It appears from the language of the Section that for invoking this power the following conditions should be fulfillled :-
(i) The thing or document required to be produced must be specified.
(ii) The court should be satisfied that it is necessary or desirable that such thing or document should be produced.
(iii) It should be relevant or having connection with the subject matter of the enquiry.
Although the language of this section is very wide, the discretion must be exercised judicially. The jurisdiction to order production of a thing or document comes into play after the court being satisfied decides that it is "necessary or desirable" that it should be produced as being relevant for the inquiry.
2. The learned trial court has held that none of the documents sought to be summoned by the accused are of the nature which would show that the case of the prosecution was improbable or unworthy of trial and further that the summoning of these documents at this stage is merely with a view to delay the proceedings.
3. Briefly the facts are that the Delhi Police had arrested one Ashfaq Hussain Lone on 23.3.1991 in the area of Police Station Chandni Mahal, Delhi in connection with certain terrorist activities as from his possession 23 bank drafts payable to 22 persons in Kashmir Valley for Rs. 15.5 lakhs and a cash amount of Rs. 50,000/- was recovered on 26.3.1991 at the instance of the accused Ashfaq Hussain and FIR No. 53/91 dated 25.3.91 was registered at Police Station Chandni Mahal, Delhi against him. During the course of investigation it was found that the abovementioned amounts were sent to the arrested accused by the expatriate Kashmiris living abroad through the hawala channel. One Shambhu Dayal Sharma and one Shahabuddin Ghauri were also arrested by the Delhi Police in that case. The investigation of the case was transferred to CBI on 20.4.1991 where RC 5(S)/91/SIU(V) was registered under Section 120-B IPC, Sections 3 & 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA Act') and Section 56 read with Section 8(1) of the Foreign Exchange Regulation Act, 1973 (for short 'FERA'). This case was being investigated by Special Investigation Cell-V of the CBI, New Delhi under the supervision of the petitioner, who was working as DIG, CBI, Special Investigation Cell-II, New Delhi. During the course of investigation of the said case residential and official premises of Shri Surinder Jain at Friends Colony and Masjit Moth and of his employee Shri Jainender Jain at G-36, Saket, New Delhi were searched on 3.5.91 under his supervision and he had also visited the house of Jainender Jain and during the search huge cash and incriminating documents were recovered and seized. The petitioner then during the course of investigation of the said case is alleged to have threatened Shri Surinder Jain and Jainender Jain on 3.5.1991 for involving them under the provisions of TADA. On this Shri Surinder Jain contacted a common friend, Shri L.K. Kaul on that day itself and requested him to contact the petitioner on their behalf and do the needful and avoid their threatened arrest/involvement. The said Shri L.K. Kaul met the petitioner at his residence on 4.5.91 and the petitioner demanded some amount as illegal gratification as consideration for not so implicating and arresting these two persons and in part compliance of the said demand a sum of Rs. 10 lakhs was paid by Shri Kaul to the petitioner in instalments during May and June, 1991. In the process, Shri L.K. Kaul recorded the telephonic conversation which took place between him and Surinder Jain on the one hand and the petitioner on the other. Then Shri Kaul had lodged a complaint on 10.6.91 which was registered by the CBI as FIR No. RC CBI/SIU/SIU/IX under Sections 7 and 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act (for short 'POCA'). A raid was arranged and on 16.6.1991 at about 1900 Mrs. the petitioner reiterated his further demand of Rs. 10 lakhs from Mr. Kaul on telephone and then a raid was laid at the residential premises of the petitioner at K-7/3, Multistoreyed flats, Sector-XIII, R.K. Puram New Delhi at about 2040 hrs. on 16.6.1991 when the petitioner again made demand and accepted from Mr. Kaul the bribe amount of Rs. 10 lakhs and after so accepting came out of his flat alongwith Mr. Kaul. Mr. Kaul gave the prescribed signal to the raiding CBI party and the petitioner on noticing the raiding party ran inside his house and bolted the door and threw the bag containing the bribe money down. The door was broken open and the bag containing the bribe amount was recovered from the balcony of the lower flat which was seized. The petitioner was arrested. After investigation the petitioner has been chargesheeted for the aforesaid offences. On being summoned, inter alia, he filed the present application in February, 1996 under Section 91 of the Code for summoning and production of certain documents. The learned trial court did not find these documents relevant and necessary at this stage and rejected this application. The petitioner has come in revision against the said order of rejection.
4. Learned counsel for the petitioner has contended that the accused is entitled to show even at the stage of framing of charge that no charge is made out and for that purpose he is not only entitled to produce the documents but is also entitled to summon the relevant documents under Section 91 of the Code. He has inter alia relied on Satish Mehra v. Delhi Admn. and Anr. ; Mohan Lal Singhal v. State (Delhi. Admn.) 1996 JCC, 129; Emperor v. Bilal Mahomed and Ors. AIR 1940 Bom., 361; Hari Charan v. The State ; In Re: Dr. Raghotham-accused Petitioner ; and Muhammad Rahim v. Emperor AIR 1935 Sind, 13 (FB).
5. Whereas learned counsel for the respondent-CBI has contended that none of the documents are relevant at time of consideration of the question of framing of charge and that the application has been rightly rejected by the learned trial court. He has relied on State of Jammu and Kashmir v. Sudershan Chakkar and Anr. .
