JUDGMENT 1. - The Dy. Chief Controller of Imports and Exports, Ministry of Commerce, Government of India, New Delhi, filed a complaint against the accused petitioners in the court of Additional Chief Judicial Magistrate First Class Jaipur, under Section 5 of the Imports and Exports (Control) Act, 1947, (hereinafter referred to as the Act). The Investigation in the case was made by the Special Police Establishment Fraud Squad (II), New Delhi under Chapter XII of the Criminal Procedure Code, 1973 The accused petitioners submitted two applications before the trial court on 2nd January 1980, one for giving a direction that the prosecution should produce the police statements recorded by it during investigation and statements of the prosecution witnesses may not be recorded till the defence obtained photo state copies of such statements at their own expense. By another application it was prayed that the documents as per Annexure-'A filed along with the application may kindly be summoned from Shri Amar Singh Police Prosecutor S.P E. (C.B I.) and the same may be kept in court so that the accused petitioners may be in a position to obtain photostat copies thereof at their own expense. The learned Magistrate by his order dated 10th Dec. 1980 dismissed both the aforesaid applications. Aggrieved against the aforesaid orders of the learned Magistrate the petitioners submitted two petitions in this court under Section 482 Cr P.C one of these petitions SB Cr. Misc. Application No. 21/1981-came up for consideration before this court on 23rd Feb 1981. This court held that No. 2 direction can be given u/Sec. 173 Cr P.C. as it was not a case filed on police report but was instituted on a private complaint It was, however, held that as the statements of the prosecution witnesses were recorded under Section 161 Cr.P.C., the accused was entitled to get copies under the proviso to sub-Sec. (1) to Section 162 Cr.P.C. The second criminal miscellaneous application No. 30, 81 with regard to the documents has come up for consideration now. In order to decide the question raised in the petition it would be proper to narrate the facts. 2. The first information report in the case was lodged by Shri N.P. Naidu, M.P. with special Police Establishment (C.B.I.) at Delhi and regular case number RC/9/69/F.S.II dated 25th August, 1969, was registered. In order to decide the question raised in the petition it would be proper to narrate the facts. 2. The first information report in the case was lodged by Shri N.P. Naidu, M.P. with special Police Establishment (C.B.I.) at Delhi and regular case number RC/9/69/F.S.II dated 25th August, 1969, was registered. Thereafter an investigation was conducted by the Special Police establishment (C.B.I) and a detailed report was submitted in the office of Chief Controller of Imports and Exports that a case was made out against the accused petitioners. However, as no complaint directly could be filed by the police in view of the provisions of Section 6 of the Act, the Central Government authorised the Deputy Chief Controller, Imports and Exports, Ministry of Commerce Government of India, to file the present complaint. In the aforesaid circumstance the complaint was filed by the Deputy Chief Controller of Imports and Exports and along with the complaint a list of witnesses and list of documents were also filed. The list of witnesses Contained as many as 88 witnesses and the list of documents contained the particulars of 302 documents. It is undisputed that the trial of the case is conducted as the trial of summons case. The accused applicants submitted an application under section 91 read with Section 254 (2), Code of Criminal Procedure, 1973 on 2nd January, 1980 alleging therein that the prosecution itself realised the importance of the documents annexed with the complaint and as such permitted taking photo state copies of some of these documents. The prosecution also permitted inspection of some documents but obtaining of photo state copies was permitted with regard to only those documents which were seized from the Jaipur Metals an Electrical and not any other documents. It was further mentioned in the application that though a list of 302 documents was annexed with the complaint out of which 35 documents were relating to seizure/arrest memos, 4 documents were seized and copies of 15 documents were allowed to be obtained. As regard the remaining 248 documents, the accused applications gave a list of 124 documents which according to them were very relevant and material and were relied by the prosecution and it was very essential that those documents may be summoned so that the accused could inspect and obtain photo state copies thereof. As regard the remaining 248 documents, the accused applications gave a list of 124 documents which according to them were very relevant and material and were relied by the prosecution and it was very essential that those documents may be summoned so that the accused could inspect and obtain photo state copies thereof. It was also averred that no effective cross-examination could be possible unless those documents were summoned in the court and the accused petitioners were permitted to inspect and obtain photo state copies thereof, The learned trial court though placed reliance on a decision of this court State of Rajasthan v. Moti Singh and others. 