P. S. NARAYANA, J. ( 1 ) HEARD Mr. C. Sadasiva Reddy, learned standing Counsel for Central Bureau of investigation and Mr. Padmanabha Reddy, learned senior counsel representing respondent/accused No. 1 in C. C. No. 17 of 1998 on the file of the Special Judge for C. B. I. Cases, Hyderabad. ( 2 ) THE petitioner filed the present criminal petition to quash the order passed by the special Judge for C. B. I. Cases, Hyderabad dated 28-6-2002 passed in Criminal M. P. No. 169 of 2002 on the file of the Special judge for C. B. I, cases, Hyderabad. ( 3 ) IT is stated that the petitioner, the Central bureau of Investigation is prosecuting the respondent/accused No. 1 under Sec. l3 (l) (d) read with Section 13 (2) of the Prevention of Corruption Act and Sees. 120-B, 420 and 468 IPC on the file of the Special Judge for c. B. I. Cases, Hyderabad. When the trial of the case in C. C. No. 17 of 1998 was proceeded the respondent/accused No. 1 filed a petition in Criminal Petition No. 169 of 2002 under section 91 of the Code of Criminal Procedure 1973 (hereinafter referred to as Code) for summoning the official correspondence namely the report of the Superintendent of police, C. B. I. Hyderabad addressed to Central vigilance Commission and Customs and central Excise Department. It is further stated that the C. B. I. , the complainant in the case was not given notice of the said petition, though on the date when the petition came up for hearing i. e. , on 26-4-2002, notice was ordered and the matter was posted to 28-6-2002 for filing counter. However, the said notice was not given to the petitioner s counsel i. e. , C. B. I. Special Public Prosecutor and the Public Prosecutor was not aware of the said petition. However, the said notice was not given to the petitioner s counsel i. e. , C. B. I. Special Public Prosecutor and the Public Prosecutor was not aware of the said petition. The petition was called on 28-6-2002 and though no notice was given to the Special Public Prosecutor and no copy was served on Special Public Prosecutor, the petition was allowed by the learned Special judge stating that no counter was filed, without giving any opportunity to the Special public Prosecutor to file a counter and oppose the said petition or advance the contentions to oppose summoning of the said official correspondence of the Customs and Central excise Department and it is used by the accused in contravention of Sections 123 and 124 of the Indian Evidence Act. It is further stated that the accused/respondent herein intends to use the said official correspondence of the complainant/c. B. I. in the examination of the Investigation Officer, who is not aware of the said document. It is further stated that the respondent in his petition before the trial Court has clearly stated that summoning of the said documents is for the purpose of cross-examining the Investigating Officer. The petitioner no doubt has raised several grounds for the purpose of showing that the impugned order made by the trial Court cannot be sustained and a counter-affidavit was filed by the respondent, specifically stating thathe filed a Criminal Petition in crlm. P. No. 169 of 2002 under Section 91 of code on 24-6-2002, for summoning the file from the office of the Commissioner of central Excise, Hyderabad. It is further stated that on 24-6-2002 the Special Public prosecutor did not attend to the Court and on the suggestion made by the Court, a copy was given to the Bench Clerk for service on the Special Public Prosecutor and the case was posted to 28-6-2002 for notice and counter. It was also stated in the counter- affidavit that on 28-6-2002 when the matter was taken up, the learned Special Public prosecutor represented that she has no objection for summoning the documents and hence no counter was filed. It was also stated in the counter- affidavit that on 28-6-2002 when the matter was taken up, the learned Special Public prosecutor represented that she has no objection for summoning the documents and hence no counter was filed. The Special Public prosecutor did not ask any time for filing of the counter and in those circumstances, the learned Judge had allowed the application and as per the orders made by the Court, the documents were received and a copy of the document was also obtained by the prosecution and the defence. It was further stated that the present petition for quashing of the orders was filed on 3-9-2002 i. e. , after lapse of more than two months from the date of passing of the impugned order, making false allegations. In para 3 of the counter it is stated that the respondent/accused is entitled to summon for any document pertaining to the case and it was further stated that C. B. I, approached the Central Vigilance commissioner as well as Director of central Vigilance for obtaining sanction of prosecution and authorities refused to accord sanction stating that a departmental enquiry is sufficient for a minor penalty. It was further stated that Sections 123 and 124 of Indian evidence Act have no application to the present case on hand. ( 4 ) MR. C. Sadasiva Reddy, learned standing Counsel for C. B. I. , submitted that the Trial Court has not applied its mind while making the order and passed an order in a mechanical way without application of mind. It is further submitted that at any rate, it is not a speaking order. It is further contended that this is a case where some internal correspondence was sought to be summoned by the respondent/accused no. 1 by filing an application under Sec. 91 of code and appropriate opportunity should have been given to the prosecuting agency to oppose the same by filing a counter in this regard and also by advancing the arguments relating to the claim of privilege or otherwise to which the prosecuting agency is entitled to. 1 by filing an application under Sec. 91 of code and appropriate opportunity should have been given to the prosecuting agency to oppose the same by filing a counter in this regard and also by advancing the arguments relating to the claim of privilege or otherwise to which the prosecuting agency is entitled to. Learned counsel further contended that no doubt in