Jammu & Kashmir High Court
Jasvinder Singh Manocha vs < on 3 May, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr.
No.100
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No.282/2024
CrlM No.631/2024
Jasvinder Singh Manocha, aged 69 years, ...Petitioner(s)
S/o Shri Ripudaman Singh
146, A/D, Gandhi Nagar, Jammu
Through :- Mr. Pranav Kohli, Sr. Advocate with
Mr. Farhan Mirza, Advocate.
V/s
<
Union Territory of Jammu and Kashmir .....Respondent (s)
through SSP, Vigilance Organisation
Jammu
't
Through :- Mrs. Monika Kohli, Sr. AAG.
Coram:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
03.05.2024
(ORAL)
1. The petitioner has challenged order dated 01.04.2024 passed by learned
Special Judge, Anti Corruption, Jammu whereby his application under Section
91 of the Code of Criminal Procedure, has been rejected.
2. Issue notice to respondent. Mrs. Monika Kohli, Sr. AAG, accepts notice on
behalf of the respondent.
3. Heard and considered.
4. Mr. Pranav Kohli, learned senior counsel appearing for the petitioner, has
submitted that learned Special Judge, Anti Corruption, Jammu while passing
the impugned order was influenced by the fact that on an earlier occasion the
petitioner had moved a similar application for seeking production of
documents, but the same was dismissed as withdrawn with liberty to raise the
said issue at the time of leading the defence and on this ground, when during
trial of the case, a second application was filed by the petitioner, the learned
Special Judge dismissed the same without touching the merits of the
application.
5. The learned Senior counsel has contended that Section 91 of the Cr.P.C. vests
power with the Court or any officer in charge of a police station to seek
production of any document or other thing which is necessary or desirable for
the purposes of any investigation, inquiry, trial or other proceeding under the
Code by or before such Court of officer. It has been contended that there is no
bar to seeking production of any document by the accused from the
investigating agency during trial of the case even before the accused has
entered his defence. The learned Senior counsel has, while relying upon the
judgment of the Supreme Court in case titled 'Nitya Dharmananda alias K.
Lenin and another Vs. Gopal Sheelum Reddy also known as Nithya
Bhaktananda and another' reported in (2018) 2 Supreme Court Cases 93
contended that even at the time of framing of charge i.e. at the stage of
inquiry, it is open to the Court to seek production of document(s), if it thinks
necessary or desirable for the purpose of inquiry and as such, the observation
of the learned Special Judge that prayer of the petitioner shall be considered at
the time of leading the defence, is not in accordance with law.
6. It has been further contended that initially when the application under Section
91 Cr.P.C. was moved by the petitioner, the respondent-investigating agency
had denied the existence of such documents, but when the fresh application
was filed by the petitioner, the respondents in their objections have admitted
that the documents were produced before the Investigating officer and the
same is reflected in CD No.69 dated 01.02.2006; CD No.91 dated 20.07.2006;
and CD No.92 dated 21.07.2006. Therefore, it was incumbent upon the
learned Special Judge to consider the application on merits and pass an
appropriate order instead of dismissing it on the ground that the petitioner had
moved a similar application on an earlier occasion.
7. There can be no quarrel with the proposition of law that power under Section
91 of the Code of Criminal Procedure can be exercised by the Court even at
the stage of framing of charge and during the trial, if the Court feels it
necessary or desirable for the purpose of inquiry or trial. Therefore, the
observation of the trial Court that the prayer of the petitioner would be
considered once he leads his defence, is not in accordance with the mandate of
Section 91 Cr.P.C. and the judgment of the Supreme Court in Nitya
Dharmananda's case (supra). On this ground alone the impugned order
passed by the learned Special Judge, Anti Corruption, Jammu deserves to be
set aside. It was incumbent upon the learned Special Judge to decide the
application of the petitioner on merits particularly when his earlier application
was not considered on merits. Instead of doing so in accordance with the
mandate of Section 91 of Cr.P.C., the learned Special Judge avoided to pass an
order on merits, thereby committing a grave illegality.
8. In view of the above, the impugned order passed by the learned Special Judge,
Anti Corruption, Jammu is set aside and the petitioner is given liberty to file a
fresh application before the learned Special Judge within ten days from today.
If such an application is filed by the petitioner, the same shall be dealt with by
the learned Special Judge on its own merits in accordance with law after
taking into account the stand taken by the respondents in their objections to the
second application that was filed by the petitioner under Section 91 Cr.P.C.
wherein they have made admission with regard to production of certain
documents before the Investigating Officer.
9. It has been submitted by learned Senior counsel appearing for the petitioner
that only one prosecution witness is left to be examined by the trial court. If
that be the situation, then learned Special Judge prior to recording statement of
the said witness shall decide the application under Section 91 Cr.P.C. that may
be filed by the petitioner.
10. Copy of this order be sent to the Court of learned Special Judge, Anti
Corruption, Jammu for information.
11. Disposed of in the afore said terms.
( Sanjay Dhar )
Judge
JAMMU
03.05.2024
Narinder