6. Before considering the contentions, it will be relevant to examine the legal position about the scope of the power of the Court under Sections 227 and 228 of the Code.
7. After the case is committed, Sections 226, 227 and 228 of the Code come into operation. The trial court is to pass an order under Section 227 or 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing" under section 227. And if on the other hand "the Judge is of opinion that there is ground for presumption that the accused has committed an offence triable by him, he shall frame hi writing a charge against the accused" as provided under Section 228. Before taking a decision under Section 227 or 228 the Court is required to consider the documents submitted by the Police and to hear the submissions advanced on behalf of the accused and the prosecution in that behalf.
8. The scope of Sections 227 and 228 has been considered by the Supreme Court in State of Bihar v. Ramesh Singh 1977 SCC (Cri.) 533, wherein it was laid down that :
"Reading the two provisions together (i.e. Sections 227 and 228) in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defense of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording the finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to find that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defense evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial....... If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227 of the Code."
9. It was thus held that the test is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.
10. The scope of this provision was again considered in Union of India v. Prafulla Kumar Samal where it was held that :
1. The Judge while considering the question of framing the charges Under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out;
2. Where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial;
3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application;
4. The Judge has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case. He would not make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial.
11. Both these cases have been again referred to in Stree Atyachar Viordhi Parishad v. Dilip nathumal Chordia 1989 SCC (Cri) 285 and following the principles laid down in the aforesaid cases, it has been reiterated as under :
"... The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate inquiry in sifting and weighing the materials. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be inquired into."
12. The same test has been applied in the case of Sudershan Chakkar (supra). In that case two of the accused who were Government servants were chargesheeted for offences under Sections 120-B, 467 and 409 R.P.C. and Section 5(2) of the Prevention of Corruption Act. They were discharged by the trial court. The order of discharge was upheld by the High Court. The trial court had referred to and relied on certain letters purportedly written by the accused to his higher authorities wherein he had complained against irregularities being committed by the co-accused, to show that the letters clearly demonstrated the bonafides of the two accused. The Supreme Court set aside the order of discharge observing as under :-
".... in a case instituted upon a Police Report the Court is required, at the time of framing of the charges, to confine its attention to documents referred to under Section 173 of the Code of Criminal Procedure only. In that context the Court was not justified in referring to, much less relying upon the letters purportedly written by the accused when their authenticity and veracity are yet to be gone into."
13. In Satish Mehra v. Delhi Admn. and Ors. , inter alia Ramesh Singh and Prafulla Kumar Samal (supra) have been referred to and in the facts of that case it was held that:
"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there, it gains a lot of time of the court and saves much human efforts and costs. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."
14. The test is not different. It only lays down that if the accused has any evidence which may clinch the issue without going into the trouble of trial, that should also be considered. Obviously for that purpose roving inquiry into the pros and cons of the matter and weighing the evidence as if conducting the trial is not permissible.
15. Section 91 of the Code so far as relevant 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)..........
(3) Nothing in this section shall be deemed -
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872, of the Bankers' Books Evidence Act, 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.
There is no dispute that at the instance of the accused documents or things can be got produced under this provision. However, learned counsel for CBI has contended that the conditions for exercising power under this provision are not fulfillled and this request was rightly rejected by the trial court.
16. It appears from the language of the Section that for invoking this power the following conditions should be fulfillled :-
(i) The thing or document required to be produced must be specified.
(ii) The court should be satisfied that it is necessary or desirable that such thing or document should be produced.
(iii) It should be relevant or having connection with the subject matter of the enquiry.
Although the language of this section is very wide, the discretion must be exercised judicially. The jurisdiction to order production of a thing or document comes into play after the court being satisfied decides that it is "necessary or desirable" that it should be produced as being relevant for the inquiry.
17. The documents sought to be produced by the petitioner as mentioned in his application are as under :-
1. File No. 3/5(3)/91-SIU-V/CB I/Parts I to V containing notings of the accused and other officers and progress reports etc. regarding investigations against PWs 20 and 21 and others.
2. (i) The seizure memo dated 3.5.91 prepared during the search of premises C-36, Saket, New Delhi in RC 5(S)/91-SIU-V CBI by Shri D.P. Singh Dy. S.P. alongwith the copies of the documents seized; (ii) Arrest memos of Mohd. Shahid & Rais Anwar dated 4.5.91 and of Nand Kishore dated 3.6.91; (iii) Counter Affidavit filed by Shri M.P. Singh Dy. S.P. in SLP (Crl. No. 1950/91 in the Supreme Court in this case, (iv) Statement Under Section 15 of the TADA of Shambhu Dayal Sharma recorded by the SP and (v) the charge- sheet filed on 23.3.92 in the designated TADA court in respect of the same case.
3. Govt. Notification regarding constitution of SIC-II unit consisting of 5 different branches and their jurisdictions.
4. Files Nos. 3/1/83-SIU-III/SIC-I Part I to V and 3/2/83-SIU-III/SIC-I- Part I to V along with (i) Canara Bank, Parliament Street, New Delhi No. 119:CR:KAK:6115:83 dated 8.12.83 and (ii) Canara Bank Wazirpur Delhi No. 70/CR/148/78 dated 19.3.78 taken in custody by CBI during the investigations regarding PW-1.
