Gujarat High Court

Khushalbhai Veljibhai Chauhan vs State Of Gujarat on 5 September, 2023

Bench: Sandeep N. Bhatt

                                                                                          NEUTRAL CITATION




     R/SCR.A/10375/2019                                     ORDER DATED: 05/09/2023

                                                                                          undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 10375 of 2019

==========================================================
                          KHUSHALBHAI VELJIBHAI CHAUHAN
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MR P B KHANDHERIA(5228) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 05/09/2023

                                   ORAL ORDER

1. By way of this petition, the petitioner, who is

original accused, under Section 226 of the Constitution of

India as well as under Section 482 of the Code of Criminal

Procedure, 1973, has preferred this petition before this Court

for quashment of the impugned judgment and order dated

19.07.2017 passed in Criminal Revision Application No.74 of

2017 by the learned 3 rd Additional Sessions Judge, Amreli,

whereby the order dated 06.07.2017 passed by the learned

Chief Judicial Magistrate, Amreli below Exh.58 in Criminal

Case No.1430 of 2015, preferred under Section 91 of the

Code of Criminal Procedure, 1973, calling for the certain

documents and providing the same to the petitioner, is

rejected.

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

2. The short facts of the leading to filing of the

present petition are epitomized as under :

2.1 One FIR being C.R.-I No.12 of 2009 came to be

registered with the Liliya Police Station, District : Amreli for

the offences punishable under Sections 406, 408 and 409 of

the Indian Penal Code. After investigation, the charge-sheet

is also filed, where the present petitioner is the sole accused

and Criminal Case No.1430 of 2015 is registered by the

learned competent Criminal Court i.e. learned Chief Judicial

Magistrate, Amreli, which is pending before it.

2.2 Further investigation is made by the concerned

Investigating Officer and supplementary charge-sheet is also

filed before the learned trial Court.

2.3 The petitioner has filed an application Exh.26 for

discharging him for the offences punishable under Sections

406 and 408 of the IPC, which was rejected by the learned

trial Court on 06.10.2016.

2.4 The petitioner has again filed an application at

Exh.51 for discharge from the offences punishable under

Sections 406 and 408 of the IPC, which was also rejected by

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

the learned trial Court on 30.11.2016.

2.5 Thereafter, the learned trial Court has framed the

charge at Exh.55 and recorded plea at Exh.56 and matter is

kept for evidence of the prosecution.

2.6 At this stage, the petitioner has filed an

application at Exh.58 calling for certain documents under

Section 91 of the Code of Criminal Procedure, 1973 before

the trial Court and also supplying the same to the petitioner.

2.7 After hearing the learned advocates for the

respective parties as well as considering the averments made

in that application Exh.58, the learned trial Court has, by

reasoned order, rejected the same vide impugned judgment

and order dated 06.07.2017.

2.8 Being aggrieved, the petitioner has challenged the

same before the learned Sessions Court by filing Criminal

Revision Application No.74 of 2017, which was also rejected

by the learned revisional Court by the impugned order dated

19.07.2019.

2.9 It is these orders impugned which are challenged

by the present petitioner - original accused before this Court.

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

3. Heard learned advocates.

4.1 Learned advocate Mr.P.B. Khanderia for the

petitioner has submitted that Section 91 of the Code compels

the prosecution to provide any document for the purpose of

free and fair trial proceedings. He has submitted that

application under Section 91 of the Code is necessary and

desirable for the purpose of conducting trial to bring out the

veracity of the truth and also for the purpose of conducting

free and fair trial.

4.2 He has further submitted that the trial has

commenced and it is at the stage of evidence of prosecution.

He has submitted that there is no direct evidence against the

present petitioner qua the offence under Sections 406 and

408 of the IPC. He has submitted that the only purpose of

the prosecution is to proceed with the prosecution case in

such a way that the present petitioner is convicted, by hook

or by crook and without any substantial evidence.

4.3 He has submitted that the petitioner was

Government servant and was serving as Assistant in the

Court at Liliya and during that period, inquiry was made so

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

as to inquiry whether or not any departmental or criminal

offence has been committed by the petitioner and in that

connection, several correspondences took place for lodgement

of criminal case against the petitioner, which correspondences

/ documents are very much important and vital for the

defence of the petitioner. He has submitted that both the

Courts below have failed to appreciate that the documents /

material on which the prosecution does not rely its case may

be important and relevant for the defence and therefore, such

documents shall be produced by the prosecution under Section

91 of the Code. He has submitted that the investigating

officer has obtained the opinion of the handwriting expert

and the said witness has been shown as Witness No.12 in

the charge-sheet and the prosecution has placed strong

reliance on the opinion of the said witness.

