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2020 DIGILAW 249 (RAJ)

Anil Roop Mathur v. State of Rajasthan

2020-01-27

SANJEEV PRAKASH SHARMA

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JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. The petitioner by way of this petition has prayed to call for the record and quashing the order dated 3.4.2019 and allow the application dated 10.7.2018 moved by him under Section 91 Cr.P.C. 2. In short, the facts of the case are that a criminal complaint was filed by the respondent No. 2 at Police Station, Mahesh Nagar, Jaipur, for offence under Sections 406, 120-B IPC and thereafter, a charge sheet in FIR No. 127/2007 has been filed by the Investigating Agency against the petitioner. Earlier the petitioner preferred a criminal misc. petition challenging the criminal proceedings in the said FIR, however, the same was withdrawn reserving right to file an application under Section 91 Cr.P.C. for summoning of record and documents. 3. Thereafter, an application was moved by the petitioner wherein he has stated that the ingredients of the complaint filed by the respondent mentions of a CD received from the accused. However, the complainant has stated in his FIR that he had prepared 118 colored photographs and 4 other colored photographs as a brochure and for the purpose of publishing the said brochure, he had prepared a design on the computer and after preparing its CD, he had given it to the accused petitioner for the purpose of printing to the Printing Press with a condition that the accused will not further publish those photographs and will delete the said print from his own computer. However, the accused has sold the said photographs to the Tourism Department and have published the same. In the application moved, the petitioner has prayed for obtaining the original print out, CD and the three photographs, which have been published by the Tourism Department so that the same can be verified from those which have been published by the Tourism Department. The application also mentions of procuring the hard disk which was taken by the Investigating Officer alongwith the complainant from the petitioner's computer for which the petitioner has already registered a case under Sections 211, 168 and 385 IPC against the concerned Nathulal Jewariya. The said application was considered by the trial court and vide its order dated 3.4.2019, the same has been rejected. 4. The said application was considered by the trial court and vide its order dated 3.4.2019, the same has been rejected. 4. Learned counsel submits that the charges have already been framed in the order passed by the learned trial court rejecting the application stating that arguments raised therein relate to the issue of evidence. Thus, his application has wrongly been rejected by the trial Court. Learned counsel also submits that as same are in possession with the Investigating Officer and with the respondent in terms of Section 91 Cr.P.C., the same are required to be produced. 5. Per contra, learned counsel appearing for the complainant has submitted that cognizance has already been taken and charges have been framed against the petitioner. It is further stated that the petitioner had filed S.B. Criminal Misc. Petition No. 1571/2009 titled as Anil Roop Mathur v. State of Rajasthan, which was dismissed as withdrawn by the court vide order dated 6.7.2017 granting liberty to the petitioner to take up all the pleas available to them before the trial court. One of the condition mentioned in the said order was that he shall not delay or stall the trial proceedings. Thereafter, an application was moved by the petitioner on 8.3.2018 with a prayer to drop the proceedings as there was no ingredient under Section 406 IPC. However, the said application was rejected by the trial court vide order dated 19.11.2018. Now, the third application was filed under Section 91 Cr.P.C. which has been rightly rejected by the trial court as the petitioner is trying to delay the trial. It is also submitted that the petitioner had taken up the matter earlier before Supreme Court where it dismissed the petition of the accused petitioner on 27.4.2009 and 12 years have passed thereafter. Learned counsel for the complainant has relied on the judgment in Bhola @ Yadvinder Singh v. State of Rajasthan, reported in 2013 (5) WLC (Raj.) 773 to submit that Section 91 Cr.P.C. would not be available after the charge sheet has been filed with regard to documents other than those which are the part of the charge sheet. 6. I have considered the submissions made by the counsel for the parties and perused the material available on record. Section 91 Cr.P.C. provides as under:- "91. 6. I have considered the submissions made by the counsel for the parties and perused the material available on record. Section 91 Cr.P.C. provides as under:- "91. Summons to produce document or other thing-- (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 this 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) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority." This court, vide judgment dated 15.1.2020, passed in SB Criminal Misc. Petition No. 5678/2019 titled as Manoj Agarwal v. M/s. Guru Kripa Earth Movers, has held that the provisions of Section 91 Cr.P.C. cannot be used for the purpose of collecting evidence in defence or for prosecution. The power under Section 91 Cr.P.C. has to be exercised sparingly and that too, only for the purpose of satisfaction of the court to have information relating to any document which it may have reason to believe to be lying in custody of any of the accused or the prosecution witness. 