the power of the investigating agency is large and expansive and the courts have a minimum role in
this regard there are inbuilt provisions in the Code to ensure that investigation of a criminal offence is conducted keeping in mind the rights of an
accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a
day to day basis and the power of the court under Section 172 (2) and the plenary power conferred in the High Courts by Article 226 the Constitution
are adequate safeguards to ensure the conduct of a fair investigation. Without dilating on the said aspect of the matter what has to be taken note of
now are the provisions of the Code that deal with a situation/stage after completion of the investigation of a case. In this regard the provisions of
Section 173 (5) may be specifically noted. The said provision makes it incumbent on the Investigating agency to forward/transmit to the concerned
court all documents/statements etc. on which the prosecution proposes to rely in the course of the trial. Section 173(5), however, is subject to the
provisions of Section 173(6) which confers a power on the investigating officer to request the concerned court to exclude any part of the statement or
documents forwarded under Section 173(5) from the copies to be granted to the accused. The court having jurisdiction to deal with the matter, on
receipt of the report and the accompanying documents under Section 173, is next required to decide as to whether cognizance of the offence alleged is
to be taken in which event summons for the appearance of the accused before the court is to be issued. On such appearance, under Section 207
Cr.P.C., the concerned court is required to furnish to the accused copies of the following documents:
“i) The police report;
ii)The first information report recorded under section 154;
iii)The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses,
excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
iv)The confessions and statements, if any, recorded under section 164;
v)Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173.â€
12.While the first proviso to Section 207 empowers the court to exclude from the copies to be furnished to the accused such portions as may be
covered by Section 173(6), the second proviso to Section 207 empowers the court to provide to the accused an inspection of the documents instead of
copies thereof, if, in the opinion of the court it is not practicable to furnish to the accused the copies of the documents because of the voluminous
content thereof. We would like to emphasise, at this stage, that while referring to the aforesaid provisions of the Code, we have deliberately used the
expressions “court†instead of the expression “Magistrate†as under various special enactments the requirement of commitment of a case to
a higher court (court of Sessions) by the Magistrate as mandated by the Code has been dispensed with and the special courts constituted under a
special statute have been empowered to receive the report of the investigation along with the relevant documents directly from the investigating
agency and thereafter to take cognizance of the offence, if so required.
13.It is in the context of the above principles of law and the provisions of the Code that the rights of the appellant will have to be adjudicated upon by
us in the present case. It is not in dispute that after the appearance of the accused in the Court of the Special Judge a large number of documents
forwarded to the Court by the Investigating Officer along with his report, had been furnished to the accused. Thereafter, charges against the accused
had been framed way back in the year 2007 and presently the trial has reached the stage of examination of the second accused, i.e. appellant under
the provisions of Section 313 Cr.P.C. At no earlier point of time (before the examination of the second accused under Section 313Cr.P.C.) the
accused had pointed out that there are documents in the Court which have been forwarded to it under Section 173 (5) and which have not been relied
upon by the prosecution. It is only at such an advanced stage of the trial that the accused, after pointing out the said facts, had claimed an entitlement
to copies of the said documents or at least an inspection of the same on the ground that the said documents favour the accused.
14.Seizure of a large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of
investigation and before submission of the report to the Court under Section 173 Cr.P.C., a fair amount of application of mind on the part of the
investigating agency is inbuilt in the Code. Such application of mind is both with regard to the specific offence(s) that the Investigating Officer may
consider to have been committed by the accused and also the identity and particulars of the specific documents and records, seized in the course of
investigation, which supports the conclusion of the Investigating Officer with regard to the offence(s) allegedly committed. Though it is only such
reports which support the prosecution case that are required to be forwarded to the Court under Section 173 (5) in every situation where some of the
seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a duty is cast on the Investigating
Officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, it is not
impossible to visualize a situation whether the Investigating Officer ignores the part of the seized documents which favour the accused and forwards
to the Court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been
forwarded to the Court would it not be the duty of the Court to make available such documents to the accused regardless of the fact whether the
same may not have been marked and exhibited by the prosecution? What would happen in a situation where such documents are not forwarded by the
Investigating Officer to the Court is a question that does not arise in the present case. What has arisen before us is a situation where evidently the
unmarked and unexhibited documents of the case that are being demanded by the accused had been forwarded to the Court under Section 173 (5) but
are not being relied upon by the prosecution. Though the prosecution has tried to cast some cloud on the issue as to whether the unmarked and
unexhibited documents are a part of the report under Section 173 Cr.P.C., it is not denied by the prosecution that the said unmarked and unexhibited
documents are presently in the custody of the Court. Besides, the accused in her application before the learned Trial court(IA 711/2012) had furnished
specific details of the said documents and had correlated the same with reference to specific seizure lists prepared by the investigating agency. In
such circumstances, it can be safely assumed that what has been happened in the present case is that along with the report of investigation a large
number of documents have been forwarded to the Court out of which the prosecution has relied only on a part thereof leaving the remainder
unmarked and unexhibited.
