Allahabad High Court
Dr. Gomati Dwivedy vs C.B.I. /A.C.B. Branch, Lucknow on 23 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:23273
A.F.R.
Court No. - 15
Case :- CRIMINAL REVISION No. - 1089 of 2024
Revisionist :- Dr. Gomati Dwivedy
Opposite Party :- C.B.I. /A.C.B. Branch, Lucknow
Counsel for Revisionist :- Navneet Awasthi,Gaurav Chand Kaushik
Counsel for Opposite Party :- Anurag Kumar Singh
Hon'ble Subhash Vidyarthi J.
1. Heard Sri Navneet Awasthi, the learned counsel for the revisionist, and Sri Anurag Kumar Singh, the learned counsel for the respondent- CBI.
2. By means of the instant revision filed under Section 397/401 Cr.P.C., the revisionist has challenged the validity of an order dated 01.06.2024 passed by the Special Judge (Prevention of Corruption Act) C.B.I. Court No.3, Lucknow in Criminal Case No.2370 of 2018, arising out of R.C. No. 0062015A0017, under Sections 120B, 409 and 420 IPC and Sections 23(2) read with Section 13(1)(D) of the Prevention of Corruption Act, 1988, lodged at Police Station CBI/ACB, Lucknow, whereby an application under Section 91 Cr.P.C. filed by the revisionist seeking a direction to the Secretary, National Informatics Centre for production of an order refusing sanction for prosecution of another co-accused person Naseem Ahmad has been rejected.
3. A copy of the application under Section 91 Cr.P.C. has been annexed as Annexure No.11 to the affidavit filed in support of the revision. This application is supported by an affidavit of the revisionist. The affidavit runs into as many as 52 paragraphs and numerous judgments have been referred to and extracts of the judgment have been quoted in the affidavit of the revisionist. The verification clause of the affidavit filed before the learned trial court is being quoted below:-
"Verification
I, the deponent above named do hereby verify that the contents of paragraphs__________ to ___________ of the affidavit are true to my own knowledge, those of paragraphs ___________ to ___________ are on the basis of legal advise and those of paras______________to _______________are based on record.
No part of it is false and nothing material has been concealed, so help me God."
4. It is very disturbing to note that even when cases are filed on the basis of affidavits, the advocates treat verification and swearing of affidavits as an empty formality and they even do not fulfill that formality before filing the affidavit in a court. It is also very disturbing that the Oath Commissioner has verified the affidavit without even taking care to have a look at it and without ascertaining as to whether the deponent has in fact verified the contents of the affidavit. This casual approach of the learned Counsel for the revisionist as well as that of the oath commissioner cannot be appreciated by the Court, to say the least.
5. Even on merits of, through the application under Section 91 Cr.P.C., the revisionist has prayed for directing the Secretary, National Informatics Center (NIC) to present before the trial Court the order denying sanction for prosecution of a co-accused person Sri Naseem Ahmad.
6. Section 91 Cr.P.C. provides as follows: -
"91. 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."
7. The trial court has referred to the decision of the Hon'ble Supreme Court reported in State of State Of Orissa versus Debendra Nath Padhi: (2005) 1 SCC 568, wherein it has been held that: -
"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. 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."
(Emphasis added)
8. The learned counsel for the revisionist has relied upon a decision of the Hon'ble Supreme Court reported in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re Vs. State of Andhra Pradesh and others: (2021) 10 SCC 598, wherein the Hon'ble Supreme Court has expressed an opinion that while furnishing the list of statements, documents and material objects under Section 207/208 Cr.P.C. the Magistrate should also ensure that a list of other materials such as statements or objects/documents seized, but not relied on should be furnished to the accused. The Hon'ble Supreme Court formulated the Draft Criminal Rules of Practice, 2021, Rule 4 whereof provides as follows: -
"4. Supply of documents under Sections 173, 207 and 208 CrPC.--(i) Every accused shall be supplied with statements of witness recorded under Sections 161 and 164 CrPC and a list of documents, material objects and exhibits seized during investigation and relied upon by the investigating officer (IO) in accordance with Sections 207 and 208 CrPC.
Explanation : The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the investigating officer."
9. The aforesaid draft Rule 4 merely provides for supplying statements of witness recorded under Sections 161 and 164 CrPC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 Cr.P.C.
10. An order refusing sanction for prosecution of a co-accused person does not fall in any of the categories of the documents mentioned by the Hon'ble Supreme Court while expressing the aforesaid opinion in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re (Supra). It does not fall in any of the categories of documents mentioned in the Draft Rule 4 relied upon by the learned Counsel for the revisionist. Therefore, the revisionist has no right to seek a direction for production of the order passed by the Secretary, National Informatics Centre refusing sanction for prosecution of a co-accused person under Section 91 Cr.P.C.
11. In view of the foregoing discussion, I am of the considered view that the order dated 01.06.2024 passed by the Special Judge (Prevention of Corruption Act) C.B.I. Court No.3, Lucknow does not suffer from any illegality, warranting interference by this court in exercise of its revisional jurisdiction. The revision lacks merit and the same is accordingly dismissed.
(Subhash Vidyarthi J.)
Order Date: 23.04.2025
MVS/-