5. File No. PE/2/1/92/ACU-I/AC-I/CBI-Part I to Part-V relating to the PE registered to find out the source of leakage of a secret note of CBI file which was enclosed by PW-1 along with his representation for withdrawal of these cases of cheating pending against him in Courts.
6. File containing orders of Director, CBI for the registration of RC 6(A)/91-SIU-IX (instant case) after verification of D-2.
7. (i) Look-out notice issued for the apprehension of PW-21 (Shri S.K.Jain) in September 1993 while conducting supplementary investigation in RC 5(S)/91-SIU/V regarding seizure of Rs. 58 lakhs of rupees, Indra Vikas Patra worth Rs. 10 lakhs, foreign currency and documents showing payments of bribes amounting to 65 crores of rupees to nearly 100 public servants from the residence of PW-20 (Shri Jainender Jain) on 03.05.91.
(ii) FIR No.RC l(A)/95-ACU-VI dated 04.03.95 against PW-20, PW-21 and others Under Section 7 and 12 of the PC Act and Sections 8 and 56 of FERA on the allegation of transferring money (more than 50 crores) from abroad through illegal hawala transactions and bribing nearly 100 public servants to the tune of nearly Rs. 65 crores arising out of searches made on 03.05.91 at the residence of PW-20 during the investigation of RC 5(S)/91-SIU-V.
(iii) Eleven charge sheets (2 on 28.11.95, 6 on 16.01.96 and 3 on 23.01.96) filed in RC 1(A)/95-ACU-VI in the Court of Shri V.B. Gupta Spl. Judge in which PW-20 and PW-21 are named as accused along with nearly 23 highly placed public servants.
(iv)(a) Writ petitions (Criminal) nos. 340-43 of 1993 in the matter of Vineet Narain and Ors. v. Union of India and Ors. along with the enclosures filed in the Supreme Court concerning the investigation of RC 5(S)/91-SIU- V.
(b) Rejoinder (dt. 15.02:94), affidavit (dt. 08.04.95) and another affidavit (dt. 09.01.96) alongwith the enclosures filed by the petitioners in the above W.P.S in the Supreme Court.
(c) Counter-affidavits filed by SP, ACU-VI, CBI filed on 14.01.94 and 03.04.95 in the Supreme Court in the said writ petitions.
(d) Orders of the Supreme Court dt. 15.12.93, 14.01.94, 20.10.94, 23,11.94, 29.11.94, 30.11.94, 05.12.94, 16.01.95, 06.03.95, 27.03.95, 10.04.95 & 30.01.96 in the said writ petitions.
8.(i) Receipt and Despatch entries dated 14.06.91 in the Personal Section of DCBI maintained in North Block Office and CGO Complex Office. (ii)Receipt and Despatch entries dated 14.06.91 in the Personal Section of the then Addl. Director, Shri S.K.Seth.
(iii) Receipt and Despatch register dated 14.06.91 in the Personal Section of the then JD Shri P.J.Nampoothiri.
(iv) Receipt and Despatch register dated 14.06.91 to 16.06.91 in the Personal Section of the then DIG Shri Anand Kumar.
9.(i)(a) the General Diary entries dated 16.06.91 and 17.06.91 (b) official cars log books entries dated 14.06.91 to 17.06.91 and (c) Receipt and Despatch entries dated 16.06.91 and 17.06.91 maintained in the office.
(ii)(a) the General Diary entries dated 16.06.91 and 17.06.91 (b) official cars log books entries dated 16.06.91 and 17.06.91 of the DIG Delhi and the ACB Delhi Branch.
(iii)(a) General Diary entries dated 16.06.91 and 17.06.91 and (b) official cars log books entries dated 16.06.91 and 17.06.91 maintained in the unit.
18. The relevancy of these documents parawise as mentioned in the Petitioner's application is as under .:-
1. There are references of the investigation of this case in the present charge-sheet and as well as in the statements Under Section 161 Cr.P.C. of PWs 17, 20, 21, 29 and Shri D.P. Singh Dy. S.P. and also in D-23 and D-29. The alleged demand of illegal gratification was made in the investigation of this case which was under supervision of the accused. The above file will show that the accused, had not shown any favour to PWs 20 and 21 or any other whatsoever as has been alleged by the prosecution in this case.
2.These documents would reveal malafides on the part of the CBI when they concealed the facts of recovery of incriminating evidence, arrest of the accused persons and recording of the statement Under Section 15 of TADA (P) from the concerned Court as well as from the Hon'ble Supreme Court in order to save PWs 20 and 21 from criminal prosecution and filed the said charge-sheet without even examining them on the identities of the coded names in the seized documents who have been shown to have been paid to the tune of Rs. 65 crores as illegal gratification. CBI could succeed in their illegal design only after getting the accused trapped in the present case.
3. There is a reference in the Govt. sanction for prosecution as well as in the charge sheet. This document would be relevant to show the validity or invalidity of the sanction in the present case.
