Jammu & Kashmir High Court
Reserved On : 02.2.2024 vs Ut Of Jammu And Kashmir Th. Sho on 7 February, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
1.2 5
IN HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JSMMU
CRM(M) No. 28/2024
Reserved on : 02.2.2024
Pronounced on:
07.02.2024
Amit Kumar son of Ram Kumar resident
of Garor Sonipat Haryana at present
District Jail Amphala
.....petitioner(s)
Through :- Ms Zainab Shamas Watali Advocate
V/s
UT of Jammu and Kashmir Th. SHO .....Respondent(s)
Police Station ANTF Gandhi Nagar
Jammu
Through :- Mr. Pawan Dev Singh Dy.AG
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1 The petitioner is facing criminal trial in FIR No. 14/22
registered under Sections 8/20/29 of NDPS Act in the Court of learned
Second Additional Sessions Judge, Jammu ['trial Court']. The matter is yet
to be taken up by the trial Court for framing of charge.
2 With a view to contest framing of charge, an application under
Section 91 Cr.PC came to be filed by the petitioner before the trial Court to
call for the Tower location (CDR) of Airtel Mobile No. 9034909052 and
Jio Mobile No. 8708236962 belonging to the petitioner and also the Tower
Location (CDR) of two mobile numbers of co-accused, namely Ombir. A
request was also made to call for the record of toll tax paid through the
Fastag affixed to the Hyundai Creta car of the petitioner bearing
Registration No. HR29AV-3483 at Ban Toll Plaza, Nagrota on 14.10.2022
along with CCTV footage of 14.10.2022. The application was filed on the
ground that the petitioner and co-accused are suffering incarceration for the
last more than ten months for no fault of their. The petitioner is a business
man who deals in sale and purchase of apples and in connection thereof, he
along with his friend were coming back from Kashmir on 14.10.2022. The
petitioner, who was travelling in the Hyundai Creta Car was stopped by
some persons in civil clothes immediately after they crossed Nashri Tunnel.
On enquiry, it was found that the men in civil clothes were members of a
team of Police from Police Station ANTF Gandhi Nagar Jammu. It was
alleged that the ANTF team took the petitioner and co-accused to the office
of ANTF Gandhi Nagar, Jammu. The petitioner claims that they went to
Ban Toll Plaza and even paid toll tax through fastag affixed on the wind
screen of the vehicle. It was also alleged in the application that the ANTF
Team switched off the phones of the petitioner and the co-accused before
they were taken out of the Police Station ANTF. The Hyundai Creta Car of
the petitioner was taken by the ANTF people to a place on bypass Sidhra,
Narwal, also known as Bagh-e-Bahu Morh Jammu where they handcuffed
the petitioner and the co-accused. The ANTF team which had fabricated a
cavity inside the fuel tank of Creta car, took out some stuff and informed
the petitioner that it was charas. The petitioner along with co-accused were
arrested and a false case under Sections 8/20/29 NDPS act was slapped
upon them. It is submitted that the documents which the petitioner is
asking for would show to the Court that the entire drama leading to
recovery and arrest of the petitioner and co-accused was stage
managed by the ANTF team of Gandhi Nagar, Jammu. The tower location
would indicate how the petitioner and the co-accused
moved from Ban Toll Plaza to Gandhi Nagar and then to
Bagh-e-Bahu Morh on Sidhra road, Narwal.
3 The application was resisted by the prosecution. In its objections,
learned APP submitted that the challan which is subjudice in the trial Court
is fixed for framing of charge on 17.10.2023. The petitioner is a kingpin of
a gang of narcotic smugglers who smuggle narcotics from Kashmir to other
parts of the country and has established his network. The offence
committed by the petitioner is serious, heinous and non-bailable and carries
rigorous imprisonment, ranging from 10 to 20 years. It was also submitted
that the required CDR and other documents which had already been
procured by the Investigating Officer ['I.O'] are annexed with the challan.
That apart, the CCTV footage, tower locations and toll tax data are being
stored for a specified period of time and, thereafter, get deleted/erased
automatically.
