Mukesh P. Meena vs Cbi Acb Mumbai
2021 Latest Caselaw 16528 Bom

SHAMBHAVI                                                             1-APL-544-2021.odt
NILESH
SHIVGAN
Digitally signed by     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHAMBHAVI NILESH
SHIVGAN                      CRIMINAL APPELLATE JURISDICTION
Date: 2021.11.30
18:49:57 +0530
                                CRIMINAL APPLICATION NO.544 OF 2021

                      Mukesh P. Meena                           ... Applicant
                           Vs
                      CBI ACB Mumbai                           ... Respondent
                                                    ...

Mr. Asutosh Shukla with Mr. Pradosh Tiwari for the Applicant.

Mr. K.S.Patil for the Respondent-CBI..

CORAM : SANDEEP K. SHINDE J.

DATE : NOVEMBER 30, 2021.

P.C. :

Precipe is filed by the office for 'Speaking to the

Minutes' of the judgment dated 26th November, 2021.

2 Accordingly, in the cause-title of the Criminal

Application, date of pronouncement and date of reserve of

the judgment is mentioned.

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3           Accordingly,   in   paragraph   21     of   the   said

judgment, last line shall be read and substituted as under:

"application for production of document except

the statements of Abhinav"

4 Said corrections be carried out and judgment be

read accordingly.

                                (SANDEEP K. SHINDE, J.)




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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION (APL) NO.544 OF 2021

Mukesh P. Meena An adult Indian Inhabitant of Mumbai Aged about 46 years, Occ: Service, Having permanent address at, Vill/Post Bamanwas, Taluka: Bamanwas, Dist: Sawai Madhopur, Rajasthan ... Applicant

Vs

CBI ACB Mumbai Having their Mumbai Region Office Address at Plot No.C-35/A, G-Block, Bandra-Kurla Complex, Bandra (East) Mumbai-400050 ... Respondent ...

Mr. Asutosh Shukla with Mr. Pradosh Tiwari for the Applicant.

Mr. K.S.Patil for the Respondent-CBI..

CORAM : SANDEEP K. SHINDE J.

RESERVED ON: SEPTEMBER 23, 2021.

PRONOUNCED ON: NOVEMBER 26, 2021.

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Judgment :

          Rule.



2         Rule made returnable forthwith. With consent of

the learned counsel for the parties, matter is taken up for

final hearing forthwith.

3 This application under Section 482 of the Code of

Criminal Procedure, 1973 ("Cr.P.C." for short) challenges the

order dated 30th March, 2021, by which the Special Judge,

CBI, Greater Bombay, declined to direct investigator to

produce the documents sought by the applicant (accused)

in CBI Special Case No.45 of 2019.

4 Back-ground facts giving rise to this application

are as under:

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The Central Bureau of Investigation registered a

regular case BA1/2018/A0012 on a written complaint 25 th

April, 2018 against the applicant, Deputy Commissioner of

Customs and others under Section 120-B of the Indian Penal

Code, 1860 and Section 7,13(2) read with Section 13(1)(d)

of the Prevention of Corruption Act, 1988. After completion

of investigation, charge-sheet was filed on 28 th November,

2019 against the applicant and seven others. Whereafter,

applicant-accused approached the trial Court with the

prayer that entire material available with the investigator,

which was not made part of the charge-sheet, be

summoned under Section 91 of the Cr.P.C. Applicant sought

production of following documents;

(i) Statements of witnesses,

(ii) Call Detail Records

(iii) Internal reports, recommendations of supervisory

officers,

(iv) Opinion of law officers,

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(v) Findings recorded by the Investigating Officer on the

complaint given by the applicant,

(vi) Comments recorded by the Deputy Inspector General

and Joint Director of the Central Bureau of Investigation on

draft investigation report placed before them,

(vii) Rebuttal findings given by the investigating officer on

the representation given by the applicant,

(viii) Correspondence between the Central Bureau of

Investigation and Customs Department from the date of

registration of the First Information Report,

(ix) Report with comments of the Superintendent of Police,

CBI, Anti Corruption Bureau, submitted on investigation

report produced before

(x) Copy of comments of the Investigating Officer or any

other proper officer of the CBI with regard to representation

of Sandip Yadav (Accused No.6)