4. There is a reference about these cases in the statement of PW-1. The documents would also reveal that PW-1 had been found to be impersonating as an IAS officer and also indulging in cheating the banks, public undertakings and others by the CBI and also to reveal his animus towards the accused in falsely implicating him in the instant case.
5. During the said enquiry, the CBI malafidely saved PW-1 from criminal prosecution under the Official Secrets Act. Moreover the statement of PW-1 making false allegations against the accused in the said enquiry were not believed by the CBI. The document would reveal the extent to which the PW-1 was inimical towards the accused.
6. In the statements Under Section 161 Cr.P.C. of PW-15 and PW-16, there is a reference of orders of registration being passed after verification of D-2. The document would reveal the malafides during verification of the complaint and in the registration of the case.
7. The documents are required to reveal malafides on the part of CBI for saving PW-20 arid PW-21 from criminal prosecution from 1991 to 1996. Legal action against them was initiated only on the intervention of the Hon'ble Supreme Court and they have been charge-sheeted in the abovementioned charge-sheets. The said W.P.s were filed requesting the Apex Court to direct the CBI to perform their legal duties in accordance with law of the land which they were not performing. Moreover, the conduct and role of the accused as well as CBI has also been commented upon in the documents in the said W.P.s concerning investigation of RC 5 (S)/91-SIU-V in which the accused had allegedly demanded illegal gratification.
8. There is a mention of D-2 being sent by dak in the statement Under Section 161 Cr.P.C. of PW-1. The documents would reveal the truth or otherwise of the receipt of D-2 and its downward journey.
9. There are references of the requisition of staff and their movements out of these units during the verification of D-2 and subsequent registration and taking up investigation of D-l in the instant case in the statements Under Section 161 Cr.P.C. of PWs-4, 14, 15 and 16. The said documents would reveal the truth or otherwise of the various statements.
19. The learned trial court has given the following parawise reasons :
1. The documents mentioned in para 1 of the application are intended to show that the accused had not shown any favour to PW 20 and PW 21 or any other person whatsoever. The allegation against the accused is that he was working as D.I.G., incharge of Special Investigation Cell-II in the C.B.I. and the investigation of the case against P.W. 20 and P.W. 21 was being conducted under his supervision. The files of this case may be relevant for the purposes of defense, but at this stage of charge, it is not relevant for the prosecution to establish that the accused was capable of showing favour while committing the alleged offence. Nor it is relevant if the accused shows that he was incapable of doing so.
The accused being a public servant is alleged to have accepted and obtained illegal gratification and can thus be charged for the offences under sections 7 and 13 of the Prevention of Corruption Act.
2-9. Documents mentioned in paragraphs 2, 5 and 7 of the application relate to a period after the incident giving rise to this case and, therefore, summoning of these documents is not material for the purposes of consideration of charge.
20. Document mentioned in paragraph 3 has already been filed in the court.
21. Documents mentioned in paragraphs 4 and 5 of the application are to discredit the testimony of P.W.1 which would be relevant when P.W.1 comes into the witness-box.
22. The documents mentioned in paragraphs 6, 8 and 9 relate to the verification of the complaint and receipt of the complaint in the C.B.I. These documents do not relate to any substantive evidence.
23. In conclusion the learned trial court held as under :-
"In fact, none of the documents sought to be summoned by the accused are of a nature which would show that the case of the prosecution is improbable and unworthy of trial. I find that the summoning of these documents at this stage is merely with a view to delay the proceedings. The application is, therefore, dismissed. The accused may summon the documents at the relevant time."
24. In Satish Mehra's case (supra) it has been noticed that the evidence relied by the accused should be of the nature which would clinch the issue, which is not the position in the present case. The documents mentioned in the application, if at all, may be relevant for appreciating the evidence that may be led by the prosecution during trial arid are not relevant at this stage as rightly held by the trial court. As held in Ramesh Singh's (supra) case at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defense of the accused.
25. And at this stage the trial court is not required to undertake any elaborate inquiry in sifting and weighing the material. Nor it is necessary to delve deep in to the various aspects. It is in the trial that the guilt or the innocence of the accused after weighing the evidence will be determined and not at the time of framing of the charge. As laid down in Stree Atyachar Virodhi Prasad v. Dilip Nathumal Chordia 1989 SCC (Cri.) 285 all that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be inquired into.
26. The trial court obviously was not satisfied and has not found it necessary or desirable to exercise jurisdiction under Section 91 of the Code and for valid and cogent reasons. As held in the Assistant Collector of Customs, Bombay and Anr. v. L.R. Melwani and Anr. this section (old Section 94) does not empower a
magistrate to direct the prosecution to give copies of any documents to an accused person. Whether a particular document should be summoned or not is essentially in the discretion of the trial court. The High Court would not be justified in interfering with the discretion of the learned Magistrate except for very good reasons. In the facts and circumstances it cannot be said that the learned trial court has exercised discretion in disallowing the application for production of the documents unjustly or unreasonably or improperly.
27. In these circumstances, I do not find any illegality or infirmity in the impugned order of the learned trial court which may justify interference by this court.
28. This revision petition has no merit and the same is accordingly hereby dismissed.
(i) The thing or document required to be produced must be specified.
(ii) The court should be satisfied that it is necessary or desirable that such thing or document should be produced.