4.4 He has further submitted that at the time of

filing charge-sheet, the investigating officer had handed over

the selected documents to the petitioner, which are produced

with charge-sheet. However, other documents found during

the investigation are not produced with the charge-sheet by

the Investigating Officer. He has submitted that the learned

Courts below have not given sufficient reasons while rejecting

the application of the petitioner.

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

4.5 In support of his submissions, he has relied upon

the following decisions :

(i) (2012) 9 SCC 771 - V.K. Sashikala versus State.

(ii) 1999 (2) GLH 1029 - Maheshchandra K.

Trivedi versus State.

4.6 He has submitted this application may be allowed.

5. Learned APP Mr.Chintan Dave for the State has

vehemently opposed this petition. He has submitted that both

the Courts below have rightly rejected the application. There

is no error committed by both the Courts below. He has

submitted that it is a discretion of the learned trial Court to

grant or reject the application under Section 91 of the Code

of Criminal Procedure, 1973. He has submitted that the

documents which are asked for by the petitioner are with the

petitioner and/or already supplied to the petitioner and

therefore also, the application is rightly rejected by both the

Courts below. He has submitted that some of the documents

are confidential in nature and are between the Principal

District Judge and the learned Civil Judge concerned and

therefore, are not permissible to provide the same to the

petitioner. He has submitted that this application may be

dismissed.

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

6.1 I have heard rival submissions made by the

learned advocates for the respective parties. I have perused

the documents available on record.

6.2 The main controversy involved in the present

petition is that the present petitioner has called for certain

documents under Section 91 of the Code of Criminal

Procedure, 1973, which is rejected by both the learned Courts

below.

6.3 At this juncture, Section 91 of the Code of

Criminal Procedure, 1973 is required to be reproduced, which

is as under :

"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

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed-- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

6.4.1 The above Section itself is very clear that

'Whenever any Court or any officer-in-charge of a police

station considers ...'. The powers conferred under

Section 91 of the Code of Criminal Procedure, 1973 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.

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

6.4.2 The language of Section 91 of the Code

would, no doubt indicate the width of the powers to be

unlimited but the in-built 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 fulfill the task or achieve the object.

6.4.3 Further, Section 91 of the Code does not

confer absolute right on accused. Where the document

has no relevance on the case in hand, nor it is desirable

for the Court to summon, the Court shall reject the

application filed under Section 91. Power of Court under

Section 91 of the Code of Criminal Procedure, 1973 for

summoning and production of documents is one of the

absolute discretion. The only condition for exercise of

such discretion is that the Court must be of the opinion

that the production of document is necessary or

desirable. The jurisdiction under Section 91 of the Code

when invoked by accused, the necessity and desirability

would have to be seen by the Court in the context of

the purpose - investigation, inquiry, trial or other

proceedings under the Code. The accused cannot summon

the records of the police station. Only the Court may

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

call for the records of the police station if it finds

necessary for the just decision of the case.

6.5 Keeping the above in mind, the following

ingredients are required to be satisfied in the application

under Section 91 of the Code of Criminal Procedure,

1973 made by any person/accused.

 It is the discretionary powers of the Court.

 There must be satisfaction for the Court to call for

the documents.

 The Court should feel that the said documents are

necessary for a just decision.

 The accused cannot compel the Court to summon

for the documents.

 It is not prerogative of the accused.

 The documents, which are called for, should be

with the Court / Officer-in-charge.

 The documents which are called for, are relevant

for the trial.

 The documents, which are called for, are the part

of the prosecution.

 The prosecution has relied on those documents

which the accused are asked for.

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

6.6 Here, in the present case, the accused, who is

booked for mainly an offence punishable under Sections

406, 408 and 409, has made an application under

Section 91 of the Code of Criminal Procedure, 1973 and

called for the certain documents. The said documents are

the documents which are already provided to the

petitioner at the relevant point of time and are of

confidential in nature, which are the correspondence

between the Principal District Judge and the learned

Principal Civil Judge concerned. The accused has asked

for such documents by way of the impugned application

under Section 91 of the Code. From record, it transpires

that the applicant has earlier not attempted to call for

such documents, when he twice filed discharge

applications, which were rejected by the trial Court at

that relevant point of time and the accused has not

challenged it before the higher Court.

