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2009 DIGILAW 179 (RAJ)

Rajesh Jain v. State of Rajasthan

2009-01-20

MAHESH CHANDRA SHARMA

body2009
Hon'ble SHARMA, J.—By filing instant Criminal revision the petitioner has challenged the order dated 12.12.2008 passed by the Special Judge, Special Court (Prevention of Sati) Govt. & Addl. Sessions Judge, Jaipur (for short `the trial Court') whereby the application filed by the respondents No.2 and 3 under Section 91 Cr.P.C. has been allowed. 2. Brief facts of the case are that the present complainant petitioner lodged an FIR No. 19/2009 at P.S. Bajaj Nagar, Jaipur regarding kidnapping of his son. 3. During investigation police arrested the accused persons including respondents No. 2 and 3 and filed charge-sheet against 6 accused persons including present accused respondents for the offence under sections 363, 364A, 343, 120, 120B IPC. Thereafter, the case was committed to the trial Court. 4. The trial Court after hearing framed charged against the accused respondents for the offence under Sections 363, 364A, 343, 120-B and 327 IPC. 5. After framing of charges, the accused respondents moved an application under Section 91 Cr.P.C. praying therein to call details of certain telephone numbers. The trial Court after hearing rejected the application vide order dated 5.9.2008 with the liberty to the respondents to move fresh application at the stage of defence. 6. Thereafter, the respondents moved fresh application almost on same facts with the same prayers as were made earlier with an additional fact that they had applied to the concerned companies for grant of copies of the call details. 7. The trial Court after hearing allowed the application vide order dated 17.10.2008. 8. The petitioner being aggrieved with the order dated 17.10.2008 preferred a criminal revision No. 1331/08. This Court after detailed hearing allowed the criminal revision vide order dated 14.11.2008 with the direction to decide the application afresh after taking into consideration the Judgment of Devendranath Padi, reported in 2005(1) SCC 568 . 9. The accused respondents No. 2 and 3 filed a fresh application in the trial Court. The trial Court after hearing allowed the application filed by accused respondents No. 2 and 3 vide order dated 12.12.2008. 10. The petitioner being aggrieved with the order dated 12.12.2008 passed by the trial Court has preferred instant revision petition. 11. Mr. Madhav Mitra, counsel for the petitioner submits that the trial Court has neither followed the Judgment of Devendra Padi (supra) nor he has narrated the said judgment in the impugned order. 10. The petitioner being aggrieved with the order dated 12.12.2008 passed by the trial Court has preferred instant revision petition. 11. Mr. Madhav Mitra, counsel for the petitioner submits that the trial Court has neither followed the Judgment of Devendra Padi (supra) nor he has narrated the said judgment in the impugned order. The trial Court has misinterpreted the Judgment of Devendra Padi (supra) as the documents sought to be summoned by the respondents are not at all relevant with the facts of the present case as the trial Court has only to determine whether or not after 11.1.2008 the respondents No. 2 and 3 were conspiring with the other accused persons in the offence and it is not the case of the prosecution that they were conspiring since November 2007 with the other co-accused persons. Thus, the order impugned dated 12.12.2008 passed by the trial Court is liable to be quashed and set-aside. 12. Mr. R.S. Shekhawat, PP assisted by Mr. R.N. Khandelwal counsel for the respondents No. 2 and 3 submit that the trial Court has rightly passed the order impugned and no illegality has been committed by it in passing the same. 13. Mr. R.N. Khandelwal, to support his case has placed reliance upon a judgment of State of Orissa vs. Debendra Nath Padhi, reported in (2005) 1 SCC 568 . Paras 25, 27 and 28 are much relevant to the facts of the present case which are reproduced here-in-below: "21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on the that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge. 25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code." The first and foremost requirement of the section is about the document being necessary or desirable. 25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code." The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning the production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 27. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 27. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial Court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document wad dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us herein above. Further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19." 14. From a bare perusal of the facts of the case and material made available to me it is clear that the trial Court has rightly passed the order impugned dated 12.12.2008 and in my considered view no interference is required to be made. 15. In the result, this criminal revision petition is devoid of merits and stands rejected. The trial Court is directed to expedite the trial expeditiously. Stay order 16. Since the main petition has been dismissed, the stay application also stands dismissed.