(iii) It should be relevant or having connection with the subject matter of the enquiry.
Although the language of this section is very wide, the discretion must be exercised judicially. The jurisdiction to order production of a thing or document comes into play after the court being satisfied decides that it is "necessary or desirable" that it should be produced as being relevant for the inquiry.
Delhi High Court
Om Prakash Sharma vs Central Bureau Of Investigation on 7 January, 1999
Equivalent citations: 1999 (48) DRJ 686
1. This revision petition is directed against order dated 26.11.96 passed by the learned Special Judge, Delhi dismissing the application of the petitioner under Section 91 of the Code of Criminal Procedure (for short 'the Code').2. The learned trial court has held that none of the documents sought to be summoned by the accused are of the nature which would show that the case of the prosecution was improbable or unworthy of trial and further that the summoning of these documents at this stage is merely with a view to delay the proceedings.
3. Briefly the facts are that the Delhi Police had arrested one Ashfaq Hussain Lone on 23.3.1991 in the area of Police Station Chandni Mahal, Delhi in connection with certain terrorist activities as from his possession 23 bank drafts payable to 22 persons in Kashmir Valley for Rs. 15.5 lakhs and a cash amount of Rs. 50,000/- was recovered on 26.3.1991 at the instance of the accused Ashfaq Hussain and FIR No. 53/91 dated 25.3.91 was registered at Police Station Chandni Mahal, Delhi against him. During the course of investigation it was found that the abovementioned amounts were sent to the arrested accused by the expatriate Kashmiris living abroad through the hawala channel. One Shambhu Dayal Sharma and one Shahabuddin Ghauri were also arrested by the Delhi Police in that case. The investigation of the case was transferred to CBI on 20.4.1991 where RC 5(S)/91/SIU(V) was registered under Section 120-B IPC, Sections 3 & 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA Act') and Section 56 read with Section 8(1) of the Foreign Exchange Regulation Act, 1973 (for short 'FERA'). This case was being investigated by Special Investigation Cell-V of the CBI, New Delhi under the supervision of the petitioner, who was working as DIG, CBI, Special Investigation Cell-II, New Delhi. During the course of investigation of the said case residential and official premises of Shri Surinder Jain at Friends Colony and Masjit Moth and of his employee Shri Jainender Jain at G-36, Saket, New Delhi were searched on 3.5.91 under his supervision and he had also visited the house of Jainender Jain and during the search huge cash and incriminating documents were recovered and seized. The petitioner then during the course of investigation of the said case is alleged to have threatened Shri Surinder Jain and Jainender Jain on 3.5.1991 for involving them under the provisions of TADA. On this Shri Surinder Jain contacted a common friend, Shri L.K. Kaul on that day itself and requested him to contact the petitioner on their behalf and do the needful and avoid their threatened arrest/involvement. The said Shri L.K. Kaul met the petitioner at his residence on 4.5.91 and the petitioner demanded some amount as illegal gratification as consideration for not so implicating and arresting these two persons and in part compliance of the said demand a sum of Rs. 10 lakhs was paid by Shri Kaul to the petitioner in instalments during May and June, 1991. In the process, Shri L.K. Kaul recorded the telephonic conversation which took place between him and Surinder Jain on the one hand and the petitioner on the other. Then Shri Kaul had lodged a complaint on 10.6.91 which was registered by the CBI as FIR No. RC CBI/SIU/SIU/IX under Sections 7 and 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act (for short 'POCA'). A raid was arranged and on 16.6.1991 at about 1900 Mrs. the petitioner reiterated his further demand of Rs. 10 lakhs from Mr. Kaul on telephone and then a raid was laid at the residential premises of the petitioner at K-7/3, Multistoreyed flats, Sector-XIII, R.K. Puram New Delhi at about 2040 hrs. on 16.6.1991 when the petitioner again made demand and accepted from Mr. Kaul the bribe amount of Rs. 10 lakhs and after so accepting came out of his flat alongwith Mr. Kaul. Mr. Kaul gave the prescribed signal to the raiding CBI party and the petitioner on noticing the raiding party ran inside his house and bolted the door and threw the bag containing the bribe money down. The door was broken open and the bag containing the bribe amount was recovered from the balcony of the lower flat which was seized. The petitioner was arrested. After investigation the petitioner has been chargesheeted for the aforesaid offences. On being summoned, inter alia, he filed the present application in February, 1996 under Section 91 of the Code for summoning and production of certain documents. The learned trial court did not find these documents relevant and necessary at this stage and rejected this application. The petitioner has come in revision against the said order of rejection.
4. Learned counsel for the petitioner has contended that the accused is entitled to show even at the stage of framing of charge that no charge is made out and for that purpose he is not only entitled to produce the documents but is also entitled to summon the relevant documents under Section 91 of the Code. He has inter alia relied on Satish Mehra v. Delhi Admn. and Anr. ; Mohan Lal Singhal v. State (Delhi. Admn.) 1996 JCC, 129; Emperor v. Bilal Mahomed and Ors. AIR 1940 Bom., 361; Hari Charan v. The State ; In Re: Dr. Raghotham-accused Petitioner ; and Muhammad Rahim v. Emperor AIR 1935 Sind, 13 (FB).
