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2024 DIGILAW 1407 (KER)

PRABHAKARAN S/O NARAYANAN v. STATE OF KERALA

2024-11-01

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short the 'BNSS') by the accused in SC 1154/2023 on the files of the Special Court-II under the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) Manjeri, aggrieved by Annexure-3 order whereby an application under Section 91 of the Code of Criminal Procedure, 1973 (for short the Cr.P.C.) filed by the accused seeking production of personal diary/note book in KPF 59 pertaining to PW2 Razia Bengalath, Sub Inspector of Police, Malappuram Vanitha Police Station during the relevant time, was dismissed by the Special Court. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. 3. According to the learned counsel for the petitioner, as per Section 233(3) of Cr.P.C. if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 4. It is submitted that in the order impugned nothing was stated to the effect that the petition was made for the purpose of vexation or delay or for defeating the ends of justice. According to the learned counsel for the petitioner, since production of the above documents is absolutely necessary to prove the defence case, Annexue-A3 is liable to be interfered and the petition may be allowed. 5. While assailing Annexure-A3 order it is pointed out by the learned counsel for the petitioner that even though the exact point to be proved by production of personal diary/notebook in KPF 59 is not specified in the petition, the intent behind filing of this petition is to prove that the 1st statement given by the victim was suppressed by the investigating officer, PW12 who conducted investigation partially. 6. Opposing the contention, the learned Public Prosecutor would submit that what is the necessity to produce the documents was not specifically stated in the petition and production of documents was sought without clarity. 6. Opposing the contention, the learned Public Prosecutor would submit that what is the necessity to produce the documents was not specifically stated in the petition and production of documents was sought without clarity. Therefore, the learned Special Judge dismissed the application holding that the documents called for were not necessary for the trial of the case and in such a case, Annexure-3 order doesn't require any interference. 7. In this connection it is relevant to refer Section 233(3) as well as Section 91 of Cr.P.C. The same read are under: Sec. 233: Entering upon defence: (1) & (2) omitted (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Sec. 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) & (3) omitted 8. As per Section 233 (3) Cr.P.C. as pointed out by the learned counsel for the petitioner, if the accused applies for issue of any process compelling the attendance of any witness or the production of any document, the Judge shall issue process unless he considers, for the reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. At the same time, Section 91 of Cr.P.C. provides that whenever any court considers that production of any document is necessary as part of trial, the court may issue summons or such officer a written order to the person, in whose possession or power such document is believed to be, requiring to be attend and produce it. Thus as per Section 233(3) of Cr.P.C. the Judge can disallow the prayer for production of document recording reasons to the effect that the application was made for the purpose of vexation or delay or for defeating the ends of justice. At the same time, as per Section 91 of Cr.P.C. order as to production of documents is permissible to the court when the court considers such document is necessary for the purpose of trial. 9. As per the order assailed, the learned Special Judge found that in the petition, the purpose of production of the documents sought to be produced, not disclosed. It was also observed that PW12 has given evidence regarding the investigation done by her and was cross examined at length. Accordingly, the learned Special Judge found that to cause production of personal diary/note book in KPF 59 of PW12 without disclosing the necessity of the same is not necessary for the trial of the case and accordingly the petition was dismissed. Any how, as pointed out by the learned counsel for the petitioner, the learned Special Judge had not recorded reasons stating that the application was made for the purpose of vexation, or delay or for defeating the ends of justice. But on reading Section 233 (3) read with Section 91 of Cr.P.C. cause production of documents can be ordered only when the said documents are found to be necessary for the just decision of the case. Here the petitioner mainly seeks production of documents by summoning the custodian of the same. When considering an application filed under Section 91 of Cr.P.C. where power under Section 233(3) also is interwoven since the custodian of the documents who sought to be summoned even though the court not expressly stating that the petition was made for the purpose of vexation or delay or for defeating the ends of justice, the finding of the trial court that the documents are not necessary for the purpose of trial is a sufficient ground to refuse the application. Therefore, Annexure-3 order is only to be justified, particularly when the purpose of production is not disclosed in the petition. In this connection, it is observed that when parties seek examination of witnesses or production of documents or both, the purpose of examination of witnesses or production of documents shall be disclosed in the petition filed for the same or in the required column of the witness list so that the court can take a call to decide upon issuance of summons to the witness/witnesses or production of document/documents or both on analysing the necessity of the same in deciding the dispute involved in the case. Omnibus way of filing petitions of this nature and witness list is not sufficient to act upon the same and if the courts are not allowing those petitions, the same can only be justified. For the aforesaid reasons, the order impugned doesn't require any interference and this petition is liable to be dismissed. Accordingly, the Crl. M.C. stands dismissed. 10. Registry is directed to forward a copy of this Order to the jurisdictional court concerned for information and further steps.