JUDGMENT 1. - This is a petition filed under Section 482 Criminal Procedure Code against the order of the learned Additional Chief Judicial Magistrate No. 2, Jodhpur dated December 10, 1993 by which he rejected the application of the accused-petitioners moved under Section 91, Criminal Procedure Code for the production of statements of the neighbours Atiurrehman and Bachraj Nai recorded under Section 161, Criminal Procedure Code and certain documents collected during investigation. 2. After hearing the learned counsel for the accused persons and the complainant and the learned Public Prosecutor the learned Magistrate rejected the Application holding that the prosecution is not bound to cite in the charge-sheet all the witnesses examined under Section 161, Criminal Procedure Code and produce documents collected during investigation and whatever documents were considered necessary they have been enclosed with the challan. He further held that the provisions of Section 91, Criminal Procedure Code cannot be invoked under the facts and circumstances of the case and the accused petitioners will have full opportunity to defend themselves. 3. It has been contended by the learned counsel for the accused petitioner that no reply to the said application moved under Section 91, Criminal Procedure Code was filed by the prosecution. As such the prosecution cannot say that the said two witnesses were not examined and documents were not collected during investigation and the court has no power under Section 91, Criminal Procedure Code to issue direction for their production. 4. The learned Public Prosecutor duly supported the order under challenge. 5. Admittedly, a challan under Sections 406 and 498-A, Indian Penal Code has been filed against the accused petitioners and charges have not been framed against them. 4. The learned Public Prosecutor duly supported the order under challenge. 5. Admittedly, a challan under Sections 406 and 498-A, Indian Penal Code has been filed against the accused petitioners and charges have not been framed against them. Sub-section (1) of Section 91 of the Code of Criminal Procedure, 1973 runs as under :1) Whenever any court of 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 may issue 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."It has been observed in Navin Ramji Kamani v. Shri K.C. Shekhran, 1981 Rajasthan Cri. Cases 218 , as follows : "I have given my careful consideration to the arguments advanced by learned counsel for both the parties. In my view Section 91 applies to all kinds of trials under the Criminal Procedure Code The power given under Section 91 to the Court is a general and wide power which empowers the court, the production of any document or any other thing at any stage of any investigation, inquiry, or other proceedings under the Criminal Procedure Code 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 wherever 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 mere purpose of dealing the proceedings or the order is sought with an oblique motive. 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 mere 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 the purpose of trial of this case." 6. It has been observed in Brojendra Nath Kolay and another v. The State, 1991 Cr.L.J. 1194 Cal. as follows - "The word "whenever" clearly indicates that even at the stage of consideration of framing of charge the accused may approach the court under Section 91 of the Code of Criminal Procedure for production of a document which is relevant in this connection. It is, however, needless to mention that it is a matter of discretion of the court whether any summons should be issued under Section 91 for production of any document and this discretion must be exercised judicially only when the court is convinced that the production of such document is necessary or desirable for the ends of justice. It is needless to mention that such production will not be ordered where there is any legal bar against such production, as for example, the bar of Sections 123 and 124 of the Evidence Act etc. Such production also shall not be ordered where it appears to the court that the prayer for production has been made for the purpose of vexation or delay or for defeating the ends of justice." 7. It has been observed in Syed Firzozuddin v. State of Rajasthan, 1992(1) RLR 573 , as follows : "15. In the background of the above proposition of law, I have to examine whether the trial court acted rightly and judicially in declining the prayer of the accused petitioner to summon the above mentioned five witnesses. As already stated earlier, the petitioner and the co-accused are facing trial under sections 498-A and 304-B Indian Penal Code. There is no dispute that the deceased Smt. Naznin Noor had died on account of burns. The real dispute is, whether she was subjected to cruelty or harassment by her husband or the petitioner and, whether such cruelty or harassment was in connection with demand of dowry. There is no dispute that the deceased Smt. Naznin Noor had died on account of burns. The real dispute is, whether she was subjected to cruelty or harassment by her husband or the petitioner and, whether such cruelty or harassment was in connection with demand of dowry. On these facts, the witnesses of the neighbourhood are always material and important, as they have occasion to see the behaviour and relationship of the accused persons towards the deceased. Whether their statements should be relied or not, is a question to be decided by the trial Court, but, it cannot be said that their evidence is not essential to the just decision of the case. Out of above five witnesses, Smt. Sugra Bibi was residing as a tenant in the same house where the deceased had died, and, similarly, the witnesses Syed Farookh Ali and Mohd. Akhtar were the neighbours who resided near the house of the deceased. The statements of these witnesses were recorded by the police under section 161, Criminal Procedure Code and they were also cited as prosecution witnesses. In their statements, they have not stated that the accused persons treated the deceased with cruelty or otherwise harassed her or made any demand of dowry. It is true that these witnesses have not stated either this way or that way on the above important and material facts but, their evidence can throw light on these facts if they are examined by the trial Court. In my view, their evidence may be of great assistance