5. Whereas learned counsel for the respondent-CBI has contended that none of the documents are relevant at time of consideration of the question of framing of charge and that the application has been rightly rejected by the learned trial court. He has relied on State of Jammu and Kashmir v. Sudershan Chakkar and Anr. .
6. Before considering the contentions, it will be relevant to examine the legal position about the scope of the power of the Court under Sections 227 and 228 of the Code.
7. After the case is committed, Sections 226, 227 and 228 of the Code come into operation. The trial court is to pass an order under Section 227 or 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing" under section 227. And if on the other hand "the Judge is of opinion that there is ground for presumption that the accused has committed an offence triable by him, he shall frame hi writing a charge against the accused" as provided under Section 228. Before taking a decision under Section 227 or 228 the Court is required to consider the documents submitted by the Police and to hear the submissions advanced on behalf of the accused and the prosecution in that behalf.
8. The scope of Sections 227 and 228 has been considered by the Supreme Court in State of Bihar v. Ramesh Singh 1977 SCC (Cri.) 533, wherein it was laid down that :
"Reading the two provisions together (i.e. Sections 227 and 228) in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defense of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording the finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to find that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defense evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial....... If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227 of the Code."
9. It was thus held that the test is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.
10. The scope of this provision was again considered in Union of India v. Prafulla Kumar Samal where it was held that :
1. The Judge while considering the question of framing the charges Under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out;
2. Where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial;
3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application;
4. The Judge has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case. He would not make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial.
11. Both these cases have been again referred to in Stree Atyachar Viordhi Parishad v. Dilip nathumal Chordia 1989 SCC (Cri) 285 and following the principles laid down in the aforesaid cases, it has been reiterated as under :
"... The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate inquiry in sifting and weighing the materials. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be inquired into."
12. The same test has been applied in the case of Sudershan Chakkar (supra). In that case two of the accused who were Government servants were chargesheeted for offences under Sections 120-B, 467 and 409 R.P.C. and Section 5(2) of the Prevention of Corruption Act. They were discharged by the trial court. The order of discharge was upheld by the High Court. The trial court had referred to and relied on certain letters purportedly written by the accused to his higher authorities wherein he had complained against irregularities being committed by the co-accused, to show that the letters clearly demonstrated the bonafides of the two accused. The Supreme Court set aside the order of discharge observing as under :-
".... in a case instituted upon a Police Report the Court is required, at the time of framing of the charges, to confine its attention to documents referred to under Section 173 of the Code of Criminal Procedure only. In that context the Court was not justified in referring to, much less relying upon the letters purportedly written by the accused when their authenticity and veracity are yet to be gone into."
13. In Satish Mehra v. Delhi Admn. and Ors. , inter alia Ramesh Singh and Prafulla Kumar Samal (supra) have been referred to and in the facts of that case it was held that:
"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there, it gains a lot of time of the court and saves much human efforts and costs. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."
14. The test is not different. It only lays down that if the accused has any evidence which may clinch the issue without going into the trouble of trial, that should also be considered. Obviously for that purpose roving inquiry into the pros and cons of the matter and weighing the evidence as if conducting the trial is not permissible.
15. Section 91 of the Code so far as relevant 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)..........
(3) Nothing in this section shall be deemed -
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872, of the Bankers' Books Evidence Act, 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.
There is no dispute that at the instance of the accused documents or things can be got produced under this provision. However, learned counsel for CBI has contended that the conditions for exercising power under this provision are not fulfillled and this request was rightly rejected by the trial court.
16. It appears from the language of the Section that for invoking this power the following conditions should be fulfillled :-
(i) The thing or document required to be produced must be specified.
(ii) The court should be satisfied that it is necessary or desirable that such thing or document should be produced.
(iii) It should be relevant or having connection with the subject matter of the enquiry.
Although the language of this section is very wide, the discretion must be exercised judicially. The jurisdiction to order production of a thing or document comes into play after the court being satisfied decides that it is "necessary or desirable" that it should be produced as being relevant for the inquiry.
17. The documents sought to be produced by the petitioner as mentioned in his application are as under :-
1. File No. 3/5(3)/91-SIU-V/CB I/Parts I to V containing notings of the accused and other officers and progress reports etc. regarding investigations against PWs 20 and 21 and others.
2. (i) The seizure memo dated 3.5.91 prepared during the search of premises C-36, Saket, New Delhi in RC 5(S)/91-SIU-V CBI by Shri D.P. Singh Dy. S.P. alongwith the copies of the documents seized; (ii) Arrest memos of Mohd. Shahid & Rais Anwar dated 4.5.91 and of Nand Kishore dated 3.6.91; (iii) Counter Affidavit filed by Shri M.P. Singh Dy. S.P. in SLP (Crl. No. 1950/91 in the Supreme Court in this case, (iv) Statement Under Section 15 of the TADA of Shambhu Dayal Sharma recorded by the SP and (v) the charge- sheet filed on 23.3.92 in the designated TADA court in respect of the same case.
