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2019 DIGILAW 764 (RAJ)

Narendra Kumar v. State of Rajasthan, Through PP

2019-03-07

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioners have preferred this misc. petition under Section 482 of Cr. P.C. for the following prayer : "It is, therefore, most humbly and respectfully prayed on behalf of petitioner that this misc. petition may kindly be allowed, order dated 25.10.2018 passed by learned ACJM No.2, Sri Ganganagar may kindly be quashed and set aside and the application filed by petitioners under Section 91 Cr. P.C., may kindly be allowed for the prayers made therein." 2. The factual matrix of the case in brief is that the complainant filed a criminal complaint before the learned ACJM No.2, Sri Ganganagar against the present petitioners for offence under Sections 420, 467, 468, 471 and 120-B IPC, whereupon on the complaint being sent under Section 156(3) Cr. P.C., FIR No.186/2010 came to be registered at P.S. Hindumalkot, District Sri Ganganagar. 3. At the outset, learned Public Prosecutor submits that after investigation charge-sheet has been filed before the competent court on 28.3.2012 for offence under Sections 420, 467, 468, 471, 448 and 120-B IPC. 4. During trial, the petitioners moved an application under Section 91 Cr. P.C., for summoning to produce documents i.e. affidavit dated 20.7.2006 executed by Laxman Ram before the Sub-Registrar, Muklawa, District Sri Ganganagar. 5. Counsel for the petitioners submit that summoning of such document was necessary as FSL of alleged Will dated 10.3.2008 if made with such document, then the FSL Report would be more trustworthy. 6. Counsel for the respondent submits that charge-sheet has already been filed, thus, invoking powers under Section 91 Cr. P.C., would not be appropriate at this stage. 7. In rejoinder, counsel for the petitioners placed reliance upon judgment of Hon'ble Apex Court in Nitya Dharmananda @ K. Lenin & Anr. Vs. Shri Gopal Sheelum Reddy also known as Nithya Bhaktananda & Anr., in Criminal Appeal No.2114/2017, decided on 07.12.2017, which read as follows : "1. Delay condoned. Leave granted. 2. Signature Not Verified We have heard learned counsel for the State, the Digitally signed by complainant, the accused and the learned amicus, Mr. Siddharth MAHABIR SINGH Date: 2017.12.08 16:55:29 IST Reason: Luthra, Senior Advocate. 3. The respondent, Gopal Sheelum Reddy alias Nithya Bhaktananda, was charge sheeted for offences, inter alia, under Section 376 of the Indian Penal Code. 2. Signature Not Verified We have heard learned counsel for the State, the Digitally signed by complainant, the accused and the learned amicus, Mr. Siddharth MAHABIR SINGH Date: 2017.12.08 16:55:29 IST Reason: Luthra, Senior Advocate. 3. The respondent, Gopal Sheelum Reddy alias Nithya Bhaktananda, was charge sheeted for offences, inter alia, under Section 376 of the Indian Penal Code. The respondent approached the High Court with the prayer that the entire material available with the investigator, which was not made part of the chargesheet, ought to be summoned under Section 91 of the Cr.P.C. The High Court, reversing the contrary view of the trial court, allowed the said application. 4. Contention raised on behalf of the appellants is that the view of the High Court is contrary to law laid down by this Court in State of Orissa versus Debendra Nath Padhi , (2005) 1 SCC 568 and reiterated in the subsequent decisions. The defence could not be considered at the stage of framing of charge so as to avoid a mini trial. 5. Learned counsel for the defence, on the other hand, submitted that if the investigator is not fair and the material of sterling quality, though seized during investigation and available with him, is deliberately left out from the charge-sheet, there is no bar for the court to summon the said material. 6. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the charge-sheet, has crucial bearing on the issue of framing of charge. 7. In Debendra Nath Padhi, supra, it was observed: 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. 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. Insofar 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. 8. In Hardeep Singh Etc. versus State of Punjab and ors. Etc. , (2014) 3 SCC 92 a Bench of five-Judges observed: 19. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 8. In Hardeep Singh Etc. versus State of Punjab and ors. Etc. , (2014) 3 SCC 92 a Bench of five-Judges observed: 19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. 9. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge. 10. Accordingly, the view to the contrary in the impugned judgment cannot be sustained and is set aside. 11. The trial court may now proceed to deal with the issue of framing of charge in the light of the observations made hereinabove and also to proceed with the matter expeditiously in accordance with law. The parties are directed to appear before the trial court for further proceedings on Monday, the 12th February, 2018. We record our deep appreciation for the valuable assistance rendered by Mr. Siddharth Luthra,learned senior counsel, as amicus. The appeals are accordingly disposed of." 8. After hearing counsel for the parties and perusing the judgment as well as record of case, this Court is of the opinion that petitioners application under Section 91 Cr. We record our deep appreciation for the valuable assistance rendered by Mr. Siddharth Luthra,learned senior counsel, as amicus. The appeals are accordingly disposed of." 8. After hearing counsel for the parties and perusing the judgment as well as record of case, this Court is of the opinion that petitioners application under Section 91 Cr. P.C., for summoning affidavit dated 20.7.2006 executed by Laxman Ram before the Sub-Registrar, Muklawa, District Sri Ganganagar and comparing it with FSL Report pertaining to Will dated 10.3.2018 shall be a confidence building measure. 9. In light of aforesaid observation, the misc. petition is allowed; order dated 25.10.2018 passed by learned ACJM No.2, Sri Ganganagar is quashed and set aside and the application filed by petitioners under Section 91 Cr. P.C., is allowed. 10. After completing the investigation necessary orders shall be passed by the learned trial court.