the counter-affidavit filed on behalf of the respondent in para 2 it was stated that the Special Public Prosecutor had represented that she has no objection for summoning the documents and hence no counter was filed, the same is not correct and at any rate the order passed by the Trial court does not disclose the said reason at all. ( 5 ) MR. C. Padmanabha Reddy, learned senior Counsel representing respondent/ accused No. 1 in C. C. No. 17 of 1998 had submitted that the Trial Court had properly exercised the discretion under Section 91 of the Code by summoning the document and in fact, if any objections are there relating to the claim of privilege or otherwise under sections 123 and 124 of the Indian Evidence act, it is for the department to claim the privilege and the said objection can be raised at the appropriate stage. ( 6 ) LEARNED Senior counsel in all fairness had submitted that no doubt the order does not reflect what had been stated by the Special public Prosecutor but the fact remains that such a statement was made by the Special public Prosecutor and a specific stand was taken by the first respondent in this regard by filing a sworn counter-affidavit before this Court. Learned Counsel had drawn my attention to the language of Section 91 of the code and also Sections 123, 124 and 162 of the Indian Evidence Act, 1872. While concluding, the learned senior Counsel contended that the right of an accused to summon a document is a very valuable right and in this case in as much as the discretion was exercised properly by the trial court the impugned order does not warrant any interference. ( 7 ) HEARD both counsel and perused the material available on record. ( 8 ) BEFORE adverting to the respective contentions advanced by the counsel, it may be appropriate to have a look at the impugned order, which reads as hereunder:"counter not filed. ( 7 ) HEARD both counsel and perused the material available on record. ( 8 ) BEFORE adverting to the respective contentions advanced by the counsel, it may be appropriate to have a look at the impugned order, which reads as hereunder:"counter not filed. In the circumstances mentioned in the petition that the accused intends to prove his innocence. Petition allowed. " ( 9 ) IT is no doubt true that in the counter- affidavit, the respondent/accused No. 1 had taken a specific stand that in as much as the special Public Prosecutor had reported "no objection" the said order was made, but unfortunately, the said aspect was not recorded in the impugned order by the Trial court. Be that as it may, Section 91 of the code under which the power had been exercised by the Trial Court 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 proceedings 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 or the Bankers Books Evidence Act, 1891, or (b) to apply to a letter, post card, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. 10. It is pertinent to note that sub-sec. (3) of Section 91 specifically says that nothing in this section shall be deemed to affect sections 123 and 124 of the Indian Evidence act, 1872 (Act 1 of 1872 ). Sections 123 and 124 of the Evidence Act read as under: "123. 10. It is pertinent to note that sub-sec. (3) of Section 91 specifically says that nothing in this section shall be deemed to affect sections 123 and 124 of the Indian Evidence act, 1872 (Act 1 of 1872 ). Sections 123 and 124 of the Evidence Act read as under: "123. Evidence as to affairs of State:- No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. 124. Official Communication:- No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure". ( 10 ) LIKEWISE Section 162 of the Evidence act deals with production of documents, which reads as specified below:"production of documents:- A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court. The Court, it sees fit, may inspect the document, unless it refers to matters of state, or take other evidence to enable it to determine on its admissibility. Translation of documents:- If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence; and, if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code, 1860 (Act XLV of 1860 ). " ( 11 ) IN Sri Murugan Agencies v. Khaitan and company emphasis was made on the right of the accused to summon the documents. In s. Srinivas v. Deccan Petroleum Limited, this court while dealing with Section 91 of the code had observed that what is required to be seen is whether the document is necessary or desirable for the purpose of Trial. ( 12 ) AS can be seen from the respective contentions of the parties, it is clear that the trial court had allowed the application on the ground that no counter was filed. ( 12 ) AS can be seen from the respective contentions of the parties, it is clear that the trial court had allowed the application on the ground that no counter was filed. It is seriously canvassed by the learned Standing counsel of the prosecuting agency that no opportunity was given while passing the impugned order. It is needless to say that the reasons which had been given in the counter- affidavit cannot be used to supplement what had not been recorded by the Trial judge. For this reason, I am not inclined to accept the contention of the learned Senior counsel representing respondent/accused no. 1 to the effect that the Special Public prosecutor had reported no objection and consequentially the application was allowed, since such a reason was not recorded by the trial Judge. ( 13 ) IN the circumstances of the case, I am satisfied that the impugned order made by the Trial Judge cannot be sustained but however, in as much as it is a matter where a valuable right of defence of the accused/ respondent is involved, the matter is remanded to the Trial Court to give an opportunity to the prosecuting agency also to file the necessary counter-affidavit, if the prosecuting agency chooses to do so and after giving such opportunity the Trial Court is directed to pass appropriate orders in this regard. ( 14 ) ACCORDINGLY the impugned order is set aside and the matter is remanded to the trial Court for the purpose indicated above. Subject to above, the criminal petition is allowed.