6.7 From bare perusal of the concurrent findings

given in the impugned orders, it is observed by both the

learned Courts below that the documents, which are

asked for by the accused, are already supplied to the

petitioner at the relevant point of time and/or which are

the confidential in nature and are internal

correspondence between the two officials and therefore, it

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

cannot be given, as asked for. Further, it is always open

for the accused - present petitioner to ask for the said

documents at a later stage, if permissible, in accordance

with law. Further, the documents on which the

prosecution is relied upon have already been supplied to

the accused under Section 207 of the Code of Criminal

Procedure, 1973. Further, all the documents which are

relied upon by the prosecution have already supplied to

the petitioner. The proceeding impugned is at the stage

of evidence of prosecution and therefore, it is still open

for the petitioner to take defence in the trial. Therefore,

there is no error or illegality committed by both the

Courts below in rejecting the applications. The learned

trial Court has considered the above mentioned facts into

consideration and has used its discretion in just and

proper manner, which is upheld by the learned Sessions

Court in revision proceeding.

6.8 It is relevant to refer to the decision of the

Hon'ble Apex Court in the case of Assistant Collector of

Customs versus L.R. Maheswari reported in AIR 1970 SC 962, more particularly Para : 13 thereof, which reads as under :

" 13. That apart we do not think that the High Court was justified in interfering with the

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

discretion of the learned Magistrate. Whether a particular document should be summoned or not is essentially in the discretion of the trial Court. In that instant case the Special Public Prosecutor had assured the learned Trial Magistrate that he would keep in readiness the statements of witness recorded by the Customs authorities and shall make available to the defence Counsel the statement of the concerned witness as and when he is examined. In view of that assurance, the learned Magistrate observed in his order:"The recording of the prosecution evidence is yet to commence in this case and at present there are no materials before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial. As stated at the outset, the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the hearing of the case. The request made for the issue of the summons under Section 94, Criminal Procedure Code is also omnibus." The reasons given by the learned Magistrate in support of his order are good reasons. The High Court has not come to the conclusion that the documents in question, if not produced in Court are likely to be destroyed or tampered with or the same are not likely to be

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

made available when required. It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the Trial Courts in the matter of summoning documents. Such interference would unnecessarily impede the progress of cases and result in waste of public money and time as has happened in this case."

6.9 It is further relevant to refer to the decision

of the Hon'ble Apex Court in the case of Nitya Dharmananda alias K. Lenin versus Gopal Sheelum Reddy reported in (2018) 2 SCC 93, more particularly Paras : 5 to 9 thereof, which reads as under :

"5. It is settled-law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

part of the charge-sheet, has crucial bearing on the issue of framing of charge.

6. In Debendra Nath Padhi (AIR 2005 SC

359) (supra), it was observed :

"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

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

and production of a document as may be necessary at any of the stages mentioned in the section. Insofar 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 a 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

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

is not produced process may be initiated to compel production thereof."

7. In Hardeep Singh Etc. v. State of Punjab and Ors. Etc. (2014) 3 SCC 92 : (AIR 2014 SC 1400, Para 17) a Bench of five-Judges observed:

"19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."

8. Thus, it is clear 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/prosecutor,

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge- sheet. It does not mean that the defence has a right to invoke Section 91, Cr.P.C. dehors the satisfaction of the court, at the stage of charge.

9. Accordingly, the view to the contrary in the impugned judgment cannot be sustained and is set aside. ..."

6.10 The Co-ordinate Bench of this Court, in the

case of Sanjiv Rajendra Bhatt versus State of Gujarat in

Criminal Revision Application No. 301 of 2021 , has

observed in Para : 26 thereof as under :

" 26. The applicant accused has claimed the case papers of Human Right inquiry conducted by the then DIG, Bhuj Range, Mr. Dhagal. The reason behind is that, while recording the statement of witness Sumersingh by the IO, he made a reference with regard to his application filed with the Human Rights Commission. This Court is of the considered view that, Investigating Agency has not cited Mr. Dhagal as witness nor any documents with regard to alleged inquiry being collected during the course of investigation. The trial Court while dealing with

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined

this issue recorded that the documents of the inquiry are not necessary for adjudication of trial as well as to defend the case. The prosecution's stand is that no such papers are available with the authority and therefore, it cannot be provided as of right to the applicant. This Court is of considered view that, reference subject of Human Right Application and enquiry thereof are not necessary and desirable for the adjudication of trial as well as right to defend the case. However, the trial Court granted liberty to the applicant to revive his claim at appropriate stage if need be arise. This Court is in complete agreement with the view taken by the trial Court and therefore, so far alleged enquiry made by the then DIG Mr. Dhagal is concerned, at this stage, the applicant is not entitled for the documents."

6.11 There cannot be any dispute with regard to

the law enunciated in the decisions of the Hon'ble Apex

Court as well as of this Court relied upon by the

learned advocate for the petitioner, however, it cannot be

helpful to the petitioner any further in view of the facts

and circumstances of the present case. The present case

does not fall within the purview of these decisions with

such facts.

7. Considering the totality of the facts and

NEUTRAL CITATION

R/SCR.A/10375/2019 ORDER DATED: 05/09/2023

undefined