G T Thippaiah vs Rani M Alex
2022 Latest Caselaw 3737 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 05TH DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

               CRIMINAL PETITION No.79 OF 2022

BETWEEN:

G.T.THIPPAIAH
AGED ABOUT 67 YEARS,
S/O LATE G.T.THIMMAIAH
R/AT DODDAGUBBI VILLAGE
DODDAGUBBI POST
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 149.
                                                 ... PETITIONER
(BY SRI VIJAYKUMAR PRAKASH, ADVOCATE)

AND:

1.     RANI M. ALEX
       AGED ABOUT 61 YEARS,
       W/O S.M.ALEX
       NO.B-1265, MITTAL TOWERS
       M.G.ROAD
       BENGALURU - 560 001.

2.     M/S ALEX ENTERPRISES
       NO.B-1265, MITTAL TOWERS
       M.G. ROAD
       BENGALURU - 560 001
       REP. BY ITS PROPRIETOR
       SRI S.M.ALEX.
                                            ... RESPONDENTS
(BY SRI KRISHNA S. VYAS, ADVOCATE)
                               2




      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED
13.12.2021 AT ANNEXURE-A PASSED BY THE VIII ADDITIONAL
SMALL CAUSE JUDGE AND A.C.M.M., BENGALURU (SCCH-5) IN
C.C.NO.26852/2012 AND ALLOW THE APPLICATION FILED BY THE
PETITIONER U/S.91 CR.PC.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner is before this Court calling in question an

order dated 13-12-2021 rejecting the application filed by the

petitioner under Section 91 of the Cr.P.C. for production of

documents.

2. Heard Sri Vijayakumar Prakash, learned counsel for the

petitioner and Sri Krishna S. Vyas, learned counsel for

respondents 1 and 2.

3. Sans unnecessary details, necessary facts are as

follows:-

The transaction between the parties leads to registration of

a case invoking Section 138 Negotiable Instruments Act, 1881

by the respondent against the petitioner. The petitioner is

accused No.1 in C.C.No.26852 of 2012. The initiation of

proceedings or merit of the matter is not the subject matter of

the present case.

4. The petitioner, in the proceedings pending consideration

before the competent Court, files an application under Section

91 of the Cr.P.C. for production of original cheque, receipt and

two promissory notes pertaining to the case. The trial Court

rejects the application on the ground that it is a seven year old

case and between 2014 and 2018 the petitioner/accused did not

seek to produce the documents which he now wants to place on

record. The conclusion is that the attempt of the petitioner is

only to drag the proceedings further. On the aforesaid reasons,

the trial Court rejects the application filed by the petitioner

under Section 91 of the Cr.P.C. by order dated 13-12-2021.

5. On the same day, another order is passed on the

application filed by the complainant. The complainant files that

application seeking to recall of PW-1 for further examination-in-

chief under Section 311 of the Cr.P.C. Without indicating any

reason, this application is allowed and PW-1 is recalled for

further examination-in-chief. The same breath of delay does not

stop the Court from allowing the application under Section 311

of the Cr.P.C. It is in these circumstances the petitioner knocks

the doors of this Court.

6. The learned counsel appearing for the petitioner

submits that the documents that he seeks to produce are likely

to result in his acquittal as they are the documents of a

competent Court and in these four years they could not be

produced as the proceedings were pending before this Court in

Criminal Petition No.4065 of 2016 which was filed by accused

No.2 which came to be allowed by an order of this Court on 03-

09-2019 only against accused No.2. It is, therefore, the

documents that are now being sought to be produced could not

be produced any time earlier.

7. The learned counsel representing the respondents would

however, refute this submission and contends that it is the

tactics of the petitioner to delay the proceedings.

8. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

9. The afore-narrated facts are not in dispute. The only

issue that falls for my consideration is, 'whether the learned

Magistrate could have rejected the application filed by the

petitioner under Section 91 of the Cr.P.C. and allowed the

application filed by the complainant under Section 311 of the

Cr.P.C.?

10. Sections 91 and 311 of the Cr.P.C. read as follows:

"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."

... ... ... ...

311. Power to summon material witness, or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

Both these provisions mandate that, in order to provide complete

opportunity to the complainant as well as to the accused, to

prove the case or to defend the case at any stage of the

proceedings, these provisions can be invoked and documents

summoned or witnesses recalled, denial of which would be on a

case to case basis, on examination of documents that are sought

to be produced or the witnesses that are sought to be recalled

for examination.

11. The documents that the petitioner wanted to produce

were records pertaining to O.S.No.7467/2013 pending before the

Additional City Civil and Sessions Judge at Bangalore. Learned

counsel for the petitioner submits that those documents would

go into the root of the matter and saved the petitioner - accused

from the offences alleged. The application filed by the petitioner

is rejected and an application filed by the complainant seeking

further examination of PW.1 is permitted by a different order on

the same day. If delay does not come in the way of further

examination of PW.1, it would hardly become justifiable as to

how the delay would come in the way of production of

documents as sought by the petitioner under Section 91 of the

Cr.P.C., as the purport of Sections 91 and 311 of the Cr.P.C. are

to give complete opportunity to the parties in a criminal trial.

12. The Apex Court in the case of STATE OF ORISSA V.

DEBENDRA NATH PADHI reported in (2005) 1 SCC 568, has

held as follows:

"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.

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

26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI [(2000) 5 SCC 679 : 2000 SCC (Cri) 1014] . In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] . The contentions based on Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] have been noticed in para 4 as under: (SCC p. 682)

"4. The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] laying emphasis on the fact that the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State [(1999) 49 DRJ 202] . Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings."

27. Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that section was

unlimited but there were 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 fulfil the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter

19.

28. We are of the view that jurisdiction under Section 91 of the Code when invoked by the 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. It would also have to be borne in mind that law does not permit a roving or fishing inquiry."

The said judgment is reiterated by the Apex Court in the

case of V.L.S. FINANCE LTD. V. S.P. GUPTA reported in (2016)

3 SCC 736, wherein the Apex Court holds as follows:

"48. Section 91 Cr.P.C. reads as follows:

"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."

49. The scope and ambit of the said provision was considered in State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415] , wherein this Court has held thus: (SCC pp. 579-80, para 25)

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

The aforesaid enunciation of law clearly states about the scope of Section 91 CrPC and we are in respectful agreement with the same."

In the light of the judgments rendered by the Apex Court

(supra), the order passed by the learned Magistrate rejecting the

application under Section 91 of the Cr.P.C. would be rendered

unsustainable.

13. For the aforesaid reasons, I pass the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The order dated 13.12.2021 passed by the VIII Additional Small Causes Judge, Bangalore in C.C.No.26852 of 2012 is quashed.

(iii) The application filed by the petitioner under Section 91 of the Cr.P.C. before the trial Court is allowed and the documents that the petitioner seeks shall be brought on record.

(iv) It is made clear that the petitioner shall not seek unnecessary adjournments and drag on the proceedings on the pretext of further documents or otherwise.

(v) Since the matter is of the year 2012, the trial Court shall conclude the proceedings as expeditiously as possible, but not later than four months from the date of receipt of the copy of this order.

In view of disposal of the petition, I.A.No.1/2022 does not

survive for consideration. Accordingly, stands disposed.

Sd/-

JUDGE

bkp CT:MJ