(xi) Proof of submission of the Investigating Officers or any

other proper officer of the CBI and comments on

representation of the applicant and Sandip Yadav (co-

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accused) to the Sanctioning Authority,

(xii) Sanction order issued by sanctioning authority,

(xiii) CFSL report along with a) auditory report, b)

spectrogram report and work-sheet,

(xiv) Comments recorded by DIG and Joint Director on draft

investigation report,

(xv) Comments of Legal Department/ Dy. Legal advisor on

draft investigation report,

(xvi) Rebuttal findings of Investigating Officer,

(xvii) Note Sheet of opinion of SP (CBI),

(xviii) Opinion of Investigating Officer on application of Mr.

Kunal Kashyap officer of Customs Department for his

deputation in CBI,

(xix) Seizure Panchanama of Mobile Phone,

(xx) Any other report regarding Cell Phone Data recovery,

(xxi) Proof of submission of Law Officer Report to CVC

5 The Central Bureau of Investigation agreed to

produce sanction order; CFSL report; CD and DVR recorder

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alleged to have been used during the course of the

investigation; entire Call Detail Records for the month of

April, 2018 in respect of mobile used by the applicant and

CDR for the month of April, 2018 in respect of mobile used

by co-accused Sandeep Yadav and Chandrashekhar Rane;

seizure panchanama for mobile phone of applicant, co-

accused Sandeep Yadav; another report recording cell

phone data recovery. However, the CBI declined to produce

documents relating to draft investigation report submitted

by Investigating Officer to Supervisory Officer. CBI, relied on

the Criminal Manual, 2005, Chapter 19 thereof and claimed

that contents of Supervisory Officers' report being ordinarily

classified as "Confidential", the same cannot be produced

for claiming privilege under Section 124 of the Indian

Evidence Act, 1871.

6 The CBI denied that in the course of the

investigation, it had recorded statement of Divesh

Mahendra Gupta and Sahadev Rade Gupta.

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7         The CBI declined to produce statements of

custom officer Abhinav Kumar Shrivastav and Yashwant

Banarkar, Superintendent on the ground that prosecution

does not propose to examine them as witnesses.

8 The learned Trial Court declined to summon

Investigator to produce the documents, sought, by the

applicant-accused on the ground that, by seeking

production of these documents, under Section 91 of the

Cr.P.C., applicant seems to be trying to set up his defence at

the stage of framing of charge, which was not objective of

Section 91 of the Cr.P.C. The learned Judge, therefore, even,

did not, examine the 'necessity' or 'desirability' of the

documents of which production was sought. The learned

trial Court relied upon the judgment of the State of Orissa

v. Debendra Nath Padhi, AIR 2005 SC 359.

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9          Aggrieved by this order, applicant-accused, has

invoked inherent jurisdiction of this Court under Section 482

of the Cr.P.C.

10 Heard the learned counsel for the applicant and

the learned counsel for the CBI. Perused the application,

replies filed by the Investigating Officers and the impugned

order.

11 Here, in this case, application, under Section 91

of the Cr.P.C. was moved at the stage of framing of charge

wherein applicant pleaded, (Paragraphs 7 and 8), that

production of aforesaid documents, is necessary for

proving, the innocence of the applicant (emphasis supplied)

and also to assist this Hon'ble Court to decide the charges

levelled against him. Applicant, also, pleaded that aforesaid

documents are necessary to be brought on record as by

taking aid of aforesaid documents, applicant will be in

better position and rebut the charges levelled against him

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and assist this Hon'ble Court (emphasis supplied). In this

application, applicant has raised following two grounds

amongst others;

Ground (aa) That applicant sought production of said

documents as are necessary to substantiate his non-

involvement and false implication in the present case and

hence, he has right to claim copies of the documents as

well as request the Court for production of documents as

same should be brought before the Hon'ble Court in the

interest of justice;

Ground (bb) That "Even at the stage of charge, the Court

can consider the documents in favour of the applicant,

which are of sterling quality and, therefore, such documents

would assist the Court in framing the charge or discharging

the applicant (emphasis supplied). Evidently, therefore,

production of the documents, was sought at the stage of

framing charge, either for proving the innocence or for

rebutting the charges levelled against him.

