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2005 DIGILAW 244 (UTT)

Sumit Mehra v. State Of Uttaranchal

2005-07-11

J.C.S.RAWAT

body2005
JUDGMENT J.C.S. Rawat, J. 1. Heard Mr. L.K. Tiwari, learned Counsel for the applicant and Mr. R.P. Nautiyal, learned Counsel for the respondent No. 2 and perused the record. 2. This is a petition under Section 482, Cr.P.C. for setting aside the order dated 20.3.2004 passed by the Judicial Magistrate, CBI, Dehradun in Criminal Case Nos. 308 of 2004 and 280 of 2004. 3. The brief facts relating to this case are that the complainant filed complaint against the respondent No. 2 for an offence punishable under Section 138, Negotiable Instruments Act before the competent Court at Dehradun. It is alleged in the complaint that respondent No. 2 issued a cheque for Rs. 2 lacs in consideration of the complainant's investment and his share of profit. He assured the encashment of the same on presentation. On presentation the Bank dishonoured the cheque. Notice was given to respondent No. 2 and thereafter a complaint was filed. Summonses were sent to the accused and the accused applicant appeared before the Court. Before recording his statement under Section 251, Cr.P.C. the respondent No. 2 filed an application praying that the partnership deed may be directed to be produced before Court so that he can peruse the said deed. The complainant objected to it. The learned Trial Court passed the impugned order directing the complainant-applicant to produce the said document before the Court below. 4. The learned Counsel for the complainant contended that the order is bad in law and the impugned order does not indicate that the Court was satisfied that it was necessary and desirable for the purpose of the case. It was further contended that the respondent No. 2 has not alleged in his application before the Trial Court that the said document is in possession of the complainant and it was further contended that the accused at the stage of statement under Section 251, Cr.P.C. cannot ask the complainant to produce the papers which may be used in defence. The accused will have an opportunity to adduce his evidence or to summon the evidence in his defence. The learned Counsel for the respondent No. 2-accused contended that the said document was not asked to be produced in defence but only to refresh the memory of the accused so that he may give his statement before the Trial Court. The accused will have an opportunity to adduce his evidence or to summon the evidence in his defence. The learned Counsel for the respondent No. 2-accused contended that the said document was not asked to be produced in defence but only to refresh the memory of the accused so that he may give his statement before the Trial Court. It was further contended that the said document was in possession of the complainant. Even it is not alleged in the application that the document is in possession of the complainant it can be inferred that it was in possession of the complainant. 5. The learned Counsel further contended that the accused has a right at that stage to peruse those documents, which are in possession of the complainant. It is not necessary that he can use those documents in defence. 6. Section 91, Cr.P.C. 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 such 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) xxx xxx xxx (3) xxx xxx xxx 7. If Section 91, Cr.P.C. is to be attracted the Court has to be satisfied that the document is necessary or desirable for the purpose of investigation, inquiry, trial or any other thing and secondly it is also required under the above section that the document must be in possession of the other party. Any document or other thing as indicated in the aforesaid section can be directed to be produced on finding that the said document is necessary or desirable for the purpose of the case. It has not been alleged in the said application that the said document is necessary or desirable for the purpose of trial and no affidavit has been filed alongwith the application. It has not been alleged in the said application that the said document is necessary or desirable for the purpose of trial and no affidavit has been filed alongwith the application. In absence of such averment in the application it cannot be said that the said document was necessary or desirable for the purpose of the case. It was also incumbent upon the learned Magistrate to give a finding with regard to the desirability and necessity of the document for the purpose of the case. 8. It is also essential to invoke the jurisdiction of Section 91, Cr.P.C. the accused cannot make any request to the Court at the initial stage while recording the statement of the accused to produce any document, which can be used at the stage of defence. The power of the Magistrate is unfettered whereas it has been conferred under Section 91, Cr.P.C. to summon a document from a party but there are inbuilt inherent limitations as to state or point or time for its exercise. Commensurately with the nature of proceedings as also the conclusions of necessity and desirability to fulfil the tasks or achieve the object. The accused has no right to ask to produce any document at the stage of statement of the accused. The Court has only to record the statement under Section 251, Cr.P.C. and he can only indicate as to whether he has committed an offence as indicated in the statement or not. Thus, I am of the view that the accused has no right at the stage of Section 251, Cr.P.C. to summon the document from the other party under Section 91, Cr.P.C. 9. I am forfeited with the view taken by Apex Court in the case of State of Orissa v. Debendra Nath Padhi . It is also pertinent to mention here that Section 91, Cr.P.C. specifically indicate that the document must be in possession of the other party. In the application filed before the Court below the accused has not mentioned that the said document was in possession of the complainant exclusively. 10. In view of the above discussion I am of the view that the learned Magistrate has erred in directing the complainant to produce the document as indicated in the impugned order and the impugned order is liable to be set aside. 11. 10. In view of the above discussion I am of the view that the learned Magistrate has erred in directing the complainant to produce the document as indicated in the impugned order and the impugned order is liable to be set aside. 11. Both the applications under Section 482, Cr.P.C. are allowed and the impugned order dated 20.3.2004 passed in Criminal Case Nos. 308 of 2004 and 280 of 2004 is quashed. However, the accused-respondent may file an application before the Court Below to summon the said document from the possession of the party who had the document at the stage of defence (after recording statement under Section 313, Cr.P.C.) and the Court may pass appropriate order in this regard.