7. The power under Section 91 Cr.P.C. has to be exercised sparingly and that too, only for the purpose of satisfaction of the court to have information relating to any document which it may have reason to believe to be lying in custody of any of the accused or the prosecution witness. 7. In 2018 (2) SCC 93 Nitya Dharmananda & Another v. Gopal Sheelum Reddy & Another alongwith another case, the Supreme Court has examined the law with regard to the provisions of Section 91 Cr.P.C. In the said case, the respondent against whom charge sheet was filed under Section 376 IPC prayed that the entire material available with the investigator which was not made part of the charge sheet, be summoned under Section 91 Cr.P.C. The said application was allowed by the High Court wherein the Apex Court has held as under:- "5. 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. 8. 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. dehors the satisfaction of the court, at the stage of charge." 8. In Bhola @ Yadvinder Singh (supra), the High Court while dealing with the case where the petitioner was demanding copy of the statement of the witnesses recorded under Section 161 Cr.P.C., held as under:- "6. In Bhola @ Yadvinder Singh (supra), the High Court while dealing with the case where the petitioner was demanding copy of the statement of the witnesses recorded under Section 161 Cr.P.C., held as under:- "6. Even at the stage of consideration of charges under Section 227 Cr.P.C. also only the documents which are filed along with the result of investigation under Section 173 Cr.P.C. can be considered as held by the Hon'ble Apex Court in the case of State of Orissa v. Debendra Nath Padhi reported in 2003 (1) WLC (SC) Cri. 666 : 2003 (2) SCC 711 . Thus the prayer made by the accused in this case that he may be provided with the statements of the other witnesses apart from the relied upon witnesses cannot be accepted. If at all the accused desires to examine the other witnesses who were examined in the investigation but are not relied upon then he has a liberty to do in his defence. However, the statements of such witnesses recorded under Section 161 Cr.P.C. cannot even be utilised for confronting the witnesses particularly when the accused himself calls the witness in defence. Thus, there cannot be any justification or utility of summoning on record the statements of the witnesses, who are not the relied upon witnesses of the prosecution recorded under Section 161 Cr.P.C." 9. In the present case, the petitioner is claiming summoning of the CD, which has been received by the complainant from the accused petitioner and further that the documents should be sent for investigation to the FSL. The opinion of this court is that the claim of the petitioner is essentially a part of his defence and such submissions with regard to the CD and other documents demanding of sending them for FSL would form a credible defence as noticed by the Supreme Court in State of Orissa v. Debendra Nath Padhi, 2005 (1) SCC 568 , wherein it has been 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. 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. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." Thus, a document can be ordered to be produced only on a finding by the courts that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." Thus, a document can be ordered to be produced only on a finding by the courts that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code. Question of invoking Section 91 Cr.P.C. would not arise at the stage of framing of the charge, however, at the stage of defence, the accused may have an entitlement to seek documents under Section 91 of the Code. 10. Keeping in view the aforesaid, if we examine the present case, the case is presently at the stage of trial and the application has been moved at the stage of putting up defence. As noticed in Nitya Dharmananda & Another (supra), the court is under an obligation to impart justice and is the sole repository of justice. The trial court has failed to exercise its power and record its satisfaction whether the material is available with the Investigator or with the respondent No. 2. Once, it is satisfied, necessary orders ought to be passed under Section 91 Cr.P.C. 11. In view of the above, the matter is remanded back to the trial court with the aforesaid observations to pass a fresh order satisfying itself whether the material is available with the Investigator or with the concerned complainant in order to do complete justice and direct accordingly for procuring the said material as prayed by the petitioner. 12. Accordingly, the criminal misc. petition is allowed. All pending applications shall also stand disposed of.