4 The application was considered by the trial Court in the light of rival
submissions made by learned counsel appearing for the petitioner and the
prosecution and the case law on the point. The trial Court concluded that at
the time of framing of charge, an accused does not have a right to produce
any material or documents to contest framing of charge, for, the charge is
required to be framed solely on the basis of challan and the material
produced by the prosecution along with it. It was, thus, opined that the
petitioner had no right to seek production of any documentary evidence at
the stage of framing of charge by invoking Section 91 Cr.P.C, for, the
accused cannot be permitted to place on record documentary evidence
which may constitute his defence. On the basis of this reasoning, the trial
Court vide order dated 6.11.2023 rejected the application. It is this order of
the trial Court dated 06.11.2023 which is called in question in this petition
filed under Section 482 Cr.PC.
5 Having heard learned counsel for the parties and perused the
material on record, it is necessary to first advert to the scope of Section 91
of Cr.PC. Section 91 reads 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 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 From a plain reading of Section 91, it is evident that it does
not confer any right on the accused to produce document in his possession
to prove his defence. Section 91 pre-supposes that when the document is
not produced, process may be initiated to compel production thereof.
Section 91, as is apparent from its reading, is wide enough to enable the
Court to seek production of any document or other thing which is
necessary or desirable for the purposes of any investigation, enquiry, trial
or other proceedings under the Code. The width of powers conferred upon
the Court or any officer in-charge of a Police Station under Section 91
Cr.PC is unlimited, but there are inbuilt inherent limitations as to the stage
or point of time of its exercise, commensurate with the nature of
proceedings as also the compulsions of necessity and desirability, to fulfill
the task or achieve the object.
7 Whether the material produced by or sought to be produced by
the accused can be considered at the stage of framing of charge was a
question for determination before a three-judge Bench of the Supreme
Court in the case of State of Orissa vs Debendra Nath Padhi, (2005) 1
SCC 568. The Supreme Court, after surveying the law on the point,
unanimously held that at the stage of framing of charge, the trial Court can
consider only the material produced by the prosecution and there is no
provision in the Code which would confer a right upon the accused to file
any material or document at that stage which right was held available to the
accused only at the stage of trial. Delving on the scope of Section 91 Cr.PC
the three-Judge Bench concluded that the accused cannot, at the stage of
framing of charge, be permitted to invoke section 91 CrPC to seek
production of any document which may be relevant to prove his innocence.
The observations made by the Supreme Court in para (25) are noteworthy
and, therefore, the same is set out below:
"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".
8 It is, thus, trite that the entitlement of the accused to seek order
under Section 91 CrPC would ordinarily not come till the stage of
defence. The necessity and desirability of the documents sought to be
produced for the purpose of investigation, enquiry, trial or other
proceedings, is to be examined considering the stage when such prayer
for summoning and production of document or other material is made.
In no case, Section 91 can be invoked as a matter of right to seek
production of document, whether in possession of the accused or some
other person, which may be necessary to prove the defence of the
accused. However, in a later case of Rukmini Narvekar vs. Vijaya
Satardekar and others, (2008) 14 SCC 1, a two-Judge Bench of the
Supreme Court again considered the same issue and held that it cannot
be said to be an absolute proposition of law that under no circumstances
can the Court look into the material produced by the defence at the time
of framing of charge, though this should be done in very rare cases i.e
where defence produces some material which is of sterling quality and
convincingly demonstrate that the whole prosecution case is totally
absurd or concocted. In Nitya Dharmananda @ K. Lenin vs Sri
Gopal Sheelum Reddy, (2018) 2 SCC 93, the position of law
enunciated in the case of Debendra Natgh Padhi (supra) was
reaffirmed. In paragraph (8) of the judgment, it was held thus:
"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, 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.
de hors the satisfaction of the court, at the stage of charge".
9 The little distinction in the legal proposition which was made
by the Supreme Court in the case of Nitya (supra) is that if, at the stage
of framing of charge, the Court is satisfied that there is material of
sterling quality which has been withheld by the investigator/prosecutor,
the Court is not debarred from summoning or relying upon the same
even if such document is not a part of the charge-sheet. The Supreme
Court, however, cautioned that holding so, should not be taken to mean
that defence has a right to invoke section 91 Cr.PC de hors the
satisfaction of the Court, at the stage of framing of charge. The
aforesaid position of law stated by the Supreme Court is restated in the
Draft Criminal Rules and Practice, 2021 framed by the Supreme Court
in "Criminal Trials Guidelines Regarding Inadequacies and
Deficiencies, in RE vs State of Andhra Pradesh and others, (2021)