to the just decision of the case. The reason given by the trial Court declining the prayer of the petitioner does not appear to be sound when it observed that these witnesses did not state anything in their statements under section 161 Criminal Procedure Code about the prior conduct of the accused persons towards the deceased. The Court should have further considered as to whether these witnesses were in a position to throw light about the previous conduct and behaviour of the accused persons towards the deceased. As the test should be, whether a person can give evidence which may be essential to the just decision of the case. Taking into consideration the nature of the charges which the accused persons are facing, I am of the considered view that the evidence of Smt. Sugra Bibi, Syed Farookh Ali and Mohd. As the test should be, whether a person can give evidence which may be essential to the just decision of the case. Taking into consideration the nature of the charges which the accused persons are facing, I am of the considered view that the evidence of Smt. Sugra Bibi, Syed Farookh Ali and Mohd. Akhtar may assist to the just decision of the case. 17. For the powers of this Court under section 482, Criminal Procedure Code it may be stated that such powers can be exercised by the Court to secure the ends of justice. The trial Court rejected the prayer to summon and examine the witnesses, whose evidence is essential to the just and proper decision of the case and in doing so, it failed to perform its obligatory and mandatory duty, as such, this Court could and should exercise its powers under section 482, Criminal Procedure Code in a situation like the present one." 8. It has been held in Devendra Kumar v. State of Rajasthan, 1990(2) RLR 629 , as follows : "3. It cannot be disputed that all the evidence mentioned above is in the form of documents and the statement under Section 164, Criminal Procedure Code must have been recorded at the instance of the police by the learned Judicial Magistrate. This also must be in the case diary that the applicant was admitted in the hospital with burn injuries and the deceased had been removed from the hospital against the advice of the hospital authorities and abortion was got done on her person in a different hospital. The police was bound to place before the Court all this evidence and they having kept it back, it cannot be said that the challan was complete in accordance with Section 173, Criminal Procedure Code which enables the Court to decide whether to discharge the accused under Section 228 of the Criminal Procedure Code Since a duty has been cast on the Court to decide whether or not to frame the charge only after hearing the accused, in my view it would be necessary for the Court to peruse all the record that is available with the prosecution and if the prosecution has kept back certain record from the Court, the Court is duty bound to insist that such record should be produced. Consequently, the impugned order cannot be upheld and is hereby set aside. Consequently, the impugned order cannot be upheld and is hereby set aside. For these reasons, I direct that the learned Sessions Judge should call for the records mentioned in the application and hear the petitioner before the charges against him are framed by him. The petition stands disposed of accordingly." 9. It has been observed in Omkar and others v. State of Rajasthan, 1987(2) RLR 521 , as follows : "In the case of Century Spinning and Weaving Manufacturing Company Ltd. v. State of Maharashtra, ( AIR 1972 SC 545 ) their Lordships of the Supreme Court observed that it cannot be said that the Court at the stage of framing the charge has not to apply its absolute mind for considering whether or not there is a ground for presuming the commission of offence by the accused. The order framing charge does substantially affect the person's liberty and it cannot be said that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 considered it proper to institute the case. The responsibility of framing the charge is that of the court and it has to absolutely consider the question of doing so. Without fully adverting to the material on record, it must not blindly adopt the decision of the prosecution. It may be observed that the learned Addl. Sessions Judge, is a senior and experienced Judge and cannot act merely as a mouth pieces or post office of the prosecution, but has to consider the broad probabilities of the case and the total effect of the evidence and the documents produced before the court. It is, therefore, in the interest of justice that the documents, placed on the record by the accused petitioners as early as at the stage when the charge was to be framed by the trial Court should have been considered by the learned Additional Sessions Judge also. It was also desirable that the learned Public Prosecutor should have been called upon to have admitted or denied the documents produced by the petitioner, the copies of which had also been given to the State. As per the order sheet dated 19.1.1982, it is of course for the learned Addl. Sessions Judge to rely or not to rely on the document produced on behalf of the petitioners. As per the order sheet dated 19.1.1982, it is of course for the learned Addl. Sessions Judge to rely or not to rely on the document produced on behalf of the petitioners. If the documents are not admitted the relevant provisions of the Evidence Act shall be applicable regarding considering the documents at the time of framing the charge against the accused petitioner." 10. Under the facts and circumstances of the case, the consideration of the statements of the neighbours recorded under Section 161, Criminal Procedure Code and reports lodged earlier by the complainant at the time of the framing of charges is essential and their non-production and non-consideration would result in the mis-carriage of justice. 11. Accordingly, the petition moved under Section 482, Criminal Procedure Code is allowed. The order of the Additional Chief Judicial Magistrate No. 2, Jodhpur dated December 10, 1993 is set aside. The prosecution is directed to produce the statements of the said neighbours recorded under Section 161, Criminal Procedure Code and previous reports of the complainant and they will duly be considered by the learned Magistrate at the time of passing order for framing of charges. Reason will be mentioned in the order.Petition allowed. *******