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2017 DIGILAW 2057 (RAJ)

Surinder Kaur v. State Of Rajasthan

2017-09-13

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT ORDER Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 29.06.2017 passed by learned Upper Sessions and District Judge No.1, Sriganganagar whereby the learned Judge has rejected the revision petition No.CIS - 213/2017 and affirmed the order dated 18.05.2017 passed by learned Special Judge (NI Act Cases) No.1, Sriganganagar whereby he rejected the application filed by the petitioner under Section 91 Cr.P.C., 1973 in Criminal Case No.256/2010. 2. The complainant had filed a complaint under Section 138 Negotiable Instruments Act, 1981 and the allegation was that Rs. 2,00,000/- were borrowed and for discharging the liability, the petitioner gave a cheque bearing No.0045817 dated 23.09.2006 of Rs. 2,00,000/- drawn on Bank of India, Branch Dashmesh Nagar in favour of respondent No.2. Due to dishonouring of cheque, the proceedings were initiated. 3. Learned counsel for the petitioner has stated that the powers under Section 91 Cr.P.C., 1973 were required to be exercised by the learned court below as it was necessary and desirable and there was no other means to call Smt. Narender Kaur for taking complete stock of two cheques. The order of rejection of the trial court dated 18.05.2017 has been challenged. 4. Learned counsel for the petitioner has relied upon the judgment of Sugana Ram @ Sugan Chand @ Sugan Dhaka & Ors. vs. Union of India reported in 2015(1) Cr.L.R. (Raj.)134. The relevant portion of the judgment reads as follows: "17. Section 91 Cr.P.C., 1973 empowers the Court to summon any document or thing which it deems "necessary or desirable" for the purpose of any inquiry or trial. If an accused requests the Court for summoning of some documents, he or she has to demonstrate before the Court that summoning of those documents is necessary or desirable for just decision of the case. It is for the Court to consider any objection raised by the prosecution about the summoning of those documents and if the court finds that the applicants have failed to demonstrate the necessity or desirability for summoning of the said documents, it should reject the application. While deciding the said request made on behalf of the accused, the court must perform the balancing act between the interest of the individual and of the society. 27. While deciding the said request made on behalf of the accused, the court must perform the balancing act between the interest of the individual and of the society. 27. The Hon''ble Supreme Court, after placing reliance on its earlier pronouncement and after taking into consideration the relevant provisions of the Criminal Procedure Code, has held as under: "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 and 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 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. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of 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. 26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma vs. CBI, Delhi (2000) 5 SCC 679 ) . In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra''s case (supra). The contentions based on Satish Mehra''s case have been noticed in para 4 as under: "4 The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra vs. Delhi Admn. (1996) 9 SCC 766 ) laying emphasis on the fact the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik vs. State (1999) 49 DRJ 202 ). Mr. Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings." 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, commensurately 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 was dismissed and order was upheld by 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 hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at 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. 28. We are of the view that jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry." 5. Learned counsel for respondent further refuted the submission on the account of the fact that earlier Narender Kaur do not call vide application under Section 311 Cr.P.C., 1973 whereby she was summoned as a material witness and whatever examination is required to be done, the same shall be done at that time. 6. Moreover, learned counsel for petitioner also stated that the petitioner had an opportunity at the time of Section 313 Cr.P.C., 1973 then also they have chosen not to take the necessary information. 7. Learned counsel for the petitioner states that the examination had happened under Section 311 Cr.P.C., 1973 but in spite of examination and the complete examination was done by the learned counsel for the petitioner. The application under Section 91 could not be preferred and has been preferred within two months after. 8. 7. Learned counsel for the petitioner states that the examination had happened under Section 311 Cr.P.C., 1973 but in spite of examination and the complete examination was done by the learned counsel for the petitioner. The application under Section 91 could not be preferred and has been preferred within two months after. 8. After hearing learned counsel for the parties and perusing the record of the case as well as precedent law cited at Bar, this Court is of the opinion that though section 91 Cr.P.c., 1973 has sufficient powers to summon to provide any documents in light of the fact that the matter has been going on since 2012 and the statement of the petitioner was recorded under Section 313 Cr.P.C., 1973 on 14.06.2012. Thereafter, the application of the petitioner under Section 311 was allowed and the petitioner was permitted to call the same witness which is Smt. Narender Kaur regarding two cheques therefore, it was not appropriate to invoke the jurisdiction under section 91 of Cr.P.c., 1973 as the matter is old one and the learned court below has rightly held that since 2012, the petitioner had ample opportunity to make the necessary examination. 9. In light of the aforesaid discussion, the present petition is dismissed.