10 SCC 598.
10 In the aforesaid case, the directions have been issued to
all the High Courts to take immediate steps to incorporate the Draft
Rules, 2021 as part of the Rules governing criminal trials and to ensure
that the existing Rules on the subject are modified and promulgated
within six months of passing of the order. Rule 4 of the Draft Rules,
2021 reads thus:
"4. Supply of documents u/sections 173, 207 and 208 Cr.P.C:
Every Accused shall be supplied with statements of witness
recorded under Sections 161 and 164 Cr.PC and a list of
documents, material objects and exhibits seized during
investigation and relied upon by the Investigating Officer (I.O.)
in accordance with Sections 207 and 208 Cr. PC.
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".
11 From a reading of Rule 4 reproduced above, it is evident that a
right has been conferred on the accused to be supplied with statements
of witnesses recorded under Sections 161 and 164 Cr.PC and a list of
documents, material objects and exhibits seized during the investigation
and relied upon by the I.O. However, the explanation makes it equally
obligatory to provide a list of statements, documents, material objects
and exhibits that are not relied upon by the I.O. It , therefore, shows that
the Rule 4 of the Draft Rules, 2021 which are required to be
incorporated by all the High Courts in their criminal Rules of practice,
clearly acknowledges the right of the accused to know about the details
of the material collected by the I.O during investigation whether relied
upon or not by him in the final report.
12 On the conspectus of the legal position enunciated by the
Supreme Court in the cases of Debendra Padhi, Rukmini Narvekar
and Nitya (supra), it would be trite law that at the stage of framing of
charge, the Court is only supposed to restrict its consideration to the
charge-sheet and the material produced with it by the prosecution. The
defence has no right to invoke Section 91 Cr.PC to prove his innocence.
Such documents, if necessary and desirable, can be produced by the
accused or by some other person at the asking of the accused at the time
of leading his defence. However, if the Court is satisfied that there is a
document or material of sterling quality which has been withheld by the
investigator or prosecutor, it can summon and rely upon the same even
if such document is not a part of the charge-sheet. An application under
Section 91 CrPC at the instance of the accused would lie even at the
stage of framing of charge if the accused makes out a case that there is a
document or material of sterling quality lying with the I.O, but has not
been submitted to the Court along with the charge-sheet and such
document or material is necessary and desirable for the purposes of
framing of charge. Such material and document could be amongst the
material and document which, though, was available with or produced
before the I.O during investigation, yet the same was not relied upon by
him in the final report. Rule 4 of the Draft Rules of 2021 lends support
to this proposition.
13 In the instant case, it is not the grievance of the petitioner that
some documents or material produced before I.O during investigation or
otherwise available with him has not been produced in the Court along
with challan and that such document or material is necessary and
desirable for framing of charge. Rather, it is a case where the
prosecution has clearly stated that the requisite CDRs, call details etc.,
have already been made part of the final report submitted to the trial
Court. The petitioner has invoked Section 91 Cr.PC to seek production
of CDRs of four Mobile numbers, two belonging to the petitioner and
two to his co-accused and also CCTV footage and fastag receipts of toll
at Ban Toll Plaza. All these documents were neither available with the
I.O nor were they sought to be produced before him during investigation.
From a plain reading of the application filed by the petitioner and the
grievance projected by him therein, it clearly transpires that the
petitioner wants to lead his defence and prove his innocence even at the
stage of framing of charge. If such course is permitted, the Court will
have to conduct a mini trial at the stage of framing of charge which is
not permissible in law.
14 In view of the clear exposition of law by the Supreme Court in
the supra judgments and the discussion made above, I find no illegality
or infirmity in the order passed by the trial Court. This petition is,
therefore, found to be without merit and the same is, accordingly,
dismissed. It is made clear that dismissal of this petition shall not come
in the way of the petitioner to move an application under Section 91
Cr.PC for production of requisite documents at an appropriate stage.
Needless to say that in case any such application is made, the trial Court
shall consider and dispose of the same on its merits in accordance with
law.
(SANJEEV KUMAR)
JUDGE
Jammug
07 .02.2024
Sanjeev
Whether the order is speaking : Yes
Whether the order is reportable :Yes