3. Govt. Notification regarding constitution of SIC-II unit consisting of 5 different branches and their jurisdictions.
4. Files Nos. 3/1/83-SIU-III/SIC-I Part I to V and 3/2/83-SIU-III/SIC-I- Part I to V along with (i) Canara Bank, Parliament Street, New Delhi No. 119:CR:KAK:6115:83 dated 8.12.83 and (ii) Canara Bank Wazirpur Delhi No. 70/CR/148/78 dated 19.3.78 taken in custody by CBI during the investigations regarding PW-1.
5. File No. PE/2/1/92/ACU-I/AC-I/CBI-Part I to Part-V relating to the PE registered to find out the source of leakage of a secret note of CBI file which was enclosed by PW-1 along with his representation for withdrawal of these cases of cheating pending against him in Courts.
6. File containing orders of Director, CBI for the registration of RC 6(A)/91-SIU-IX (instant case) after verification of D-2.
7. (i) Look-out notice issued for the apprehension of PW-21 (Shri S.K.Jain) in September 1993 while conducting supplementary investigation in RC 5(S)/91-SIU/V regarding seizure of Rs. 58 lakhs of rupees, Indra Vikas Patra worth Rs. 10 lakhs, foreign currency and documents showing payments of bribes amounting to 65 crores of rupees to nearly 100 public servants from the residence of PW-20 (Shri Jainender Jain) on 03.05.91.
(ii) FIR No.RC l(A)/95-ACU-VI dated 04.03.95 against PW-20, PW-21 and others Under Section 7 and 12 of the PC Act and Sections 8 and 56 of FERA on the allegation of transferring money (more than 50 crores) from abroad through illegal hawala transactions and bribing nearly 100 public servants to the tune of nearly Rs. 65 crores arising out of searches made on 03.05.91 at the residence of PW-20 during the investigation of RC 5(S)/91-SIU-V.
(iii) Eleven charge sheets (2 on 28.11.95, 6 on 16.01.96 and 3 on 23.01.96) filed in RC 1(A)/95-ACU-VI in the Court of Shri V.B. Gupta Spl. Judge in which PW-20 and PW-21 are named as accused along with nearly 23 highly placed public servants.
(iv)(a) Writ petitions (Criminal) nos. 340-43 of 1993 in the matter of Vineet Narain and Ors. v. Union of India and Ors. along with the enclosures filed in the Supreme Court concerning the investigation of RC 5(S)/91-SIU- V.
(b) Rejoinder (dt. 15.02:94), affidavit (dt. 08.04.95) and another affidavit (dt. 09.01.96) alongwith the enclosures filed by the petitioners in the above W.P.S in the Supreme Court.
(c) Counter-affidavits filed by SP, ACU-VI, CBI filed on 14.01.94 and 03.04.95 in the Supreme Court in the said writ petitions.
(d) Orders of the Supreme Court dt. 15.12.93, 14.01.94, 20.10.94, 23,11.94, 29.11.94, 30.11.94, 05.12.94, 16.01.95, 06.03.95, 27.03.95, 10.04.95 & 30.01.96 in the said writ petitions.
8.(i) Receipt and Despatch entries dated 14.06.91 in the Personal Section of DCBI maintained in North Block Office and CGO Complex Office. (ii)Receipt and Despatch entries dated 14.06.91 in the Personal Section of the then Addl. Director, Shri S.K.Seth.
(iii) Receipt and Despatch register dated 14.06.91 in the Personal Section of the then JD Shri P.J.Nampoothiri.
(iv) Receipt and Despatch register dated 14.06.91 to 16.06.91 in the Personal Section of the then DIG Shri Anand Kumar.
9.(i)(a) the General Diary entries dated 16.06.91 and 17.06.91 (b) official cars log books entries dated 14.06.91 to 17.06.91 and (c) Receipt and Despatch entries dated 16.06.91 and 17.06.91 maintained in the office.
(ii)(a) the General Diary entries dated 16.06.91 and 17.06.91 (b) official cars log books entries dated 16.06.91 and 17.06.91 of the DIG Delhi and the ACB Delhi Branch.
(iii)(a) General Diary entries dated 16.06.91 and 17.06.91 and (b) official cars log books entries dated 16.06.91 and 17.06.91 maintained in the unit.
18. The relevancy of these documents parawise as mentioned in the Petitioner's application is as under .:-
1. There are references of the investigation of this case in the present charge-sheet and as well as in the statements Under Section 161 Cr.P.C. of PWs 17, 20, 21, 29 and Shri D.P. Singh Dy. S.P. and also in D-23 and D-29. The alleged demand of illegal gratification was made in the investigation of this case which was under supervision of the accused. The above file will show that the accused, had not shown any favour to PWs 20 and 21 or any other whatsoever as has been alleged by the prosecution in this case.
2.These documents would reveal malafides on the part of the CBI when they concealed the facts of recovery of incriminating evidence, arrest of the accused persons and recording of the statement Under Section 15 of TADA (P) from the concerned Court as well as from the Hon'ble Supreme Court in order to save PWs 20 and 21 from criminal prosecution and filed the said charge-sheet without even examining them on the identities of the coded names in the seized documents who have been shown to have been paid to the tune of Rs. 65 crores as illegal gratification. CBI could succeed in their illegal design only after getting the accused trapped in the present case.
3. There is a reference in the Govt. sanction for prosecution as well as in the charge sheet. This document would be relevant to show the validity or invalidity of the sanction in the present case.
