Malkeet Singh vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The revisionist before this court is facing the proceedings of Criminal Case No. 670 of 2013 'Malkeet Singh vs. Surjan Singh and Others', which is pending consideration before the court of Judicial Magistrate, Sitarganj, District Udham Singh Nagar, for the alleged commission of offence under Sections 147, 148, 149, 452, 326, 324, 504 & 506 of IPC, registered at P.S. Sitarganj, District Udham Singh Nagar.

During the pendency of the proceedings and particularly at a much belated stage, i.e. after 24.07.2018 whereby the evidence of the complainant has been closed the present revisionist has filed an application invoking the provisions contained under section 91 of Cr.P.C. by filing the same on 22.08.2019, despite of an opportunity being granted to him he has filed the application for the purposes of directing the prosecution to produce the documents on record in order to substantiate his defense in the aforesaid criminal case. In order to deal with the impact and the implications of section 91 as contained under Chapter 7 of Cr.P.C. it becomes inevitable for the court to refer to section 91 itself, the ambit and extent of exercise of powers under section 91 of Cr.P.C., said power is not limited or restricted with the stage at which the proceedings of the trial has reached and that is why the legislature in its wisdom while legislating sub-section (1) of section 91 has made its ambit wide enough to be exercised, "whenever" (whenever herein would mean at any stage of the proceedings) and further by the use of the word 'any court' this court is of the opinion that it would include and would advocate too where the provisions under section 91 could be exercised by the person before any court ceased with the case, and by a person, who is a party to the proceedings for getting ensured the production of the documents to be utilized and considered for establishing his innocence or which may be vital for the purposes of an effective consideration at the stage of enquiry or trial. Section 91 of Cr.P.C. is quoted hereunder:

"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."

In the case at hand the present revisionist is said to have filed an application under section 91 of Cr.P.C. on 22.08.2019, praying for that the reports, which has been submitted by the medical officers referred in the application, that may be summoned, because the entire case of prosecution story is based upon the medical examination of the victim of the offence, which was being tried as against the present revisionist in Criminal Case No. 670 of 2013 'Malkeet Singh vs. Surjan Singh'. The said application as preferred on 22.08.2019 has been rejected by an order impugned dated 29.08.2019.

The learned Judicial Magistrate, Sitarganj, while rejecting the application has assigned the reason that as the complainant's opportunity to lead his evidence has been closed on 24.07.2018 and further the reason, which has been assigned by eth Trial Court after referring to the various dates fixed by the learned Trial Court is that the sole intention of the applicant, i.e. the revisionist, to the application under section 91 was to delay the proceedings and it will amount to be an abuse of process, and lastly, the court has observed that since there had been a general direction issued by the High Court on administrative side to decide the proceeding upto 2014 as expeditiously as though the proceedings of trial happens to be the old proceeding, the application under section 91 was rejected.

This court feels it necessary to deal with the three reasoning, which has been assigned by the court for rejecting the application in the following manner:

(i) the effect of closure of an opportunity of evidence of the complainant by an order dated 24.07.2018, cannot be extracted in a fashion, which would be dehors to the intention and legislative purpose of section 91 of Code of Criminal Procedure.

The closure of evidence of complainant itself does not create an embargo that the procedure under section 91 of Cr.P.C. could not be exercised invariably under all circumstances after the closure of an opportunity to lead an evidence by the complainant, and if that is not the intention of the legislature and particularly when the language of the provision itself has kept it open to be made applicable, "at any stage of the proceeding", before "any court or before any authority" and also has been made applicable to the proceedings of investigation, inquiry or trial, which is wide enough to include the stage at which after the closure of evidence of the complainant the application under section 91 Cr.P.C. was filed. Hence, that cannot be a ground to be extracted for rejecting the application.

(ii) secondly, the reasoning assigned by the court, it seems was that the complainant-applicant to the application under section 91 Cr.P.C., has maliciously filed the application to delay the proceedings is yet again too preposterous for the reason rather that it was an inference drawn on an assumption of the court itself because there is no logical reasoning, which has been assigned to reflect that there was any step or recourse adopted by the complainant/applicant to delay the proceedings nor it was the case of the adversaries. Merely the court's assumption of a delay of proceedings cannot be a reason to deny the application under section 91 Cr.P.C.

(iii) lastly, the reason for rejecting the application is that there happens to be a general direction by the Hon'ble High Court to decide the proceedings expeditously, which are pending prior to 2014.

This Court is slightly apprehensive to accept this third reason for rejecting the application, for the reason that even if there is a general direction of the High Court, which may have had any laudable object to be achieved of the expeditious disposal of the old proceeding pending before the courts below, it would never intend to deprive the party to the proceeding to avail an opportunity, which is otherwise available to him under law. The general administrative direction issued by this High Court for deciding the proceeding registered prior to 2014 expeditiously did not contain any direction to the effect that the said direction has to be mandatorily enforced even after deceiving the very purpose and the procedure contemplated under code of criminal procedure.

The said rationale as referred above also finds refrence in a judgment rendered by the Hon'ble Apex Court reported in 2005 (5) SCC 386 'K.P. Sudhakaran and Another vs. State of Kerala and Others', wherein, in paragraph -18, which is quoted hereunder the Hone'ble Apex Court has held that merely a delay incurred in a pending proceeding before the court below or merely under the pretext that it has remained pending for decades together, it may lead to deprive a person of his opportunity to sustain his case before the court below as delay cannot defeat the legal statutory right of the other party:

"18.     The learned counsel for the contesting private respondents lastly submitted that by now the appellants and the contesting private respondents have all been promoted from the posts of LDC to UDC and several of them have also been promoted as Sub-Registrars and the matter should not be unsettled after such a long time. We find that the matter has been continuously under litigation ever since 1990 and the delay in disposal cannot defeat the rights of appellants."

Hence, in view of the reasons, as given above, the impugned orders under challenge in the present revision cannot be sustained. The same is quashed. The revisionist's application under section 91 is hereby allowed. He is granted three weeks' time from the date of receipt of the certified copy of this order to file an appropriate document, which he wanted to be placed on record by virtue of an application under section 91 Cr.P.C. and thereafter the Judicial Magistrate is requested to proceed with the trial of the case as expeditiously as possible.