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12 Therefore, first question falls for consideration is;

(1) Whether accused has right to seek production

of documents at the stage of framing charge,

which are in custody of Investigating

Agency/officer, but were not produced along with

the report ?

13 The Apex Court has answered first question in

judgment in the case of Debendra Nath Padhy (Supra)

and held that;

"any document or other thing envisaged under Section 91 , can be ordered to be produced on findings that the same is necessary or desirable for the purpose of investigation, enquiry, trial or other proceedings under the Code and fore-most requirement of the section is about document being necessary or desirable and the necessity or desirable would have to be seen with reference to the stage when a prayer is made for production" and further held that, "If any document is necessary or desirable for defence of accused, the question of invoking Section 91 at the initial stage of framing of the charge would not arise since defence of the accused is not relevant at that stage." Thus, held that "so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence."

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Yet, in the case of Nitya Dharmananda and Anr. v.

Gopal Sheelum Reddy and Anr. (2018) 2 SCC 93 after

referring to the judgment in the case of Debendra Nath

Padhy (Supra), Apex Court has held in paragraph eight

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, the Court is not debarred from summoning or relying upon the same even if such document is not part of the charge-sheet."

AND further held that,

" It does not mean that the defence has a right to invoke Section 91 of the Cr.P.C. dehors the satisfaction of the Court, at the stage of charge."

14 Thus, settled law is, although at the stage of

framing of charge, the defence has no right to invoke

Section 91 of the Cr.P.C., yet, at the appropriate stage, the

Court is empowered to summon production of such

documents, which is not part of the charge-sheet but of

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sterling quality, which has been withheld by the

investigator to ensure fair and impartial trial. The first

question is answered accordingly.

15 In the case in hand, applicant was seeking

production of about twenty-three documents. Except the

statement Abhinav Kumar Shrivastava (Custom Officer) and

Yashwant Banarkar (Superintendent) recorded under

Section 161 of the Cr.P.C., other documents or things were,

in the nature of reports submitted by the Investigating

Officer to Supervisory Officer in terms of Chapter 19 of the

Criminal Manual, 2005 CBI. Such report submitted by the

Investigating Officer to the Supervisory officer is stated to

be 'confidential' document and it's primary purpose is to

apprise the Superior Officer and law officers of the CBI the

result of the enquiries with a view to assess the merits and

de-merits of a case and facilitate the passing of the final

orders thereon by the Competent Authority. In the case of

Sunita Devi v. State of Bihar and Anr. (2005) 1 SCC

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608, the Apex Court in paragraph no.27 has held as under;

" Notice of internal communication between the two witnesses of the prosecution are not to be supplied to the accused wherein most of the documents being in the nature of internal correspondence, prosecution has correctly denied to produce the same claiming privilege under Section 124 of the Indian Evidence Act, 1871."

"

16 For that reason, prosecution has rightly declined

to produce these documents, which were in the nature of

supervisory notes, of which the primary purpose was to

apprise the superior officer, the result of

investigation/enquiry before , "submitting the Final Report"

in the Court.

17 In, so far as statement of Abhinav Shrivastava,

Custom Officer and Yashwant Banarkar, Superintendent are

concerned, investigator has declined to produce it on the

ground that prosecution does not propose to examine these

two witnesses and thus, relied on the provisions of Section

173(5) of the Cr.P.C. It reads as under;

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"173. Report of police officer on completion of investigation -

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report--

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses."

18 Here in this case, the applicant is seeking

directions to investigator, to produce statements of two

witnesses recorded by him under Section 161 of the Code

of Criminal Procedure, 1973, by invoking Section 91 of the

Cr.P.C. Thus, second question is; "Whether expression

"Document or other thing" employed in Section 91 of the

Cr.P.C., includes a statement of witnesses recorded under

Section 161(3) of the Cr.P.C.

Section 91(1) reads as under:

"91. Summons to produce document or other thing

(1) Whenever any Court or any officer in charge

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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. "

. This Section, therefore, empowers the Court to issue

summons or written order to the person in whose

possession or power such document or thing is believed to

be, requiring him to produce it, at the time and place stated

in the summons or order. Therefore, a plain reading of

Section 91 empowers the Court to direct production of any

"document or other things". Expression "Document" is not

defined in the Code. However, Section 2(y) of the Code

says, words and expressions used in the Code and not

defined, but defined in the Indian Penal Code, 1860 have

the meaning respectively assigned to them in the Code.

