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2025 DIGILAW 1243 (ALL)

Karamavir v. State Of U. P.

2025-10-13

AVNISH SAXENA

body2025
JUDGMENT : AVNISH SAXENA, J. 1. Sri Ajay Sengar, Advocate holding the brief appears on behalf of applicant and submits that the applicant is a Police Constable. Being aggrieved by the false and fictitious FIR lodged by opposite party no.2, who is a lady Constable stationed with the accused-applicant. It is admitted that both the applicant and opposite party no.2 had a consensual relationship since 2023, but due to some dispute between the two, the opposite party has lodged the FIR on 15.03.2024 for offence under Section 354D, 376, 420, 506 IPC and Section 67 , 67(a) of Information Technology (Amendment) Act, 2008. After the investigation the charge sheet is submitted. The applicant accused has moved an application for discharge after obtaining order from this Court in Criminal Misc. Application No. 1893 of 2025 (Karamveer Vs. State Uttar Pradesh and another). The application for discharge is at page no. 92. Learned counsel for the applicant has drawn the attention of this Court towards paragraph 7 of the application, wherein he has specifically stated that on same pretext a departmental inquiry has also been initiated by the Internal Committee wherein the Committee did not find substance on the allegation of rape leveled by the opposite party no.2. The inquiry report is dated 22 nd February, 2024, which is annexed as Annexure-3 (page 41). It is further submitted that the charge sheet is subsequently submitted on 14.04.2024 including offence of rape, on which the cognizance has been taken. During the pendency of the discharge application, the applicant has moved an application under Section 91 Cr.P.C. (94 B.N.S.S.) for summoning the inquiry report from the department concerned. It is by the impugned order dated 27.08.2025 passed by the court of Additional Sessions Judge, Court no.1, Jalaun at Orai passed in S.T. No. 85 of 2025 (State Vs. Karamveer Singh) that the application moved under Section 91 Cr.P.C. for summoning departmental inquiry report has been rejected. It is submitted that the learned trial court has not given any reason for rejecting the application except that it is a departmental inquiry report, which is not required to be considered at this stage of considering the application for discharge. 2. Karamveer Singh) that the application moved under Section 91 Cr.P.C. for summoning departmental inquiry report has been rejected. It is submitted that the learned trial court has not given any reason for rejecting the application except that it is a departmental inquiry report, which is not required to be considered at this stage of considering the application for discharge. 2. Learned counsel has challenged this order stating that the trial court has not applied its mind and passed an order, without appreciating the facts of the peculiar case wherein the charges levelled by a fellow official has been negated by the Internal Committee, which is required to be seen while proceeded with the criminal prosecution, as the carrier of applicant is at peril. Learned counsel has relied on paragraphs 6 and 7 of judgement of the Supreme Court in Om Prakash Sharma Vs. Central Bureau of Investigation, Delhi reported in 2000 (5) SCC 679 and paragraphs 14 to 19 in Single Judge judgement of Rajasthan High Court in Neelesh Jain Vs. State of Rajasthan reported in 2006 Crl. L.J. 2151 The cited paragraphs are reiterated underneath :- Om Prakash Sharma (supra) :- "6. The powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer in charge of a police station concerned to enforce and to ensure the production of any document or other things “necessary or desirable” for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 would, no doubt, indicate the width of the powers to be unlimited but the inbuilt limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. The question, at the present stage of the proceedings before the trial court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. The question, at the present stage of the proceedings before the trial court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. 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 even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving inquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal [ (1979) 3 SCC 4 : 1979 SCC (Cri) 609] . Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the court superior to that court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the court and not of any rights concretised in favour of the accused. 7. Therefore, it is to be only seen as to whether the trial court has judiciously and judicially exercised its discretion. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the court and not of any rights concretised in favour of the accused. 7. Therefore, it is to be only seen as to whether the trial court has judiciously and judicially exercised its discretion. The trial court as also the High Court, seem to have properly applied their minds by going into the nature of the documents sought to be summoned, their bearing and relevance for the nature of consideration to be made at that stage of the proceedings before the Special Judge as well as the necessity and desirability whereof. The consideration so made by the courts below in rejecting the claim of the appellant, could not be held to be either condemnable or constitute any gross or improper failure to exercise their jurisdiction and consequently, it does not call for any interference in our hands. Therefore, the appeal fails and shall stand dismissed." Neelesh Jain (Supra):- "14. A bare perusal of the Section reveals firstly, that it is not subjected to Section 172 and Section 173 of the Code. Therefore, the prohibitions contained in Sections 172 and 173 of the Code do not crib, cabin and confine the powers of the Court under Section 91 of the Code. Secondly, a purposive interpretation has to be given to Section 91 . This provision empowers the Court to summon the production of documents or things which the Court considers “necessary or desirable for the