15.In a recent pronouncement in Siddharth Vashisht @ Manu Sharma V. State (NCT of Delhi) (supra) to which one of us (Sathasivam, J) was a
party, the role of a public prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held
that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings
and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due
justice prevails. The fairness of the investigative process so as to maintain the citizens’ rights under Articles 19 and 21 and also the active role of
the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as
well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It
was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that
he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme was duly considered by this Court in
different paragraphs of the report. The views expressed would certainly be useful for reiteration in the context of the facts of the present case:-
“216. Under Section 170, the documents during investigation are required to be forwarded to the Magistrate, while in terms of Section 173(5) all
documents or relevant extracts and the statement recorded under Section 161 have to be forwarded to the Magistrate. The investigating officer is
entitled to collect all the material, which in his wisdom is required for proving the guilt of the offender. He can record statement in terms of Section
161 and his power to investigate the matter is a very wide one, which is regulated by the provisionsof the Code. The statement recorded under Section
161 is not evidence per se under Section 162 of the Code. The right of the accused to receive the documents/statements submitted before the court is
absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with
law. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section
161 of the Code thus indivisible. 217.Further, Section 91 empowers the court to summon production of any document or thing which the court
considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code.
WhereSection 91 read with Section 243says that if the accused is called upon to enter his defence and produce his evidence there he has also been
given the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-
examination or the production of any document or other thing for which the court has to pass a reasoned order.
218.The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law†shall deem to
include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application
for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied
obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit
furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused
and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is
relevant and would help in arriving at the truth, that document should also be disclosed to the accused.
219.The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English
system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a
document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could
be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the
obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an
interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the
police report, first information report, statements, confessional statements of the persons recorded under Section 161whom the prosecution wishes to
examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other
document or relevant extract thereof which has been submitted to the Magistrate by the police under sub-section (5) of Section 173. In
contradistinction to the provisions of Section 173, where the legislature has used the expression “documents on which the prosecution relies†are
not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as
to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the
documents which have to be sent to the Magistrate during the course of investigation as per the requirement ofSection 170(2) of the Code.
220.The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation
and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which
are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the
accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure
would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section
173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the
right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they
rely.
221.It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a
document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona
fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the
interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him
chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the
defence of the accused prejudicially.†(emphasis supplied) (Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6SCC 1)
16.The declaration of the law in Sidhartha Vashisht (supra) may have touched upon the outer fringe of the issues arising in the present case.
However, the positive advancement that has been achieved cannot, in our view, be allowed to take a roundabout turn and the march has only to be
carried forward. If the claim of the appellant is viewed in context and perspective outlined above, according to us, a perception of possible prejudice, if
the documents or at least an inspection thereof is denied, looms large. The absence of any claim on the part of the accused to the said documents at
any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when raised, can be
understood and explained in several reasonable and acceptable ways. Suffice it would be to say that individual notion of prejudice, difficulty or
handicap in putting forward a defence would vary from person to person and there can be no uniform yardstick to measure such perceptions. If the
present appellant has perceived certain difficulties in answering or explaining some part of the evidence brought by the prosecution on the basis of
specific documents and seeks to ascertain if the allegedly incriminating documents can be better explained by reference to some other documents
which are in the court’s custody, an opportunity must be given to the accused to satisfy herself in this regard. It is not for the prosecution or for
the Court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the
same is founded on a reasonable basis it is the duty of the Court as well as the prosecution to ensure that the accused should not be made to labour
under any such perception and the same must be put to rest at the earliest. Such a view, according to us, is an inalienable attribute of the process of a
fair trial that Article 21 guarantees to every accused.
24.In the aforesaid judgment, Hon'ble Apex Court has held that certain rights of the accused flow both from the codified law as well as from equitable
concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. Most importantly,
Hon'ble Apex Court in the judgment referred to herein above has held that absence of any claim on the part of the accused to the said documents at
any earlier point of time cannot have the effect of foreclosing such a right of the accused. Absence of such a claim, till the time when raised, can be
understood and explained in several reasonable and acceptable ways. Difficulty or handicap in putting forward a defence would vary from person to
person and there can be no uniform yardstick to measure such perceptions.
25.Right to defend flows from fundamental right to life and personal liberty enshrined under Article 21 of the Constitution of India, which is definitely
not an illusionary right, rather, a substantive one. Parliament has given power under Section 91 to the court to discover truth and to do complete justice
to the case.
26.True it is that discretion vested in the court needs to be applied judiciously keeping in view constitutional mandate and purpose of Section 91 but
definitely court is not expected to deal application, if any, made under Section 91 in a mechanical manner. Definitely, court below ought to have
assigned cogent and convincing reason that the documents sought to be produced seeking assistance of the court are not relevant and required, while
rejecting prayer having been made by the petitioner.
