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2004 DIGILAW 833 (PAT)

Ramanup Prasad v. State Of Bihar Through C. B. I.

2004-08-17

CHANDRA MOHAN PRASAD

body2004
Judgment 1. The applicant has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) praying for setting aside the order dated 24.1.2004 of the Special Judge C.B.I. South Bihar, passed in Special Case No. 7 of the 1997/R.C. 8(A)/97 whereby the learned Special Judge has rejected the petitioners prayer for calling for some documents under Section 91 of the Code. 2. From the impugned order it appears that witness PW 2 was being examined by the prosecution and during cross-examination the petitioner filed a petition before the trial Court calling for some documents and the reason for calling for those documents was stated to be proper cross-examination of the witness. The reason for rejecting the petitioners prayers as mentioned by the trial Judge was that the PW 2 was an accountant who had only proved the signature of certain persons and had filed papers and registers of this office. PW 2 had no concerned with the letters and documents intended to be called for by the petition. However the learned trial Judge also observed that the petitioner will be given opportunity for calling for those documents at defence stage if it so requires. 3. In paragraph 4 of the application the petitioner has mentioned the details of the documents which were required to be called for details are as follows : (i) Specimen signature which was sent by the accused Ramanup Pd., Executive Engineer, Rqad Construction Department Division I, Jehanabad from M/s. Hindustan Petroleum Corporation Ltd., Boring Road Patna 800001, M/s. Bharat Petroleum Ltd., Exhibition Road, Patna, M/s. Indian Oil Corporation, Maurya Lok Complex, Dak Bunglow Road, Patna-800001. (ii) Authorisation letter No. Camp-1, Patna dated 8.11.1995 and letter No. 731 dated 8.9.1994, which was sent by Ramanup Prasad, Executive Engineer to M/s. Hindustan Petrolium Corporation, Patna. (iii) Stock Register of Division No. 1, Road Construction Department, Jehanabad in the years 1994-95, 1995- 96 from Executive Engineer, Division No. 1, Road Construction Department, Jehanabad. (iv) File No. 1G-2-91 of the year 1994 to 1995 and 1995 to 1996 from the office of the Executive Engineer, R.C.D. Division No. 1, Jehanabad. 4. The learned counsel for the petitioner argued that the documents as mentioned above in petition are necessary for proper cross-examination of the PW 2. (iv) File No. 1G-2-91 of the year 1994 to 1995 and 1995 to 1996 from the office of the Executive Engineer, R.C.D. Division No. 1, Jehanabad. 4. The learned counsel for the petitioner argued that the documents as mentioned above in petition are necessary for proper cross-examination of the PW 2. He also submitted that while rejecting the petitioners prayer the learned Court below has not assigned any reason for rejecting the prayer. The learned Standing Counsel for the C.B.I, replied that the learned trial Court has already assigned the reasons that the PW 2 has no concern with the letters and documents prayed to be called for by the petitioner. He further submitted that the simple reason on which the petitioner sought to call for the documents is proper cross-examination of the PW 2 who is an accountant who had come to prove some signature of certain persons and has filed some papers and registers of his office and who had got no relation with the documents required to be called for. The learned counsel for the petitioner simply submitted that the documents are necessary for the cross-examination of the PW 2 but he was not able to clarify the specific relevancy of those documents with respect to the PW 2. 5. As to the details of the documents as mentioned in petitioners petition before this Court the learned standing counsel pointed out that regarding the documents as mentioned in para 4(f) of the petition it is not clear as to in what context signatures required to be called for were made or kept. As to the documents mentioned in para 4(ii) he pointed out that the context of the authorisation letter sought to be called for is not disclosed nor it has been stated in what manner the PW 2 was related to it. As to the stock register mentioned in paragraph 4(iii) the learned counsel for the C.B.I, submitted that only stock register has been mentioned but it does not disclose the stock register of what article like bitumen, iron, machine, electrical goods or any other article nor it is shown as to in what manner the PW 2 was related to that stock register. As to the file mentioned in paragraph 4(iv) of the petition the learned standing counsel pointed out that it is not disclosed as to in what context the file was maintained and how it is relevant for the cross-examination of the PW 2. 6. Considering the nature of documents and file as mentioned in paragraph 4(i), (ii), (iii) and (iv) of the petition I find that the petitioner has not been able to show at this stage as to in what context those signature, registers and file are relevant and how they are required for proper cross-examination of the PW 2 who was an accountant of the R.C.D. department and who had come to prove some signature and registered of the office. 