Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 587 (RAJ)

Surendra Pewa v. State of Rajasthan

2015-03-09

VIJAY BISHNOI

body2015
JUDGMENT 1. - This Criminal Miscellaneous petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the Order dated 4.2.2015 passed by the Metropolitan Magistrate No. 9, Jodhpur Metropolitan (hereinafter referred to as 'the Trial Court'), whereby the application filed by the petitioner under Section 91 Cr.P.C. has been dismissed. The Revision Petition filed by the petitioner against the Order dated 4.2.2015, has been dismissed by the Sessions Judge, Jodhpur Metropolitan (hereinafter referred to as 'the Revisional Court') vide Order dated 12.2.2015 as being not maintainable. 2. Brief facts of the case are that the proceedings under Section 138 of Negotiable Instrument Act are pending against the petitioner in the Trial Court. The prosecution evidence was completed on 29.10.2013 and, thereafter, on 18.1.2014, the statements of the accused petitioner were recorded under Section 313 Cr.P.C. On 27.6.2014, the opportunity of producing defence was closed by the Trial Court and the matter was fixed for final heating. 3. On 13.11.2014, final arguments of the parties concerned were heard by the Trial Court and the matter was fixed for decision on 19.11.2014, however, a day prior to the date of pronouncement of judgment by the Trial Court i.e. 18.11.2014, Counsel for the petitioner had moved an application under Section 91 Cr.P.C. and prayed that the original death certificate of the grandfather of the complainant and the bank statement of the complainant be summoned. The Trial Court after hearing the Counsel for the parties, has rejected the said application while observing that the petitioner has failed to demonstrate before the Court that how the documents sought to be summoned by him are necessary and desirable for the trial of the case. The Trial Court has also observed that the application under Section 91 Cr.P.C. filed by the petitioner is highly belated as the recording of prosecution evidence was completed on 29.10.2013 and, thereafter, the statements of accused petitioner were recorded under Section 313 Cr.P.C. on 18.1.2014. The matter was finally heard by the Trial Court on 13.11.2014 and it was fixed for decision on 19.11.2014. The petitioner had moved the application on 18.11.2014, whereas he had all the opportunity to move the said application after completion of the prosecution evidence. After observing this, the Trial Court has rejected the application filed by the petitioner under Section 91 Cr.P.C. with the cost of Rs. 3,000/-. 4. The petitioner had moved the application on 18.11.2014, whereas he had all the opportunity to move the said application after completion of the prosecution evidence. After observing this, the Trial Court has rejected the application filed by the petitioner under Section 91 Cr.P.C. with the cost of Rs. 3,000/-. 4. Learned Counsel for the petitioner has submitted that the accused-petitioner has every right to move application under Section 91 Cr.P.C. at any stage before the conclusion of the trial. It is also argued that the trial against the petitioner has not been concluded and, therefore, the Trial Court was grossly erred in rejecting the application filed by the petitioner under Section 91 Cr.P.C. treating it as belated. It is also argued by learned Counsel for the petitioner that before the Trial Court, the petitioner had demonstrated the necessity and desirability of the documents sought to be summoned but the Trial Court has not appreciated the same in correct perspective. 5. In support of the above arguments, learned Counsel for the petitioner has placed reliance on a decision of Hon'ble Supreme Court rendered in State of Orissa v. Debendra Nath Padhi, reported in AIR 2005 SC 359 . He has also placed reliance on a decision of Gauhati High Court rendered in Criminal Revision Petition No. 552/2012 titled as Guwhati Sub-Divisional Market Committee v. Sri Suresh Sikaria , as also the decision of Delhi High Court rendered in Criminal Miscellaneous Case No. 4130/2011 and Criminal Miscellaneous Appeal No. 19202/2011 dated 13.12.2011 titled as Suresh Kumar Pathrella v. Central Bureau of Investigation . Learned Counsel of the petitioner has further placed reliance on a decision of Allahabad High Court rendered in Rishi Kesh Singh & Ors. v. The State, reported in 1970 Cr.L.J. 132 . 6. Heard learned Counsel for the petitioner and perused the impugned Order dated 4.2.2015 passed by the Trial Court as well as the material placed on record. 7. From the perusal of the application filed by the petitioner under Section 91 Cr.P.C., it is clear that the petitioner has failed to disclose as to how the documents sought to be summoned under Section 91 Cr.P.C. are necessary and desirable for the purpose of trial of the case pending against him. 7. From the perusal of the application filed by the petitioner under Section 91 Cr.P.C., it is clear that the petitioner has failed to disclose as to how the documents sought to be summoned under Section 91 Cr.P.C. are necessary and desirable for the purpose of trial of the case pending against him. Even during the course of argument, learned Counsel for the petitioner has failed to satisfy this Court as to how the documents sought to be summoned by him are necessary and desirable for the trial of the case pending against the petitioner. 8. Hence, in such circumstances, this Court is of the opinion that the Trial Court has not committed any illegality in observing that the petitioner has failed to demonstrate before it that the documents sought to be summoned are I necessary and desirable for the purpose of trial of the case. 9. So far as contention of learned Counsel for the petitioner that an application under Section 91 Cr.P.C. can be filed at any stage before the conclusion of the trial is considered, this Court is of the opinion that an accused person can file an application under Section 91 Cr.P.C. before the Court at the stage of defence or before the conclusion of the trial. 10. It is noticed that the Trial Court has not rejected the application under Section 91 Cr.P.C. of the petitioner as not maintainable but if has been rejected while treating it as belated. 11. The Hon'ble Supreme Court in the case of State of Orissa v. Debendra Nath Padhi (supra) has clearly observed that 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. 12. Here in this case, the recording of the prosecution witness was completed on 29.11.2013 and the statement of the accused petitioner were recorded under Section 313 Cr.P.C. on 18.1.2014, the opportunity of producing defence was closed by the Trial Court on 27.6.2014 and final arguments were heard on 13.11.2014 the matter was fixed for pronouncement of judgment on 19.11.2014 and just before a day, the petitioner had moved an application with a prayer for summoning the certain documents. It is noticed that the application was moved by the petitioner under Section 91 Cr.P.C. referring to the statement of the complainant recorded on 29.10.2013. For good more than one year no such attempt was made by the petitioner and, therefore, this Court is of the opinion that the Trial Court has rightly observed that the application filed by the petitioner is highly belated. 13. The other judgments referred by the petitioner rendered by the Delhi High Court, Gauhati High Court and Allahabad High Court are not applicable in the facts and circumstances of the case. 14. Hence, this Court does not find any merit in this Criminal Miscellaneous Petition the same is hereby dismissed.Stay Petition also stands dismissed.Petition dismissed. *******