I. Mahendrakumar Kanhyalal Jain v. Shri Mahavir Urban Co-operative Credit Society Limited

2013 (4) BOMCR (CRI) 97 | 19-06-2013

Facts:

In the present case, it appears that the evidence was led by the complainant and completed. Statement of the accused under Section 313, Cr.P.C. was recorded. One defense witness was also examined by the accused. It is under these circumstances that the complainant moved an application under Section 91 of the Criminal Procedure Code on the pretext that complainant wants to rebut defense evidence and, therefore, wants the accused to produce account books, cash book, ledger, balance sheet, income tax returns for the period between 1999-2004. The application under Section 91 of the Criminal Procedure Code for direction to the accused to produce documents was strongly objected on behalf of the accused on the ground that the application was an attempt to protract the trial. Secondly, on the ground that such application would defeat the basic principle of law that an accused cannot be called upon to produce the evidence against himself and further on the ground that Section 91, Cr.P.C. is not meant to fill the gap remaining in the complainant’s case at the cost of the accused. Hence, the application was seriously objected to.

Observation:

In a complaint under Section 138 of the Negotiable Instruments Act, triable as a summary case, the complainants led their evidence, the accused was examined under Section 313, Cr.P.C. and also led defense evidence. The application requiring the accused to produce documents was moved at the fag end of the complaint proceedings. Such application, in view of the rulings referred above is not maintainable under Section 91 of Cr.P.C. Such application, if allowed would not only be contrary to law, but also would protract and delay the complaint proceeding, which according to law ought to be disposed of expeditiously and as early as possible by the trial Magistrate. Accused person cannot be compelled to disclose incriminatory documents before Court under section 91.

Decision:

Considering all these reasons, the impugned order is unsustainable, contrary to law and indefensible. Hence, it is quashed and set aside. Rule is made absolute accordingly.

II. A.V. Anbu Chezhian v. P. Ambikadass

LQ 2010 HC 17884 | 24-06-2010

Facts:

The revision petitioner herein is an accused in C.C.No.11 of 2008, on the file of the Judicial Magistrate, Vedarnayam and the respondent filed a complaint against the petitioner herein for offence under Section 138 of the Negotiable Instruments Act. The petitioner herein filed an application before the trial Court under Section 91 Cr.P.C., summoning documents such as bills, accounts and income-tax returns relating to the period 1995-2004 to be produced by the complainant. The said petition was dismissed by the learned Magistrate. Aggrieved by the order of the learned Magistrate, the petitioner had preferred this criminal revision petition.

Observation:

It is stated that no bills are available from that period as the accounts are computerised and further the individual transactions are not reflected in the income tax. Therefore, the counter filed by the complainant before the trial Court reflected that it is not possible for the complainant to produce the document. Though the reasoning given by the trial Court while dismissing the petition filed by the petitioner that the accused is not entitled to call for the documents is not correct, as it is made clear by the complainant that it is not possible to produce the records, no useful purpose will be served by allowing the petition filed by the petitioner under Section 91 Cr.P.C..”

Secondly, what was not realized was that the order passed by the trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and a such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C for production of documents and other on the application under Section 311 Cr.P.C., for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable.

Decision:

For the above said reasons, the revision petition is dismissed.

III. State of Orissa v. Debendra Nath Padhi

(2005) 1 SCC 568 | 29-11-2004

Observations:

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 defense of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defense 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.

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.

In so far 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, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object.

IV. State of Gujarat v. Shyamlal Mohanlal

AIR 1963 GUJ 178 | 11-10-1962

Facts:

This is a reference by the learned Sessions Judge of Nadiad recommending that the order passed by the trial Court on an application of the Police Prosecutor of Umreth for issuing a summons to an accused person to produce certain documents be set aside. The Police Prosecutor Umreth had requested the trial Magistrate to direct an accused person who was accused in a case under the Bombay Money Lenders Act to produce certain account books which he was alleged to be in possession of and which were likely to be used by the prosecution to prove its case. The learned trial Magistrate rejected this application. But the learned Sessions Judge before whom the State went in revision was of the view that the accused can be compelled to produce account books in his possession if they do not contain any personal statement of the accused.

Observation:

The question is whether sec. 94 (Older S.91 CrPc) applies to an accused person or not and whether the Court can apply sec. 91 of the Criminal Procedure Code to an accused person during the course of a trial. The manner in which trials of summons cases are to be conducted is explained in Chapter XX of the Criminal Procedure Code. The manner in which warrant cases are to be tried is to be found in Chapter XXI Chapter XXII deals with summary trials and Chapter XXIII deals with trials before High Courts and Courts of Session. The procedure that the Court has to follow is therefore governed by these Chapters and when we consider the provisions of these Chapters, we may have to bear in mind some other provisions in 244 and 251A that the Court should take all such evidence that the accused produces in his defense we have to bear in mind the provisions of sec 342 that the accused person is a competent witness and he can therefore examine himself in his defense.

During the course of a trial the Court cannot do anything which is not warranted by the provisions contained in Chapters XX to XXIII of the Criminal Procedure Code. To issue a summons to an accused person to produce a document is therefore not warranted in a trial. It is true that the words of sec. 91 are general and there is ordinarily no reason to restrict the expression to the person in whose possession or power such document or thing is believed to be to persons other than accused persons. But if we look at the scheme of the Act it appears to my mind that sec. 91 was not intended to apply to an accused person under trial.

Decision:

S.91 CrPc does not apply to the accused person at all. Therefore, where it is intended by the complainant to require the accused to produce document, which is incriminatory in nature, the summons cannot be issued.

Conclusion:

In the case of Mahendrakumar Kanhyalal Jain v. Shri Mahavir Urban Co-operative Credit Society Limited, it has been concluded that accused person cannot be compelled to disclose incriminatory documents before Court under S. 91. The application requiring the accused to produce documents was moved at the fag end of the complaint proceedings. Such application, is not maintainable under Section 91 of Cr.P.C.

It has been observed that such applications would be contrary to the intention behind the law and also lead to a severe delay in expeditious disposal of proceedings by the Magistrate.

Courts while taking into consideration any application under S.91 should focus on ‘necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code’ and also the time or stage of trial when such an application of production has been made so as to preserve the object of expeditious disposal of cases.

In the case of A.V. Anbu Chezhian v. P. Ambikadass, it has also been stated that the order on the application under Section 91 Cr.P.C for production of documents was  the order of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable.

In so far as Section 91 is concerned, it has been opined 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, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object.

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