purposes of any… … … inquiry, trial or other proceeding under this Code.” It bestows a power on the Court to direct the production of the document or thing before the Court. This is a tool given in the hands of the Court to discover the truth of the controversy before it. It, thus, enables the Court to do complete Justice with the parties before it. It is precisely to arm the Courts with this weapon that the said section is not subject to Section 173 of the Code. In case the legislature wanted to give the complete power of withholding information from the court to the prosecution, then the legislature would have made Section 91 subject to Section 173 of the Code. But, such is not the case. In case the legislature wanted to give the complete power of withholding information from the court to the prosecution, then the legislature would have made Section 91 subject to Section 173 of the Code. But, such is not the case. Therefore, the only harmonious interpretation of the two provisions would be that Sub-section (6) of Section 173 does not curtail the power of the Court under Section 91 of the Code. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the court, it can legitimately use its power under Section 91 of the Code to discover the truth and to do complete justice to the accused. Hence, any information that is relevant for the just decision of the case, which has been gathered by the investigating agency, must be produced before the Court provided that such revelation would not jeopardize the public interest. To do injustice is against public interest. For, the people loose faith in the judiciary. One cannot forget the maxim that “justice should not only be done, but it must also appear to be done.” Thus, while entertaining an application under Section 91 of the Code, the Court should first consider if any of the three criteria prescribed by Sub-section (6) of Section 173 of the Code is satisfied or not? It should also see if the police have given any cogent reasons for withholding the copies of the statements/documents from the Court. In case the criteria prescribed by Section 173(6) is satisfied, the Court should then consider if the documents or things are “necessary or desirable” for the just decision of the case. In case it is, then the Court should allow the application under Section 91 of the Code notwithstanding the embargo contained in Section 173(6) of the Code. In case, the Court comes to the conclusion that the documents or things are irrelevant for the just decision of the case or that the application has been moved with ulterior motive, then it should reject the application. Naturally, the discretion vested in the Court must be applied judiciously, while keeping in mind the Constitutional mandate, and the purpose of Section 91 of the Code. The Court is not expected to reject the application in a mechanical manner. Naturally, the discretion vested in the Court must be applied judiciously, while keeping in mind the Constitutional mandate, and the purpose of Section 91 of the Code. The Court is not expected to reject the application in a mechanical manner. Since rejection of such an application is subject to the scrutiny of higher Courts, the Trial Court must assign reasons for rejecting the application under Section 91 of the Code. 15. At times, the prosecution has used the loophole in the law, in the garb of using the power and Section 173 (6) of the Code, to withhold those documents, which weaken their case against the accused. However, such a free exercise of power is against the spirit of the Code. Once a person has been accused of the commission of an offence, it is for the investigating agency to discover if in fact the offence has been committed by the said offender or by someone else. Like an archeologist, the investigator must brush layers of evidence to reach the truth. But in his endeavor to book the accused, he cannot collect onesided evidence and present it to the court. For the investigating agency has to be impartial in its investigation. Moreover, the prosecutor cannot convert himself into a persecutor by submitting one side of the investigation and by withholding relevant portion that would favor the accused person. Neither the investigating agency, nor the prosecution is supposed to merely claim, “Ashwatham maro,” without informing the Court as to who has died, the Man or the elephant. 16. In case the prosecution is permitted to withhold vital evidence from the court, the unscrupulous prosecution would be permitted to keep the Court in the dark. The law does not permit the prosecution to play fowl with the Court. Like any party before the Court, the prosecution, too, must come to the court with clean hands. If information is withheld from the Court, then adverse inference should be drawn against the prosecution. Such an inference flows legally from Section 114 of the Evidence Act. 17. It is no argument to claim that the accused can ask for the documents withheld by the prosecution at the time of entering his defense. The defense has to be built up from day one of the trial and not an ad hoc basis. Such an inference flows legally from Section 114 of the Evidence Act. 17. It is no argument to claim that the accused can ask for the documents withheld by the prosecution at the time of entering his defense. The defense has to be built up from day one of the trial and not an ad hoc basis. Unless all the evidence collected during the course of the investigation is given to the accused, he is prevented from constructing a proper defense. The right to defend, which flows from the fundamental right to “life” and “personal liberty” enshrined in Art. 21 of the Constitution of India, is not an illusionary right, but a substantive one. One cannot tie the hands of the accused, deprive him of the necessary evidence to defend himself and still claim that a fair trial is being conducted. Moreover, such piece-meal supply of relevant documents and evidence needlessly prolongs the trial. The Courts must endeavor to deliver justice in the shortest time period Prolonged trial not only looses its relevance, it also adds to the burgeoning burden on the judiciary. Strategies need to be adopted which would make the Courts efficient and litigant friendly and which would ensure quick delivery of justice to the people. Thus, the documents or evidence, which can be provided immediately, need not be held back till the accused enters his defense. 