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2006 DIGILAW 326 (RAJ)

Nawal Kishore v. State of Rajasthan

2006-02-01

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-The petitioner has challenged the Order dated 211.2005, passed by the Additional District and Sessions Judge, (Fast Track) No. 3, Jaipur City, Jaipur, whereby the Learned Judge has rejected the petitioners application under Section 91 of the Criminal Procedure Code (henceforth to be referred to as the Code, for short). 2. The brief facts of the case are that the petitioner was married to one Meena. During the intervening night of 03/04.03.1997 when Smt. Meena was warming the milk on stove, her sari caught fire. Consequently, she received burn injuries. When she cried for help, the petitioner rushed in to rescue her. Consequently, both his hands were also burned. Meenas brother, Pravin Kumar was informed. He and the petitioner took Smt. Meena to the hospital, where Pravin Kumar signed the papers as the petitioners hands were also burnt. Immediately, the police was informed which recorded a “Rojnamcha”. Upon Smt. Meenas death, the Police Station Sadar was informed. The Police commenced the investigation, and recorded the statements of the witnesses. Eventually, the charge-sheet was filed against the petitioner for offences under Sections 304-B and 498-A, IPC. 3. In order to fortify his defence, that he has been a dutiful husband, the petitioner moved an application under Section 91 of the Code. In the application he requested that his wife was pregnant before her death. He had accompanied her to the Meera Nursing Home, where she was treatment for her pregnancy. He wanted the record of the Meera Nursing Home to be summoned. Further, since Smt. Meena was working in the Bright Land School, he wanted certain documents from the school to be summoned,. Lastly, he wanted Rojnamcha kept by the police to be summoned. However, vide Order dated 211.2005, the Learned Additional Sessions Judge partly allowed the said application. While the Court directed the production of Rojnamcha dated 03/04.03.1997, the Bed-Head Ticket, and other medical papers prepared at the SMS Hospital, the Registration of the death of Smt. Meena, etc., it did not summon the documents from the school, or the documents from the Meera Nursing Home. Hence, the present petition before us. 4. Mr. Tripurari Sharma, the Learned Counsel for the petitioner, has argued that the documents which have not been summoned are essential for the decision of the case. Hence, the present petition before us. 4. Mr. Tripurari Sharma, the Learned Counsel for the petitioner, has argued that the documents which have not been summoned are essential for the decision of the case. However, when he was asked as to how these documents are “necessary and desirable” for the just decision of the case, he was unable to tell us. .5. On the other hand, the Learned Public Prosecutor, Mr. Arun Sharma, has argued that the Learned Court has summoned the necessary documents, and those which were irrelevant have been left out. Therefore, he has supported the impugned Order. 6. We have heard both the Counsels for the parties and have perused the impugned order. 7. Section 91 of the Code is as under:- .(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 proceeding 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 the 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) ................ 8. The section bestows a discretionary power on a Court or an Officer to summon a document or thing, if it or he “considers 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.....” Hence, while considering an application under the section, the Court is required to weigh if the production of document is necessary or desirable for the just decision of the case. The Court should be alive to certain factors while deciding the said application. Firstly the offender has a fundamental right to defend his life and liberty. Such a Fundamental Right emanates from Article 21 of the Constitution of India. The Court should be alive to certain factors while deciding the said application. Firstly the offender has a fundamental right to defend his life and liberty. Such a Fundamental Right emanates from Article 21 of the Constitution of India. Secondly, in case the documents or things are required to fortify the defense, the application should be allowed. Thirdly, if the case does not fall within the prohibition contained in Section 173(6) of the Code, the application should be permitted. Fourthly, however, in case the application has been moved with an ulterior motive of unnecessarily prolonging the trial or for compelling the Court to enter into a futile roving inquiry, the application should be rejected. But while rejecting the application, the Court should pass a reasoned order. For, the order can be challenged before the High Court. Therefore, the High Court should have the benefit of knowing the reasons for such a rejection. Moreover, a reasoned order assures the party that a genuine justice has been done to it. 9. In the present case, the learned Counsel for the petitioner has been unable to show as to how the documents with the School or with the Nursing Home are “necessary and desirable for the just decision of the case.” Since, these documents would not throw any light on the controversy in issue, they are irrelevant for the just decision of the case. Hence, the Learned Additional Sessions Judge was justified in not summoning these documents. A bare perusal of the impugned order clearly reveals that those documents which would be relevant and essential for the just decision, such documents have been summoned by the learned Court. Therefore, in our opinion, the learned Court has rightly and justly exercised the discretion vested in him. 10. In the result, there is no merit in this petition, it is hereby dismissed.