1975 W.L.N 137 wherein it was held that the accused applicant was entitled to obtain these documents from the prosecution, but rejected the prayer on the ground that such prayer was disallowed by the court on previous occasions twice. 3. It is contended by Mr. Mathur, learned counsel for the applicants that the trial court on earlier occasions had not decided the question on merits and at one occasion the application was withdrawn by the accused petitioners themselves and on another occasion also the court never applied its mind on the merits of question. I may observe at this stage that I have already taken the view while disposing of another Misc Application No. 21/1981 on 3rd February, 1981 that the earlier applications were not considered by the Court on merits and the principle of res judicata in terms did not apply in criminal proceedings and as the earlier applications were not decided on merits the learned trial court was not justified in dismissing the application on this ground alone. The question thus remains for determination whether such direction as caught by the applicants can be given on merits or not. 4. Mr. Mathur, learned counsel for the petitioners has placed reliance on Sections 91 and 254(2) code of Criminal Procedure in this regard is submitted that under sec. 91 whenever the court considers that the production of any document was necessary or desirable for the purpose of any investigation, inquiry, or trial, the Court was competent to give a direction to any person in whose possession or power such document was believed to be, requiring him to attend and produce it or merely to produce it at the time and place stated in the summons or order. According to the learned counsel in the facts and circumstances of this case it was necessary that the trial court ought to have passed on order as prayed by the petitioners. Support is also sought from the provisions of Section 254 (2) which deal with the trial of summons cases by Magistrate and under which if a Magistrate thinks fit. it may on the application of the prosecution or the accused, issue a summon to any witness directing him to attend or to produce any document or other thing. Reliance has been placed on K.V. Rama Krishna Raddy v. The State 1975 Cr. L.J. 1980 , in which it was held that the right given to the accused under Section 91 of the Cr. P.C. was a general right and in no way controlled by Sec. 243(2). The accused is, therefore, entitled to apply under Section 91 to call for the document on which he wants to rely, at any stage (before the framing of charge in this case) of investigation or enquiry of at the stage of trial or any other proceeding under the code. 5. Mr. Soral Learned counsel for C.B.I. has strenuously contended that there was no power under any provisions of the Criminal Procedure Code for giving a direction in the trial of a summons case that the prosecution may be called up to produce all the documents which were in its power and possession. It is also contended that the purpose of the petitioners by moving this application is to make a fishing and roving inquiry which cannot be permitted. It is for the prosecution to consider which documents are relevant and it lies with the prosecution to produce any documents at the trial and it is only thereafter the accused petitioners may have a right to inspect those documents or obtain their copies. It is also submitted that sub-Sec. (2) of Section 254 Cr. P.C does not empower the court to give a blanket direction to the prosecution to submit all the documents and it only empowers the accused to apply to the court at the time when he tenders the defence evidence to get the documents summoned from a witness and to produce those documents as his own evidence Reliance is placed on In Re : T S. Swaminathan : AIR 1944 Mad. 419 wherein it was observed as under:- "If there are any documents which are relied upon by the accused either for dislodging the prosecution case or for building up his own case, he will have to take out a summons for them If the objection of the inspection is merely to fish for information, it is not a thing that could be permitted. There may be documents in the custody of private individuals which may furnish necessary information to an accused but then he can claim no right to look into them unless he takes out a summons for them and gets them into court. If they are not produced, the proper course for him would be to move the Court to issue a search warrant under Section 96 Criminal P.C., after satisfying the Court, they are necessary. Merely because the documents are in the custody of the Court, that will not give him a right which he would not have, if the documents were in private custody." 