27.Reliance is placed upon judgment of Delhi High Court rendered in Suresh Kalmadi v. CBI, in Crl. M.C. No. 2143/2015 decided on 22nd May, 2015,
wherein it has been held as under: “19. In the case of G.S. Mayawala & Anr. (supra) in para 6 to 9 of the decision are read as under :
According to the petitioner, the main controversy revolves regarding the cash payment of Rs.2 lakhs made by the respondent to the present
petitioner. As per case of the respondent in the complaint, he had made cash payment amounting to Rs.2 lakhs to the present petitioner no.1 for
petitioner no.2, but no receipt was issued by the petitioner no.2. So, it is for the respondent to prove that he had made this payment of Rs.2 lakhs in
cash to the present petitioner.
7.Much reliance has been placed by the petitioner on one diary page filed by the respondent in the trial court. The photocopy of that diary page is at
Page No.70. However, this page does not lead us anywhere. Moreover, this document has been filed by the respondent and the respondent has to
prove the authenticity of this document and for that purpose there is no need for production of any other documents prayed by the petitioner.
8.Under Section 91 Cr.P.C., the court can consider production of any document from the person in whose possession or power such documents are
believed to be, only, if it is necessary or desirable for the purposes of the trial.
9.Here, in the case in hand, the documents required to be produced from the power and possession of the respondent, are not at all relevant for
deciding the controversy between the parties and as such the decision cited by learned counsel for the petitioner is not applicable to the facts of the
present case. The present petition, under these circumstances is not maintainable and the same is hereby dismissed."" The facts and circumstances in
this case are distinct with the situation of the present case. Therefore, it does not help the case of the respondent as in the referred case the
documents were filed by the respondent thus, it was rightly held that it was the duty of the respondent to prove the authenticity.
20.In the present case, the petitioner is facing trial for an offence which may entail him punishment. He is seeking production of those documents and
things which according to prosecution records even appear to be inexistence and which he feels shall help him in defending himself. According to him
that these documents are connected with the case in hand. Therefore, it cannot be argued straightway that he is trying for making of any roving or
fishing inquiry or is making a request which may be unreasonable. It is settled law that in a criminal trial the prosecution has to be absolutely fair
andimpartial. The main purposes of a criminal trial is not to get some one convicted. The object is to discover the truth and punish the accused if found
guilty. The documents which he himself cannot procure for the purposes of putting his defence have to be requisitioned by invoking Section 91
Cr.P.C., if the Court is satisfied that those are necessary or desirable for the purpose of trial.
The defence has to be built up from day one of the trial. The right to defend, which flows from the fundamental right to ""life"" and ""personal liberty
enshrined in Article 21 of the Constitution of India, is not an illusionary right, but a substantive one. The tool given in the hands of the court to discover
the truth of the controversy before it. The power under Section 91 Cr.P.C. to discover the truth and to do complete justice to the accused. Naturally,
the discretion vested in the Court must be applied judiciously, while keeping in mind the constitutional mandate, and the purpose of Section 91 Cr.P.C.
The Court is not expected to reject the application in a mechanical manner and without assigning reasons that these documents are not relevant and
required, therefore, the prayer cannot be allowed. There must be finding to the effect that why these are not relevant and required.â€
28.Otherwise also, this Court is of the view that no prejudice, if any, would be caused to the respondent, in case prayer made in the application is
accepted, rather, it would help the court below to arrive at a just and fair decision. There is no force in the submission made by the learned Additional
Advocate General that the application has been filed merely to prolong the proceedings because admittedly, petitioner-accused is behind bars for the
last approximately two years. Leaving everything aside, petitioner with the assistance of court would get an opportunity to prove his innocence.
29.Needless to say width of power of High Court under Section 482CrPC and Article 226 of the Constitution of India is unlimited, whereunder in the
interest of justice, High Court can prevent abuse of such process otherwise to secure ends of justice within parameters laid down in State of Haryana
and Ors. vs Ch. Bhajan Lal and Ors. , 1992 Supp (1) SCC 335, and as such, with a view to do complete justice and to afford fair opportunity to the
petitioner-accused to prove his innocence, this Court deems it proper to allow the application filed by the petitioner-accused under Section 91 CrPC.
30.Accordingly, present petition is allowed. Order dated 21.12.2017 passed by learned Special Judge, Kullu is set aside. Application
under Section 91 CrPC as filed by petitioner is allowed. Court below is directed to summon the documents as prayed for in the application. Learned
counsel representing the petitioner- accused undertakes to cause presence of the learned counsel representing the petitioner-accused before the court
below on 23.4.2018. Pending applications if any are disposed of. Interim orders, if any, are vacated.