7. During the hearing the learned counsel for the petitioner cited some decisions in support of his payer for calling for the documents, in the case of M. Sharan etc. V/s. C.B.I., Report in 2002 Criminal Law Journal 3636 (MP) the petitioner had prayed for calling for some documents which according to the petitioner can prove innocence of the petitioner and the trial Court held that petitioners prayer cannot be accepted before framing of charges as the determination of the same would be done after full fledged trial and the application was allowed in a different manner indicating that the documents would be called for at the stage of recording of evidence. The M.P. High Court upheld the order. In another case of Om Prakash Sharma V/s. C.B.I., Delhi, reported in AIR 2000 SC, 2335, the. trial Court had rejected the petitioners prayer under Section 91 of the Code for calling for some documents on considering the nature of the documents, their bearing and relevance. The High Court upheld the order and the Honble Supreme Court also made no interference in that order. In the case of C.M. Arunugam V/s. The State of Mysore, 1981 (2) Cr LJ 509 in a similar prayer made under Section 94 of the old Code it was held that Section 94 invests the Court with a discretionary power to exercise power at any stage. In the case of C.M. Arunugam V/s. The State of Mysore, 1981 (2) Cr LJ 509 in a similar prayer made under Section 94 of the old Code it was held that Section 94 invests the Court with a discretionary power to exercise power at any stage. In the case of Gyatri Bais and others V/s. The State of M.P., 1999 Cri LJ 812 (MP) a similar prayers was made under Section 91 of the Code and the High Court held that it is for the Court to consider whether such documents is necessary for the purpose of finding out truth in the context with guilt of innocence of the accused and for that purpose the person who moved such an application has to satisfy the Court that such order is necessary to be issued in the interest of justice. In the case of State of Kerala V/s. Babu and others reported in 1999 Cri LJ 3491 the facts were different and it was held that the case diary in respect of the same statement of witness in another case or trial can be called for under Section 91 and not under Section 172 of the code. In the case of Dr. Raghotam The State of Andhra Pradesh reported in AIR 1963 AP 362, a petition was filed under Section 94 of the old Code and the High Court held that such a prayer should be made even before framing of the charge. In the case of Haricharan V/s. State of Punjab reported in AIR 1955 Pun 17 which is lastly relied upon by the petitioner, the case was under Section 94 of the old Code and the petitioner of that case had prayed for calling for some documents. The Magistrate concerned had rejected the prayer without assigning any reason. The High Court considering the nature of the documents had held that the rejection of the prayer made by the petitioner was not proper and set aside the order of the Magistrate and the High Court ordered for calling for those documents. 8. Thus considering the principles of law as laid down in the above decisions as cited above by the petitioner, I find that while praying for calling for any document the petitioner has to satisfy about its bearing and relevancy showing that the documents are necessary to be called for. 8. Thus considering the principles of law as laid down in the above decisions as cited above by the petitioner, I find that while praying for calling for any document the petitioner has to satisfy about its bearing and relevancy showing that the documents are necessary to be called for. The learned standing counsel for the C.B.I, cited the decision in the case of the Public Prosecutor, A.P. V/s. Pockusyed @ Ismail, reported in 1973 Cr LJ 931 (AP). In the case a similar prayer was made under Section 94 of the old Code and the High Court held that Section 94 does not give any absolute right to the accused to ask for summoning any documents. It is only when a Court on consideration of all the facts and circumstances, considers that the production of the document or thing sought for is necessary or desirable for the purpose of the trial, inquiry or proceedings it summons the same but not otherwise. In one another decision in the case of Bashir Hussain Peshimam V/s. Gulam Mohammad Ismail Peshimam and others, reported in AIR 1966 Bom 263. In a similar prayer made under Section 94 of the Code the High Court held that the section can be invoked at any stage of any inquiry or investigation or trial as indicated by the word "whenever" in the section, however the words "such Court may issue" clearly show that the section confers discretion upon the Court to order production of the documents or thing. Before the Court exercises this discretion it must satisfy that such production is either necessary or desirable for the trial. In testing this the Court has to exercise its discretion judicially and must satisfy that the document or thing as a bearing upon or is relevant to the case. 9. Thus considering what has been held in the decisions as cited by the learned counsel for the C.B.I, it is clear that the petitioner has got no absolute right to compel for production, of any documents or thing which he wishes to be called for. No doubt the petitioner has got a right to make such a prayer under Section 91 of the Code but in order to establish his claim for calling for such documents he has to establish that the documents have a bearing upon or is relevant to the case. No doubt the petitioner has got a right to make such a prayer under Section 91 of the Code but in order to establish his claim for calling for such documents he has to establish that the documents have a bearing upon or is relevant to the case. In this instant case the petitioner has prayed for calling for the documents as mentioned in para 4(i) to (iv) of his petition during cross-examination of the PW 3 on the ground that those documents were necessary for proper cross-examination of the witness. The petitioner could not clearly establish as to in what context the signatures and documents, required to be called for were, made or kept and as to what bearing the signature or documents had with respect to the evidence of PW 2 and in what manner it was required for the cross-examination of the PW 2. The petitioner simply stated that the documents were necessary for proper cross-examination of the witness. Due to the petitioner having not established as to in what context the signature or documents required to be called for were made or kept or in what specific manner it was necessary for the cross-examination of PW 2. I feel that the learned trial Court has rightly rejected the petitioners prayer at this stage. Under the circumstances, I find no reason to interfere with the impugned order of the trial Court. The application is accordingly dismissed.