4. There is a reference about these cases in the statement of PW-1. The documents would also reveal that PW-1 had been found to be impersonating as an IAS officer and also indulging in cheating the banks, public undertakings and others by the CBI and also to reveal his animus towards the accused in falsely implicating him in the instant case.
5. During the said enquiry, the CBI malafidely saved PW-1 from criminal prosecution under the Official Secrets Act. Moreover the statement of PW-1 making false allegations against the accused in the said enquiry were not believed by the CBI. The document would reveal the extent to which the PW-1 was inimical towards the accused.
6. In the statements Under Section 161 Cr.P.C. of PW-15 and PW-16, there is a reference of orders of registration being passed after verification of D-2. The document would reveal the malafides during verification of the complaint and in the registration of the case.
7. The documents are required to reveal malafides on the part of CBI for saving PW-20 arid PW-21 from criminal prosecution from 1991 to 1996. Legal action against them was initiated only on the intervention of the Hon'ble Supreme Court and they have been charge-sheeted in the abovementioned charge-sheets. The said W.P.s were filed requesting the Apex Court to direct the CBI to perform their legal duties in accordance with law of the land which they were not performing. Moreover, the conduct and role of the accused as well as CBI has also been commented upon in the documents in the said W.P.s concerning investigation of RC 5 (S)/91-SIU-V in which the accused had allegedly demanded illegal gratification.
8. There is a mention of D-2 being sent by dak in the statement Under Section 161 Cr.P.C. of PW-1. The documents would reveal the truth or otherwise of the receipt of D-2 and its downward journey.
9. There are references of the requisition of staff and their movements out of these units during the verification of D-2 and subsequent registration and taking up investigation of D-l in the instant case in the statements Under Section 161 Cr.P.C. of PWs-4, 14, 15 and 16. The said documents would reveal the truth or otherwise of the various statements.
19. The learned trial court has given the following parawise reasons :
1. The documents mentioned in para 1 of the application are intended to show that the accused had not shown any favour to PW 20 and PW 21 or any other person whatsoever. The allegation against the accused is that he was working as D.I.G., incharge of Special Investigation Cell-II in the C.B.I. and the investigation of the case against P.W. 20 and P.W. 21 was being conducted under his supervision. The files of this case may be relevant for the purposes of defense, but at this stage of charge, it is not relevant for the prosecution to establish that the accused was capable of showing favour while committing the alleged offence. Nor it is relevant if the accused shows that he was incapable of doing so.
The accused being a public servant is alleged to have accepted and obtained illegal gratification and can thus be charged for the offences under sections 7 and 13 of the Prevention of Corruption Act.
2-9. Documents mentioned in paragraphs 2, 5 and 7 of the application relate to a period after the incident giving rise to this case and, therefore, summoning of these documents is not material for the purposes of consideration of charge.
20. Document mentioned in paragraph 3 has already been filed in the court.
21. Documents mentioned in paragraphs 4 and 5 of the application are to discredit the testimony of P.W.1 which would be relevant when P.W.1 comes into the witness-box.
22. The documents mentioned in paragraphs 6, 8 and 9 relate to the verification of the complaint and receipt of the complaint in the C.B.I. These documents do not relate to any substantive evidence.
23. In conclusion the learned trial court held as under :-
"In fact, none of the documents sought to be summoned by the accused are of a nature which would show that the case of the prosecution is improbable and unworthy of trial. I find that the summoning of these documents at this stage is merely with a view to delay the proceedings. The application is, therefore, dismissed. The accused may summon the documents at the relevant time."
24. In Satish Mehra's case (supra) it has been noticed that the evidence relied by the accused should be of the nature which would clinch the issue, which is not the position in the present case. The documents mentioned in the application, if at all, may be relevant for appreciating the evidence that may be led by the prosecution during trial arid are not relevant at this stage as rightly held by the trial court. As held in Ramesh Singh's (supra) case at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defense of the accused.
25. And at this stage the trial court is not required to undertake any elaborate inquiry in sifting and weighing the material. Nor it is necessary to delve deep in to the various aspects. It is in the trial that the guilt or the innocence of the accused after weighing the evidence will be determined and not at the time of framing of the charge. As laid down in Stree Atyachar Virodhi Prasad v. Dilip Nathumal Chordia 1989 SCC (Cri.) 285 all that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be inquired into.
26. The trial court obviously was not satisfied and has not found it necessary or desirable to exercise jurisdiction under Section 91 of the Code and for valid and cogent reasons. As held in the Assistant Collector of Customs, Bombay and Anr. v. L.R. Melwani and Anr. this section (old Section 94) does not empower a
magistrate to direct the prosecution to give copies of any documents to an accused person. Whether a particular document should be summoned or not is essentially in the discretion of the trial court. The High Court would not be justified in interfering with the discretion of the learned Magistrate except for very good reasons. In the facts and circumstances it cannot be said that the learned trial court has exercised discretion in disallowing the application for production of the documents unjustly or unreasonably or improperly.
27. In these circumstances, I do not find any illegality or infirmity in the impugned order of the learned trial court which may justify interference by this court.
28. This revision petition has no merit and the same is accordingly hereby dismissed.
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