. Expression "Document" is defined under Section 29 of

the IPC. It reads as under:

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"29. "Document" --

The word "document" denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Explanation 1 -- It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.

Illustrations

A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document. A cheque upon a banker is a document.

A power-of-attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a document.

Expression "Document" is also defined in the Indian

Evidence Act, 1872, which means any matter expressed or

described upon any substance by means of letters, figures

or marks or by more than one of those means, intended to

be used or which may be used, for the purpose of recording

that matter. Illustrations are:

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"Illustrations A writing3 is a document;

3Words printed lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document."

Expression "Document" defined in Black's law dictionary is

"Something tangible on which words, symbols or marks are

recorded and the deeds, agreements, title papers, letters,

receipts and other written instruments used to prove a fact.

As against this expression, "Statement" is not defined in

the Code nor in the Indian Evidence Act, 1872. Statement in

its dictionary meaning is "the act of stating or reciting".

Black's law dictionary defines, statement, is a verbal

assertion or nonverbal conduct intended as an assertion

OR

An account of a person's knowledge of crime, taken by

police pursuant to their investigation of the offence.

19 Under Section 161 of the Cr.P.C., police officer

reduces into writing any statement made to him in the

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course of the investigation and the person whose statement

is reduced into writing is not required to sign such

document. Statement recorded by the police during the

investigation is inadmissible in evidence and its' only

purpose is to contradict witness in the manner provided

under Section 145 of the Indian Evidence Act, 1872. As

against this, 'document' denotes any matter expressed

upon any substance by means of letters intended to be

used as evidence of that matter. When, documents

including electronic records being produced for inspection

of the Court, such documents are called 'documentary

evidence' within the meaning of expression "Evidence"

under the Indian Evidence Act, 1872. Therefore, for all

purposes, in substance or form or otherwise, the statement

of witness is not a "Document" defined under Section 29 of

the Indian Penal Code, 1860. It is, therefore, to be stated

that expression "Document" or other thing" used under

Section 91 of the Cr.P.C. excludes statement of witness

recorded under Section 161 of the Cr.P.C. In so far as

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expression "Other thing", used under Section 91 is

concerned, it would mean material collected other than

documents in the course of the investigation like,

muddemal, etc. It is, therefore, to be held that expression

"Documents or other thing" used in Section 91 of the Cr.P.C.

excludes the statements of witnesses recorded under

Section 161 of the Cr.P.C. As such, for the reasons, stated

above application moved by the applicants under Section

91 of the Cr.P.C. seeking directions to the investigator to

produce statements of witnesses recorded under Section

161(3) of the Cr.P.C. was not maintainable. The second

question is answered accordingly.

20 Be that as it may, herein the application under

Section 91 of the Cr.P.C. was moved at the stage of framing

the charge, which according to the accused, if produced

would help him in rebutting charges levelled against him. It

is settled law that at the stage of framing the charge, the

learned trial Court is required to consider whether there are

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sufficient grounds to proceed against the accused and at

that time, the trial Court is required to consider only police

report referred to under Section 173 of the Code and

documents sent with. The only right the accused has at that

stage is of being heard and nothing beyond that. Expression

"hearing his submissions" of the accused cannot mean

opportunity to file material but confined to material

produced by the police in this case. The averments in

application moved under section 91 as well as grounds

taken up in the application before this Court clearly indicate

and suggest that application was seeking production of

documents for its consideration, while framing the charge

which is not permissible, as this right, is not acknowledged

in the Code.

21 For the aforestated reasons, no interference is

called for in the impugned order. Although the application is

rejected, applicants are granted liberty to move an

application for production of document except the

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statements of Abhinav Shrivastava and Yashwant Banarkar,

at the appropriate stage of trial.

22         Rule is discharged.



23         Application is disposed of.



                                 (SANDEEP K. SHINDE, J.)

Note: corrections are carried out in the cause-title and

paragraph 21 of the judgment only pursuant to the

Speaking to the Minutes of the order dated 30 th November,

2021.

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