Unknown vs Durgesh Kumar"
2023 Latest Caselaw 2058 UK

              Office Notes,
             reports, orders
             or proceedings
Sl.
      Date    or directions                COURT'S OR JUDGES'S ORDERS
No
             and Registrar's
                order with
               Signatures
                               C482 No.1484 of 2023
                               With
                               C482 No.1498 of 2023
                               Hon'ble Sharad Kumar Sharma, J.

Mr. Tajhar Qayyum, Advocate, for the applicant.

Mr. V.K. Jemini, D.A.G. for the State of Uttarakhand.

In these two C482 applications, which respectively entails consideration of the impugned order of 11.07.2023, by virtue of which, the application moved by the applicant, which is common in both the cases under section 91 of the CrPC, has been rejected in Criminal Case No.51 of 2023, "State Vs. Durgesh Kumar", as well as in Criminal Case No.50 of 2023, "State Vs. Durgesh Kumar".

The question is that at what stage, the accused who is facing trial could invoke the provisions contained under section 91 of CrPC, for the purposes of production of an additional document.

The learned Government Advocate places reliance upon the judgment of 2005 (1) SCC 568, "State of Orissa Vs. Debendra Nath Padhi", wherein, he refers to paragraph 25, that it is rather a bar created that an accused person cannot invoke section 91 of CrPC, for the purposes of production of the document.

But if that paragraph itself is taken into consideration, the embargo as against the accused for invoking section 91 of CrPC, is at the initial stages of the investigation, but not at a later stage when the chargesheet has been submitted.

The aforesaid aspect in the light of the judgment of "State of Orissa Vs. Debendra Nath Padhi" (Supra), has been considered by the Division Bench of the Madhya Pradesh High Court in the judgment rendered on 21.01.2022, in M.Cr.C No.60404 of 2021, "Special Police Establishment Vs. Umesh Tiwari and another", and the distinction, which has been drawn by the Division Bench of the Madhya Pradesh High Court, has been dealt with in paragraph 4.3, of the said judgment, which provides for that section 91 is meant to produce the documents, but the same could only be invoked after the completion of the investigation, and the submission of the chargesheet and not at the initial stage by the accused person. Paragraph 4.3, is extracted hereunder:-

"4.3 Language employed in Section 91 reveals following foundational ingredients and characteristics:-

(i) Section 91 is meant to be invoked for producing documents/other things by way of summon.

(ii) Section 91 can be invoked at any stage of investigation, inquiry, trial or even other proceedings under the Cr.P.C.

(iii) Section 91 does not expressly provide as to who can invoke this provision.

(iv) However, the language of Section 91 implies that it can be invoked by the Court or the Officer in-charge of the Police Station concerned.

(v) And this invocation can be done when the Court or the Police is of the view that production is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under Cr.P.C.

(vi) The satisfaction regarding necessity or desirability of the Court or the Police is sine qua non for invoking this provision.

(vii) The production of document or other thing is to be made before the Court if directed by the Court or before the officer if directed by Police Officer."

Since in the instant case, the chargesheet has been submitted, the investigation at the hands of the Investigating Agency, has already been completed. The only question, which is to be now answered by the Government Advocate is that after submission of the chargesheet, as to whether section 91 of the CrPC, is maintainable by the present applicant or not.

The Government Advocate may file counter affidavit within a period of three weeks from today.

Let notices be issued to the newly impleaded respondent no.2. Steps to be taken within a week.

List as soon as the counter affidavit is filed by the respondent no.2, or by the private respondent.

Till the next date of listing, the further proceedings of the Criminal Case No.51 of 2023, "State Vs. Durgesh Kumar", as well as in Criminal Case No.50 of 2023, "State Vs. Durgesh Kumar", pending consideration before the court of Additional Sessions Judge, Rudrapur, District Udham Singh Nagar, would be kept in abeyance.

(Sharad Kumar Sharma, J.) 03.08.2023 NR/