6. Support is also sought from Ajay Mukherji v. The State and others, 1971 Cri. L. J. 1329 and the Public Prosecutor, Andhra Pradesh v. Pocku Syed Ismail and another 1973 Cri. L. J. 931 It is submitted that in the aforesaid two cases also the view has been taken that satisfaction of the court about the necessity of production of documents is a sine qua non of the order under Section 91 of Code of Criminal Procedure, 1898 (Corresponding to Section 91 of the present Code.) The satisfaction must appear expressly from the order which also must contain reasons for it. 7. I have given by careful consideration to the arguments advanced by learned counsel for the both the parties. In my view Section 91 applies to all kinds of trials under the Cr. P.C. The power given u/Sec. 91 to the Court is a general and wide power which empower the court the production of any document or any other thing at any state of any investigation inquiry, trial or other proceeding; under the Cr. P.C. It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or thing was necessary or desirable. P.C. It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or thing was necessary or desirable. This power has to be exercised in a Judicial manner and where ever the Court is satisfied in the facts and circumstances of a particular case that the production of any document or thing was necessary or desirable in its view, then the court could pass an order both in favour of the accused as well as the prosecution. It is no doubt true that such power would not be exercised where the documents or thing may not be found relevant or it may be for the more purpose of dealing the proceedings or the order is sought with an oblique motive. In the facts of this case it is clear that the learned trial court has not applied its mind about the necessity or desirableness of the documents for purpose of trial of this case. The learned trial court of course placing reliance on Moti Singhs case (supra) though it necessary to even supply the copies of these documents to the accused persons but as already observed above, rejected the prayer as it had disallowed on two occasions earlier. In these circumstances there were two courses open before this Court either to remand the case to the trial court with a direction that it should apply its mind on the necessity or desirableness of the documents now sought to be summoned by the petitioners of given a decision on this question instead of remanding it. Though it may not be proper to assume this jurisdiction by this court which normally is the function of the trial court but in the facts of this case deem it proper to decide this question by this court itself. This would avoid delay in the trial of the case and because there is not much dispute between the parties about the relevancy or otherwise of the documents. It is undisputed that the investigation in this case has been done by the Special Police Establishment (CBI.) itself in accordance with Chapter XII of the Cr. PC. This would avoid delay in the trial of the case and because there is not much dispute between the parties about the relevancy or otherwise of the documents. It is undisputed that the investigation in this case has been done by the Special Police Establishment (CBI.) itself in accordance with Chapter XII of the Cr. PC. In the ordinary casein such circumstance the challan would have been filed by the police itself and it was bound to furnish all the copies of the statements and documents recorded or taken during investigation to the accused under Section 173 (4) Cr. P.C. However, as held by their Lordships of the Supreme Court in the Assistant Collector of Customs, Bombay and another v. L.R. Melwani and another AIR 1970 SC 962 as this case has been instituted on a complaint by the Deputy Chief Controller of Imports and Exports no direction can be given under Section 173 (4) Cr. PC The prosecution itself has given a list of 302 documents along with the complaint out of which the accused petitioners have sought for a direction to produce 124 documents only. Thus the relevancy of such documents is indisputedly held established. Mr. Boral. learned Special Public Prosecutor for C.B I. was unable to satisfy this court that such documents were not relevant or the prosecution would be prejudiced in any manner in case they are required to produce these documents in the court at this stage which in my view they will produce at the time of the trial. It may be further made clear that neither is the prayer of the applicants, nor this Court can give a direction under Sec 91 that the prosecution should give the copies of all these documents to the accused petitioner. The petitioners only seek a direction from this Court that these documents may be submitted in the court and the accused be permitted to inspect these documents and to I obtain the certified copies or photo state copies at their own expenses. In my view such a direction in the facts and circumstances of this case would meet the ends of justice and will certainly grant an opportunity to the accused applicants to defend their case in a proper manner, which is the basic requirement in the trial of a criminal proceeding. In my view such a direction in the facts and circumstances of this case would meet the ends of justice and will certainly grant an opportunity to the accused applicants to defend their case in a proper manner, which is the basic requirement in the trial of a criminal proceeding. I see no ground or justification for refusing such prayer of the applicants as it does not occasion any prejudice to the prosecution and on the contrary it helps the accused persons to defend their case in a proper manner. 8. In these circumstances this petition is allowed and a direction is given to Shri Amar Singh Public Prosecutor, Special Police Establishment (C.B I.) to produce in the trial court the documents mentioned in Annexure A filed along with the application under Section 91 date 2nd January, 1980.Petition allowed. *******