18. In the case of Navin Ramji Kamani v. Shri K.C. Shekhran, Dy. Chief Controller of Imports & Exports (1981 RCC 218) this Court held that, “The power given under section 91 of the code is a general and wide power which empower the court, the production of any document or any other thing at any stage of any investigation, inquiry or other proceedings under the Cr. P.C. It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or things was necessary or desirable in its view, then the court could pass an order both in favor of the accused as well as the prosecution. P.C. It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or things was necessary or desirable in its view, then the court could pass an order both in favor of the accused as well as the prosecution. It is no doubt true that such power would not be exercised where the documents or thing may not be found relevant or it may be for the mere purpose or delaying the proceedings or the order is sought with an oblique motive.” Similar view has also been expressed in Rajesh Prasad v. State of Rajasthan (1998-1989 (Supp) Cr. L.R. (Raj.) 265). 19. In the instant case the earlier report lodged by the prosecutrix's father on 13.9.04 can be used by the accused petitioner to confront the father when he steps into the witness box. The report lodged by the prosecutrix at Mahila Thana would also shed some light on the controversy in issue. Similarly, the documents recovered by the police at the instance of the accused would be necessary and desirable for the purpose of the trial. Hence, the Learned Additional Judge should have exercised the power under Section 91 of the Code." 3. The applicant therefore, seeks interference of this Court to quash the impugned order and for issuance of directions for summoning the report of Internal Committee. 4. Learned AGA submits that the Investigating Officer has collected ample material during the investigation for submission of charge sheet. The inquiry conducted by the Internal Committee, has no bearance on the criminal case. Further submission, that the trial court has rightly rejected to summon the material invoking Section 91 Cr.P.C. after giving plausible reasons for rejecting the same. Further submissions that the application is devoid of merit and liable to be dismissed. 5. There is no point in issuance of noticed to opposite party no.2 as the matter pertains to invoking of Section 91 Cr.P.C. by the trial court at the stage of considering the application of applicant for discharge, as it will not prejudice the right of opposite party no.2 to contest the application for discharge at the trial court. 6. This Court has taken into consideration the rival submissions made by the parties and perused the record. 7. 6. This Court has taken into consideration the rival submissions made by the parties and perused the record. 7. It is an admitted fact made by the learned counsel for the applicant that there was consensual relations between the applicant and opposite party no.2, the contents of the FIR reveals that the applicant and opposite party no.2, were together posted at P.S.Nadigaon. Certain incidents have been mentioned in the FIR, like, excesses committed by the applicant on opposite party no.2; sending of nasty messages on the mobile phone; tried to commit rape; recorded photo and video etc. It is on the complaint made by opposite party no.2 that the departmental inquiry conducted by the Internal Committee, has been proceeded with. The report of Internal Committee dated 22.02.2024 reveals that the applicant has conceded certain allegations levelled by opposite party no.2. The conclusion of the Internal Committee is reiterated underneath :- 8. The trial court while rejecting the application of applicant has considered that there is no point in summoning the departmental inquiry report for considering the discharge application. 9. It is mentioned in the discharge application that the Internal Committee did not find the evidence in respect to rape in its report. The Internal Committee Report dated 22.02.2024 is within the knowledge of the applicant, but the application under Section 227 Cr.P.C. despite being moved on 03.07.2025 does not contain the report. The applicant himself chosen not to annex the inquiry report along with application for discharge, cannot invoke Section 91 Cr.P.C. 10. The Supreme Court in the case of Nitya Dharmananda alias K.Lenin and another Vs. Gopal Sheelum Reddy reported in (2018) 2 SCC 93 in relevant paragraph 5 has held and reiterate the settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91 Cr.P.C., but the Court being under obligation to impart justice and to uphold law, is not debarred from exercising its power. 11. Gopal Sheelum Reddy reported in (2018) 2 SCC 93 in relevant paragraph 5 has held and reiterate the settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91 Cr.P.C., but the Court being under obligation to impart justice and to uphold law, is not debarred from exercising its power. 11. The judgement of Om Prakash Sharma (supra) and Neelesh Jain (supra) did not come to rescue the applicant, because in Om Prakash's case the Supreme Court has considered the settled principle of law that the trial court is empowered to exercise its power under Section 91 Cr.P.C.; whereas in Neelesh Jain's case the Investigating Officer has withhold certain documents which were collected during investigation but did not form part of charge sheet and the court find those documents as important. 12. The trial court while rejecting the application made specific mention that the enquiry report of the Internal Committee is not legally required to be requisitioned. I do not find any abuse of the process of law or travesty of justice in the impugned order. 13. In view of the above, application is devoid of merit and liable to be dismissed. 14. Accordingly, the application is dismissed.