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2024 DIGILAW 468 (RAJ)

Anil Roop Mathur v. State of Rajasthan

2024-03-18

SUDESH BANSAL

body2024
ORDER : Mr. Sudesh Bansal, J. - The matter comes up on an application for vacation of stay order dated 7-2-2024, however, with consent of parties, the matter has been heard finally on merits. 2. Instant Criminal misc. petition under Section 482 CrPC has been filed by accused petitioner challenging the order dated 5-11- 2022 in Case No.27/2008 passed by the Additional Civil Judge & Metropolitan Magistrate No.12 Jaipur Metropolitan-II, whereby petitioner's application under section 91 CrPC has been partly allowed for production of CD only, and the request for summoning three photographs, documents of patent and copyright, brochure of Diwali and Dusshera and hard disk has been declined. 3. Facts of the case are that on filing a complaint, FIR No.127/2007 came to be lodged at PS Mahesh Nagar Jaipur for offences under section 406 and 120B IPC alleging therein that about 118 coloured photographs and 4 other coloured photographs as a brochure and for the purpose of publishing the said brochure he prepared a design on the computer and after preparing its CD the complainant provided to petitioner for printing in the press with a condition that the accused will not further publish those photographs and will delete the said print from his computer. However, the accused sold some photographs to the Tourism Department and published the same. After registering FIR and conclusion of investigation charge sheet was filed against the accused and trial commenced. 4. During the course of trial the accused moved an application under section 91 CrPC on 10-7-2018 for production of original print out, CD and three photographs which were published by the Tourism Department. The said application was dismissed by the trial court vide order dated 3-4-2019, which order was challenged by the accused by filing SB Cr. Miscellaneous Petition No.3542/2019, on the ground that the CD and documents relied upon by the complainant should be sent for investigation to the FSL, so that the accused can put his defence. The said petition was decided by this court on 27-1-2020, and while quashing the order of trial court dated 3-4-2019 remanded the matter to the trial court 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. 5. 5. On remand, the accused again moved application under section 91 CrPC for production of CD, photographs, documents of patent and copyright. Considering submissions of both parties, the trial court concluded that the incriminating material is the CD which was not produced with the charge sheet as the same was returned to complainant. Therefore the trial court vide impugned order dated 5-11-2022 directed for production of the CD. The prayer for production of other articles such as three photographs, documents of patent and copyright was rejected since these articles were not found necessary and desirable to be summoned. Therefore, instant petition has been filed challenging the order dated 5-11- 2022, to the extent of denial of prayer. 6. Counsel for petitioner has submitted that the petitioner's application under section 91 CrPC should be allowed in toto for production of all documents as prayed, because other materials are also essential documents for decision of the case. It has been submitted documents regarding patent and copyright of photographs possessed by complainant are necessary for decision of the case. 7. Learned Public Prosecutor and the complainant have opposed the submission of counsel for petitioner and stated that the trial court has properly considered the application of the petitioner under section 91 CrPC and has rightly exercised its jurisdiction by summoning only the CD. The prayer to summon other documents is mere based on assumption and the intention of petitioner accused is not fair but he is trying to delay the proceeding of present case, which is pending since 2007. 8. Heard. Considered. 9. A perusal of Section 91 CrPC indicates that the said provision is discretionary of the court and if the court satisfies itself that any information relating to any document is lying in custody of any of the accused or prosecution witness is necessary and desirable it can direct for production of the same. This section cannot be used by a party for the purpose of collecting evidence in defence or for prosecution, but powers are vested in court to summon any document or witness, which is deemed desirable and necessary for just decision of a case. 10. This section cannot be used by a party for the purpose of collecting evidence in defence or for prosecution, but powers are vested in court to summon any document or witness, which is deemed desirable and necessary for just decision of a case. 10. In the order dated 27-1-2020 in Miscellaneous Petition No.3542/2019, this court relying on judgment of the Apex Court in case Nitya Dharmanand v. Gopal Sheelum Reddy [ (2018)2 SCC 93 ] found that the petitioner's claim for summoning of CD, which had been received back by complainant is necessary to be summoned. The trial court considering submissions of parties vide impugned order has concluded that only the CD, which had been admittedly received back by the complainant from the accused, is necessary to be summoned but other documents, which are in fact not existent documents, have not been found necessary and desirable to summon, and accordingly such prayer of petitioner has been rejected. 11. Having heard counsel for parties and perusing the material available on record this court finds that the trial court has not committed any illegality in requiring only the CD, which was found to have returned to complainant. The trial court has not found it necessary and desirable to summon other photographs and documents so prayed. This court is also not convinced that in light of charge framed against petitioner, how other documents are relevant, as much as, their existence and custody both are suspicious and uncertain. It is also a fact that Section 91 CrPC cannot be used by an accused to prepare his defence. It is the discretionary power of the court to summon any article at a proper stage of the case. In the instant case, the trial court has concluded twice that documents sought to be summoned are not necessary and desirable for the decision of the case. The trial court has only found the CD to be necessary and desirable to be summoned for which order has been passed. The trial court has clearly held that for the just decision of the case only the CD can be necessary and desirable and not other documents. It is settled law that Section 91 CrPC cannot be used by an accused to produce his defence as has been held by the Apex Court in case of State of Orissa v. Debendra Nath Paadhi [ (2005)1 SCC 568 ]. 12. It is settled law that Section 91 CrPC cannot be used by an accused to produce his defence as has been held by the Apex Court in case of State of Orissa v. Debendra Nath Paadhi [ (2005)1 SCC 568 ]. 12. For reasons mentioned herein above, this court does not find any manifest illegality or jurisdictional error in the impugned order passed by the trial court, and order impugned does not lead to miscarriage of justice or failure of justice, hence does not warrant any interference by the high court in exercise of its discretionary power by the trial court in judicious manner. Hence, the impugned order does not call for any interference by this court in exercise of its inherent powers under section 482 CrPC. 13. As a result, there is no substance in the instant petition and the same is hereby dismissed. 14. Stay order dated 7-2-2024 stands come to an end. Stay application and application for vacation of stay order or any other application, if pending, also stand disposed of. 15. The criminal case before trial court is pending since 2007, and is at the stage of defence evidence, therefore, the trial court is expected to conclude the trial of the instant case, as early as possible and, if possible, within a period of six months from the next date already fixed, after receipt of a certified copy of this order. 16. A copy of this order be immediately sent to the trial court.